[Senate Hearing 112-489]
[From the U.S. Government Publishing Office]
S. Hrg. 112-489
S. 1763, S. 872, AND S. 1192
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
ON
S. 1763, STAND AGAINST VIOLENCE AND EMPOWER NATIVE WOMEN ACT
S. 872, A BILL TO AMEND THE OMNIBUS INDIAN ADVANCEMENT ACT TO MODIFY
THE DATE AS OF WHICH CERTAIN TRIBAL LAND OF THE LYTTON RANCHERIA OF
CALIFORNIA IS CONSIDERED TO BE HELD IN TRUST AND TO PROVIDE FOR THE
CONDUCT OF CERTAIN ACTIVITIES ON THE LAND
S. 1192, ALASKA SAFE FAMILIES AND VILLAGES ACT OF 2011
__________
NOVEMBER 10, 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
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Page
Hearing held on November 10, 2011................................ 1
Statement of Senator Akaka....................................... 1
Statement of Senator Franken..................................... 18
Statement of Senator Murkowski................................... 7
Witnesses
Andersen, Ralph, President/CEO, Bristol Bay Native Association;
Co-Chair, Alaska Federation of Natives......................... 47
Prepared statement with attachment........................... 50
Begich, Hon. Mark, U.S. Senator from Alaska...................... 5
Feinstein, Hon. Dianne, U.S. Senator from California............. 1
Koepplinger, Suzanne, Executive Director, Minnesota Indian
Women's Resource Center........................................ 19
Prepared statement........................................... 21
Heffelfinger, Thomas B., Attorney, Best & Flanagan LLP........... 22
Prepared statement........................................... 24
Masters, Joe, Commissioner, Alaska Department of Public Safety... 54
Prepared statement with attachment........................... 57
Mejia, Hon. Margie, Chairwoman, Lytton Rancheria................. 27
Prepared statement with attachments.......................... 30
Morris, Hon. Paul, Mayor, City of San Pablo, California.......... 42
Prepared statement........................................... 44
Perrelli, Thomas J., Associate Attorney General, U.S. Department
of Justice..................................................... 8
Prepared statement........................................... 10
Appendix
Bedard, Irene, Actress/Singer, Alaska, prepared statement........ 119
Finley, Hon. Michael, Chairman, Confederated Tribes of the
Colville Reservation, prepared statement....................... 108
Giessel, Hon. Cathy, Senator, Alaska State Legislature, letter... 121
Indritz, Tova, Chair, NACDL Native American Justice Committee,
prepared statement............................................. 110
Maulson, Hon. Tom, Tribal President, Lac du Flambeau Tribe,
prepared statement............................................. 110
McLaughlin, Gayle, Mayor, City of Richmond, letter............... 120
Miller, Hon. George, U.S. Representative from California,
prepared statement............................................. 77
Morris, Jan W., Member, Choctaw Nation of Oklahoma, prepared
statement...................................................... 118
Reid, Larry E., President of the City Council, City of Oakland,
letter......................................................... 122
Tanana Chiefs Conference (TCC), prepared statement............... 115
Titus, Alan J., Lawyer, Robb & Ross, prepared statement.......... 78
United States Department of the Interior, prepared statement..... 107
Walker, Jana L., Senior Attorney, Indian Law Resource Center,
prepared statement............................................. 112
Wiggins, Jr., Hon. Mike, Tribal Chairman, Bad River Band of Lake
Superior Tribe of Chippewa Indians, prepared statement......... 112
Additional information for the record
Article, entitled, San Pablo/Indians, Feinstein Strike Deal
That Keeps Casino From Growing............................. 123
Resolution No. 2005/181...................................... 125
S. 1763, S. 872, AND S. 1192
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THURSDAY, NOVEMBER 10, 2011
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 3:00 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 Committee will come to order.
Aloha, everyone. Today, the Committee will hold a
legislative hearing on three bills. Two of these bills are
designed to improve public safety in Native communities and
improve the security of Native women and families.
I am so glad that Senator Feinstein is here, and following
her, I will complete my opening remarks. Welcome Senator
Feinstein to the Committee.
Senator Feinstein. Thank you very much, Mr. Chairman.
Would you like me to proceed?
The Chairman. Please proceed. Yes.
STATEMENT OF HON. DIANNE FEINSTEIN,
U.S. SENATOR FROM CALIFORNIA
Senator Feinstein. Mr. Chairman, this has to do with a bill
that I have submitted that has been passed out of this
Committee on prior occasions, and one has passed the Senate.
And it goes back a substantial period of time. It has to do
with a requirement that the Lytton Tribe of San Pablo follow
all existing laws and regulations if it seeks to expand its
casino.
Now, why is this bill necessary? The Tribe is currently
exempt from critical oversight laws, particularly IGRA. The
history of how this happened is important. The Tribe
historically resided in Sonoma.
Until mid-century, the Lytton Rancheria in Alexander Valley
was their homeland. The Tribe was wrongfully terminated in 1961
and it took until 1991 for a court to restore the Tribe to its
rightful Federal status, but the decision didn't grant the
Tribe any land and it forbade them from engaging in activities
prohibited under the Sonoma County general use plan.
Effectively, the court prohibited the Tribe from gaming in
Sonoma County, which is a Bay Area county, but nonetheless not
in the middle of an urban area.
Nearly a decade later in 2000, Congress passed the Omnibus
Indian Advancement Act. A provision was air-dropped in the
conference bill without consideration by the House or the
Senate which allowed the Lytton Band to acquire trust land in
San Pablo where they purchased an existing 70,000 square-foot
card room. By all accounts, the Tribe deserved to be recognized
and to have land taken into trust, but the manner in which the
land was granted to the Tribe was both controversial and
unprecedented.
The bill allowed the land to be taken into trust as if it
were acquired before 1988, when in fact it had been acquired
after 1988. IGRA prohibits Tribes from gaming on newly acquired
land, except in very limited instances: (1) newly recognized
Tribes; (2) Tribes who received land as a settlement for a land
claim; (3) re-recognized or restored Tribes; (4) Tribes who
have undertaken a two-part determination.
By treating the land as if it were taken into trust before
1988, the Tribe was able to avoid a two-part determination
process. This statutory process, which requires the consent of
both the Secretary of Interior and the Governor, would normally
be required for this Tribe if Lytton expanded to a Las Vegas-
style Class III gaming facility in San Pablo.
Now, Mr. Chairman, four years later, a 600,000 square-foot,
5,000 slot machine Class III Las Vegas-style gaming facility
was what the Tribe proposed. Now, a casino of this size does
not belong in San Pablo. When voters in California passed
proposition 1(a), the law which authorized Indian casinos, they
voted to allow gaming facilities on Indian lands. The proposal
was sold to voters as authorizing casinos on ``remote
reservations.'' And the ballot arguments reflect that as well.
So later in 2004, I introduced legislation which would have
stripped the provision that treats the land as if it were
acquired before 1988. This would have prohibited the Tribe from
conducting any gaming on their land unless they abided by the
same law that the other 58 gaming Tribes in California do. The
Committee considered the legislation in the 108th and 109th
Congress. In the 109th, the Committee favorably reported the
bill to the full Senate with a recommendation that the bill do
pass.
Soon after, I met with the Tribe to see if we could come to
some agreement. I spoke with Chairwoman Margie Mejia, who I
believe is here today, and Tribal leadership. I was and I
remain sympathetic to their concerns--poverty, healthcare,
unemployment. In 2007, we reached a compromise. The Lytton
Tribe would continue to operate their Class II gaming facility
at Casino San Pablo, but if they wanted to expand to Class III
gaming, they would abide by the two-part determination.
We put this compromise in legislation and it had the
Tribe's support. That is the legislation being considered here
today. The Lytton casino would be subject to the same rules and
regulations as every other Tribe in the State, but these would
apply only if the Tribe chose to expand. So if the Tribe chose
not to expand to Class III, the additional rules and
regulations did not apply. So they were secure at least in
Class II.
The bill did not impact the Tribe's Federal recognition nor
did it impact the trust status of their land. At the time, the
Chairwoman was quoted by the San Francisco Chronicle as saying
legislation would allow the Tribe to ``operate the casino for
the long term without the threat of closure.'' It was viewed as
a win-win proposal.
That is why the Lytton Gaming Oversight Act was favorably
reported by this Committee in the 110th Congress, and why it
passed the Senate by unanimous consent that year and the next.
But now, the Tribe does not want to continue to uphold our
agreement.
I met with the Tribe's lawyer yesterday and he told me that
the situation had changed; that other Indian Tribes, Guidiville
and Scotts Valley, may open casinos in Contra Costa County. And
that the Lyttons needed the ability to expand to compete if
these other casinos are approved. So, you know, one, two,
three, four, five casinos, this is how it goes.
Well, the Guidiville proposal has already been rejected by
the Department of the Interior, and the Scotts Valley proposal
has been languishing at the department for years. But I am
willing to work with the Tribe again. I understand that
Chairwoman Mejia will testify today that they still have no
plans to expand Casino San Pablo. I read her statement and I am
grateful to hear that.
If we can find a way to achieve the goal of the Lytton
Gaming Oversight Act without legislation, I am all for it.
Because the bottom line is this: a Las Vegas-style casino does
not belong in San Pablo. This is a small enclave of 29,000
people surrounded virtually on all sides by the City of
Richmond. Richmond voters opposed by the ballot a new casino
proposal last November; 58 percent of the electorate voted
against the proposed casino at Point Molate, which is only
seven miles from Casino San Pablo. I have a November 9th letter
from the Mayor of Richmond, and I would like to put it in the
record and read two paragraphs.
``The negative effects of casino gambling remain a real
threat looming over the Bay Area. As the community is buffeted
by crime, drugs, and abuse due to the casino and the dismal
economy, this bill is critical to help stem the tide.''
``Many citizens remain concerned that gambling at the site
will be expanded and that the negative effects, including
traffic, drunk driving, and crime, will proliferate.''
And then she goes into proposition 1(a), and since I have
done that, I will not bore you with it.
We have another problem. We have 59 Indian gaming permits
in California. And inspection in California is conducted by
only 157 gambling control staff. By comparison, there are 433
staff at the Nevada Gaming Control Board. The California budget
is less than 25 percent of the Nevada budget for this.
So what is happening is that California is becoming bigger
in Class III gaming than even Las Vegas. This is a problem if
we can't provide the oversight staff. We know the skimming. We
know what has been typically surrounding casinos in the history
of Las Vegas. Candidly, it doesn't really belong in the
metropolitan of the San Francisco Bay Area.
Some San Pablo residents are so concerned they filed suit
against the Department of the Interior. The Board of
Supervisors of Contra Costa County passed a resolution four
years ago saying they do not want Las Vegas-style gaming in the
county.
Now, this bill is a product of compromise, an agreement
that I reached with Chairwoman Mejia. I think it protects the
rights of the Tribe and it ensures the law is followed. What I
say to you in conclusion, Mr. Chairman, I am really eager to
continue to work with this Tribe. I think they are deserving. I
think they got an unfair shot on their Native lands, but there
is a problem.
We have a lot of mall space in this economy in cities that
are not inhabited; that Tribes can do what this Tribe did. They
bought an existing card room and the concern is that they
expand it to Class III gaming in the heart of an urban area,
right next to freeways to bring people in.
I see, Mr. Chairman, the buses pull up to housing projects
in San Francisco, particularly on the nights that Social
Security checks come out. The busses are loaded up with people
and take them to games where most lose money. We have 59
Casinos already. What I am saying to you is, in my judgment,
for the well being of my State, this is a problem.
Now, there are a number of Indian gaming compacts that have
been done. I have tried to get the records of those Indian
gaming compacts that were negotiated by our Governor, and I
believe those compacts should be public. We should know what
money is promised and to whom it is promised.
I cannot get those records. We are asking, under a Freedom
of Information Act, to obtain those records. And there is so
much money that is being passed on, and I understand cities
have needs. The California budget is getting cut back.
Everybody has wants that aren't filled. But 59 gaming permits
in this State really is a substantial number.
So my view is if we can keep this to Class II and enable
the Tribe to flourish with Class II, I am all for it. And I
don't know whether there will be competition or not, but I will
work with this Tribe.
And I thank you for your patience. Thank you.
The Chairman. Thank you very much for your testimony. And
thank you. I know you have a busy schedule.
Senator Feinstein. Thank you. I appreciate the courtesy.
Thank you very much.
The Chairman. Thank you so much for being here.
I will continue to finish my statement, if it is okay by
Senator Begich here on our first panel.
The Committee held an oversight hearing on the issues
impacting Native women in July and another on implementation of
the Tribal Law and Order Act in September. At both of these
hearings, we heard that domestic violence and sexual assault
against Native women is still an epidemic, and much work
remains to be done to effectively address the issue.
In response, I introduced S. 1763, the Stand Against
Violence and Empower Native Women Act or SAVE Native Women Act.
In addition, Senator Begich introduced S. 1192, the Alaska Safe
Families and Villages Act in June. This bill would establish a
new demonstration project through the Department of Justice
aimed at improving local public safety in Alaska Native
villages. We are pleased to have Senator Begich here to provide
testimony about the bill.
The other bill we will consider today is the Lytton gaming
oversight bill, which was introduced by Senator Feinstein, who
has discussed her proposal in her testimony. This bill would
amend the Tribe's Restoration Act to ensure that any expansion
of gaming or the physical structure of their gaming facility
would be governed by the exemptions in the Indian Gaming
Regulatory Act.
So I look forward to hearing from my Senate colleague
Senator Begich on his bill and from Tribal representatives and
other stakeholders. I encourage any other interested parties to
submit written comments to the Committee. The hearing record
will remain open for two weeks from today.
So again, I want to welcome Senator Begich to the Committee
and say thank you so much for being here to provide us
testimony. Will you please proceed?
STATEMENT OF HON. MARK BEGICH,
U.S. SENATOR FROM ALASKA
Senator Begich. Thank you very much, Mr. Chairman. And
thank you, too. I know the folks in the room here are being
patient while we have multiple votes to deal with, but thank
you very much for the opportunity here to present the Alaska
Safe Families and Villages Act to the Committee.
The bill, which is broadly supported by the Alaska Native
community in my State, provides some of America's remote
communities more tools to deal with their enormous challenges.
These challenges include some of the highest rates of alcohol
abuse, domestic violence, and suicide in the Nation. Life is
truly tough in many of these villages that can be reached only
by river boat, in some cases and airplane or snow machines.
Alaska Native culture is a rich one based on the common
values of sharing, reverence for the land, and mutual respect
for all peoples. But this culture in Alaska's most remote
villages faces enormous pressure for sustainability and good
health. That is what this bill is about.
I hear from Alaska's Tribal leaders every day about the
need for more resources to address suicide, substance abuse,
and domestic violence. So, I work with Tribal leaders for a
solution that gives them more resources that are culturally
relevant and address the public safety concerns in remote
villages.
I have worked with Ralph Andersen, the CEO and President of
the Bristol Bay Native Association and Co-Chair of the Alaska
Federation of Natives, which you will hear from later in the
hearing.
This bill will give communities the tools they have been
asking for to bring stability and justice to their homes and
villages. The stark statistics show Alaska is desperately in
need of creative solutions; 95 percent of all crimes in rural
Alaska can be attributed to alcohol; suicide rates in Alaska
villages are six times the national average; alcohol-related
mortality is 3.5 times higher than the general population; and
more than three out of every four American Indian-Alaska Native
women will be physically assaulted in her lifetime.
The sad reality is that many Alaska Native village
perpetrators of domestic violence, sexual abuse, and the
bootleggers are not always held accountable for their actions,
so the cycle of abuse and violence continues. Many of our
remote villages lack adequate law enforcement. The nearest
State trooper often is a long airplane ride away. If the
weather is bad, I will tell you, as we have watched the news
recently in western Alaska, it is really bad at this point. It
can take days for the law to show up.
Today, some 80 villages have a single unarmed Village
Public Safety Officer, which we call VPSOs, on duty all-day-
every day. The VPSOs, as they are called, do a great job, but
they need backup.
Later, you will hear from the Alaska Commissioner of Public
Safety. I understand the State of Alaska does not support the
bill, but I know they recognize the unique challenges in the
rural communities.
I believe my bill doesn't preempt the State. It enhances
it. Our State troopers do an excellent job, but they are spread
too thin. My bill allows Tribes to create solutions that work
for their communities. I strongly believe in community
involvement and the solutions to support local control and
innovation. This is consistent with the self-determination
goals of Tribes, which the Obama Administration, and this
Committee has advocated for. It recognizes the unique
relationship between the U.S. Government and Tribes.
My bill will give Alaska Tribes the tools to stop domestic
violence, alcohol and drug abuse, and suicides in their own
communities. It is important to note that this bill will
establish a demonstration project. If it is successful, we can
talk later about expanding it.
Although the State of Alaska would maintain the primary
role and responsibility in criminal matters, the demonstration
project would allow participating Tribes to set up Tribal
courts, establish Tribal ordinances, and allow them to impose
sanctions such as community service on violators. Participants
in the demonstration projects also would be eligible for
village peace officer grants. This would help those communities
without VPSOs who need them.
Dealing with the realities of crime in rural Alaska Native
villages requires comprehensive and innovative solutions. This
includes the ability to act as the resources and tools they
need to promote the well being of these communities. It is time
for real solutions. And I know the Alaska Safe Families and
Village Act of 2011 can be part of that solution.
Chairman Akaka, I would like to briefly also address S.
1763, the Stand Against Violence and Empower Native Women Act.
I am a cosponsor of this bill and will support improved Native
programs under the Violence Against Women Act. Such a law would
empower villages to step off the sidelines waiting for the
troopers and to take action necessary to save one of their own.
Even if Alaska has no Indian Country per se, being
authorized to take action will have the twin effect of both
intervention and the role modeling that such violence will not
be tolerated.
Again, I thank you for allowing me to present this
important piece of legislation and for the people of Alaska
before the Committee on Indian Affairs.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Begich. I know
you have a busy schedule, but if your schedule allows you, I
would invite you to join us on the dais for the remainder of
the testimonies.
Senator Begich. Thank you very much, Senator. If I can
spend some time with you, I will be happy to join you.
The Chairman. Thank you.
And I am so glad to have Senator Murkowski be here. And I
would like to ask her for any opening statement you may have.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Well, Mr. Chairman, I thank you for
having this hearing this afternoon. I want to acknowledge my
colleague, Senator Begich, and thank him for his good work on
these issues. We are privileged this afternoon to have two
Alaska witnesses before the Committee here: our Commissioner
Joe Masters, who will be speaking on the second panel, I
believe; and Mr. Ralph Andersen, who is a friend and truly a
great individual that has been representing Alaska Federation
of Natives for some time and has just recently been reelected
as Co-Chair of the Alaska Federation of Natives. We really
appreciate his leadership within the State on this issue and so
many.
As Senator Begich has noted in his testimony, and I
apologize, Mark, that I wasn't here for your whole testimony,
coming over from the vote, I got waylaid. I know you can
understand that.
But our statistics in Alaska as they related to domestic
violence, to rape, physical abuse, murder, and these are
statistics that I think, as an Alaskan, we all find chilling.
And they are statistics that we deal with, but we know that
they are not just statistics. These are our friends. They are
our neighbors. They are family members.
And our inability to deal with some of the issues that face
us is really very, very difficult to acknowledge. We are a
State that is blessed in so many different ways, and yet
sometimes the ugly side of what happens in our State are facts
that are very difficult to reckon with. And I think when we
realize these rates of violence and abuse that we see that are
perpetrated against Native women and children, it is well past
time that we make it a national priority.
There was an article in our local newspaper, the Anchorage
Daily News, just on the 5th of November, just the day before
yesterday. This was from the Director of the University of
Alaska Justice Center and the principal investigator for the
Alaska Victimization Survey. And she goes on to detail what we
face in Alaska and our statistics.
In 2011, regional surveys were conducted in Anchorage,
Fairbanks, Juneau, and Bristol Bay. And in her words, she says
these results show that violence is an endemic problem
throughout our State. It is essentially one of every two women
have experienced intimate partner violence or sexual violence
or both. To think that the statistics are as they are again
compels us all to act.
As Senator Begich mentioned, the legislation that he has
introduced has raised some concerns from the State. I think we
will hear that addressed today. But I think all of us, as we
deal with the aspects of violence that we face and the
frustration that so many have that we are limited in our
ability to deal with that because we don't have the law
enforcement, the protection that others in other parts of the
Country would just assume is there, we know we have got to deal
with these issues.
And so I would like to work with Senator Begich. We have
discussed this with folks in the State how we can be just a
little bit more creative. Our geography, the dynamics that we
face, forces us to maybe think outside of the box. And I am
going to urge us all to do that and more because we cannot
leave our villages behind. We cannot leave our communities in
fear. We cannot leave our families carrying the burden of the
scourge of devastation and ruin that have come to them because
of incidents that have been unchecked that we could have
resolved.
So I thank you, Mr. Chairman, for bringing not only Senator
Begich's bill forward, but the legislation that we have in
front of us on the Standing Against Violence and Empower Native
Woman Act, and I applaud you for your initiative there.
Thank you.
The Chairman. Thank you, Senator Murkowski.
At this time, I would like to call Mr. Tom Perrelli to be
our second panel witness; Mr. Tom Perrelli, Associate Attorney
General at the U.S. Department of Justice.
Welcome, Mr. Perrelli. Please proceed with your testimony.
STATEMENT OF THOMAS J. PERRELLI, ASSOCIATE ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE
Mr. Perrelli. Thank you, Mr. Chairman, Vice Chairman
Barrasso, and Members of the Committee. Thank you for inviting
me today on S. 1763, the Stand Against Violence and Empower
Native Women Act, also known as the SAVE Act.
The SAVE Act addresses a critically important issue on
which the Department of Justice has placed a high priority
combating violence against women in Tribal communities. As you
know, I testified before this Committee in July when I
described the department's discussions, including formal
consultations with Indian nations about how best to protect
Native women from the unacceptable levels of violence we are
witnesses in Indian Country and Alaska Native communities
throughout the Country.
We are pleased today to see the introduction of the SAVE
Act, and we commend you, Chairman Akaka, as well as the many
colleagues who have joined you in cosponsoring this
legislation.
As I think all of the Senators have indicated, violence
against Native women has reached epidemic rates. Tribal
leaders, police officers, and prosecutors tell us of an all-
too-familiar pattern of escalating violence that goes
unaddressed, with beating after beating, each more severe than
the last, ultimately leading to death or severe physical
injury.
Something must be done to stop the cycle of violence. And
for a host of reasons, the current legal structure for
prosecuting domestic violence in Indian Country is inadequate
to prevent or stop this pattern of escalating violence. Federal
law enforcement resources at too far away and stretched thin,
and Federal law doesn't provide the tools and the types of
graduated sanctions that are common in State laws across the
Country.
Tribal governments, police, prosecutors, and courts should
be in a central part of the response to these crimes, but under
current law throughout the Country they lack the authority to
be part of that response. Until recently, no matter how violent
the offense, Tribal courts could only sentence Indian offenders
to one year in prison.
Under the Tribal Law and Order Act, the landmark
legislation enacted last year, in no small part due to the
efforts of this Committee, Tribal courts can now sentence
Indian offenders for up to three years per offense, provided
defendants are given proper procedural protection, including
legal counsel.
But Tribal courts have no authority at all to prosecute a
non-Indian, even if he lives on the reservation and is married
to a Tribal member. Tribal police officers who respond to
domestic violence calls only to discover that the accused is
non-Indian and therefore outside the Tribe's criminal
jurisdiction often mistakenly believe they cannot even make an
arrest. Not surprisingly, abusers who are not arrested are more
likely to repeat and escalate their attacks. Research shows
that law enforcement's failure to arrest and prosecute abusers
both emboldens attackers and deters victims from reporting
future incidents.
In short, the current jurisdictional framework has left
many serious acts of domestic and dating violence unprosecuted
and unpunished.
The SAVE Act addresses three key areas where legislative
reform is critical. Title II in particular incorporates the
Department of Justice's proposal and addresses the concerns of
Tribal leaders and experts repeatedly expressed to us, and
fills three major legal gaps involving Tribal criminal
jurisdiction, Tribal civil jurisdiction, and Federal criminal
offenses.
First, the SAVE Act recognizes certain Tribes' power to
exercise concurrent criminal jurisdiction over domestic
violence cases regardless of whether the defendant is Indian or
non-Indian. Fundamentally, this legislation builds on what this
Committee did in the Tribal Law and Order Act. The philosophy
behind the TLOA was that Tribal nations with sufficient
resources and authority will best be able to address violence
in their own communities, and has offered additional authority
to Tribal courts and prosecutors if certain procedural
protections were established.
Second, the SAVE Act confirms the intent of Congress in the
Violence Against Women Act of 2000 by clarifying that Tribal
courts have full civil jurisdiction to issue and enforce
protection orders involving any person Indian or non-Indian.
And third, Federal prosecutors today lack the necessary
tools to combat domestic violence in Tribal communities. The
SAVE Act provides a one-year offense for assaulting a person by
striking, beating or wounding; a five-year offense for
assaulting a spouse, intimate partner or dating partner,
resulting in substantial bodily injury; and a ten-year offense
for assaulting a spouse, intimate partner or dating partner by
strangling or suffocating.
Together, by filling these three holes, the Act will take
many steps forward in our ability to combat violence in Alaska
Native and American Indian communities and we really applaud
the Committee for moving forward.
With that, Mr. Chairman, I would be happy to answer any
questions the Committee may have.
[The prepared statement of Mr. Perrelli follows:]
Prepared Statement of Thomas J. Perrelli, Associate Attorney General,
U.S. Department of Justice
Chairman Akaka, Vice Chairman Barrasso, and members of the
Committee:
Thank you for inviting me to testify today on Senate Bill 1763, the
Stand Against Violence and Empower Native Women Act, also known as the
SAVE Act. The SAVE Act addresses a critically important issue on which
the Department of Justice has placed a high priority: combating
violence against women in Tribal communities. As you know, I testified
on that issue before this Committee in July, when I described the
Department's comprehensive discussions, including formal consultations
with Indian Tribes, about how best to protect Native women from the
unacceptable levels of violence we are witnessing in Indian country. We
are very pleased today to see the introduction of the SAVE Act, and we
commend you, Chairman Akaka, as well as your many colleagues who have
joined you in cosponsoring this historic legislation.
The Epidemic of Violence Against Native Women
The problems addressed by the SAVE Act are severe. Violence against
Native women has reached epidemic rates. One regional survey conducted
by University of Oklahoma researchers showed that nearly three out of
five Native American women had been assaulted by their spouses or
intimate partners. According to a nationwide survey funded by the
National Institute of Justice (NIJ), one third of all American Indian
women will be raped during their lifetimes. And an NIJ-funded analysis
of death certificates found that, on some reservations, Native women
are murdered at a rate more than ten times the national average. Tribal
leaders, police officers, and prosecutors tell us of an all-too-
familiar pattern of escalating violence that goes unaddressed, with
beating after beating, each more severe than the last, ultimately
leading to death or severe physical injury.
Something must be done to address this cycle of violence. For a
host of reasons, the current legal structure for prosecuting domestic
violence in Indian country is inadequate to prevent or stop this
pattern of escalating violence. Federal law-enforcement resources are
often far away and stretched thin. And Federal law does not provide the
tools needed to address the types of domestic or dating violence that
elsewhere in the United States might lead to convictions and sentences
ranging from approximately six months to five years--precisely the
sorts of prosecutions that can respond to the early instances of
escalating violence against spouses or intimate partners and stop it.
Tribal governments--police, prosecutors, and courts--should be
essential parts of the response to these crimes. But under current law,
they lack the authority to address many of these crimes. Until
recently, no matter how violent the offense, Tribal courts could only
sentence Indian offenders to one year in prison. Under the Tribal Law
and Order Act of 2010 (TLOA), landmark legislation enacted last year in
no small part due to the efforts of this Committee, Tribal courts can
now sentence Indian offenders for up to three years per offense,
provided defendants are given certain procedural protections, including
legal counsel. But Tribal courts have no authority at all to prosecute
a non-Indian, even if he lives on the reservation and is married to a
Tribal member. Tribal police officers who respond to a domestic-
violence call, only to discover that the accused is non-Indian and
therefore outside the Tribe's criminal jurisdiction, often mistakenly
believe they cannot even make an arrest. Not surprisingly, abusers who
are not arrested are more likely to repeat, and escalate, their
attacks. Research shows that law enforcement's failure to arrest and
prosecute abusers both emboldens attackers and deters victims from
reporting future incidents.
In short, the jurisdictional framework has left many serious acts
of domestic violence and dating violence unprosecuted and unpunished.
The Department of Justice's Efforts to Combat This Violence
The Department of Justice has made, and is continuing to make,
strong efforts to investigate and prosecute domestic-violence cases in
Indian country, including, among other things:
Deploying 28 new Assistant U.S. Attorneys whose sole mission
is to prosecute crime in Indian country.
Instructing U.S. Attorneys to prioritize the prosecution of
crimes against Indian women and children.
Establishing new domestic-violence training programs for
law-enforcement officials and prosecutors alike.
Creating a Violence Against Women Federal/Tribal Prosecution
Task Force to develop ``best practices'' for both Federal and
Tribal prosecutors.
But we believe that more needs to be done.
The Views of Tribal Leaders and Experts, and the Department's Response
The Department of Justice has consulted extensively with Indian
Tribes about these issues, including at the Attorney General's
listening conference in 2009, the Tribal consultations we held on TLOA
implementation in 2010, our annual Tribal consultations under the
Violence Against Women Act, and a series of Tribal consultations
focused on potential legislative reforms in June of this year. These
consultations--like the Justice Department's other work in this area,
especially in the wake of the TLOA's enactment last year--have involved
close coordination across Federal agencies, including the Departments
of the Interior and of Health and Human Services.
The consensus that emerged from these Tribal consultations was the
need for greater Tribal jurisdiction over domestic-violence cases.
Specifically, Tribal leaders expressed concern that the crime-fighting
tools currently available to their prosecutors differ vastly, depending
on the race of the domestic-violence perpetrator. If an Indian woman is
battered by her Indian husband or boyfriend, then the Tribe typically
can prosecute him. But absent an express Act of Congress, the Tribe
cannot prosecute a violently abusive husband or boyfriend if he is non-
Indian. And recently, one Federal court went so far as to hold that, in
some circumstances, a Tribal court could not even enter a civil
protection order against a non-Indian husband.
Faced with these criminal and civil jurisdictional limitations,
Tribal leaders repeatedly have told the Department that a Tribe's
ability to protect a woman from violent crime should not depend on her
husband's or boyfriend's race, and that it is immoral for an Indian
woman to be left vulnerable to violence and abuse simply because the
man she married, the man she lives with, the man who fathered her
children, is not an Indian.
The concerns raised by Tribal leaders and experts led the
Department to propose new Federal legislation on July 21 of this year.
The response to the Department's proposal from persons of all
backgrounds and experiences, including state, local, and Tribal law-
enforcement officials, has been overwhelmingly positive.
The SAVE Act Addresses Three Key Areas that Are Ripe for Legislative
Reform
The SAVE Act's Title II incorporates the Department of Justice's
proposal and thus addresses precisely the concerns that Tribal leaders
and experts have repeatedly expressed to us. Specifically, this title
of the Act fills three major legal gaps, involving Tribal criminal
jurisdiction, Tribal civil jurisdiction, and Federal criminal offenses.
First, the patchwork of Federal, state, and Tribal criminal
jurisdiction in Indian country has made it difficult for law
enforcement and prosecutors to adequately address domestic violence--
particularly misdemeanor domestic violence, such as simple assaults and
criminal violations of protection orders. The SAVE Act recognizes
certain Tribes' power to exercise concurrent criminal jurisdiction over
domestic-violence cases, regardless of whether the defendant is Indian
or non-Indian. Fundamentally, this legislation builds on what this
Committee did in the Tribal Law and Order Act. The philosophy behind
TLOA was that Tribal nations with sufficient resources and authority
will be best able to address violence in their own communities; it
offered additional authority to Tribal courts and prosecutors if
certain procedural protections were established.
Second, at least one Federal court has opined that Tribes lack
civil jurisdiction to issue and enforce protection orders against non-
Indians who reside on Tribal lands. That ruling undermines the ability
of Tribal courts to protect victims. Accordingly, the SAVE Act confirms
the intent of Congress in enacting the Violence Against Women Act of
2000 by clarifying that Tribal courts have full civil jurisdiction to
issue and enforce certain protection orders involving any persons,
Indian or non-Indian.
Third, Federal prosecutors lack the necessary tools to combat
domestic violence in Indian country. The SAVE Act provides a one-year
offense for assaulting a person by striking, beating, or wounding; a
five-year offense for assaulting a spouse, intimate partner, or dating
partner, resulting in substantial bodily injury; and a ten-year offense
for assaulting a spouse, intimate partner, or dating partner by
strangling or suffocating.
Title II of the SAVE Act, which is the Act's core, fills these
three holes in the law. In addition, Title I of the SAVE Act reforms
grant programs aimed to help Native victims, strengthens the
Department's consultation process, and ensures that our program of
research includes violence against Alaska Native women. And Title III
amends TLOA to provide a much-needed one-year extension for the Indian
Law and Order Commission, which Congress created to conduct a
comprehensive study of law enforcement and criminal justice in Tribal
communities.
Tribal Jurisdiction over Crimes of Domestic Violence
Section 201 of the SAVE Act recognizes certain Tribes' concurrent
criminal jurisdiction to investigate, prosecute, convict, and sentence
both Indians and non-Indians who assault Indian spouses, intimate
partners, or dating partners, or who violate protection orders, in
Indian country. Without impinging on any other government's
jurisdiction, this bill recognizes that a Tribe has concurrent
jurisdiction over a tightly defined set of crimes committed in Indian
country: domestic violence, dating violence, and violations of
enforceable protection orders. To the extent those crimes can be
prosecuted today by Federal or State prosecutors, that would not be
changed by the SAVE Act.
Similar to TLOA, this additional Tribal authority under the SAVE
Act would be available only to those Tribes that guarantee sufficient
protections for the rights of defendants. Tribes exercising this
statutorily recognized jurisdiction over crimes of domestic violence
would be required to protect a robust set of rights, similar to the
rights protected in State-court criminal prosecutions. This approach
thus builds on the Indian Civil Rights Act of 1968, as amended in 1986
and 1990, and on TLOA. Tribes that choose not to provide these
protections would not have this additional authority.
Not surprisingly, expanding Tribal criminal jurisdiction to cover
more perpetrators of domestic violence would tax the already scarce
resources of most Tribes that might wish to exercise this jurisdiction
under the SAVE Act. Therefore, the Act authorizes grants to support
these Tribes by strengthening their criminal-justice systems, providing
indigent criminal defendants with licensed defense counsel at no cost
to those defendants, ensuring that jurors are properly summoned,
selected, and instructed, and according crime victims' rights to
victims of domestic violence.
Tribal Protection Orders
Section 202 of the SAVE Act addresses Tribal civil jurisdiction.
Specifically, it confirms the intent of Congress in enacting the
Violence Against Women Act of 2000 by clarifying that every Tribe has
full civil jurisdiction to issue and enforce certain protection orders
against both Indians and non-Indians. That would effectively reverse a
2008 decision from a Federal district court in Washington State, which
held that an Indian Tribe lacked authority to enter a protection order
for a nonmember Indian against a non-Indian residing on non-Indian fee
land within the reservation.
Amendments to the Federal Assault Statute
Section 203 of the SAVE Act involves Federal criminal offenses
rather than Tribal prosecution. In general, Federal criminal law has
not developed over time in the same manner as State criminal laws,
which have recognized the need for escalating responses to specific
acts of domestic and dating violence. By amending the Federal Criminal
Code to make it more consistent with State laws in this area where the
Federal Government (and not the State) has jurisdiction, the SAVE Act
simply ensures that perpetrators will be subject to similar potential
punishments regardless of where they commit their crimes. Specifically,
the Act amends the Federal Criminal Code to provide a ten-year offense
for assaulting a spouse, intimate partner, or dating partner by
strangling or suffocating; a five-year offense for assaulting a spouse,
intimate partner, or dating partner resulting in substantial bodily
injury; and a one-year offense for assaulting a person by striking,
beating, or wounding. All of these are in line with the types of
sentences that would be available in State courts across the Nation if
the crime occurred outside Indian country.
Existing Federal law provides a six-month misdemeanor assault or
assault-and-battery offense that can be charged against a non-Indian
(but not against an Indian) who commits an act of domestic violence
against an Indian victim. (A similar crime committed by an Indian would
fall within the exclusive jurisdiction of the Tribe.) A Federal
prosecutor typically can charge a felony offense against an Indian or a
non-Indian defendant only if the victim's injuries rise to the level of
``serious bodily injury,'' which is significantly more severe than
``substantial bodily injury.''
So, in cases involving any of these three types of assaults--(1)
assault by strangling or suffocating; (2) assault resulting in
substantial (but not serious) bodily injury; and (3) assault by
striking, beating, or wounding--Federal prosecutors today often find
that they cannot seek sentences in excess of six months. And where both
the defendant and the victim are Indian, Federal courts may lack
jurisdiction altogether.
The SAVE Act increases the maximum sentence from six months to one
year for an assault by striking, beating, or wounding, committed by a
non-Indian against an Indian in Indian country. (Similar assaults by
Indians, committed in Indian country, would remain within the Tribe's
exclusive jurisdiction.) Although the Federal offense would remain a
misdemeanor, increasing the maximum sentence to one year would reflect
the fact that this is a serious offense that often forms the first or
second rung on a ladder to more severe acts of domestic violence.
Assaults resulting in substantial bodily injury sometimes form the
next several rungs on the ladder of escalating domestic violence, but
they too are inadequately covered today by the Federal Criminal Code.
The SAVE Act fills this gap by amending the Code to provide a five-year
offense for assault resulting in substantial bodily injury to a spouse,
intimate partner, or dating partner.
And the SAVE Act also amends the Code to provide a ten-year offense
for assaulting a spouse, intimate partner, or dating partner by
strangling or suffocating. Strangling and suffocating--conduct that is
not uncommon in intimate-partner cases--carry a high risk of death. But
the severity of these offenses is frequently overlooked because there
may be no visible external injuries on the victim. As with assaults
resulting in substantial bodily injury, Federal prosecutors need the
tools to deal with these crimes as felonies, with sentences potentially
far exceeding the six-month maximum that often applies today.
Finally, section 203(e) of the SAVE Act simplifies the Major Crimes
Act (which Federal prosecutors use to prosecute Indians for major
crimes committed against Indian and non-Indian victims) to cover all
felony assaults under section 113 of the Federal Criminal Code. That
would include the two new felony offenses discussed above--assaults
resulting in substantial bodily injury to a spouse, intimate partner,
or dating partner; and assaults upon a spouse, intimate partner, or
dating partner by strangling or suffocating--as well as assault with
intent to commit a felony other than murder, which is punishable by a
maximum ten-year sentence. Without this amendment to the Major Crimes
Act, Federal prosecutors could not charge any of these three felonies
when the perpetrator is an Indian. Under the SAVE Act, assault by
striking, beating, or wounding remains a misdemeanor and is not covered
by the Major Crimes Act.
Sections 201 and 203 of the SAVE Act work in tandem, enabling
Tribal investigators and prosecutors to focus on misdemeanors
(including protection-order violations) and low-level felonies,
regardless of the perpetrator's Indian or non-Indian status, while
Federal investigators and prosecutors focus on the more dangerous
felonies involving strangling, suffocation, and substantial bodily
injury, again regardless of the perpetrator's Indian or non-Indian
status.
We believe that enacting the SAVE Act will strengthen Tribal
jurisdiction over crimes of domestic violence, Tribal protection
orders, and Federal assault prosecutions. These measures, taken
together, have the potential to significantly improve the safety of
women in Tribal communities and allow Federal and Tribal law-
enforcement agencies to hold more perpetrators of domestic violence
accountable for their crimes.
I thank the Committee for its long-standing interest in these
critically important issues, and I especially thank Chairman Akaka for
drafting and introducing Senate Bill 1763, the Stand Against Violence
and Empower Native Women Act.
The Chairman. Thank you very much, Mr. Perrelli.
Mr. Perrelli, the SAVE Act clarifies Tribes' ability to
issue and enforce protection orders over all offenders. Without
this clarification, do you think Native women are at greater
risk in their communities?
Mr. Perrelli. Mr. Chairman, I believe they are. This is an
issue that I believe that Congress thought it resolved in 2000.
But because of at least one intervening court decision, there
is uncertainty here. Protection orders are the basic
fundamental aspect of years of work by advocates in the
domestic violence community to ensure protection of women who
are threatened by an abuser. Without the ability to issue and
enforce protection orders and to get full faith and credit for
those protection orders, there is a real risk to Native women
to be threatened again.
So as I said, I think Congress thought it had already done
this, but we believe it is extraordinarily important to clarify
it today.
The Chairman. Thank you, Mr. Perrelli.
The amendments to the Federal assault statute are an
important part of the SAVE Act. Do you believe these provisions
would help stop domestic violence at its earlier stages and
prevent it from reaching its most severe levels?
Mr. Perrelli. I do, Mr. Chairman. As I indicated before,
the pattern of domestic violence is escalation. And there are
any number of serious bodily injuries or homicides arising out
of domestic violence where we know that there were probably 5,
10, 15 incidents prior to that. What the SAVE Act does it
creates a set of graduated sanctions and a division of labor
really between Tribal law enforcement and Tribal courts, and
then Federal law enforcement and Federal courts. And in many
cases, the States are a possible law enforcer as well, to
ensure that all along that spectrum, there is a law enforcer
who is present and able to bring the perpetrator to justice. So
we think it will have a significant impact in improving the
safety of Native women.
The Chairman. Thank you very much for your responses.
Senator Murkowski?
Senator Murkowski. Thank you, Mr. Chairman.
Mr. Perrelli, last time you were before the Committee, I
had an opportunity to bring up the issue of sex trafficking of
Alaska Native young women and what we were seeing. I expressed
my concerns about that. Since this intervening time period, can
you give me any update in terms of what DOJ is looking at in
terms of getting a better handle of what is going on with sex
trafficking of not only Alaska Natives, but all Native women?
Mr. Perrelli. One thing, and I think as we talked about a
little bit last time, particularly in the context of Alaska
where some of the sex trafficking allegations that we have
seen, and as I think you know, there was one high-profile case
not that long ago involved Native women who come to Anchorage,
whether for health care or something else, and end up becoming
victims of sex trafficking.
Since I was last here, we gave out our grant funds through
our coordinated Tribal assistance solicitation, and this was a
year where after a significant amount of outreach to Alaska
Native groups and more training, we saw a significant increase
in the funds that Alaska Natives received, including a lot of
funds focused on helping victims, and in particular some of the
victims' organizations based in Anchorage, in providing
services for domestic violence, dating violence, and others.
And I think certainly it is our hope that some of those
funds will go to help provide services for and help us to
identify sex trafficking as it occurs.
Senator Murkowski. Well, I appreciate the engagement. I
think it is going to be important. Do you have a sense in terms
of whether or not we are making a dent in the issue? Do we not
have sufficient data to this point? What can you tell me?
Mr. Perrelli. This is an area that is, I think, where an
enormous amount of additional research needs to be done. We
hear the horror stories from a number of regions throughout the
Country, Alaska being one of them. But this is a trade that is
very difficult to investigate and get a handle on. And
currently, we don't have sufficient research. I think one of
the things that Title I of the SAVE Act does is it includes
research on, as well as grants towards addressing sex
trafficking as an additional purpose area for our Office of
Violence Against Women grants. We think that is tremendously
important.
Senator Murkowski. Is that a new area, the grants towards
women and sex trafficking?
Mr. Perrelli. It is an area where we felt it was important.
We agree that it is important to add specific language.
Senator Murkowski. Okay. Since you are talking about the
grants that are out there, I have been hearing some good things
about DOJ's implementation of the Coordinated Tribal Assistance
Program and the efforts of the Tribal Justice Advisory Group.
But I do understand that the Tribal Advisory Group met in
Alaska in December of 2009. There wasn't Tribal consultation at
that time. So the question today is whether or not the
Department of Justice is planning on doing any kind of a
follow-up visit, whether it is to a rural community in the
State or a Tribal consultation somewhere in the State? And if
so, if you have a timeframe for that?
Mr. Perrelli. Well, I will say since that time in August of
2010, we formed the Alaska Native Action Team. And we sent a
team of officials, including some very senior officials, out to
Native villages, as well as working in some of the urban areas,
and tried to bring more training and technical assistance to
Alaska.
We have done in the past regional trainings to assist
people in applying for our grant programs. We brought training
to Alaska and we saw the results, a significant increase in
applications, as well as the quality of applications leading,
frankly, to more grant funds to Alaska.
So I don't think we have a specific, and I can find out,
check with my folks for more of a specific plan for a
consultation in Alaska, but we are trying to very significantly
increase our engagement because if we look two and three years
ago, I think that the numbers told us that Alaska Native
villages and some of the organizations that assist them, were
not applying for grants and not receiving grants at the rate
that one might have expected.
Senator Murkowski. Let me ask one final question, if I may,
Mr. Chairman.
You have indicated that certainly on the reservations, the
concern that you have with current law, is that Tribes are
precluded from prosecuting non-Indian offenders in the criminal
cases. This is the Oliphant ruling.
So the question to you is whether or not you think an
Oliphant fix, if you will, restoration of Tribal jurisdiction
at least to a limited case when it comes to domestic violence
cases. I am assuming that you clearly believe that that will
improve the safety of Tribal members.
The question is whether or not this type of a fix would
have any impact at all on Alaska, where we don't have Indian
Country. How would this impact us, if at all?
Mr. Perrelli. I think a couple of things. Certainly, it
would have an impact on the Metlakatla Reserve where there is
Indian Country. With respect to the Tribal protection order fix
that is in Title II of the bill, we think that would be
applicable to Tribal courts in Alaska Native villages.
Senator Murkowski. So when you say the Tribal protection
order, what would allow the Tribal courts to do something?
Mr. Perrelli. It would allow the Tribal courts to issue an
order of protection and enforce an order of protection and get
full faith and credit to it, something, as I said, we thought
should be current law, but was left uncertain.
But as I think both you and Senator Begich indicated, the
challenges of Alaska, where court decisions have indicated
there is no Indian Country other than Metlakatla, do require
more creative solutions. And I think we at the Department of
Justice would very much like to work with both Senators to come
up with creative solutions.
Because it is certainly true that the enhanced Tribal
criminal jurisdiction that we are talking about in Title II of
the SAVE Act will have a much bigger impact elsewhere in the
Country than Alaska.
Senator Murkowski. I appreciate that.
Have you reviewed the Village Safe Families Act? And do you
have any opinion as to whether or not it would create Tribal
criminal jurisdiction in Alaska or whether it simply confers
Tribal seal of regulatory authority?
Mr. Perrelli. We have just started reviewing that and our
staff would be happy to come up and talk with you further about
that, as well as brainstorm about other approaches and ideas.
Senator Murkowski. I look forward to that. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Murkowski.
I would like to ask Senator Begich whether you have any
questions you would like to ask?
Senator Begich. Mr. Chairman, if I could just follow up.
And I guess I want to take you up on that offer as we work on
our legislation on S. 1192. You know, the idea is to create
these opportunities for communities to resolve and deal with
some of these incredible challenges in very remote areas in a
State that doesn't have traditional Indian Country. So I would
look as you reviewed if you could give us some ideas and
innovation. If you think there are some opportunities to tweak
the language, I am very open to that.
You see the goal and I think it is the same goal as you
have just described in what I would call traditional Indian
Country. So I thank you for that.
Second, on the research end, the data end, just to make
sure I understand you reference there in the bill, is this new
resources or opportunity for you to do more data collection? Or
is it brand new in the sense that it has never been done? Help
me understand what that piece is.
Mr. Perrelli. Sure. I think we would say that any emphasis
that this Committee or others could give, and frankly any
funding, on research related to criminal justice and American
Indian-Alaska Native communities is money well spent. We
recently did a compendium of research on criminal justice in
Tribal communities and what we found were many more gaps than
we knew, gaps that were filled.
And so we have asked for additional funds in the 2012
budget to focus on research related to crimes against American
Indians and Alaska Natives. Title I of the SAVE Act ensures
that research does focus on violence against Alaska Natives and
not just on American Indian communities.
Senator Begich. Very good. And then, I guess the last
comment I will make, and again thank you, and we are going to
take you up on the offer on that because I think your goal is
the same as ours: How do you create a better judicial system
that is more community-based and reintegrating folks that
should be and those that shouldn't be to deal with that as a
separate issue. So I am looking forward to your help there.
And I guess one thing, as you think about next year and as
you are planning your engagements with the Alaska Native
community, I would encourage you. Maybe I am looking through
you to Ralph here, that he probably would invite you or your
appropriate folks to do a workshop at the Alaska Federation of
Native Organizations annual meeting which is held in October
and has 4,000-plus Alaska Natives from all around the State.
We would encourage you, if you haven't participated before,
but this would be a great opportunity, especially if you saw
results by engaging them. This may be a really great way to
engage a lot of our community in a very focused area. So I
would just offer that kind of through you to Ralph, and maybe
he will make a note and offer an invitation.
Mr. Perrelli. Well, thank you, Senator. And I do think it
has been a point of emphasis for us that even in times where
people are worried about travel budgets and those things, that
if we are going to have an impact in Alaska, we have to do more
to reach out. I think, like I said, in the past year where we
increased our outreach efforts and saw very significant change
in the pattern of applications for grant funding really taught
us that a little more gets you better results.
Senator Begich. We would invite you, and also it is a great
way to get almost every Alaska Native community in one location
at one time. Very good.
Mr. Perrelli. Thank you, Senator.
Senator Begich. Thank you very much.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Begich, as we
continue to discuss S. 1192, the Alaska Safe Families and
Villages Act of 2011.
I want to thank you, Mr. Perrelli. Thank you so much for
your responses. You have been very helpful. We look forward to
continuing to work with you on this for clarifications and I
really appreciate it.
Mr. Perrelli. Thank you, Mr. Chairman.
The Chairman. Thank you so much.
Mr. Perrelli. Thank you so much.
The Chairman. I would like to invite the second panel to
the witness table. Ms. Margie Mejia is the Chair of the Lytton
Rancheria; Mr. Paul Morris is Mayor of the City of San Pablo,
California; Mr. Ralph Andersen is President and CEO of the
Bristol Bay Native Association; and Mr. Joe Masters is
Commissioner at the Department of Public Safety for the State
of Alaska.
I want to welcome everyone here. Before we proceed, I would
like to ask Senator Franken for any introductions he may have
for some of the panelists.
STATEMENT OF HON. AL FRANKEN,
U.S. SENATOR FROM MINNESOTA
Senator Franken. Thank you, Mr. Chairman. And thank you for
convening this hearing. I am a proud cosponsor of his bill. The
SAVE Native Women Act makes important updates to the law to
ensure that Native American communities have the tools and
resources they need to stop acts of violence against Native
women. It authorizes services for victimized youth and for
victims of sex trafficking. It provides Native Americans in
Indian Country the legal authority they need to prosecute acts
of violence committed in their communities. And it updates the
Federal assault statute applicable in Indian Country.
These are common sense and much needed improvements to the
law. So Chairman Akaka, thank you for your work on this
legislation. And thank you for the honor of allowing me to
introduce two Minnesotans who are here to testify today.
Suzanne Koepplinger is a leader in the Native American
community and in the fight to end sexual violence.
Since 2003, she has served as Executive Director of the
Minnesota Indian Women's Resource Center, which provides
invaluable services to women and their families. She actively
is involved with a number of nonprofit organizations, including
the Metro Urban Indian Directors Group and the American Indian
Community Development Corporation's Board of Directors.
Ms. Koepplinger has a wealth of knowledge about issues
facing Native American women. I have long considered her one of
the foremost experts in the field, as well as a friend. And we
are indeed fortunate that she is here to testify today.
It is also my great privilege to introduce Thomas
Heffelfinger, a talented attorney who has dedicated much of his
legal career to public service and issues affecting Native
Americans. During the Bush Administration, Mr. Heffelfinger
served as United States Attorney for the State of Minnesota, so
he knows a thing or two about prosecuting crimes. He also
served as the Chairman of the Justice Department's Native
American Issues Subcommittee. In that capacity, he was
responsible for developing and implementing a wide range of
policies related to public safety in Indian Country.
Since returning to private practice, Mr. Heffelfinger has
continued to advise Native American Tribes on public safety
issues.
It is really great to see you both and I look forward to
hearing your testimony.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Franken.
I would like to begin with the first testimony from Ms.
Koepplinger. Please proceed with your testimony.
STATEMENT OF SUZANNE KOEPPLINGER, EXECUTIVE DIRECTOR, MINNESOTA
INDIAN WOMEN'S RESOURCE CENTER
Ms. Koepplinger. Thank you very much, Mr. Chairman, Senator
Franken, Members of the Committee. I am deeply honored to have
this opportunity to add my voice in support of S. 1763, the
Stand Against Violence and Empower Native Women Act.
This bill acknowledges the disproportionate and varied
forms of violence against American Indian women and it takes
steps to more effectively prevent, intervene and prosecute
these crimes. Thank you.
You are all aware of the disproportionate rates of violence
against American Indian women and children in this Country. In
2009, the organization that I have the honor of representing,
the Minnesota Indian Women's Resource Center, published
Shattered Heart: The Commercial Sexual Exploitation of American
Indian Women and Girls in Minnesota. It was to our knowledge
the first report to analyze the scope of sex trafficking of
American Indians in this Country.
Since that time, we have gathered additional evidence, most
recently the research report called Garden of Truth, which was
produced by the Minnesota Indian Women's Sexual Assault
Coalition, which you were all provided written testimony about,
which is a very important addition to the knowledge in the
field.
And all of this additional information has deepened our
concern about the breadth and depth of these egregious human
rights violations. We believe that the data represents only the
tip of the iceberg and that the true rates of all forms of
gender violence in Indian Country are much higher. This belief
is based on our own experience in the field, the fact that
Native women and girls frequently do not report assaults, and
the Department of Justice's own research stating that
approximately 70 percent of sexual assaults in Indian Country
are not reported.
One of the programs serving young Native girls who are at
high risk of sexual violence is our Oshkinigiikwe program--
Oshkinigiikwe is young woman in the Ojibwe language. A recent
evaluation of this program for 11 to 20 year old Native girls
showed that 31 percent of the girls coming into the program had
had injuries as a result of assault and that nearly a quarter
of them had diagnosed mental illnesses and were homeless at the
time of intake. None of the girls had reported the assault.
Disclosure of assault histories, including sexual
exploitation and sex trafficking typically come after many
months in the program when the girls have developed a trust
relationship with the staff and feel comfortable disclosing
their experiences. There are routinely multiple traumas by the
age of 15 of 16, including childhood sexual assault, dating
violence, and sexual exploitation and trafficking.
The recommendations in this bill to strengthen Tribal
programs, bolster Tribal authority to prosecute all
perpetrators, and to include sex trafficking along with other
forms of violence against women and children is a very
important step forward. We cannot silo the various
manifestations of gender-based violence. Incest, child sexual
assault, domestic violence, sexual abuse, sex trafficking,
these are all forms of a systemic exploitation of those who
have the least power, and that needs to be addressed as a
systemic matter.
Often, these abuses are concurrent and cumulative. We also
know that early exposure to gender-based violence puts young
people at heightened risk of adult abuse.
Investing in the safety of women and children is an
investment in the well being of our families and communities
and it is not only the right thing to do, it is fiscally
prudent to provide preventive and healing services to those in
need. The trauma of unreported or untreated sexual trauma leads
to higher end-use of social services, multi-generational abuse,
increased rates of homelessness, and other costs.
As a representative of an urban Indian organization that
works closely with the Tribes, I urge continued collaboration
between Tribes and urban Indian organizations to address the
unique needs of this population. In Minnesota, for example,
approximately 60 percent of the Indian population resides in
the metro areas, not on reservations. Nationally, the data
remains the same.
We believe that a significant amount of sex trafficking
occurs in the towns and the cities where the market exists and
where many young people are lured by perpetrators. Building a
network of urban and Tribal support services is vital to long-
term success.
There are many challenges to identifying and responding to
sex trafficking victims and collecting data on the scope of sex
trafficking is a challenge. And this is due in large part
because many of the women do not identify as victims. They do
not report these crimes to authorities. They are more likely to
disclose their assault to frontline advocates. Frontline
advocates in Tribal human service and urban organizations are
well positioned to identify and respond to the needs of victims
and will be strong allies in the effort to collect baseline
data.
Service providers can also be crucial partners in the
prosecution of pimps and traffickers. When victims feel
supported, when they have access to long-term culturally
appropriate supportive housing with services, they may be more
likely to cooperate with law enforcement in prosecuting.
Many communities are just now beginning to understand and
respond to sex trafficking, and more training, awareness, and
capacity building is required. This bill will provide many of
those needed steps and I urge that this legislation be passed
because it will greatly improve the safety and security of
American Indian women and girls and give Tribes the authority
to effectively protect, intervene, and prosecute the
perpetrators of gender-based violence.
I thank you all very much and I am happy to answer any
questions I can.
[The prepared statement of Ms. Koepplinger follows:]
Prepared Statement of Suzanne Koepplinger, Executive Director,
Minnesota Indian Women's Resource Center
Honorable Chairman Akaka and Members of the Senate Indian Affairs
Committee:
Thank you Mr. Chairman and members of the Committee for the
opportunity to voice my support for S. 1763, Stand Against Violence and
Empower Native Women Act. This bill acknowledges the disproportionate
and varied forms of violence against American Indian women and takes
steps to more effectively prevent, intervene, and prosecute these
crimes. Thank you.
You are all aware of the disproportionate rates of violence against
American Indian women and girls in this country. In 2009, the Minnesota
Indian Women's Resource Center released Shattered Hearts: the
commercial sexual exploitation of American Indian women and girls in
Minnesota. It was, to our knowledge, the first report to analyze the
scope of sex trafficking and commercial sexual exploitation of American
Indians in our country. Since that time we have gathered additional
evidence--including the recently released Garden of Truth report by the
Minnesota Indian Women's Sexual Assault Coalition (which you were
provided written testimony on and which is an invaluable contribution
to knowledge in the field) that have deepened our concern about the
breadth and depth of this egregious human rights violation.
We believe the data represents only the tip of the iceberg, and
that the true rates of all forms of gender based violence in Indian
Country are higher. This belief is based upon our own experience in the
field, the fact that Native women and girls do not often report
violence for a variety of reasons, and the United States' Department of
Justice data that estimates that 70 percent of sexual assaults against
American Indian women are not reported. One of the programs serving
young Native girls who are at high risk of sexual violence is our
Oskinigiikwe (young woman in the Ojibwe language) Program. Recent
evaluation of this program for 11-20 year old Native girls shows 31
percent of girls had a head injury resulting from assault, nearly a
quarter of girls had a mental illness diagnosis and were homeless upon
intake. None of the girls had reported their assaults to law
enforcement. Disclosure of assault histories--including sex
trafficking--in our program typically comes after many months, when a
trust relationship is developed with staff. There are routinely
multiple traumas by the age of 16 including childhood sexual assault,
dating violence, and sexual exploitation/trafficking.
The recommendations in this bill to strengthen VAWA Tribal
programs, bolster tribal authority to prosecute all perpetrators, and
to include sex trafficking along with other forms of violence against
women and children is a very important step forward. We cannot silo the
various manifestations of gender violence--incest, child sexual abuse,
domestic violence, sexual assault, and sex trafficking are all forms of
systemic exploitation of those who have the least power and all must be
addressed as such. These are often concurrent or cumulative abuses.
Early exposure to gender based violence puts young girls at heightened
risk of abuse as adults.
Investing in the safety of women and children is an investment in
the well being of our families and communities. It is not only the
right thing to do, it is the fiscally responsible thing to do to
provide preventive and healing services to those in need. The trauma of
unreported or untreated sexual violence leads to higher end user social
services, multi-generational abuse, increased rates of homelessness,
and other costs.
As a representative of an urban Indian organization that works
closely with tribal partners, I urge continued collaboration between
tribes and urban Indian organizations to address the unique needs of
this population. In Minnesota, roughly 40 percent of the state's
American Indian people reside in the seven county Twin Cities Metro,
with another 20 percent living in cities like Duluth and Bemidji, not
on reservations. Nationally the data looks much the same. We believe a
significant amount of sex trafficking takes place in cities and towns,
where the market exists and where runaway youth are often lured.
Building a network of urban and tribal supports and services is key to
long term success.
There are challenges to identifying and serving sex trafficking
victims, and to collecting data on the scope of sex trafficking in
Indian Country. This is due in part to the reluctance of many women to
identify as victims of a crime and report exploitation to authorities.
They are more likely to disclose and seek help from advocates in the
field. Front line advocates in tribal human services and urban Indian
organizations are well positioned to identify and respond to the needs
of victims, and will be strong allies in the effort to collect baseline
data. Service providers can also be crucial partners in the prosecution
of pimps and traffickers. When victims feel safe and supported through
access to culturally based long term housing and support services, they
may be more likely to cooperate with law enforcement in prosecuting
perpetrators.
Many communities are just now beginning to understand and respond
to sex trafficking, and more training, awareness, and capacity building
is required. This bill will provide many of those needed steps forward,
and I urge you to pass this legislation that will greatly improve the
safety and security of American Indian women and girls, and give Tribes
the authority to effectively protect, intervene and prosecute
perpetrators of gender based violence.
Thank you for this opportunity and I am happy to answer any
questions you may have.
The Chairman. Thank you very much, Ms. Koepplinger.
As introduced by Senator Franken, Ms. Koepplinger is
Executive Director of the Minnesota Indian Women's Resource
Center of Minneapolis.
And now I would like to call on Mr. Thomas Heffelfinger,
who is currently with Best & Flanagan LLP in Minneapolis as
well.
Will you please proceed?
STATEMENT OF THOMAS B. HEFFELFINGER, ATTORNEY, BEST & FLANAGAN
LLP
Mr. Heffelfinger. Thank you, Chairman Akaka and Members of
the Committee. I appreciate the honor of having the opportunity
to appear before you again.
And Senator Franken, thank you very much for your kind
introduction.
I appear today before the Committee to provide comments on
Title II of the SAFE Native American Women Act. Back in 2004 as
United States Attorney, I had the privilege of participating in
a consultation with Tribal leaders on issues of public safety.
And during that consultation, a gentleman named Chairpah
Matheson, a Council Member from Coeur d'Alene, made the
observation: How can Tribes have sovereignty when they cannot
protect their women and children?
This question has always struck me as going to the heart of
the issue for all government. Is there any higher priority than
protecting our women and children? And one of the reasons that
I support Title II of this Act is that it addresses this
question.
As this Committee is well aware and as you have heard
already today, the problems of violence against women are of
epidemic proportions and tragically high. This legislation, by
providing Tribes with jurisdiction over domestic violence
committed by all offenders, recognizes Tribal sovereignty and
Tribal responsibility. And it also removes a huge barrier which
currently prevents from effectively protecting women in their
communities.
This Committee is well aware of the level of confusion that
exists in Indian Country over jurisdiction. The whole Tribal
Law and Order Act addresses that, and I commend this Committee
for that. In fact, I would throw in a plug. I really support
the provision of this bill that will add a year to the Tribal
Law and Order Act's time they are going to need it because all
of these issues of confusion should be addressed through that
Committee.
One of the biggest areas of confusion is that provided by
the Oliphant decision, which by its terms deprived Tribes of
the jurisdiction over non-Indians. As Amnesty International
found so eloquently in their recent well-publicized report,
Oliphant has had a dramatic and detrimental impact upon public
safety in Indian Country.
In my remaining time, I would like to focus on specific
provisions of the Act. I specifically support Section 201 and
its providing of a limited Oliphant fix. It will provide Tribal
courts with jurisdiction over all people. It is important that
that provision also provides for concurrent jurisdiction with
Federal and States, thereby allowing Tribes to utilize all of
the resources available to them.
And as Mr. Perrelli pointed out so well, coordinated with
that is the clarification that Tribal courts have jurisdiction
for protective orders. This allows Tribes the authority to do
what they can to prevent, as well as react to domestic
violence.
There is one provision which I object to a piece of it, and
I am not going to object to the other. That is the dismissal
provision in Section 201. One provision would allow that if a
defendant brings a motion to dismiss on the grounds that both
the defendant and the victim are not Natives, that the court
can dismiss the charge. That is a recognition of a longstanding
Supreme Court precedent which I don't believe this bill should
be taking on. Therefore, I do not support that.
However, the bill also provides a wonderful thing which I
think must stay in it, which says that when a defendant brings
a motion to dismiss, it must be held pretrial. Whether or not
both offenders are Indian or non-Indian is a matter of
jurisdiction. It should be resolved pretrial as a matter of law
and not during the trial.
There is also a provision, however, in that dismissal
section which provides that a case can be dismissed if the
prosecution, the Tribal prosecutor, cannot establish that there
are community ties between the defendant and the victim and the
Tribe. And this adds issues like employment, residence, Tribal
membership, and makes those elements of a domestic violence
prosecution. That should not be in the bill. It is hard enough
to prosecute these cases without adding new elements to them.
The rights to the defendant section, I applaud the
Committee and I applaud the bill for complying with the Tribal
Law and Order Act. There is one provision 204, to Section 3 of
the rights, which I would ask the Committee to look at very
seriously because it is confusing. It says that the Tribe must
provide, ``all other rights whose protection is necessary under
the Constitution,'' and it goes on.
If we are going to require Tribes to establish new rights
and provide new procedures, the law ought to provide clear
direction. This paragraph is not clear.
Finally, in the limited time available to me, I support the
amendment to the Federal assault statute. The adding of
strangulation and suffocation recognizes laws that are already
existent in many States, including Minnesota.
And then finally, there is a provision of the bill which I
don't believe should be in this Act. It is in the amendment to
the Federal assault statute. It would remove from the assault
with a dangerous weapon statute the language where there is no
``just cause or excuse.'' I know this is part of the Department
of Justice's proposal, but it has nothing to do with domestic
violence. And quite frankly, I fear any law that is passed by
Congress that removes from its language what amounts to a
defense. I fear that District Courts will interpret Congress as
removing self-defense, for example, as a available defense in
assault cases.
Thank you very much. I stand for questions.
[The prepared statement of Mr. Heffelfinger follows:]
Prepared Statement of Thomas B. Heffelfinger, Attorney, Best & Flanagan
LLP
Mr. Chairman and Members of the Committee, my name is Thomas B.
Heffelfinger and I am a partner with the Minneapolis law firm of Best &
Flanagan LLP where, among other things, I represent Tribal communities.
From 2001 to March 2006, I was the United States Attorney for the
District of Minnesota and also the Chair of the Department's Native
American Issues Subcommittee (``NAIS''). In that capacity, I had the
honor of testifying before this Committee three times, twice on issues
related to criminal jurisdiction in Indian Country. I also have had the
opportunity to testify twice before this Committee as a private
citizen.
I appear before the Committee today to comment upon Title II--
Tribal Jurisdiction and Criminal Offenses, of Senate File CEL11875 (the
``Stand Against Violence and Empower (`SAVE') Native Women Act''),
which addresses the topic of domestic violence perpetrated upon Native
women. Although my experience as a federal prosecutor, as a criminal
defense attorney and as a representative of Tribal governments provides
the experiential basis for my testimony, I am appearing today as a
private citizen and not as a representative of either the Department of
Justice, a Tribal government or of any of my private clients.
In March of 2004, while chairing the Native American Issues
Subcommittee (``NAIS''), I had the honor of participating in a
listening session here in Washington that was put together by the
National Congress of American Indians (``NCAI'') on the issue of
criminal jurisdiction. A gentleman named Chairpah Matheson, who was a
Tribal council member in Coeur d'Alene, made the following comment:
``How can Tribes have sovereignty when they can't protect their
children and their women?'' I will never forget that comment, because
it goes to the heart of a governmental obligation, whether it is
Federal or Tribal or state, to provide public safety. There can be no
higher responsibility for a government. That is also the responsibility
that is at the heart of this legislation.
The difficulties facing Native American Tribes and Alaskan Native
villages in protecting women and children living in those communities
is well known and well documented. (See Amnesty International USA
Report: Maze of Injustice: The failure to protect Indigenous women from
sexual violence in the USA (2007)). Native American women are the most
heavily victimized group in the United States, specifically two and
one-half times more likely to be raped or sexually assaulted than women
in the United States general population. The sheer volume of violence
inflicted upon Native American women is largely attributable to
violence by non-Native men. (See Amnesty International USA Report: Maze
of Injustice, p. 4.)
Tribes are on the front line of protecting women on their
reservations just like Minneapolis, Phoenix, Denver and other American
cities are on the front line of protecting women in those
jurisdictions. The difference is that in Minneapolis, Phoenix and
Denver, the law is not preventing the cities from effectively acting.
That is not the case in Indian Country, where the law deprives the
Tribes jurisdiction over non-Indian offenders. This legislation, by
providing Tribes with jurisdiction over domestic violence committed by
all offenders removes a huge barrier which currently prevents Tribes
from effectively protecting women in their communities.
Special Domestic Violence Jurisdiction over ``All Persons''
Since 1885, when Congress passed the Major Crimes Act, \1\ United
States Attorneys have had primary responsibility for the prosecution of
serious violent crime in Indian Country. Native Americans are
victimized by violent crime at the rate of about two and one-half times
the national average rate. \2\ In some areas of Indian Country, that
rate may be even higher. The Major Crimes Act gives the United States
jurisdiction to prosecute offenses such as: assault, murder,
manslaughter, kidnapping, arson, burglary, robbery and child sexual
abuse. However, federal jurisdiction under this statute is limited to
the prosecution of Indians only. The Indian Country Crimes Act, which
is also known as the General Crimes Act, \3\ gives the United States
jurisdiction to prosecute all federal offenses in Indian Country except
when the suspect and the victim are both Indian, where the suspect has
already been convicted in Tribal court or in the case of offenses where
exclusive jurisdiction over an offense has been retained by the Tribe
by way of treaty.
---------------------------------------------------------------------------
\1\ Now codified at U.S.C. 1153.
\2\ Bureau of Justice Statistics, United States Department of
Justice, American Indians and Crime (1999), p. 2.
\3\ 18 U.S.C. 1152.
---------------------------------------------------------------------------
The United States Supreme Court has held that where the suspect and
the victim are both non-Indian, then the state court has exclusive
criminal jurisdiction. \4\ Under the Indian Civil Rights Act (ICRA),
Tribal courts have criminal jurisdiction over non-member Indians. \5\
In the 1978 decision of Oliphant v. Suquamish Tribe, \6\ the United
States Supreme Court decided that Tribal courts could not exercise
criminal jurisdiction over non-Indians. Overlaying these legal
principles is the question of whether or not the offense occurred in
Indian Country.
---------------------------------------------------------------------------
\4\ Draper v. United States, 164 U.S. 240 (1896); United States v.
McBratney, 104 U.S. 621 (1882).
\5\ 25 U.S.C. 1301(2) & (4).
\6\ 435 U.S. 191 (1978).
---------------------------------------------------------------------------
What all this means is that whenever a crime occurs in Indian
Country, in order to determine jurisdiction, prosecutors are forced to
make a determination concerning who has jurisdiction by examining four
factors: (1) whether the offense occurred within ``Indian Country; (2)
whether the suspect is an Indian or a non-Indian; (3) whether the
victim is an Indian or a non-Indian (or whether the crime is a
``victimless'' one); and (4) what the nature of the offense is.
Depending on the answer to these questions, an offense may end up being
prosecuted in Tribal court, federal court, state court or not at all.
There is much confusion concerning jurisdiction over crimes
committed in Indian Country. Unlike jurisdiction over most state and
federal criminal offenses, in which jurisdiction and/or venue is
determined by the geographical location of a crime scene, the current
state of the law requires that determination of criminal jurisdiction
in Indian Country be accomplished through a complex analysis of
sometimes amorphous factors. Police, prosecutors, defense attorneys and
judges must deal with this jurisdictional maze in all cases. This
confusion has made the investigation and prosecution of criminal
conduct in Indian Country much more difficult. This confusion and
difficulty is perhaps most prevalent in domestic violence due to the
high level of violence perpetrated in Indian County by non-Indian
offenders.
The Oliphant case has had significant impact on the level of
violence against women in Indian Country. This was accurately reported
by Amnesty International USA:
[The Oliphant decision] denies victims of sexual violence due
process and the equal protection of the law. Jurisdictional
distinctions based on the race or ethnicity of the accused, such as the
jurisdictional limitation here, have the effect in many cases of
depriving victims of access to justice, in violation of international
law and US constitutional guarantees. (Tribal courts are the most
appropriate forums for adjudicating cases that arise on Tribal land,
and, as this report finds, state and federal authorities often do not
prosecute those cases of sexual violence that arise on Tribal land and
fall within their exclusive jurisdiction.) This situation is of
particular concern given the number of reported crimes of sexual
violence against American Indian women involving non-Indian men
(Amnesty International USA Report: Maze of Injustice, p. 30).
I support Section 201 of the SAVE Native Women Act (Act) which
establishes ``special domestic violence criminal jurisdiction over all
persons.'' (New ICRA Sec. 204(b)(1)) (Emphasis added.) This provision
of law provides a limited ``Oliphant fix'' and will empower Tribes who
are on the front lines of the efforts to fight domestic violence. Under
Section 201, the special criminal jurisdiction would apply only to
Domestic Violence and Dating Violence and to Violations of Protection
Orders. Significantly, the proposed legislation emphasizes the fact
that Tribal exercise of this special jurisdiction is concurrent with
the jurisdiction already existing with federal and state authorities.
This will enhance the resources and commitment Tribes can apply to
reducing domestic violence. In addition, by clarifying that Tribal
protective orders can be issued and enforced by Tribal courts against
``any person'' (Act, Sec. 202), the Act assures that Tribes now have
significant authority both to prevent and to respond to domestic
violence perpetrated by non-Indian offenders.
Dismissal of Certain Cases
Section 201 of the Act (new ICRA Sec. 204(d)) provides for
dismissal of certain cases where the defendant in a Tribal prosecution
makes a pretrial motion to dismiss on the grounds that the offense did
not involve an Indian, or on the grounds that there were insufficient
ties to the Indian Tribe. The Act addresses the situation where there
is a non-Indian defendant and non-Indian victim. Although a strong
argument can be made that Tribes should have jurisdiction over all
crimes, including domestic violence, committed on Tribal lands, clear
Supreme Court precedent has established that states have exclusive
criminal jurisdiction where both the defendant and the victim are non-
Indian. Reversing this precedent is not necessary in order to achieve
the goal of the Act: protecting Native women against domestic violence.
The Act (new ICRA Sec. 204(d)(2)) addresses an issue that has
plagued prosecuting in Indian Country: how to properly address the
question of Indian status. This is an issue of jurisdiction and is,
therefore, a question of law. Such issues should properly be raised in
pretrial motions before the court and not as matters of fact for a
jury. The Act properly requires that this question of jurisdiction be
raised by the defendant pretrial or be held to have been waived by the
defendant.
The Act (new ICRA Sec. 204(d)(3)) also provides that a case can be
dismissed upon a pretrial motion of the defendant on the grounds that
``the defendant and the alleged victim lack sufficient ties to the
Indian Tribe.'' (Emphasis added.) By this provision, the legislation
adds for the first time residence, employment and Tribal membership as
elements of the offense, which must be proven by the Tribal prosecutor
in order to avoid dismissal. These additional elements undermine the
effectiveness of the special domestic violence jurisdiction and the
protection which Tribes can provide in the face of domestic violence.
Police and prosecutors in Phoenix or Denver give no consideration to
the ties a domestic abuse defendant has to the community. Why should
Tribal authorities have to consider this factor?
Rights of Defendants
Section 201 of the Act (new ICRA Sec. 204(e)) sets forth that
Tribes exercising special domestic violence criminal jurisdiction must
provide the defendant with specified rights. The section provides that
when a term of imprisonment of any length is to be imposed, all rights
described in ICRA Sec. 202(c) should be applied. ICRA Sec. 202(c) was
recently codified in the Tribal Law and Order Act. The current
legislation properly coordinates the rights required under the Tribal
Law and Order Act and the SAVE Native Women Act and provides clear
guidance to the Tribes as to the procedural rights they must establish
and provide to defendants in cases under the Act.
However, the Act (new ICRA Sec. 204(e)(3)) provides that the Tribes
must also provide ``all other rights whose protection is necessary
under the Constitution of the United States in order for Congress to
recognize and affirm the inherent power of the participating Tribe to
exercise criminal jurisdiction over the defendant.'' This provision
lacks clarity and certainty. If Congress is going to require Tribes to
establish certain procedural protections for defendants in these cases,
it should do so clearly.
From a practical perspective, the Act itself supports Tribes'
ability to comply with it. The grants (new ICRA Sec. 204(g)) will be
necessary in order for Tribes to establish the public safety and
judicial infrastructure required by the Act. The delayed effective date
(Act Sec. 204(b)) will allow the Tribes the time to establish that
required infrastructure which is not already in place. Finally, the
Pilot Project provision (Act Sec. 204(b)(2)) allows those Tribes that
already have the judicial infrastructure in place to begin using the
special jurisdiction before the effective date of the Act.
Petitions to Stay Detention
The Act (new ICRA Sec. 204(f)) incorporates the jurisdiction of the
courts of the United States to address petitions for writ of habeas
corpus in matters involving exercise of special domestic violence
criminal jurisdiction. By incorporating a right already codified under
ICRA and affirmed by the Supreme Court, \7\ the legislation has
incorporated a body of law with which Tribes are already familiar.
---------------------------------------------------------------------------
\7\ Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
---------------------------------------------------------------------------
The Act also provides that, in conjunction with a petition for a
writ of habeas corpus, the defendant in a special jurisdiction case can
petition the court to stay further detention of that defendant by the
Tribe. The Act also lays out criteria to be applied by the Federal
Court in considering a motion for a stay.
The Act does not, however, specifically address the issue of
exhaustion of Tribal remedies by the defendant. The case law on habeas
corpus relief regarding the ``legality of detention by order of an
Indian Tribe'' (ICRA Sec. 203) is inconsistent as it relates to issues
of exhaustion of Tribal remedies. The Act should address this by
requiring that the defendant be required to exhaust Tribal remedies or
to demonstrate the futility of attempting to do so.
Amendments to Federal Assault Statute
Section 203 of the Act amends several provisions of Title 18, U.S.
Code 113, the most significant of which is to add an offense of
assault by strangulation or suffocation. This additional provision of
federal law is consistent with similar laws that have been enacted at a
state level. For example, domestic assault by strangulation is a felony
in Minnesota. (See Minn. Stat. 609.2247.) The Minnesota definition of
``strangulation'' incorporates suffocation (``impeding normal
breathing'').
In the definitions of ``strangling'' and ``suffocating,'' the
proposed legislation not only punishes intentional and knowing
strangulation and suffocation, but also reckless conduct. Although
reckless disregard of the safety of another can form the basis for
criminal punishment, it is a lower standard of mens rea than
intentional and knowing conduct.
Section 205(a)(2) of the Act also proposes to amend Title 18, U.S.
Code 113(a)(3), involving assault with a dangerous weapon, by
striking the language ``and without just cause or excuse.'' This
provision mirrors Sec. 7(a)(2) (Technical Amendments) of the July 21,
2011, proposed legislation from the United States Department of
Justice. This proposed striking creates the risk that Federal Courts
will conclude that Congress has determined that certain defenses, such
as self-defense, are not available to defendants charged with assault
with a dangerous weapon. The Department of Justice does not explain in
its submission letter why it seeks to strike this language from the
statute. However, striking such language from the statute is not
necessary, as case law is clear that the existence of ``just cause or
excuse'' for an assault is an affirmative defense and the government
does not have the burden of pleading or proving its existence. \8\
Moreover, striking this provision for Title 18, U.S. Code 113(a)(3)
has nothing to do with addressing the issues of domestic violence upon
Native women. Therefore, the provision does not seem to be appropriate
for the Act or otherwise.
---------------------------------------------------------------------------
\8\ See U.S. v. Guilbert, 692 F.2d 1340 (11th Cir. 1982), cert.
denied 460 U.S. 1016.
The Chairman. Thank you very much, Mr. Heffelfinger.
Now, I would like to have Ms. Mejia.
Please proceed with your statement.
STATEMENT OF HON. MARGIE MEJIA, CHAIRWOMAN, LYTTON RANCHERIA
Ms. Mejia. Good afternoon. I want to thank you for the
opportunity to present testimony to the Committee today on a
bill that would have a significant impact on the citizens of
Lytton Rancheria.
My name is Margie Mejia, and I am the Chairperson of Lytton
Rancheria, and I follow a long line of tradition of leaders who
have been responsible for the safekeeping of the Tribe and its
members.
I have lived the highs and lows of my Tribe's status every
day of my life, from the devastating effects of poverty,
alcoholism, drug abuse, and having our Tribal status
terminated, to the recent economic success we have finally been
able to enjoy through our restoration.
This is not simply one of a broad array of issues I have
sought to advance. This is the pride, respect, and stability of
my Tribe. We cannot stand idly by while our status is again
under threat. I take it very seriously and I am thankful that
you do, too.
While I hold Senator Feinstein in high regard, and I am
sure that her intentions are honorable, there is much more to
the story of Lytton Rancheria than this legislation suggests.
As some of you may know, the Federal Government wrongfully
terminated the Lytton Rancheria on April 4, 1961 and our
ancestral lands were lost. Not long after that, our traditional
homelands were replaced with vineyards. Finally, in 1991, after
decades of battling the relentless effort to regain our Federal
recognition, the Federal courts ordered the government to
reverse its decision to terminate the Tribe and restore our
full Tribal status.
Unfortunately, we had no ancestral lands to return to,
leaving us landless and with few options. In fact, Sonoma
County, where most of our ancestral lands are located today,
forced a provision in the final court stipulation. The
provision forbids the Tribe from acquiring and using any land
within the county for any purposes not included in the Sonoma
County general use plan. Our neighboring Tribes have not had to
deal with such restrictions.
While we were thrilled to have our status restored, we
continued to face a severe challenge in establishing our Tribal
economy. Therefore, we were heartened to learn that the City of
San Pablo understood our tragic history and was receptive to
the idea of working with us to address the effects of
termination on our Tribe. We began working with the City of San
Pablo to develop a municipal services agreement, and it is that
agreement which guided the mutually beneficial relationship
that we continue to have with the city today.
The provisions of S. 872 suggests that our land was
restored with no local input or community feedback; that we
circumvented the requirement in the Indian Gaming Regulatory
Act. The truth is we spent several months meeting with citizens
and elected officials to develop an agreement that would meet
our respective needs and objectives. We continue to meet
regularly and find ways to address each other's concerns.
As a result of this agreement, the Tribe filed an
application with the Department of Interior to have land within
San Pablo taken into trust status for Lytton for gaming
purposes. When it became clear the Department of Interior was
not going to act on our application, the city and the Tribe
together asked Congressman George Miller for his assistance
with our land-into-trust request in San Pablo.
It should be noted that the land our Tribe acquired was the
site of an existing gaming facility. It was a card room. At the
end of the year, an omnibus Indian bill was developed by this
Committee and the House Natural Resources Committee to address
a range of outstanding issues for Indian Country.
Language directing the Secretary to place the land into
trust in San Pablo for the Lytton Band was included in that
bill because through no fault of our own, Lytton had lost use
of our land in the 1960s. And because we determined that our
best economic development opportunity was to continue gaming at
this site, language was drafted to ensure that outcome.
Congressman Miller's legislation reversed a wrong that left
our Tribe landless and impoverished for decades. And it put us
on a level footing with other federally recognized Indian
Tribes. I am here because this new proposed legislation would
take away that equal footing status.
There are currently proposals for a resort-style gaming
facility within miles of the San Pablo casino. They are
advanced by Tribes who plan for Class III Las Vegas-style slot
machines. In accordance with the restored lands provision of
IGRA. S. 872 would treat the Lytton Rancheria differently from
our neighboring and similarly situated Tribes by limiting the
Tribe to Class II bingo-style machines, while forcing us to
undertake an additional expensive and lengthy process that
would put us at an extreme, totally unjust disadvantage.
Although we have no plans at this time to do so, without
the ability to qualify for Class III gaming, the Lytton
facility could face closure, resulting in severe negative
impacts for the Tribe and the surrounding community.
We honestly do not understand the purpose behind this
legislation. If the bill is based on the unsubstantiated belief
that the Lytton Rancheria is somehow not complying or has not
complied with Federal law, nothing could be further from the
truth. The Lytton Rancheria fully complies with Federal law. We
have complied with all the provisions of IGRA in the planning,
construction, and management of the San Pablo Lytton Casino.
Our gaming ordinance was approved by the National Indian
Gaming Commission and is subject to the minimum internal
control standards. Our facility is subject to review and audit
by the NIGC and all of our machines are certified to the NIGC's
strict compliance standards.
These are the exact same standards that all other gaming
facilities must meet in order to legally operate, and we have
an excellent record. To suggest that we have done anything else
is wholly disingenuous. Our Tribal members have realized
significant benefits from our economic enterprise, including
vastly improved housing and educational opportunities for our
children, and we have been good neighbors to our local non-
Indian community.
S. 872 is not simple, straightforward and reasonable, and
it does not somehow restore the intent of Congress as was
suggested in the introductory remarks accompanying the bill. In
fact, it does just the opposite. The law preventing gaming on
lands taken into trust after 1988 was not written in order to
prevent landless Tribes like Lytton from achieving economic
independence through gaming. It was written to deal with Tribes
who already had lands or existing reservations on which they
could conduct gaming.
Lytton Rancheria was only landless because of a wrongful
act taken by the Federal Government decades before. We are not
and never have been a Tribe looking to obtain additional land
for more lucrative gaming. We are a Tribe who Congress realized
should have had the same status as other Tribes granted lands
prior to 1988 and I am thankful that Congress came to this
conclusion.
Our reality today fully incorporates the intent of Congress
in the 2000 legislation. The termination policies of the
Federal Government had tragic consequences for members of
Lytton Rancheria. It took over three decades to have our
Federal status and our rights restored.
The Chairman. Ms. Mejia, will you please summarize your
statement?
Ms. Mejia. Yes, Mr. Chairman.
We have been able to take land into trust and establish
economic independence. It was an act that righted a wrong that
the Federal Government committed against our Tribe. I ask you
let the act of justice stand and oppose the enactment of S.
872.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Mejia follows:]
Prepared Statement of Hon. Margie Mejia, Chairwoman, Lytton Rancheria
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much, Chairperson Mejia.
And now I would like to call on Mayor Morris.
Will you please proceed with your testimony?
STATEMENT OF HON. PAUL MORRIS, MAYOR, CITY OF SAN PABLO,
CALIFORNIA
Mr. Morris. Thank you and good afternoon, Mr. Chairman and
Members of the Committee. Thank you for inviting me here today.
I certainly appreciate this hearing.
My name is Paul Morris. I am the Mayor of the City of San
Pablo. Vice Mayor Cecilia Valdez and I are attending this
hearing today so we can bring you our unique perspective about
the San Pablo Lytton Casino.
If you take anything from my statement today, this is what
I want you to remember. The Lytton Rancheria is a respected,
involved member of the community and has been since day one.
Thanks to them, San Pablo residents are enjoying a safe and
secure community. I am not an expert on gambling, but I am an
expert on the City of San Pablo.
Claims that casinos bring in high crime are unfounded in my
city. This may be true for other communities with different
dynamics, but you should not create legislation for one
specific community, using broad data and vague claims of
increased crime that have been shown to be inapplicable in San
Pablo.
The Lytton Casino has minimal impact on local traffic and
public safety. This stands in stark contrast to the belief by
critics that any urban gaming is detrimental to the public
welfare. The Lytton Casino has not increased crime or traffic
congestion. Instead, it has allowed us to have the resources to
significantly reduce crime. As of 2010, we have had 20 percent
decrease in violent crime and a 19 percent reduction in
property crimes since 2008.
The Police Department has been able to provide significant
increases in personnel, state-of-the-art equipment, and multi-
jurisdictional training. None of this could have happened
without the additional resources that the casino made possible.
Without those resources, the department would have had to cut
nearly half of its sworn officers and dissolve a number of
specialty programs, including gang violence reduction,
narcotics task forces, and youth services programs. 9-1-1-
response times would increase and public safety would be
compromised.
The payments received from the casino also make up nearly
two-thirds of the city's general fund. Because of this, the
city has been able to provide after school programs, a new
youth services program, and with an emphasis on intervention
and prevention.
We have also been able to keep a local elementary school
open for the last three years, despite closure plans by the
School District.
The Lytton Rancheria provides financial support to San
Pablo residents beyond just city government, including, but not
limited to almost $250,000 to the San Pablo Senior Center in
the past few years to provide key services and maintain social
programs that would disappear without them.
When Senator Feinstein introduced S. 872, she stated that
the legislation would implement a reasonable solution to this
problem. My main point to make today is that there is, in fact,
no current problem that must be remedied. The problem, as posed
by the Senator, is that the government now has little ability
to regulate Lytton Band's gaming operation. This could not be
further from the truth. All activities at the casino are as we
speak fully subject to regulation by Federal law and we are
unaware of any problems that Interior or the BIA have had with
operations at this location.
The casino is subject to extensive oversight and regulation
by the NIGC and also by the city via our municipal services
agreement. In fact, the Tribe is required to go through the
city's normal planning and environmental review procedures,
public notice, and public hearings if it ever wants to expand
its operations. So here again, there is really no current
problem either at the local or Federal level that must be
addressed.
On the other hand, our community already suffers much more
in this horrendous economy. As of the last year, 19.8 percent
of San Pablo residents lived below the poverty line; 19.5
percent were unemployed. Almost all of our working residents
work outside the city and it is thus essential that we
increase, not decrease the number of local jobs.
This legislation seeks to address a nonexistent problem.
The Lytton Casino has been operating for over eight years with
no problems, but many benefits. There is no reason to turn the
clock back and make their lives harder. There are sensible
changes that this legislation would prevent, such as an
addition of a parking structure to the existing building. San
Pablo and its residents would be collateral damage if this bill
should pass.
While deliberating, we ask that this Committee keep that
fact in mind, and the fact that the economic recession is
hitting San Pablo harder than most.
Thank you for your time, Mr. Chairman. I would be happy to
answer any questions you have.
[The prepared statement of Mr. Morris follows:]
Prepared Statement of Hon. Paul Morris, Mayor, City of San Pablo,
California
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much, Mr. Mayor, for your
testimony.
Mr. Andersen, President Andersen, would you please proceed
with your statement?
STATEMENT OF RALPH ANDERSEN, PRESIDENT/CEO, BRISTOL BAY NATIVE
ASSOCIATION; CO-CHAIR, ALASKA FEDERATION OF NATIVES
Mr. Andersen. Good afternoon, Chairman Akaka, Senator
Murkowski, and Senator Franken. My name is Ralph Andersen. I am
the Co-Chair of the Alaska Federation of Natives. I am also the
President and Chief Executive Officer of the Bristol Bay Native
Association based in Dillingham, Alaska.
I am honored to be here to testify in support of the Alaska
Safe Families and Villages Act. AFN is the largest statewide
organization in Alaska of Alaska Natives, representing 125,000
Natives within Alaska and nearly an equal number living outside
of Alaska. AFN was formed in 1966 initially to fight for
aboriginal land claims and for the past 45 years has been at
the forefront of efforts to advance Alaska Native self-
determination.
It hosts the largest gathering of Alaska Natives, the
annual AFN convention attended by thousands of Alaska Natives.
In October, the convention delegates adopted Resolution 1129 in
support of the Alaska Safe Families and Villages Act. I have
appended a copy of that resolution to my testimony.
BBNA is a regional nonprofit Tribal consortium of 31
federally recognized Tribes in the Bristol Bay region. Our
geographic area of southwest Alaska is about the size of the
State of Ohio. Our regional population is about 7,000 people,
about 70 percent are Alaska Native.
Both the AFN and the BBNA strongly support the Alaska Safe
Families and Villages Act. This legislation will allow local
Tribal courts and law enforcement to address social problems at
home in the village. Currently, villages rely on the State of
Alaska to provide all law enforcement and judicial services,
often at centers a great distance away from the village.
The bill will establish a demonstration project by which a
small number of Tribes would be authorized to enforce local
ordinances dealing with alcohol and drug abuse, domestic
violence, child abuse, and neglect. Alaska Tribes already have
some jurisdiction in those areas, but most villages have not
developed Tribal ordinances and procedures.
The ordinances and the Tribes' plans for implementing the
demonstration project will be subject to the oversight and
approval of the Department of Justice every step of the way.
The bill creates no Tribal criminal jurisdiction, but simply
confirms civil regulatory jurisdiction over alcohol and drug
abuse, domestic violence, and child abuse and neglect. It does
not address major crimes, does not authorize Tribes to jail
people, and does not diminish in any State law enforcement
authority, criminal or civil.
Although the demonstration project starts small, we believe
it will be such an obvious success that Congress will expand
the program and make it permanent in future years.
Alaska Natives are far better situated to address social
problems, particularly involving children and youth, at home
under Tribal authorities, better than the State. While this is
often discussed in terms of law enforcement, I believe it is
more of a problem of access to State courts.
Alaska State courts are not local in most places. In
Bristol Bay, for example, we have 28 year-round inhabited
communities spread over an area the size of the State of Ohio.
There are State courts in only communities, Dillingham, and
Naknek. Alaska has no Justice of the Peace Courts like some
States have, and there are no municipal courts outside the big
cities.
We have villages in our region that are more than 200 miles
from the closest State court and there are no roads in between.
Even a village that has a local village public safety officer,
or VPSO, or even a local city police department, is still
dependent upon a prosecutor's office and the court system in
some large community far away.
I grew up in a small village, Clarks Point, which is across
the Nushagak Bay from Dillingham. It is only about 15 miles
away as the eagle flies, but there are no roads connecting
them. And if the weather is bad, it is simply inaccessible
until the weather breaks. Clarks Point has about 75 people.
Although it has had a VPSO in the past, the position is
currently vacant and has been difficult to fill. There is no
chance that a village of 75 people will ever have a magistrate,
a State magistrate or a State court. It simply wouldn't be
cost-effective.
Clarks Point does have, however, a functional Tribal
Council that already provides a number of services in the
village. Although some villages have city governments as well
as Tribal councils, most city governments do not enforce
criminal or civil laws because they would have to pay the cost
of a prosecuting attorney, provide public defenders, and pay
for a prosecution in State courts.
Alaska Tribes already have some authority in these areas of
child custody and adoption, child neglect, and domestic
relations based on Tribal membership. But Alaska Tribes do not
have land-based jurisdiction and the exact extent of Tribal
authority in Alaska has been very unclear.
We are not advocating for the creation of Indian Country in
Alaska. I want to make that very clear. We are advocating and
think it makes enormous sense to allow Tribes to handle some
explicit and specific types of problems in their villages and
to clearly define what those types of cases are.
Alaska Natives have probably the highest rate of suicide in
the Nation, perhaps the world. We have hugely disproportionate
rates of sexual assault, domestic violence, alcoholism, and
accidental death. Many of the sexual assaults and domestic
violence go unreported, but the scars can be seen. Most of
these problems and scars trace back to alcohol abuse.
For too long, law enforcement in rural Alaska has been
under-funded and in many smaller, remote villages virtually
nonexistent. The Alaska State Court system does not reach out
far enough or fast enough for many of our remote, isolate
villages. For too long, villages then have had to travel great
distances at great expense for court cases.
For too long, we have seen bootleggers, domestic violence,
and sexual abuse offenders walking our village streets unabated
because State law enforcement is too slow to respond and
prosecutions are too difficult.
This bill is a tool and step in the right direction. It is
a break from past practices and attitudes. It shows a practical
understanding that sheer economics, budgetary, and political
constraints will always preclude the State of Alaska from
providing truly adequate judicial resources in hundreds of tiny
geographically remote villages. It also recognizes that Tribal
governments can fill the gap and it adds an element of
prevention and early intervention.
We appreciate Senator Begich and Chairman Akaka and Senator
Murkowski and this Committee that you are willing to roll up
your sleeves to help us put into place locally controlled,
culturally relevant practices to help reduce serious social
problems. You will save lives. You will save lives in our most
remote and neediest villages in the Country and in Alaska.
I want to be very clear that we don't want to create Indian
Country in Alaska. At the same time, we don't want to take over
responsibility for criminal courts or jails and law
enforcement. We simply want to do our share, to do our part, to
do what we can to help.
Complicated jurisdictional issues should really not get in
the way of providing basic, needed, and common sense solutions
in the villages. The longer they go on, the longer our people
will suffer, and lives will be destroyed or lost.
The demonstration project as provided in the bill is well
designed and provides a step-by-step approach. It will work.
In closing, I want to stress that I have the deepest
respect for the State government and the current
Administration. I have great respect for Governor Parnell. He
has shown a deep commitment to addressing alcohol and drug
abuse, domestic violence, and sexual assaults in Alaska.
The Chairman. President Andersen, will you please summarize
your statement?
Mr. Andersen. Yes. I have great respect for the village
public safety officers and State troopers. The VPSOs have the
toughest jobs that I can imagine.
Again, I want to express AFN and BBNA and our sister
regional Native nonprofit consortiums' support for this bill.
We believe it is a very positive step toward empowering local
communities and local residents to take responsibility for
problems and for resolving them at home.
Thank you, Chairman Akaka.
[The prepared statement of Mr. Andersen follows:]
Prepared Statement of Ralph Andersen, President/CEO, Bristol Bay Native
Association; Co-Chair, Alaska Federation of Natives
Good afternoon Chairman Akaka and distinguished members of the
Committee. My name is Ralph Andersen. I am Co-Chair of the Alaska
Federation of Natives (AFN) and I am also the President and Chief
Executive Office of the Bristol Bay Native Association (BBNA), based in
Dillingham, Alaska. I am honored to be here today to testify in support
of the Alaska Safe Families and Villages Act.
AFN is the largest statewide organization of Alaska Natives,
representing 125,000 Natives within Alaska and nearly an equal number--
120,000--living outside Alaska. AFN was formed in 1966, initially to
fight for aboriginal land claims, and for the past 45 years has been at
the forefront of efforts to advance Alaska Native self-determination.
It hosts the largest gathering of Alaska Natives, the AFN Annual
Convention attended by thousands of Alaska Natives. In October the
convention delegates adopted Resolution 11-29 in support of the Alaska
Safe Families and Villages Act. I am appending a copy of that
resolution to my testimony.
BBNA is a regional non-profit tribal consortium of 31 federally
recognized tribes within the Bristol Bay Region. Our geographic area in
southwest Alaska is about the size of the State of Ohio. Our regional
population is about 7,000 people, about 70 percent are Alaska Native.
BBNA operates a variety of service programs for our member tribal
villages, including Bureau of Indian Affairs programs that we operate
under a self-governance compact agreement that has been in effect since
1995.
Both AFN and BBNA strongly support the Alaska Safe Families and
Villages Act and, in fact, both organizations have supported this and
similar legislative proposals to clarify tribal civil jurisdiction in
Alaska for many, many years, dating at least to the Clinton
administration. We are very pleased this bill has been introduced and
that this hearing is being held.
Plugging the Gaps
The basic idea of this legislation is to allow local tribal courts
and law enforcement--to address social problems and petty offenses
involving tribal members at home, in the village, instead of relying on
the state government to provide all law enforcement and judicial
services, often from centers a great distance away from the village.
The bill will establish a demonstration project by which a small
number of tribes, no more than three per year for three years--nine
total--would be authorized to enforce local ordinances dealing with
alcohol and drugs for a period of five years. The bill is also intended
to enhance tribal enforcement of domestic violence and child abuse and
neglect matters. Alaska tribes already have some jurisdiction in those
areas but most villages have not developed tribal laws and procedures.
The ordinances and the tribe's plan for implementing the demonstration
project would be subject to the oversight and approval of the
Department of Justice.
The bill creates no tribal criminal jurisdiction, but simply
confirms civil regulatory jurisdiction over the subjects listed in the
bill--alcohol, drugs, domestic violence and child abuse and neglect. It
does not address major crimes, it does not authorize tribes to jail
people, and it does not diminish in any way state law enforcement
authority, criminal or civil. It is intended to address what might be
called entry-level offenses such as underage drinking and drug use, and
to keep such problems from escalating. It makes far more sense to
address low grade offenses immediately, at home, rather than waiting
until they get so bad a person is caught up in the state criminal
justice system, jailed, and sent to court dozens or even hundreds of
miles away from home.
This is very much a common sense bill to fill gaps in existing
services. Although the demonstration project starts small, we believe
it will be such an obvious success Congress will expand the program and
make it permanent in future years.
Alaska Native villages are far better situated to address social
problems, particularly involving children and youth, at home under
tribal authorities, than is the state government. It would benefit
everyone, including the state agencies, if some problems such as
juvenile delinquent behavior could be curtailed and the person helped
by the local community before the behavior ever escalates or becomes a
state issue.
While this is often discussed in terms of law enforcement--and
there are gaps in state law enforcement--I tend to believe it is more a
problem of inadequate courts and access to courts. The state court
system is not the most culturally appropriate way for dealing with
young Native offenders, nor are state courts ``local'' in most places.
In Bristol Bay, which has 28 year-round inhabited communities spread
out over an area the size of Ohio, there are state courts in only two
communities--Dillingham and Naknek. Alaska has no justice of the peace
courts like some states have, and there are no municipal courts outside
the big cities. We have villages in our region that are more than 200
miles from the closest state court, and there are no roads in between.
Even a village that has a local Village Public Safety Officer
(VPSO) or even a local city police department is still dependent on a
prosecutor's office and court system in some larger community miles
away.
I grew up in a Bristol Bay village, Clarks Point, which is across
the Nushagak Bay from Dillingham. It's only about 15 miles away as the
eagle flies, but there are no roads connecting them and if the weather
is bad it is simply inaccessible until the weather breaks. Clarks Point
has about 75 people. Although it has had a VPSO position in the past,
the position is currently vacant and has been difficult to fill. There
is no chance that a village of 75 people will ever have a state
magistrate court or a resident state trooper--it simply would not be
cost effective. Clarks Point does, however, have a functioning tribal
council that already provides a number of services in the village.
There is simply no logical reason why the tribe should not be able to
prosecute and handle minor offenses at home as civil regulatory
matters. That is all S. 1192 does, on a pilot basis for up to nine
villages.
I will note that although some villages have city governments as
well as tribal councils, the city governments in the villages do not
directly enforce criminal or civil regulations because they would have
to pay for the expense of a prosecuting attorney, provide public
defenders, and otherwise pay for prosecution in the state courts in the
regional hubs. The city government in Clarks Point has no resources to
be prosecuting cases in Dillingham.
Although Alaska tribes already do have some authority in areas such
as child custody and adoption, child neglect, and domestic relations
based on tribal membership, Alaska tribes do not generally have land-
based jurisdiction and the exact extent of tribal authority in Alaska
has been very unclear. We are not advocating for the creation of
``Indian Country'' jurisdiction in Alaska. I want to make that very
clear. We are advocating and think it makes enormous sense to
explicitly allow tribes to handle some types of problems within their
villages and to clearly define what those types of cases are, without
getting into a complicated analysis based on land status and without
waiting for decades of litigation to establish the parameters of tribal
jurisdiction. The cleanest way to do this is by enacting a federal law
to clarify a few subject matters areas where tribes can assert
authority.
To illustrate the problems tribes run into in addressing social
problems through tribal courts, one of the larger Bristol Bay villages
operated a tribal court that handled juvenile cases for about ten
years. The particular village has a city police department, and my
understanding is that the tribe had a written agreement with the city
by which the local city police referred some juvenile cases to the
tribal court. The agreement was also signed off by the State of Alaska.
This agreement and arrangement worked well and the tribe successfully
handled a number of cases, each of which would otherwise been in the
state system and prosecuted 70 miles away in Dillingham. Recently,
someone in the city government had questions about the agreement that
were referred to the state Attorney General's office. The AG's office
concluded this diversion of cases was improper and that the state could
not honor its own prior agreement with the tribe. Understandably the
city, which is a subdivision of the state, is now no longer willing to
honor the agreement either.
Sadly, a cooperative effort that was working, that was probably
within the normal discretion of state law enforcement anyway, and that
benefited all parties was ended because someone in a state office in
Anchorage or Juneau hundreds of miles away decided it was a bad thing
to work cooperatively with tribes. It has been our experience that
state opposition to tribes almost always comes from state elected
officials and the higher echelons of state government. People who
actually do the work in the field--state troopers, social workers,
judges, prosecutors--are practically always more than willing to work
with tribes because they correctly see the tribes as a resource.
The Need
I do not wish to spend too much time talking about the severity of
social problems in rural Alaska. We have told our story over and over
and the bill itself recites many of the statistics. Alaska Natives
probably have the highest suicide rate in the nation and perhaps the
world. We have hugely disproportionate rates of sexual assault,
domestic violence, alcoholism, and accidental death. Many of the sexual
assaults and domestic violence goes unreported, but the scars can be
seen. Too many of our people are in prison. Too many of our adults find
it difficult to get jobs because they have criminal records. Most of
these problems trace back to alcohol abuse.
For too long law enforcement in rural Alaska has been underfunded
and in many small remote villages virtually non-existent. The Alaska
Court system does not reach out far enough or fast enough for many of
our remote, isolated villages. For too long, village residents have had
to travel great distances at great expense for court cases. For too
long we have seen bootleggers and domestic violence and sexual abuse
offenders walking our village streets unabated because state law
enforcement is slow to respond and prosecutions too difficult. While
the lack of courts or law enforcement is not the cause of our high
rates of suicide and other social problems, it is certainly an obstacle
to addressing them.
The bill is a tool, and a step in the right direction. It is a
break with past practices and attitudes and shows a practical
understanding that sheer economics, budgetary and political constraints
will always preclude the Alaska state government from providing truly
adequate law enforcement and judicial resources in dozens of tiny,
geographically remote villages, scattered across an area the size of
the State of Ohio. It also recognizes that tribal governments can help
plug the gap, and it adds an element of prevention and early
intervention that is lacking in the state system.
We appreciate that Senator Begich, Chairman Akaka, and this
Committee, are willing to roll up your sleeves to help us put into
place locally-controlled, culturally-relevant practices to help reduce
social problems. You will help save lives in some of our most remote
and neediest villages in the country and in Alaska. I want to be very
clear that we don't want to take over responsibility for criminal
courts, jails, and law enforcement. We simply want to do our share--to
do our part--to do what we can to help. Complicated jurisdictional
disagreements with the state really should not get in the way of
providing needed, common sense solutions in the villages. The longer
they go on, the longer our people will suffer and lives will be
destroyed or lost.
In addition to establishing the demonstration project on tribal law
enforcement and courts, the bill will open a new temporary federal
funding stream in support of the project. This includes both training
of our tribal courts and administrators and some additional funding for
law enforcement. The demonstration project as provided in the bill is
well designed and provides a step by step process. It will work.
Closing
In closing I wish to stress I mean no disrespect for the Alaska
state government or the current state administration. I have great
respect for Governor Parnell. He has shown a deep commitment to
addressing alcohol and drug abuse, domestic violence and sexual
assaults in Alaska. In rural Alaska, in recent years the state has
expanded the Village Public Safety Officer Program. I have great
respect for Village Public Safety Officers, and the Alaska State
Troopers and the Alaska Court System. Our VPSO's have the most
difficult jobs that I can imagine. But there are simply inherent
constraints such that the state is never going to pay for magistrates
and state police officers in 200-plus villages. The bulk of the
population and the political power in Alaska are in the urban areas of
Anchorage, Fairbanks and Juneau. Even the VPSO program, which is an
excellent program specifically designed for villages, is hampered by
relatively low wages, lack of housing, difficulty in recruitment and
other limits.
I have witnessed first-hand the largely unchanged social problems
in many villages that have existed since my childhood days. We still
hear of family violence, bootlegging, and sexual abuse. It seems not a
week goes by when we hear of another suicide or death.
There is no single solution to these difficult problems nor are
there any easy answers. The right solutions will likely vary from
region to region, community to community, and involve more than just
one agency and more than one just one program or approach. We need and
want our tribal governments and tribal law enforcement and courts to be
part of the equation. We want to be part of the solution. Tribes are
already there, providing services on the ground.
The Alaska Safe Families and Villages Act will break new ground by
actually recognizing that Alaska tribal governments have a role in and
are part of addressing the important needs for law enforcement and
judicial services in remote areas. For this reason the Alaska
Federation of Natives, the Bristol Bay Native Association, and our
sister regional Native non-profit tribal consortiums consider this bill
a very high priority. We believe this bill will be a very positive step
toward empowering local communities and local residents to take care of
problems at home.
Thank you again Chairman Akaka and members of the Committee for
giving me this opportunity to testify.
Attachment
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much.
Commissioner Masters, please proceed with your testimony.
STATEMENT OF JOE MASTERS, COMMISSIONER, ALASKA DEPARTMENT OF
PUBLIC SAFETY
Mr. Masters. Good afternoon. I am Joe Masters and I am the
Commissioner for the Alaska Department of Public Safety, whose
mission is public safety in the State of Alaska.
As a matter of introduction, I am a Yupik Eskimo and I have
been raised in the Aleutian Islands. I have been a law
enforcement officer for 29 years and began my career as a
village public safety officer in the village of Unalakleet. I
later became a city police officer and then spent 20 years as
an Alaska State trooper and I have been the Commissioner for
the past three years.
Mr. Chairman, Members of the Committee, Senator Begich,
thank you for this opportunity to comment on behalf of the
State of Alaska on this Senate bill.
Assuring that families and villages in Alaska are safe is
unquestionably an objective that the State of Alaska shares
with the Federal Government and with all Alaska Tribes. I would
like to do two things in my testimony: first, outline for you
the State's recent efforts to improve law enforcement in rural
Alaska Native villages; and second, to respectfully suggest to
the Committee that the serious issues facing rural Alaska
require a different long-term framework than provided in the
Act.
And I would welcome an opportunity to assist the Committee
and the bill sponsors to overcome our concerns.
Alaska's Governor Sean Parnell has made unprecedented
investments in improving rural justice, including establishing
a 10-year State initiative to end domestic violence and sexual
assault. As part of that initiative, he made the unprecedented
commitment to ensure that there is a law enforcement presence
in every village.
To that end, he has increased the hiring of village public
safety officers and shared the vision of adding 15 of those
positions each year for 10 years. To give you some idea of the
extent of these recent efforts, in 2008 there were 46 VPSOs in
rural Alaska villages within the program, funded at $5.7
million. Today, there is funding for 101 positions, and
importantly, the Governor wants to bring that number to 116
with program funding that could exceed $19 million in State
fiscal year 2013. This is a 325 percent increase from just a
few years ago.
It is not just about VPSOs. There are also more than 100
village police officers and Tribal police officers in Alaska
communities providing a law enforcement presence in all but 75
Alaska communities.
Alaska is also seeking partnerships with Department of
Interior BIA for law enforcement technical assistance and
training for these VPO's. We have added State troopers in
support positions in rural Alaska to increase our presence and
response capacity, as well as increased training and assistance
for all categories of law enforcement officers.
The efforts are not confined to law enforcement. The
Governor's domestic violence initiative funded and completed
baseline studies of the actual incidents of sexual assault and
domestic violence in Alaska to assist future policy, fiscal,
and programmatic decisions.
These efforts collectively mark a concerted, serious, and
ongoing commitment by the State of Alaska to address the
precise issues of concern stated in S. 1192. The belief that
law enforcement efforts are broken or that Alaska cannot or
will not provide services to Alaska Native villages is not
accurate.
I would like to suggest a framework for proceeding that
would build on and develop already existing Federal-State-
Tribal partnerships. The State already has solid partnerships
with many Federal agencies, and we can build on these
partnerships to the benefit of Native communities and to the
State of Alaska as a whole.
We have a number of specific suggestions for moving
forward. Federal dollars directed to assist villages with
public safety infrastructure needs and to hire and train
officers such as VPSOs and VPOs would go a long way to
increasing safety in rural Alaska. Targeted programmatic
Federal assistance for education, prevention, and early
intervention programs to address underlying social issues such
as substance abuse and truancy would also be immensely
beneficial.
There are provisions within this Act that unquestionably
promote safety and will enable Tribes to take a more active
role in their own wellness. However, the Act also contains
ambiguous provisions that the State believes may create Indian
Country and may create Tribal criminal jurisdiction that will
be counterproductive to those collaborative efforts I just
spoke of.
Alaska Attorney General John Burns has specifically
commented on these issues in a letter that is included with my
written testimony.
Dividing the State into jurisdictional project areas
subject to separate rules and separate court systems is not a
practical approach for the long term. Rather, programs
addressing law enforcement training, programs for technical and
programmatic support to village and Tribal councils, and
programs directed to regional and community efforts are all
areas where the Federal Government can truly be part of the
solution. And we hope that you will consider these specific
ideas.
Although I am not testifying on S. 1763, I do want to let
you know that we have made specific comments that are pertinent
to your review and they are also contained within my written
testimony.
In closing, we believe practical, programmatic solutions do
exist to the intractable issues of violence and crime in our
rural communities. And those solutions are preferable to a top-
down federally imposed jurisdictional solution.
Moving forward, we appreciate the opportunity to offer
input and work with the Committee staff and Tribal partners to
seek a consensus about how best to proceed in Alaska and are
dedicated to devoting the staff and resources necessary to make
this happen.
Thank you.
[The prepared statement of Mr. Masters follows:]
Prepared Statement of Joe Masters, Commissioner, Alaska Department of
Public Safety
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much, Commissioner Masters.
I will hold my questions. I will ask Senator Murkowski to
make a very quick statement, and then I will call on Senator
Franken for his questions and remarks.
Senator Murkowski. Mr. Chairman, thank you. And I apologize
particularly to our two Alaska witnesses, Commissioner Masters
and Mr. Andersen. I have to duck out of the Committee here and
go over to the Capitol, and I am hoping that I can dash back in
time to ask my questions. If I am not able to, I will be
submitting those questions for the record.
But I first want to thank you not only for making the long
haul back here, but for your testimony and for your commitment
to work with us to address the issues that have been discussed
here today, not only on Senator Begich's bill, but as we look
at the bigger legislative issue which faces so many in our
reservations and up in Alaska.
So Mr. Chairman, I am going to dash and I am hoping that I
am going to be back in time.
Thank you.
The Chairman. Thank you, Senator Murkowski.
Senator Franken?
Senator Franken. Thank you, Mr. Chairman.
Ms. Koepplinger, when this Committee met in July, we heard
testimony about the cycle of violence in Indian Country.
Children who were exposed to violence at a young age are more
likely than their peers to commit acts of violence or suffer
from acts of violence when they become adults. According to the
Shattered Hearts report that you cited in your testimony, young
Indian sex trafficking victims believe, ``that a cycle of
violence has been normalized in their communities.''
The SAVE Native Women Act authorizes services for children
and for non-abusing parents, and I think this is a good step
for breaking the cycle of violence in Indian Country. I would
imagine that you would agree.
Ms. Koepplinger. Yes.
Senator Franken. What types of services should these
children be receiving to keep them off a path toward violence?
Ms. Koepplinger. Thank you, Senator Franken. I do agree
that services to our young people and to entire family systems
is part of the solution. The services are complex and they need
to be holistic and they need to be culturally based.
Housing is a critical need. We have young people on the
streets of our towns and our cities who have no place to go,
who engage in what they refer to as survival sex simply to have
a place to sleep at night or to have food to eat. So housing,
safe appropriate shelter that is long term, that meets these
children where they are and can address their multiple needs is
absolutely critical.
Family reunification and preservation when possible is
absolutely critical. We want to make sure that when there's a
safe adult for a young person to be reunified with, whether
that is on the reservation or in the city, that we are able to
facilitate that.
Mental health, chemical help services, parenting services,
educational assistance, the list goes on and on. But these kids
didn't fall into these dangers in a short amount of time. They
typically have been accumulating traumas since they were very
young, which makes them extremely vulnerable to predators. And
so we have to work entire family systems and we have to work
with the school system and our law enforcement and public
health officials and the Tribes to makes sure that we are
providing the wrap-around services that these young people
need.
Senator Franken. You brought up homelessness. You recently
wrote a report for the Online Resource Center on Violence
Against Women in which you point out that sex traffickers
target homeless Native women and children. And the Minnesota
Indian Women Resource Center's Shattered Hearts report notes
that nearly one-third of Native women were physically or
sexually attacked while they were homeless.
I know there is a huge unmet demand for homeless shelters
and for transitional housing services, and we must do more to
meet that demand. We also must do more to ensure that victims
of domestic and sexual violence do not become homeless in the
first place. So I am working on a bill that will make it
unlawful to evict a woman from federally supported housing just
because she is a victim of domestic violence, dating violence,
sexual assault or stalking. This is a preventive measure that
will allow victims to keep their homes when they need shelter
the most.
I am so grateful to you, Ms. Koepplinger, for the Minnesota
Indian Women's Resource Center's endorsement of that bill and I
would like to thank you personally for the valuable feedback
you provided on it. I am looking forward to introducing that
bill soon.
Can you talk a little bit more about the relationship
between homelessness and sexual violence, and explain why
stable housing is so important to victims?
Ms. Koepplinger. We see very strong links between sexual
assault, being vulnerable to predators, and the lack of stable
and secure housing. And we are very happy to support the bill
that you referenced. We think it is a critical step in keeping
women safe.
We know that many women stay in abusive situations because
they can't afford to move out, which puts them a greater risk
for additional violence. We know that when women are forced to
leave because the violence is too great or they fear for their
children, if they are on the streets, if they are couch-
hopping, if they are sleeping in shelters, they are again more
vulnerable to predators.
We know that some women who have no other options, if they
don't have an education or they have no functional job skills
and they can't find a job will turn to the streets because they
have children to feed. Perhaps their welfare benefits have run
out. And because of the normalization of sexual violence, it in
some ways has become an option for some people.
But we absolutely see this every single day with the women
that we work with at the Indian Women's Resource Center. If
there is not a safe place to stay and if there is not a place
for the children to go to school on a regular basis, it only
adds to the risk that they are facing every single day.
Senator Franken. Thank you very much.
Mr. Chairman, I see I am out of time. I do have a question
for Mr. Heffelfinger.
The Chairman. Please proceed.
Senator Franken. I can proceed? Thank you.
Mr. Heffelfinger, thank you for coming. In your written
testimony, you say that the SAVE Native Women Act will empower
Tribes who are on the front lines of the efforts to fight
domestic violence.' I would like to hear a little bit more
about that.
Drawing on your experience as a Federal prosecutor, can you
explain why it is so important that Tribal courts be given
jurisdiction over cases involving non-Indians who commit acts
of violence against women in Indian Country?
Mr. Heffelfinger. Chairman Akaka, Senator Franken, in
addition to having been a Federal line prosecutor, I was also a
State prosecutor in Minneapolis. And it is based on that
experience that it is my conclusion domestic violence is among
those types of criminal offenses which are most properly
handled as close to the community, as close to the act level as
you possibly can.
Compare, say, crimes like drug dealing or bank robbery,
these are ones in which you can form a regional or a statewide
kind of strategy. But you have to deal with crimes like
domestic violence, which are within the family kinds of crimes,
child abuse is another good example, at the level of the
community itself. The community is in the best position to
respond to those crimes, to prevent those crimes.
What is wonderful about this Act is that it lets the courts
and the law enforcement and the prosecutor, who are right there
in the community and have the ability to respond immediately
and directly to the violence going on in that community. And
that is not simply making arrests and initiating prosecutions.
It is also the ability to give the courts jurisdiction to
fashion a sentence that can not only punish, but prevent and
deter. And that is much better if done on Red Lake than it is
if done to a Red Laker by a judge sitting in St. Paul.
That is why I believe one of the reasons this bill will be
very effective when implemented.
Senator Franken. I just want to follow up, because part of
the question I was trying to get it is jurisdiction over non-
Indians. And this is partly the Oliphant decision. Why is that
important? That, in other words, on Red Lake, maybe it isn't a
domestic violence situation. Maybe it is a sexual assault. Why,
in your opinion, is it important that Red Lake have
jurisdiction over a non-Indian perpetrator?
Mr. Heffelfinger. Well, it starts with the statistics,
Senator. As the Amnesty International report showed, something
like 60 percent of domestic violence offenders are non-Indian
upon Indian. And how can a local law enforcement officer, a
local prosecutor, respond to a crime if it makes a difference
what the race is? You are taking 60 percent of the offenders
and basically making them immune.
In the local community, where you are attempting to respond
to domestic violence, if you have 60 percent of your offenders
that are outside the jurisdiction of your local police and your
local courts, you have 60 percent that are untouchable.
Senator Franken. I just want to make sure that we are
working on the same definition of domestic violence because I
am talking about sexual violence, say, from a non-Indian who
may not know the victim.
Mr. Heffelfinger. Domestic violence includes, as defined in
this Act, Senator, both date violence as well as a longer-term
relationship. And so domestic violence as laid out in the Act
as I would interpret it physical violence, but I would also
interpret that as sexual violence in the domestic or dating
arena.
And if Tribal law enforcement, which is in the best
position to address these crimes, is to be effective, it has to
have jurisdiction over all the offenders in that community.
Otherwise, you have a group of offenders who are essentially
immune because you are relying on people who are outside of the
community and remote from the community to provide that
support.
Senator Franken. And thus your very, very eloquent
statement from the gentleman that you quoted at the beginning
of your testimony.
Mr. Heffelfinger. Without sovereignty, how can you protect?
How can you have sovereignty when you can't protect?
Senator Franken. How can you have sovereignty when you
can't protect your women and children?
Thank you both for coming.
The Chairman. Thank you very much, Senator Franken.
Let me call on Senator Begich for any questions he may
have.
Senator Begich. Thank you very much, Mr. Chairman.
I do have just a couple of questions. And again, thank you
for allowing me as a non-Member of the Committee to have some
opportunity to ask questions and I appreciate that greatly.
To both members from Alaska, thank you, as Senator
Murkowski said, it is a far distance to travel and those that
are coming, especially from western Alaska, experienced an
incredible storm that has hit with waves up to 30 feet high and
winds up to 100 miles an hour and a little bit of snow and a
little bit of ice. It is a very devastating impact that is
occurring right now. And so I thank you for being here.
First, Commissioner, if I can ask you just a couple of
questions. And I want to take a couple of exceptions, but I
want to take you up first, as we talked yesterday, on your
offer that we figure out and resolve some of the State's
issues. I disagree with, as you know, as I said yesterday, the
Attorney General's discussion about how this has jurisdiction
or Indian Country implications, because as you have heard from
the Co-Chair of AFN and myself, that is not the intent.
But I want to make it clear this is not a top-down
approach. You stated that in your comments. This only allows
the opportunity for Tribes to make a decision to develop a
demonstration project from the community up. So I want to make
sure we are on the same page here. If it was top-down, we would
just dictate and say this is the way you are doing it. That is
not what we are doing in this legislation. It creates another
tool in the toolbox.
And I would beg to differ that the court systems are
working. With 60-plus percent of offenders repeating their
offenses in Alaska and a disproportionate amount of Alaska
Natives in the judicial system, the system is broken. And we
can argue what you define as broken, but when 60 percent re-
offend, it is a system that is not working.
And when I faced this when I was Mayor of Anchorage, we,
with the young people of our city, we introduced a program that
was already in existence, but expanded it which was a simple
program called Youth Court, designed and developed by youth
themselves. No adults participated in the judicial process. The
impacts, 90 percent of those kids do not re-offend; 89 percent
pay their restitution. The State has embraced Youth Court all
over the State. We had one. Now there are multiple.
The concept of youth Courts are based on Tribal courts,
elder courts, youth and elder courts. They work.
So what is the real fundamental problem with allowing a
tool to Tribes, not dictating to the Tribes, saying here is a
tool. Because, maybe we will disagree, I don't think 60 percent
re-offender rate is a system that is working.
Mr. Masters. I guess, Senator, you are asking for a
comment. I didn't hear the question.
Senator Begich. The question is what do you object to
specifically in the idea of allowing Tribes to----
Mr. Masters. Senator, in response to that, first off there
are already existing Tribal courts operating in Alaska. There
are some semblances of community-type court or youth courts
operating in Alaska as well, as you state.
There are currently officers that are employed by Tribes
acting as peace officers in the State of Alaska. And there is a
concerted effort by the State to put law enforcement in every
community. A lot of the basic structure provisions are already
in place in Alaska to be worked with and expanded upon, and
that can be collaborative in order to be effective.
I do agree with the concept that offenses should be dealt
with at the lowest level possible. I think that Tribal courts
that already exist in Alaska can be effective in dealing with
minor offenses and they can be very effective in dealing
particularly with truancy and other types of issues in
communities.
I think there is a great opportunity for the State of
Alaska and Tribes to work together through some of the work
that you are proposing in this bill. The primary concern the
State of Alaska has with the bill is, like I stated in my
testimony, and that is the potential expansion of criminal
jurisdiction and the creation of Indian Country or de facto
Indian Country. If we can get past that piece of the bill, I
think this is a great opportunity to work together to provide
programmatic, fiscal, policy, and pragmatic solutions to the
issues in rural Alaska.
Senator Begich. Last question, if I can ask very quickly to
the Co-Chair of AFN. I know, Ralph, this was just a concept,
but really it was several Tribes that came to us and said we
need some tools. And how do you see this issue of Indian
Country, which I do not see this as part of this piece of
legislation?
You said it more than once that it is not part of what your
intent is. But do you see this as an effective method or tool,
what we are trying to propose here, as a way to go after some
of these issues that are not truancy, you are right, truancy
and so forth, but we have to step it up. Because the real
issues are domestic violence, sexual assault, the issues of
substance abuse at a higher level.
Tell me why you think the Tribes really want to do this? I
mean, I think I know, but----
Mr. Andersen. Okay, thank you, Senator. It was the Bristol
Bay Native Association, the Tanana Chief's Conference and
Kawerak, three regional Tribal consortiums, and AFN that got
together about two years ago, primarily because we had seen
domestic violence, sexual assault perpetrators, bootleggers
walking the streets at home.
People in the village of Gambell on St. Lawrence Island,
there was a person that was there that was convicted or
suspected of child abuse. Because the State trooper couldn't
make it out there for a week or 10 days, that person was
walking the streets. Families, parents were keeping their
children at home. They were afraid to live in their own
village.
And that is just one example. We have other examples, too.
We finally said enough is enough; that we have had enough. We
have to do something about this. We can't have our own people,
we can't have any person regardless of color, regardless of
race, living in any of our communities in constant fear;
constant fear of being beat up; constant fear of being molested
or raped.
Trying to get a person arrested somewhere and getting them
through the court system is really, really, really difficult;
really expensive. Again, we don't want to take over jails. We
don't want to take over criminals. We don't want to prosecute
murders. We don't want to prosecute DUIs and those kinds of
things, the criminal cases.
But we believe if we are able to prosecute and use our
Tribal courts, use our elders, that is who the Tribal courts
normally are. They are elders in the community, well respected,
to tell kids, to tell delinquents you have to behave yourself,
and sentence them to community service so the whole town sees
they are set as examples.
Senator Begich. Thank you, Ralph.
And let me say again, Mr. Chairman, thank you for the
opportunity to present the bill today. Thank you for both.
And Commissioner, we will take you up on the opportunity
because I think the mission is the same. We have to change the
way we do the business in rural Alaska. We have to change and
create an opportunity of some new tools in the tool box to
create a system that creates justice and ensures that people,
no matter where they live in Alaska, don't have to fear living
in their own community. So I look forward to working with you,
Commissioner.
And again, Ralph, to you and your organization, thank you
for your last two years of working aggressively on this
legislation, and I underline aggressively. I look forward to
working with you as we move this forward.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Begich. It is
good to have you here with us. Thank you.
I would like to ask the Chairperson of Lytton Rancheria
Mejia, can you describe the change in circumstances that led
the Tribe to withdraw its support for the legislation?
Ms. Mejia. Certainly, I would be happy to, Mr. Chairman.
There was a change in DOI policy for the restored lands
exception. When I first started, I met with DOI and they had a
different position. I mean, it was almost impossible to get a
restored lands exception allowing you to have the land and do
gaming on the land.
So that is why we sought authorizing legislation so that we
could have our facility and start generating revenue for the
Tribe. In 2009, we had seen the policy had changed within the
Bureau of Indian Affairs on the restored lands exception, and
we had conversations with them. In 2009, my team met with
Senator Feinstein's staff and said at this point, we don't
think we can continue on with the compromise, given this
reason. And we laid it all out there.
So that is why we had to withdraw our willingness to work
on that particular compromise.
The Chairman. Thank you very much.
Mr. Mayor?
Mr. Morris. Yes, Mr. Chairman?
The Chairman. Mayor Morris, in Congress, we are working to
find ways to improve job and economic opportunities in this
period of high unemployment. If this legislation passes, what
would the economic impact be to your community?
Mr. Morris. Well, the economic impact would be substantial,
Mr. Chair. When you look over the history of the City of San
Pablo, back in 1993 and 1994, the city was broke. We were just
about to close our doors when there was a proposal by the card
room, and we went out to the citizens to get a vote on what
they thought of bringing a card room into the City of San
Pablo. Almost 70 percent of the residents said yes, let's do
it. And had we not, we would have either had to dis-incorporate
and become part of the county or to be annexed by the
neighboring City of Richmond.
So then you fast forward to today where the City of San
Pablo and the City Council, the city staff, the City Police
Department up to this year have exercised extreme fiscal
responsibility by balancing our budget on good ideas to not
spend as other cities do on things that we just don't need.
So on one hand, we have the threat from this legislation,
which says that if the Tribe is not allowed, like other
casinos, to expand their business, then we have almost the,
should I say, this is income that would be going away. This is
income that would be leaving the community because other Tribes
will be allowed to go to level III gaming for example, where if
the Lytton Tribe is not, then it leaves them at a tremendous
disadvantage, and then leaves them open to this severe
competition where business will go away. If business goes away,
being our single largest business in the City of San Pablo,
then we can see a lot of our services now disappearing, and
programs.
So the fact that the Tribe and the city worked so closely
together and always have done, as I said in my testimony, that
from day one. There is no problem. The problem is being created
by the threat of this bill. And I think it is too bad that
Senator Feinstein had to leave, because she is hanging onto an
old idea, which goes back to her original bill of S. 113 three
years ago.
So the letter that was signed between the Tribe, the city,
and herself said they can remain the way they are, but I don't
think the Tribe is doing anything other than being competitive
to stay in business, stay competitive. And I think that is the
bottom line, Mr. Chair. It would have a severe impact on the
city, it really would.
We are trying to attract right now other businesses and
other entities in the community. We have done very well this
year. There are about 600 new jobs happening in San Pablo, from
a new Auto Zone, a new Walgreen's, a new barber college, a new
42,000 square foot supermarket, Hispanic, which 91 of those
employees at that supermarket are hired from the City of San
Pablo. And then there is a new county health clinic being built
and there are 200 new jobs there just in the construction, and
there will be about 200 permanent jobs once it opens.
So this is because of the ability to financially attract
these types of businesses into our community, to not be so
reliant on one big entity. But our relations with the Tribe is
exemplary, as I mentioned several times. There is no problem.
The bill will cause the problem.
The Chairman. Thank you very much.
Mr. Morris. I hope I have answered your question. I know it
is a long answer.
The Chairman. Thank you for your responses.
I want to tell you that I am impressed with your patience.
You have been very helpful with your responses. It will help
the Committee as we move forward with these bills, and it will,
I am sure, make a difference in what we do. And hopefully, if
it needs to, we can try to improve them better than they are.
But it is good to hear directly from you, and the way I put
it is that I like to hear from the trenches, and you have been
very gracious in providing as much of that kind of information,
which will help us in our deliberations.
So I want to again express a warm mahalo, thank you to the
witnesses at today's hearing. I want to thank my Senate
colleagues and the Administration for providing their views on
these bills. And I especially want to thank the Tribal
representatives and other stakeholders who traveled so far to
be with us today and have been so patient.
So we will consider your comments very carefully as we
consider how to move forward with these bills. And I want to
wish you well with your issues and say that all we are doing
here is to try to help the indigenous people of our Country.
And I thank you so much for being part of that.
Thank you.
This hearing is adjourned.
[Whereupon, at 5:10 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. George Miller, U.S. Representative from
California
Please accept this letter as my testimony for the official record
of the hearing that you are holding today on S. 872, a bill to ``amend
the Omnibus Indian Advancement Act to modify the date as of which
certain tribal land of the Lytton Rancheria of California is considered
to be held in trust and to provide for the conduct of certain
activities on the land.''
As you know, the House is not in session this week and I am working
in my congressional district and thus unable to testify before the
Committee in person. Thank you very much, however, for the opportunity
to comment on this bill. And thank you for inviting Mayor Paul Morris
of the City of San Pablo, a constituent of mine, accompanied by the
city's Vice-Mayor Cecilia Valdez, also a constituent, to testify. Mayor
Morris and Vice Mayor Valdez and I work closely together to improve the
economy for all the residents of San Pablo.
Let me state at the outset that I strongly oppose S. 872 and
believe that there is no justification for its passage by your
Committee or Congress. S. 872 is unfairly prejudicial against a single
tribe that has clearly satisfied the federal courts and the United
States Congress as to its right to conduct gaming in San Pablo, CA, in
accordance with federal laws and regulations.
The history of the Lytton Rancheria is well known to this Committee
and I do not intend to retell that history today. I have testified
before this Committee at length in the past concerning similar
legislation that would have reversed Congress' original intent by
unfairly singling out the Lytton Rancheria for unique restrictions and
burdens that are unwarranted and unjustified.
The fact of the matter is that the Lytton Rancheria has the right
to conduct gaming in the city of San Pablo, a right that was given to
them by the federal courts and by Congress. Furthermore, there exists a
process to approve or disapprove any plans by the Lytton Rancheria to
expand or alter its facility or change the Class of gaming at its
facility. That process requires the tribe to receive the approval of
the State of California and the Department of the Interior for any
plans to expand its operations. There is no need nor justification for
Congress to apply additional restrictions and burdens on the Lytton
Rancheria.
I do not take lightly any question affecting Indian gaming. As a
member of House Natural Resources Committee for more than three
decades, and as its former chairman and ranking member, I am well
versed in the laws governing Indian gaming as well as the varied
concerns about and support for Indian gaming that exist in Congress and
throughout the country.
Personally, I am neither a proponent nor opponent of gaming per se.
I am, however, a strong defender of Indian sovereignty. And I am also
actively engaged in helping communities in my district to create jobs
and grow economically.
It is important to note that, having been properly approved by the
federal courts and Congress, the casino in San Pablo quickly became,
and remains today, a very important source of revenue and employment to
this struggling East Bay community. The positive impacts for the city
of San Pablo and its residents that were projected by the city and the
Lytton Rancheria when the casino was being proposed have been realized.
Meanwhile, the negative impacts that opponents of the casino warned of,
such as increased crime and traffic, have not materialized.
Mr. Chairman, S. 872 is unjustified and unfair and I strongly
oppose its passage.
Thank you for the opportunity to make my views on this legislation
known, once again, to the Committee.
______
Prepared Statement of Alan J. Titus, Lawyer, Robb & Ross
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Prepared Statement of the United States Department of the Interior
The Department of the Interior (Department) has reviewed S. 872, a
bill that would modify the date as of which certain tribal land of the
Lytton Rancheria of California is to be considered held in trust and to
provide for the conduct of certain activities on the land. The
Department opposes S. 872, as currently drafted, at this time.
Public Law 106-568 (Dec. 27, 2000) required the Secretary to
acquire certain lands in trust in northern California on behalf of the
Lytton Rancheria, and deemed those lands to ``have been held in trust
and part of the reservation of the Rancheria prior to October 17,
1988.'' The Indian Gaming Regulatory Act (IGRA) generally prohibits
Indian tribes from conducting gaming on lands acquired after October
17, 1988, subject to several exceptions.
The Department of the Interior placed the land in question in trust
on behalf of the Lytton Rancheria on October 9, 2003.
The Lytton Rancheria (Tribe) lawfully operates a Class II gaming
facility on those trust lands in northern California. The Tribe does
not have a tribal-state gaming compact with the State of California;
meaning, the Tribe is not able to operate a Class III gaming facility
on the site.
S. 872 would amend P.L. 106-568 by deeming the land in question to
have been acquired in trust on October 9, 2003. The bill would also
limit the Tribe's existing Class II gaming activities by providing,
``the Lytton Rancheria of California shall not expand the exterior
physical measurements of any facility on the Lytton Rancheria in use
for Class II gaming activities on the date of enactment of this
paragraph.''
The Department's policy is to support tribes' inherent governing
authority over their own lands by protecting their ability to control
tribal land use. S. 872 would diminish the Lytton Rancheria's land-use
authority by essentially imposing a zoning restriction on existing
facilities on its trust lands. By modifying the legal date of the trust
acquisition of the Tribe's lands, S. 872 would also restrict the
ongoing operation of the Tribe's economic enterprises, which were
within the limits of federal law at the time they were established. In
the Department's view, Indian tribes should be permitted to reasonably
rely upon the scope of federal laws governing the use of their lands
when making decisions regarding land-use.
Importantly, Lytton Rancheria cannot develop and operate a Las
Vegas-style, Class III gaming facility on the lands at issue until the
Tribe enters into a valid tribal-state gaming compact.
The Department's position with respect to S. 872 should not be
interpreted to mean that the Department would support future
legislation that would modify a tribe's trust acquisition of lands in a
manner similar to P.L. 106-568. Nevertheless, the Department opposes
retroactive restrictions on lands that have already been acquired in
trust on behalf of Indian tribes and individual Indians in reliance on
existing federal laws.
______
Prepared Statement of Hon. Michael Finley, Chairman, Confederated
Tribes of the Colville Reservation
On behalf of the Confederated Tribes of the Colville Reservation
(``Colville Tribes'' or the ``Tribes''), I am pleased to provide this
statement for the record on S. 1763, the Stand Against Violence and
Empower Native Women Act, and would like to thank the Committee for
convening this hearing.
The Colville Tribes supports S. 1763 as introduced. The provisions
providing for tribal jurisdiction over certain federal crimes against
women is a critical first step to restoring inherent tribal
jurisdiction over all offenders in Indian country. The Colville Tribes
applauds the Administration and the Department of Justice for endorsing
this concept and its inclusion in Title II of S. 1763.
When the Committee disseminated the draft bill that was ultimately
introduced as S. 1763, the Colville Tribes proposed an additional
section that would address the gap that exists on many Indian
reservations for the enforcement of misdemeanor offenses. This proposed
new section, the ``Misdemeanor Enforcement Demonstration Project''
(``Demonstration Project''), is described in more detail below and the
text is included at the end of this statement.
The Colville Tribes has discussed this Demonstration Project
proposal with the Committee's majority and minority staff,
representatives from the Department of the Interior and the Department
of Justice, the U.S. Attorney for the Eastern District of Washington,
and other Indian tribes. We are hopeful that the Committee will include
this proposal, or a variation of it, in any manager's amendment to S.
1763 if or when the Committee takes action on the bill. The Colville
Tribes offers this Demonstration Project proposal as an addition to,
not a substitute for, the substantive provisions of Title II of S. 1763
as introduced.
Presently, only state or federal law enforcement officers possess
jurisdiction over non-Indians in Indian country. Cross-deputization or
other agreements with state and local governments that delegate
authority to enforce state criminal laws to tribes mitigate this
problem to some extent. State and local governments, however, are under
no obligation to enter into such agreements with tribes and are often
unwilling to do so. Consequently, many Indian reservations lack the
ability to provide any law enforcement response to crimes committed by
non-Indians.
The Demonstration Project proposal addresses this problem in a
unique manner by authorizing the Secretary of the Interior
(``Secretary'') to (i) promulgate regulations of general applicability
with misdemeanor criminal penalties to apply within Indian country and
(ii) delegate the authority to Indian tribes to enforce them. Tribal
officers would have authority to issue citations but any processing of
fines or prosecution would be handled by the applicable federal
district court, specifically the Central Violations Bureau (CVB). The
CVB is the entity created by the federal courts for processing tickets
issued and payments received for misdemeanor federal violations. The
Demonstration Project is intended to grant tribal officers the
authority to take immediate action to intervene in misdemeanor criminal
activity and refer such violations to federal authorities.
This concept is modeled on Section 303 of the Federal Land Policy
and Management Act of 1976 (43 U.S.C. 1733), which grants the
Secretary similar authority to promulgate regulations and delegate
enforcement to state and local officers on Bureau of Land Management
land.
The proposal is of limited duration and is discretionary on the
part of the Secretary. Any regulations issued by the Secretary would be
subject to notice and comment rulemaking and neither the Act nor any
regulations promulgated under a demonstration project would affect,
diminish or otherwise preempt the criminal jurisdiction of any state or
local government, or affect or diminish P.L. 280. Any regulations
promulgated would be concurrent with any state or local law enforcement
efforts. Finally, any person cited by a tribal officer for violation of
regulations would be subject to the adjudicatory jurisdiction of the
applicable federal district court, not tribal courts, and all federal
constitutional protections would apply.
The Demonstration Project would provide a mechanism for tribal
officers to intervene in criminal conduct in Indian country where they
currently lack the authority to do so. The Demonstration Project would,
therefore, allow for a potentially broader range of conduct to be
subject to tribal law enforcement intervention than Title II does as
introduced. The difference is that the substantive offenses are
established through federal regulations, are misdemeanors, and are
subject to federal--not tribal--court adjudication.
The report to Congress contemplated by the Demonstration Project
would provide a valuable record to gauge the effectiveness of the
projects in evaluating a longer term solution to the issues caused by
the Oliphant and other federal court decisions. The Colville Tribes
appreciates the Committee convening this hearing and is grateful of its
consideration of these comments. The text of the Tribes' proposal is
set forth below.
__________________
SEC. 206. MISDEMEANOR ENFORCEMENT DEMONSTRATION PROJECT
Subchapter I of chapter 15 of title 25, is amended by adding at the
end the following new section:
''SEC. 1306. MISDEMEANOR ENFORCEMENT DEMONSTRATION PROJECTS
(A) IN GENERAL.--In each of fiscal years 2012 to 2018, the
Secretary may select up to five Indian tribes to participate in
demonstration projects to carry out enforcement of federal regulations
as authorized by this section.
(B) DEMONSTRATION PROJECTS.--For each Indian tribe selected by the
Secretary for a demonstration project under this section, the Secretary
shall--
(1) in consultation with the selected Indian tribe, issue
regulations with respect to the management, use, and public
safety of and within Indian country, including the property
located thereon. Any person who knowingly and willfully
violates any such regulation issued pursuant to this section
shall be fined not more than $1,000 or imprisoned not more than
twelve months, or both. Any person charged with a violation of
such regulation may be tried and sentenced by any United States
magistrate judge [P.L. 101-650, 1990] designated for that
purpose by the court by which he was appointed, in the same
manner and subject to the same conditions and limitations as
provided for in section 3401 of title 18 of the United States
Code; and
(2) at the Indian tribes' request, negotiate agreements with
the selected Indian tribes to allow tribal officers to enforce
regulations promulgated under this section. Such agreements
shall reflect the status of the applicable tribal officers as
Federal law enforcement officers under [25 U.S.C. 2804(f)],
acting within the scope of the duties described in [25 U.S.C.
2802(c)].
(C) APPLICATION AND SELECTION.--Within 180 days of enactment of
this Act, and after consultation with Indian tribes, the Secretary
shall publish application requirements and selection criteria for
demonstration projects authorized under this section. In selecting
tribal applications, the Secretary shall--
(1) ensure that the Indian tribe has notified the applicable
state and local governments where the Indian country subject to
the proposed demonstration project is located; and
(2) give preference to those applications where the United
States attorney for the district where the Indian country
subject to the proposed demonstration project is located
consents to the proposed project.
(D) DURATION OF REGULATIONS.--Any regulations promulgated by the
Secretary under this Act may remain in effect for up to four years
after the expiration of the applicable demonstration project.
(E) EFFECT ON OTHER LAWS.--Nothing in this Act or any
regulations promulgated under any demonstration project
authorized herein shall be construed to modify or affect
section 1152 of title 18, United States Code or to modify or
diminish the criminal jurisdiction of any state or local
government.
(F) REPORT.--Not later than September 30, 2016, the Secretary
shall submit to Congress a report that describes, with respect
to the reporting period--
(1) a description of each demonstration project approved under
this section; and
(2) an assessment of the effectiveness of the demonstration
projects.
______
Prepared Statement of Hon. Tom Maulson, Tribal President, Lac du
Flambeau Tribe
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Prepared Statement of Tova Indritz, Chair, NACDL Native American
Justice Committee
I am writing on behalf of the National Association of Criminal
Defense Lawyers to provide our views on the SAVE Native Women Act.
While domestic violence is a serious issue for Indian tribes, we
believe any federal effort to bolster tribal law enforcement must be
accompanied by measures to increase the quality of justice in tribal
courts. For the reasons outlined below, we believe the SAVE Native
Women Act fails to provide the requisite safeguards, including an
adequate right to counsel, for the proposed fundamental change in
tribal court jurisdiction.
NACDL is the preeminent organization in the United States advancing
the mission of the nation's criminal defense lawyers to ensure justice
and due process for persons accused of crime or other misconduct. A
professional bar association founded in 1958, NACDL's more than 10,000
direct members--and 80 state, local and international affiliate
organizations with a total of 35,000 members--include private criminal
defense lawyers, public defenders, active-duty U.S. military defense
counsel, law professors, and judges committed to preserving fairness
within America's criminal justice system.
Title II of the S. 1763 would (1) provide for the first time since
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), for tribal
court jurisdiction over non-Indians, (2) provide that non-Indians have
greater rights to due process and representation by counsel than do
Indians charged with the same crimes and facing the same term of
incarceration, (3) shift the burden of proof of an element of a crime
from the prosecuting sovereign government to the defendant to assert
lack of proof, contrary to historic American criminal procedures, and
(4) increase penalties for various federal crimes and create new
federal crimes.
Native Americans are, after all, U.S. citizens. When charged in
state or federal court, Indians have the same rights to due process and
right to counsel as do all other persons. When Congress enacted the
Indian Civil Rights Act (ICRA) in 1968, the trade-off for not requiring
appointment of counsel and other indicia of due process in tribal
courts was to restrict tribes to maximum penalties of six months'
incarceration and a fine of $500. In 1986, ICRA was amended to provide
for penalties of up to one year and a fme of $5,000. Then in 2010, the
Tribal Law and Order Act (TLOA) allowed tribal courts to impose
sentences up to 3 years, but only where, if the sentence was to be more
than one year, there is a right to counsel, a qualified judge, and
certain other aspects of due process.
If Indian tribal courts had to adhere to the same constitutional
standards and guarantees as all federal and state courts, there would
be no objection to allowing tribal courts to prosecute anyone who comes
into their physical jurisdiction, just as a resident of Arizona cannot
object to the jurisdiction of the state courts of Kansas if that
resident travels to Kansas. If this proposed bill extended tribal court
jurisdiction to non-Indians who have a nexus to the tribe, and those
non-Indians and also Indians had the same rights in tribal court as
they do in state or federal court, NACDL would not object. However,
this bill would not increase constitutional protections, but would
lower them, and therefore we do object to the bill.
Argersinger v. Hamlin, 407 U.S. 25 (1972), guarantees an indigent
defendant the right to counsel in any case where that defendant is
facing incarceration. This bill purports to give the right to counsel
to a non-Indian facing imprisonment, while an Indian facing the exact
same penalty, possibly as a co-defendant in the exact same case, does
not have that right if the maximum penalty is one year. How can that be
fair? Instead of going to the least common denominator in terms of
rights, Congress ought to raise the level of individual rights so that
all persons who face incarceration, including in tribal court, have the
right to counsel and full due process.
Section 204, the definitions section, should define ``licensed
defense counsel'' (as used in section 204(g)(2)), to mean a lawyer
licensed to practice law in any state or the District of Columbia, and
section 204(e) should spell out specifically a right to ``licensed
defense counsel.'' Some tribes have tribal bar admission requirements
that do not even include high school graduation, no less completion of
law school; in these tribes, ``tribal advocates'' who are akin to
paralegals and are not lawyers represent defendants. Such non-lawyer
members of the tribal bar do not fulfill the requirement
ofrepresentation by counsel in the sense of Gideon v. Wainright, 372
U.S. 335 (1963), Argersinger v. Hamlin, supra, nor the Sixth Amendment
to the U.S. Constitution.
Section 204( e) should also spell out specifically the full right
to counsel, due process, protection from illegal search and seizure,
and all other rights that persons facing incarceration in state and
federal courts are entitled to receive.
The burden of proof must always be on the prosecuting government to
prove beyond a reasonable doubt every element of a charged offense.
Section 204( d)( 4) purports to shift the burden of proof of a
reasonable nexus between the non-Indian defendant and the tribe to the
defendant by providing that if the defendant does not file a pre-trial
motion contesting that element, then the issue is waived. That is like
shifting to a defendant the burden of raising any element of proof in a
criminal case and is completely inappropriate. Also, the standard of
proof should be spelled out in section 204(d)(B) as ``beyond a
reasonable doubt.''
The creation of new crimes, in section 203, is unnecessary. If
there is a special statute for assault by strangling or suffocating,
why should there not be a special statute for assault by use of a
knife, or a firearm, or a rock, or a chair as a weapon? The current
assault statute, with various levels of harm imposed, is sufficient. In
section 205, the increase in penalties for various assault statutes and
the expansion of the 20-year penalty for any assault that is a felony
again subjects those charged in federal court with Indian Country
crimes to much greater penalties than are those persons charged in most
state courts. This penalty scheme creates a disparity that is
unwarranted and may ultimately undermine the federal role in
maintaining the safety and welfare of those who reside in Indian
Country.
Thank you for considering our views. We stand ready to assist the
committee and its staff in improving this legislation so as to
adequately ensure fairness and due process in tribal courts.
______
Prepared Statement of Hon. Mike Wiggins, Jr., Tribal Chairman, Bad
River Band of Lake Superior Tribe of Chippewa Indians
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Prepared Statement of Jana L. Walker, Senior Attorney, Indian Law
Resource Center
Chairman Akaka and distinguished members of the Committee. The
Indian Law Resource Center (Center), \1\ a non-profit legal
organization, respectfully submits this testimony to be included in the
record of the Committee's legislative hearing, held on November 10,
2011, concerning violence against Native women. The Center strongly
supports federal law reform that will end the epidemic of violence
being experienced throughout Indian country and Alaska Native villages
every minute of every day. Protection of Native women and communities
will not be fully realized without strengthening the ability of Native
nations to effectively police their lands and prosecute offenders on
their lands. Passage of legislation such as S. 1763, the SAVE Native
Women Act, would be a first step.
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\1\ Founded in 1978 by American Indians, the Center assists
indigenous peoples in combating racism and oppression, realizing their
human rights, protecting their lands and environment, and achieving
sustainable economic development and genuine self-government. The
Center works throughout the Americas to overcome the devastating
problems that threaten Native peoples by advancing the rule of law, by
establishing national and international legal standards that preserve
their human rights and dignity, and by providing legal assistance
without charge to indigenous peoples fighting to protect their lands
and ways of life. One of our overall goals is to promote and protect
the human rights of indigenous peoples, especially those human rights
recognized in international law.
---------------------------------------------------------------------------
On November 10, 2011, the Center's staff once again listened to the
sobering testimony of panelists testifying before the Committee about
the epidemic of violence against Native women. Sadly, these horrific
rates of sexual and physical violence being committed against Native
women in the United States are all too familiar to Native communities--
1 in 3 Native women will be raped in their lifetime and 6 in 10 will be
physically assaulted. On some reservations, the murder rate for Native
women is 10 times the national average. Even worse, it is strongly
believed that the actual incidence of violence against Native women is
even higher due to improper and under-reporting.
At the root of this violence are restrictions on the inherent
jurisdiction of federally recognized American Indian and Alaska Native
tribal governments over their respective territories. Major legal
barriers obstructing the ability of tribes to protect women living
within their jurisdictional authority include:
a. Federal assumption of jurisdiction over certain felony
crimes under the Major Crimes Act (1885);
b. The stripping of tribal criminal jurisdiction over non-
Indians by the United States Supreme Court (1978);
c. Imposition of a one-year, per offense, sentencing limitation
upon tribal courts by Congress through passage of the Indian
Civil Rights Act (1968); \2\
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\2\ In 2010, the Tribal Law and Order Act (TLOA), Pub. L. No. 111-
211, was enacted, amending 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, but only if certain
requirements are met. Tribal courts also may stack sentences for up to
nine years total imprisonment. In order for tribes to use enhanced
sentencing authority, they must provide a number of specific defendant
protections, including: defense counsel for indigent defendants, legal
trained and licensed judges, detention facilities certified for long
term detention, and publicly available tribal codes. For the vast
majority of tribes, additional resources will be needed to meet these
requirements.
d. Transfer of criminal jurisdiction from the United States to
certain state governments through passage of Public Law 53-280
---------------------------------------------------------------------------
and other similar legislation (1953); and
e. Failure to fulfill treaties signed by the United States with
tribes as recognized by the court in Elk v. United States in
2009.
These federal laws and decisions of the United States Supreme Court
have created a jurisdictional maze, involving federal, tribal, and
state governments and requiring a case-by-case analysis of the location
of each crime, race of the perpetrator and victim, and the type of
crime. This jurisdictional scheme perpetuates violations of women's
human rights, because it treats Native women differently from all other
women and causes confusion over who has the authority to respond to,
investigate, and prosecute violence against Native women. In no other
jurisdiction within the United States does a government lack the legal
authority to prosecute violent criminal offenses illegal under its own
laws.
Restrictions on the criminal authority of tribes also denies
meaningful access to justice for Native women who are victims of sexual
and domestic violence on tribal lands. Appallingly, it is believed that
88 percent of the violence against Native women is perpetrated by non-
Natives, many of whom are very aware that they may commit violence
against Native women with impunity. The erosion of tribal criminal
authority over all persons committing crimes within their
jurisdictions, coupled with a shameful record of investigation,
prosecution, and punishment of these crimes by federal and state
governments, has directly resulted in the disproportionate rates of
violence against Native women.
The truth of the matter is that many violent crimes go unprosecuted
in Indian country. According to a recent United States Government
Accountability Office study, from 2005 through 2009, U.S. attorneys
failed to prosecute 52 percent of all violent criminal cases, 67
percent of sexual abuse cases, and 46 percent of assault cases
occurring on Indian lands. \3\ As these numbers reflect, Native women
are routinely denied their right to adequate judicial recourse. This
treatment separates Native women from other groups under the law. The
United States' restriction of tribal criminal authority combined with
its failure to effectively police and prosecute these violent crimes
violates its obligation to act with due diligence to protect Native
women from violence and punish perpetrators.
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\3\ United States Government Accountability Office, U.S. Department
of Justice Declinations of Indian Country Criminal Matters 3 (December
13, 2010).
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Enforcement inequalities permit perpetrators to act with impunity
on Native nation lands, thereby condoning violence against Native women
and denying them the right to equal protection under both United States
and international law. The rights to personal security and freedom from
fear are internationally recognized human rights. If the United States
ignores ongoing systemic problems relating to crimes in Indian country,
it does so in violation of various international principles and of the
human rights of Native women under international law. \4\ Global
attention is now being directed to violence against Native women in the
United States. In January 2011, Rashida Manjoo, the UN Special
Rapporteur on Violence Against Women, conducted an in-depth
investigation of violence against women in the United States, including
violence against Native American women. In October 2011, Ms. Manjoo
presented her report to the General Assembly of the United Nations in
New York City. The report cites restrictions placed on tribes' criminal
jurisdictional authority as one of the causes of the extremely high
rate of violence against Native women. Very recently, on October 25,
2011, the Inter-American Commission on Human Rights also called
attention to this issue in a thematic hearing on this human rights
crisis affecting Native women in the United States.
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\4\ Less than a year ago, on December 16, 2010, President Obama
announced the United States' support of the United Nations Declaration
on the Rights of Indigenous Peoples. Significantly, Article 22(2) of
the Declaration speaks directly and unequivocally to the United States'
obligation to ensure the safety of Native women: ``States shall take
measures, in conjunction with indigenous peoples, to ensure that
indigenous women and children enjoy the full protection and guarantees
against all forms of violence and discrimination.'' Unacceptably high
rates of violence against Native women also violate several
international human rights treaties. Article 5, Section B, of the
International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD), states that regardless of race, all peoples
should be guaranteed their right to ``security of person and protection
by the State against violence or bodily harm.'' However, the current
epidemic of violence against Native women in the United States,
perpetuated by systemic inequality and confusion, not only violates
this provision of ICERD, but also other provisions of ICERD by denying
Native women freedom from racial discrimination (Article 2), equal
protection under the law (Article 5(a)), and access to effective
judicial remedies (Article 6). Additionally, the United States is one
of 167 states that have ratified another international treaty, the
International Covenant on Civil and Political Rights (ICCPR). Article 3
of the ICCPR explicitly states that the civil and political rights
guaranteed under the ICCPR apply to both men and women. In living lives
impacted by daily violence, Native women are thwarted in their ability
to fulfill many of their civil and political rights guaranteed in the
ICCPR. As the preamble of the ICCPR asserts, ``in accordance with the
Universal Declaration of Human Rights, the ideal of free human beings
enjoying civil and political freedom and freedom from fear and want can
only be achieved if conditions are created whereby everyone may enjoy
his civil and political rights, as well as his economic, social and
cultural rights.'' (emphasis added).
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Often, various federal laws and policies still perpetuate, instead
of reduce, violence against Native women. This is quite apparent in
United States federal court decisions regarding protection orders. In
Town of Castle Rock, Colo. v. Gonzales, the United States Supreme Court
held that the Federal Constitution does not require state law
enforcement to investigate or enforce alleged violations of domestic
violence protection orders. \5\ Thus, state law enforcement chooses
whether to enforce these orders, and may always choose not to. \6\ Such
decisions by local law enforcement leave Native women vulnerable to
ongoing violence by domestic abusers.
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\5\ 545 U.S. 748 (2005).
\6\ Id.
---------------------------------------------------------------------------
Federal courts have further undermined the safety of Indian women
by holding that tribal courts do not have jurisdiction to issue
domestic violence protection orders requested by a non-member Native
woman against her non-Native husband. \7\ In Martinez, the federal
district court held that the tribal court did not have the authority to
issue the protection order because the issuance of the order was not
necessary to protect tribal self-government and the non-Native's
conduct was not a menace to the safety and welfare of the Tribe. The
Martinez decision fails to recognize the current reality of life within
a Native community and the importance of tribal courts to maintaining
law and order in Native communities. Non-member Indians and non-Indians
as well as member Indians live within the territorial boundaries of
most Native communities. The tribal court may be the most responsive
institution to meet the needs of the residents of the community (Native
communities are often located in rural areas, physically distant from
state courts and police stations). Orders of protection can be a strong
tool to prevent future violence, but they are only as strong as their
recognition and enforcement. Federal law undermining the integrity of
civil protection orders is especially harmful to Native women. Because
of the restrictions that have been placed on the criminal authority of
tribal governments, often the only recourse that a Native woman has
against an abuser is a civil protection order. It is absolutely
critical that Native women can trust that police will answer their
calls for help when their abuser is violating a protection order.
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\7\ See, e.g., Martinez v. Martinez, Case No. C08-5503 FDB, Order
Denying Defendants' Motions to Dismiss and Granting Plaintiff
Declaratory and Injunctive Relief (W.D. Wash. Dec. 16, 2008).
---------------------------------------------------------------------------
The United States has made some strides in its fight to prevent
violence against Native women, but unquestionably, much, much more is
needed. As members of this Committee have recognized, systemic problems
continue to perpetuate a cycle of violence against Native women, who
have few places to turn to for help. This must change. Now is the time
to identify solutions that will directly and substantially protect the
lives and safety of Native women. By providing tribes with the
opportunity to exercise life-saving protections for women within their
jurisdiction, S. 1763, the SAVE Native Women Act has the potential to
increase both security and justice to Native women. We appreciate
greatly this Committee's attention to protecting Native women and
strengthening Native nations. At your request, we would welcome the
opportunity to provide additional information on violence against
Native women.
______
Prepared Statement of Tanana Chiefs Conference (TCC)
The Tanana Chiefs Conference (TCC), an Alaska Native nonprofit and
consortium of 39 federally recognized Indian Tribes located in the
interior of Alaska, is submitting the following testimony in full
support of the Alaska Safe Families and Villages Act, S. 1192. We would
like to thank you for holding a hearing on this important legislation,
and providing us with the opportunity to submit testimony.
We would like to begin our testimony by thanking Senator Begich for
introducing this bill, which has the potential of substantially
improving the safety of villages throughout Alaska, and providing
consistent support for the safety and well-being of all communities in
Alaska, including Alaska Native communities. We would also like to
thank Senator Murkowski for the leadership role she has taken in
women's issues, her attempt to find solutions to domestic violence, and
her advocacy on ending the sex-trade practices in Alaska. We appreciate
the strong leadership Alaska has in the United States Congress and
would like to take this opportunity to express our gratitude.
We are equally thankful to Governor Parnell and his Administration
for all of the investments that have been made to improve rural justice
services throughout the State in the past three years. The Governor
implemented a 10-year State initiative to end domestic violence and
sexual assault through prevention and collaboration, has taken steps to
increase law enforcement presence in rural Alaska by increasing the
hiring of Village Public Safety Officers (VPSOs), and has increased
State funding for the VPSO program. This hard work on the part of
Governor Parnell and his Administration has had a positive impact on
public safety and well-being on Alaska Native Villages, and our support
of this bill in no way detracts from the importance of State
jurisdiction over the provision of public safety services throughout
Alaska and our gratitude towards the many positive steps that have been
made.
However, despite these positive strides, there are many holes in
the provision of public safety in our most remote villages that exist
not because of the shortfall of the State, Tribes, or the Federal
Government, but because of the very real, and quite unique, challenges
presented by Alaska's geography. This bill would establish a small-
scale demonstration project to weigh the effectiveness of additional
civil tools in plugging these holes. We provide more direct comments
below.
Statement of need. This bill is constructed around studies
completed by such respected institutions as the Institute of Social and
Economic Research from the University of Alaska Anchorage and the
Alaska Rural Justice and Law Enforcement Commission, and would
implement some of the most simple, yet direct, responses to the causes
these studies have found to be at the base of much of the crime that is
occurring in our remote villages--causes that have been recognized by
the State of Alaska. These studies have found that the suicide rate in
Alaska Native Villages is 6 times the national average, and that Alaska
Native women suffer the highest rate of forcible sexual assault in the
United States with an Alaska Native woman being assaulted every 18
hours.
These studies have also found that more than 95 percent of all
crimes committed in rural Alaska--including domestic violence and child
abuse--can be attributed to alcohol and, as the State itself admits,
Alaska Native Villages suffer from disproportionately high rates of
alcohol abuse. Unfortunately connected to that disproportionate rate,
Alaska Native Villages also suffer from disproportionately high rates
of suicide and domestic violence. Alcohol-related deaths in Alaska
Native Villages occur at a rate 3.5 times that of the general national
population. In addition to these sad numbers, drug and alcohol abuse is
estimated to cost the State of Alaska $525 million per year.
Currently, in response to these issues, we are faced with two
options--either we must wait for an Alaska State trooper to arrive and
respond to these crimes, or we do nothing and the perpetrator gets a
free pass. Both options leave members of our communities facing unsafe
situations, which should be unacceptable to anyone. When dealing with
incidents of domestic violence or child abuse, it is imperative that
law enforcement respond immediately to diffuse the situation and take
steps to ensure the safety of all involved. It is equally imperative
that protective orders be issued immediately to enforce the safety of
the domestic partner or child.
Despite the increases in VPSOs mentioned above, many rural Alaska
Native Villages lack local law enforcement presence. There are
currently approximately 71 VPSOs serving in Alaska, but there are over
200 remote Villages throughout the State. The presence of VPSOs is
helpful, and the members of the Villages greatly appreciate their
presence, but the truth is that they are unarmed and sometimes face
situations that they cannot handle on their own. Even when they are
there to address incidents of domestic violence or child abuse, they
can merely hold the alleged perpetrator until a State trooper arrives
to take over. In Villages where there are no VPSOs, nothing can be done
until a State trooper arrives. Again, this testimony is in no way meant
to condemn either the VPSO program or the performance of State troopers
in these situations. However, the truth of life in Alaska is that it
contains many remote villages that are separated from law enforcement
hubs, many without direct road access, and that it often has extreme
weather conditions. In instances where a State trooper must fly to
reach a village, extreme weather will delay his or her arrival for
days. These same realities face those who need protective orders.
Providing Indian Tribes in Alaska simple civil tools to address these
immediate needs would go far in protecting our communities.
What this bill would do. This bill would create a limited
demonstration project that would implement some of the most simple, yet
direct, responses to the causes at the base of much of the petty crime
occurring in Native Alaska Villages and tools to address those petty
crimes so that we can all, as a team, evaluate the effectiveness of
these new tools. These responses are minimal, but have the potential to
have dramatic and far-reaching positive effects in our communities.
This bill would establish a demonstration project where a maximum
of three Tribes in Alaska would be selected in each of three fiscal
years (nine Tribes total) would be chosen to participate for a five-
year period. Each Tribe selected to participate would be required to
complete a planning phase to ensure it has the capacity to effectively
participate, including making sure they have developed proper written
Tribal laws or ordinances detailing the structure and procedures of the
Tribal court. Only after completing such a planning phase would the
Tribes then begin exercising civil jurisdiction over drug, alcohol, or
related matters within a specified project area, and over people of
Indian or Alaska Native descent, or those people who have consensual
relationships with the participating Tribe or a member of the Tribe.
This civil jurisdiction would be exercised concurrently with the State
of Alaska under State law. The civil remedies available to the
participating Tribes would be limited to such remedies as restorative
justice, imposing community service, charging fines, commitments for
treatment, issuing restraining orders, and emergency detentions.
Importantly, this bill would not authorize any of the participating
Tribes to incarcerate a person unless the Tribe has entered into an
intergovernmental agreement with the State and the Federal Government.
We strongly believe that the civil authority for participating
Tribes to impose such civil remedies will allow these Tribes to not
only respond to criminal offenses, but to attempt to address the
underlying causes of many of these offenses in culturally-appropriate
ways that have often proven to be effective. Recently, in Huslia a
young woman who was a repeat offender for many petty crimes
participated in a community circle. The Huslia Tribal Court was asked
by the State's magistrate to suggest a sentence for a recent violation.
The Tribal Court organized a community circle in which fifty community
members participated by sharing stories and concerns while offering
support to the defendant. In addition, the community circle suggested a
sentence which aimed to both support the defendant's sobriety and deter
her from future violations. This experience shows the commitment of our
Tribal Courts to address problems that are occurring in those
communities, and such community involvement has the power to
substantially impact individual lives through community healing.
This bill would also establish an Alaska Village Peace Officer
Grants program through which the Tribes participating in the
demonstration project may apply to carry out a contract program to
employ Village Peace Officers in Alaska Native Villages. Not only would
this increase law enforcement presence in Villages that need every
additional resource available to them, but the bill would provide that
Village Peace Officers would be eligible to attend the Bureau of Indian
Affairs (BIA) Police Officer Training Program--ensuring that these
officers would have the highest level of training available. We fully
support this program, but also suggest that, as an alternative, this
bill could instead supplement the VPSO program, and authorize the VPSOs
assigned to the participating Tribes to attend the BIA Police Officer
Training Program.
What this bill would not do. The responses authorized in this bill
are minimal, with the potential for great impact. This bill would not
upset the long-standing agreements represented in the Alaska Native
Claims Settlement Act by creating Indian Country anywhere in the State,
including in the Villages that would be participating in the
demonstration project--nor do we wish to do so. The bill is clear on
that, both explicitly and through its operation. The recognition of the
concurrent civil authority of Tribal governments--entities that are
already performing governmental services--to issue protective orders is
a far cry from creating a new jurisdictional regime. The construction
of geographical ``project areas'' is necessary to define the limits of
this concurrent civil authority to the areas where Tribal governments
already operate.
This bill would not divide the State into jurisdictional project
areas for 230 separate Tribes. The demonstration project will allow for
the participation of nine Tribes, with nine separate project areas.
This is the maximum. In the future, if this project proves to be
successful in addressing alcohol and drug abuse, domestic violence,
child abuse, and other crimes, Tribes would be more than happy to work
in cooperation with the State to find a way to implement these
responses to an increased number of Tribes in a mutually-agreed upon
way, and to find ways in which these responses can best enhance the
State provision of public safety responses throughout Alaska.
The bill would also reaffirm that the State of Alaska has the
primary responsibility for the provision of public safety throughout
the State, and would not open the State up to increased Federal
presence or authority. The bill would merely provide Tribes with the
options and civil tools to provide the very basics of protection when
they are needed most and would have the most effect. Likewise, the
operation of this demonstration project would not limit the eligibility
of the State of Alaska to any Federal assistance under any other
Federal law. The money provided to operate this project, including the
new Alaska Village Peace Officer program, would not be used against the
State when applying for Federal assistance.
This bill would authorize appropriation of $2.5 million for each
fiscal year from FY 2012 through FY 2018. Because we want to offer this
bill every chance to be approved and become law--to see this
demonstration project succeed--we suggest that the project can be
successfully implemented and maintained at a much lower amount. With
only nine Tribes eligible to participate, we believe that the project
may be successfully implemented and maintained for $1.5 million per
fiscal year. We also believe, with such a limited number of Tribes
eligible to participate in the program, the Village Peace Officer
program can be maintained for $3 million per fiscal year from FY 2012
through FY 2018--a reduction of $2 million from what is currently
authorized in the bill.
Conclusion. In conclusion, we would like to reiterate our full
support for this critical bill. We believe that this bill will give all
of us the tools and information necessary to evaluate the best way to
address domestic violence, alcohol- and drug-related crime and suicide,
and child abuse in Alaska Native Villages. These Alaska Native Villages
embody many of the very real and unique roadblocks to addressing such
crime in remote villages in Alaska--remoteness, lack of access,
geographical complications and limitations of infrastructure--that
require unique solutions. Success in this program will allow us all to
understand how to best provide public safety to all remote villages
throughout Alaska.
The Tanana Chiefs Conference and its member Villages look forward
to continuing to work with the State and with our Senators in finding
these solutions. TCC would like to thank you for taking the time to
read our testimony.
______
Prepared Statement of Jan W. Morris, Member, Choctaw Nation of Oklahoma
Good day,
I wish to submit the following testimony for consideration by the
Committee regarding S. 1763, the Stand Against Violence and Empower
Native Women Act. I offer these comments as a Native person (I am an
enrolled member of the Choctaw Nation of Oklahoma) with a background of
over two decades of service in nearly a dozen tribal courts as a non-
attorney practitioner (including service as either prosecutor or
defense counsel), a trial judge, an appellate judge, and court
administrator. My experience also includes service over the past ten
years as a trainer, instructor and lecturer in tribal justice systems,
judicial skills development, court administration, and advocacy skills
development.
While I agree with the concept of expanding tribal criminal
jurisdiction to its original scope to include the criminal prosecution
of a non-Native who commits a crime against a Native person in Indian
Country, I believe the conditions imposed upon tribes to reassume
criminal jurisdiction over non-Natives by Section 201 of S. 1763 far
outweigh any potential benefits, for three reasons:
(1) If the purpose is to address domestic violence crimes
committed in Indian Country by non-Natives against native
victims, a more effective remedy was already created by the
Tribal Law and Order Act;
(2) The imposition upon tribal justice systems of ``all other
rights [of defendants] required under the Constitution of the
United States'' will unduly burden the vast majority of those
systems; and
(3) Rather than strengthening tribal sovereignty, the
imposition upon tribal justice systems of ``all other rights
[of defendants] required under the Constitution of the United
States'' actually diminishes tribal sovereignty by supplanting
tribal justice standards with the full panoply of U.S.
Constitutional protections.
Regarding my first reason stated above, Section 213 of the Tribal
Law and Order Act (TLOA) authorizes each United States Attorney to
``appoint Special Assistant United States Attorneys . . . to prosecute
crimes in Indian Country as necessary to improve the administration of
justice . . . '' Under this authority, tribes can hire their own
prosecutors who can then be appointed as SAUSAs to initiate and conduct
federal court prosecutions of non-Native perpetrators who commit
domestic violence crimes (whether misdemeanors or felonies) against
Native victims under either the General Crimes Act (18 U.S.C. 1152)
or the Assimilative Crimes Act (18 U.S.C. 13). By doing so, there is
no adverse impact or federal imposition on the sovereignty of the
tribes and their justice systems, and the cost to tribes of hiring a
prosecutor is miniscule in comparison to the expenditure of scarce
financial resources that would be needed to revamp a whole criminal
justice system to address the panoply of constitutional rights imposed
by Section 201 of the proposed bill.
Regarding the second reason stated above, and in addition to the
applicable comments in the previous paragraph, the Committee needs to
bear in mind that very few tribal justice systems are as large and
complex as, for example, the Navajo Nation judiciary. Most tribal
courts are small. A survey of tribal justice systems by the American
Indian Law Center in 2000 reported that of all tribal respondents, over
78 percent had fewer than 1000 cases filed annually. The survey results
also revealed that the mean and median number of full-time judges was
1, and the majority of responding tribes put less than $300,000 into
their tribal courts annually. The specter of the funding necessary to
guarantee ``all other rights required under the Constitution of the
United States,'' including the employment and training of judges,
prosecutors and defenders versed in the behemoth that is the body of
U.S. Constitutional law could easily cause most tribes to forego this
exercise of ``strengthening'' in favor of maintaining the status quo.
Regarding the third stated reason above, and in addition to the
applicable comments in the previous two paragraphs, Congress had the
foresight in 1993 to include in the language of the Indian Tribal
Justice Act (P.L. 103-176, 25 U.S.C. 3601 et seq.):
``Nothing in this Act shall be construed to . . . encroach upon
or diminish in any way the inherent sovereign authority of each
tribal government to determine the role of the tribal justice
system * * * impair the rights of each tribal government to
determine the nature of its own legal system * * * [or]
alter in any way any tribal traditional dispute resolution
forum . . . ''
The mandate in Section 201 of S. 1763 that tribal courts must offer
defendants the full protection of all constitutional rights under the
U.S. Constitution conflicts with and contradicts the implicit promise
of Congress in the Indian Tribal Justice Act and flies in the face of
the concept of strengthening the sovereignty of tribes. Congress is
saying, in essence, that tribal justice systems are inferior and
substandard and incapable of properly administering justice within
their own tribal communities. This is hardly the position one
government should take within the context of a government-to-government
relationship.
Considering all of these reasons, it would be no small wonder that
any tribe would seriously consider becoming a ``participating tribe''
as defined in S. 1763. Perhaps the intentions of Congress in
considering the ``expansion'' of tribal criminal jurisdiction to
include non-Native domestic violence perpetrators via S. 1763 are
commendable, but from a tribal perspective, many Native people will
simply find the proposition misguided, patronizing and insulting. I
know I do.
Kindest regards.
______
Prepared Statement of Irene Bedard, Actress/Singer, Alaska
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