[Senate Hearing 114-347]
[From the U.S. Government Publishing Office]









                                                        S. Hrg. 114-347

S. 2785, A BILL TO PROTECT NATIVE CHILDREN AND PROMOTE PUBLIC SAFETY IN 
  INDIAN COUNTRY; S. 2916, A BILL TO PROVIDE THAT THE PUEBLO OF SANTA 
                               CLARA MAY 
LEASE FOR 99 YEARS CERTAIN RESTRICTED LAND AND FOR OTHER PURPOSES; AND 
                   S. 2920, THE TRIBAL LAW AND ORDER 
                      REAUTHORIZATION ACT OF 2016

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

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 18, 2016

                               __________

         Printed for the use of the Committee on Indian Affairs

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                      COMMITTEE ON INDIAN AFFAIRS

                    JOHN BARRASSO, Wyoming, Chairman
                   JON TESTER, Montana, Vice Chairman
JOHN McCAIN, Arizona                 MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska               TOM UDALL, New Mexico
JOHN HOEVEN, North Dakota            AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma             BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana                HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho
JERRY MORAN, Kansas
     T. Michael Andrews, Majority Staff Director and Chief Counsel
       Anthony Walters, Minority Staff Director and Chief Counsel
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
                            C O N T E N T S

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                                                                   Page
Hearing held on May 18, 2016.....................................     1
Statement of Senator Barrasso....................................     1
Statement of Senator Daines......................................     3
Statement of Senator Franken.....................................     4
Statement of Senator Heitkamp....................................    49
Statement of Senator Hoeven......................................    55
Statement of Senator Murkowski...................................     4
Statement of Senator Tester......................................     2

                               Witnesses

Black, Michael S., Director, Bureau of Indian Affairs, U.S. 
  Department of the Interior.....................................     6
    Prepared statement...........................................     7
Buckles, Hon. Dana, Councilman, Assiniboine and Sioux Tribes, 
  Fort Peck Reservation..........................................    19
    Prepared statement...........................................    21
Chavarria, Hon. J. Michael, Governor, Santa Clara Pueblo.........    17
    Prepared statement...........................................    19
Toulou, Tracy, Director, Office of Tribal Justice, U.S. 
  Department of Justice..........................................    11
    Prepared statement...........................................    13
Urbina, Hon. Alfred, Attorney General, Pascua Yaqui Tribe........    23
    Prepared statement...........................................    25

                                Appendix

Central Council of Tlingit and Haida Indian Tribes of Alaska, 
  prepared statement.............................................    92
Gardner, Jerry, Executive Director, Tribal Law and Policy 
  Institute, prepared statement..................................    96
National Congress of American Indians, prepared statement........    59
Sheldon, Jr., Hon. Melvin R., Chairman, Tulalip Tribes of 
  Washington, prepared statement.................................    98
 
                   S. 2785, A BILL TO PROTECT NATIVE 
 CHILDREN AND PROMOTE PUBLIC SAFETY IN INDIAN COUNTRY; S. 2916, A BILL 
   TO PROVIDE THAT THE PUEBLO OF SANTA CLARA MAY LEASE FOR 99 YEARS 
                 CERTAIN RESTRICTED LAND AND FOR OTHER 
PURPOSES; AND S. 2920, THE TRIBAL LAW AND ORDER REAUTHORIZATION ACT OF 
                                  2016

                              ----------                              


                        WEDNESDAY, MAY 18, 2016


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

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

    The Chairman. Good afternoon. I call this legislative 
hearing to order.
    Today the Committee will examine three bills: S. 2785, the 
Tribal Youth and Community Protection Act of 2016; S. 2916, a 
bill to provide that the Pueblo of Santa Clara may lease for 99 
years certain restricted land, and for other purposes; and S. 
2920, the Tribal Law and Order Reauthorization and Amendments 
Act of 2016.
    On April 12, 2016, Senators Tester and Franken introduced 
S. 2785, the Tribal Youth and Community Protection Act of 2016.
    This bill seeks to expand tribal criminal jurisdiction 
over: crimes against children; drug-related crimes; and crimes 
against law enforcement and court personnel during the exercise 
of tribal criminal jurisdiction.
    It would also provide funding for tribal substance abuse 
prevention programs and for building tribal jurisdictional 
capacity. I am going to turn to the bill's sponsors for their 
comments in a moment.
    On May 11, 2016, Senator Udall, along with Senator 
Heinrich, introduced S. 2916, the Pueblo of Santa Clara 99 Year 
Certain Restricted Land Lease.
    This bill would amend the Long Term Leasing Act to clarify 
that the Santa Clara and the Ohkay Owingeh Pueblos may lease 
their restricted fee lands for up to 99 years. I will turn to 
Senator Udall for comments at a time convenient for him.
    On May 11, 2016, Senator McCain and I introduced S. 2920, 
the Tribal Law and Order Reauthorization and Amendments Act of 
2016. In 2010, Congress passed the Tribal Law and Order Act to 
improve criminal justice and public safety in Indian 
communities. This Committee held an oversight hearing on 
December 2, 2015 and a roundtable on February 25, 2016 
regarding next steps to improving public safety in Indian 
communities.
    Access to data, information sharing, public defense 
support, juvenile justice, and substance abuse were among the 
most significant challenges facing the tribes. This bill, 
S.2920, reauthorizes many of the needed programs in the Tribal 
Law and Order Act. It is intended to address some of the more 
pressing issues that can be passed this Congress.
    Before I turn to the Vice Chairman, let me say that I am 
disappointed that the Department of Justice chose not to 
provide comments on S. 2920. It is hard to believe that the 
chief law enforcement agency of the Federal Government did not 
provide any recommendations or provide comments to this bill.
    I can certainly understand the short timing, we introduced 
this bill last week, and the department probably wanted more 
time but to provide nothing is unacceptable. I now have to 
wonder about the commitment from the Department of Justice on 
Indian programs. Let me remind everyone that it was just last 
year that the Department of Justice failed to send a single 
witness to our budget hearing and failed to produce the 
required annual reports demanded by Congress.
    Starting with this hearing, the members of this Committee 
fully expect the Administration, the Department of Justice in 
particular, to work diligently and expeditiously with this 
Committee on this and other bills. The tribes and their people 
deserve nothing less.
    With that, I would like to turn to the Vice Chairman for 
any opening statement. Senator Tester.

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

    Senator Tester. Thank you, Mr. Chairman.
    Thanks for holding this legislative hearing to discuss the 
bills we have before us today.
    These bills talk about two important issues to tribes, 
protection of tribal communities and management of public 
tribal lands.
    I also want to thank the witnesses for being here to 
provide testimony. In particular, I welcome Councilman Dana 
Buckles. It is good to have you here.
    Dana traveled all the way from northeast Montana, Fort 
Peck, I guess you call that God's country up there, to share 
their experience as one of the first tribes to begin exercising 
criminal jurisdiction restored by the Violence Against Women 
Act of 2013.
    Tribal law enforcement and tribal courts are the first and 
sometimes the only line of defense for people living on Indian 
reservations. This is especially true in rural areas. It is 
vitally important to empower tribes to protect their 
communities and to ensure they have the tools necessary to 
investigate and prosecute criminal offenses.
    Just this month, the National Institute of Justice released 
a report on sexual and domestic violence against Native women 
and men. We all know that Native Americans are victims of 
violence way too often. The report found in some instances, 90 
percent or more of these crimes are committed by non-Indians.
    We cannot continue to sit back and fail to address these 
issues. That is why Senator Franken and I, along with Senator 
Udall, have introduced the Tribal Youth and Community 
Protection Act.
    This bill would allow tribes to better protect their 
communities from folks who could cause harm, regardless of 
whether they are Indian or non-Indian. This bill builds on 
tribal provisions of the 2013 Violence Against Women Act by 
restoring tribal criminal jurisdiction over violent crimes 
committed against Native children and tribal law enforcement.
    We are also starting to see that domestic violence in 
Indian Country is related to the increased use of drugs on 
Indian reservations. That is why my bill would also let tribes 
prosecute drug offenses occurring in their communities.
    In Montana over the last year alone, three reservation 
communities have declared a state of emergency due to illegal 
drug epidemic. Criminals, including cartels of organized crime, 
know that gaps in police and prosecution make reservations easy 
targets to push their drugs.
    That is why we have to recognize the tribes' sovereign 
authority to prosecute these crimes and ensure the safety of 
their communities.
    To assist tribal courts, the Tribal Youth and Community 
Protection Act also reauthorizes several programs that address 
drug crimes and substance abuse and expands the VAWA 2013 grant 
program to help tribes build their criminal justice system.
    Again, I want to thank you, Mr. Chairman, for elevating 
these very important issues and for holding this hearing. I 
look forward to the witness's testimony on each of these bills 
before us today.
    The Chairman. Thank you, Senator Tester.
    Senator Daines.

                STATEMENT OF HON. STEVE DAINES, 
                   U.S. SENATOR FROM MONTANA

    Senator Daines. Thank you, Mr. Chairman and Ranking Member 
Tester.
    I would also like to welcome Councilman Dana Buckles of the 
Assiniboine & Sioux Tribes of the Fort Peck Reservation in 
Montana who will be testifying today. Councilman, it is great 
to have you here.
    As our witnesses attest, when it comes to crime in Indian 
Country, the statistics are devastating. Montana's Indian 
reservations are no exception. I would like to share a story 
that Councilman Buckles alludes to in his testimony. That is 
the story of a four-year-old girl who lives on the Fort Peck 
Reservation in Wolf Point.
    In February, this little girl was playing on a playground 
across the street from home when she was abducted. When she was 
found four days later, she was miraculously alive but a victim 
of sexual assault. Such a crime against anyone is unthinkable, 
let against a four-year-old.
    We get to hear from Councilman Buckles as he has served on 
the council. Councilman Dana Buckles, thanks for being here.
    The Chairman. Thank you.
    Senator Franken?

                 STATEMENT OF HON. AL FRANKEN, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Franken. Thank you Mr. Chairman and Vice Chairman 
Tester for holding this hearing and thanks to all the witnesses 
for testifying here today.
    As a member of the Judiciary Committee and the Indian 
Affairs Committee, I am committed to making sure that we 
continue to update the Violence Against Women Act to more 
effectively address the unique needs of women and children in 
Indian Country which is why I co-sponsored Senator Tester's 
Tribal Youth and Community Protection Act.
    This legislation helps to remove the jurisdictional 
obstacles that have prevented American Indian communities from 
prosecuting acts of sexual and domestic violence that occur in 
their territories.
    I look forward to hearing from all of you on how we can 
continue to improve the Violence Against Women Act as well as 
the Tribal Law and Order Act in order to keep Native women and 
children safe.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Franken.
    Senator Murkowski?

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

    Senator Murkowski. Thank you, Mr. Chairman. Thank you for 
convening this very important hearing. Welcome to all of our 
witnesses.
    It seems that it was just last year, just yesterday, that 
the Senate enacted the Tribal Law and Order Act and the 2013 
reauthorization of VAWA.
    I am tremendously invested in the success of both of these 
significant legislative accomplishments. Even though the Tribal 
Law and Order Act was signed into law in 2010, the heavy 
lifting, if you will, of that legislation occurred when I was 
Vice Chairman of the Committee and Senator Dorgan was Chair at 
the time. We had some pretty exceptional staff work by David 
Mullon and Allison Binney. Really the work that went into it 
was considerable.
    I was an early co-sponsor of the VAWA reauthorization, 
working with Senator Leahy and Senator Crapo and consistently 
supported that partial Oliphant fix which today we refer to as 
the special domestic violence jurisdiction. That provision, 
which became known as Section 904 of the VAWA amendments, was 
very controversial in both Houses, but thanks to a lot of 
persistence and hard work, and a little bit of courage, it 
became law.
    Today, Mr. Toulou and our witnesses will tell us how this 
all worked out. I am anxious to hear about that. I understand 
from the advance statement, it is working reasonably well.
    Mr. Chairman, if I may, I would like to take just a minute 
to talk about the situation in Alaska. As a consequence of the 
U.S. Supreme Court's Venetie decision, most of the acreage of 
indigenous lands in rural Alaska occupied predominantly, if not 
overwhelmingly, by Alaska Natives is not Indian Country.
    Thus, when we empower tribes to do more within the tribes' 
Indian Country, we effectively exclude Alaska. There is no 
consensus in Alaska that the Venetie decision should be 
wholesale overturned but neither is there consensus in Alaska 
that our tribes should be disempowered to maintain peace in the 
rural communities or to protect our people.
    This is especially important because the State of Alaska 
maintains a very small State police force relative to the 
millions of acres of land they have to patrol. Oftentimes 
weather keeps our troopers from flying out into the communities 
where they need to be.
    Over the past several years, it has been my impression that 
Alaskans are seeking a new paradigm for public safety 
protection in the rural communities and believe that tribes 
need to be empowered to be a part of that solution.
    I have laid the foundation for these efforts in the Tribal 
Law and Order Act which brought new cops funding to rural 
Alaska. I have used my real estate on the Interior 
Appropriations Subcommittee to focus BIA on the need to support 
our tribal courts in the State, even though we are a P.L. 280 
State.
    It does not matter that we are a P.L. 280 State. Our tribal 
courts have jurisdiction notwithstanding P.L. 280 and need 
Federal support to exercise that jurisdiction. In VAWA, I asked 
the Justice Department to take the lead in reconstituting a 
major forum for Federal, State and tribal coordination on 
public safety issues, the Alaska Rural Justice Commission.
    Unfortunately, we have not seen any progress on this but I 
am committed to pursuing new pathways for protection of our 
Native people, especially our Native women and our children. I 
have been impressed by the work of the Chairman and the Vice 
Chairman on this Committee.
    As we move to mark on both of these issues, I hope to 
engage other Committee members on the specific challenges we 
face within Alaska which require perhaps a little more creative 
solutions going forward.
    Again, Mr. Chairman and Vice Chairman, thank you. I thank 
the witnesses for your testimony in advance.
    The Chairman. Thank you, Senator Murkowski.
    We have five witnesses here today. We have: Mr. Michael S. 
Black, Director, Bureau of Indian Affairs, U.S. Department of 
the Interior; Mr. Tracy Toulou, Director, Office of Tribal 
Justice, U.S. Department of Justice; the Honorable J. Michael 
Chavarria, Governor, Santa Clara Pueblo, Espanola, New Mexico; 
the Honorable Dana Buckles, who has been introduced by our two 
Senators from Montana; and the Honorable Alfred Urbina, 
Attorney General, Pascua Yaqui Tribe of Tucson, Arizona. Thank 
you all for being with us.
    I want to remind the witnesses that your full written 
testimony will be made a part of the official hearing record. 
Please try to keep your statements to five minutes or less so 
we may have more time for questioning.
    I look forward to hearing your testimony beginning with Mr. 
Black. Mr. Black, welcome back to the Committee. Please 
proceed.

   STATEMENT OF MICHAEL S. BLACK, DIRECTOR, BUREAU OF INDIAN 
            AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

    Mr. Black. Chairman Barrasso, Vice Chairman Tester and 
members of the Committee, thank you for the opportunity to 
provide testimony before this Committee on S. 2920, the Tribal 
Law and Order Reauthorization Act of 2016; S. 2785, the Tribal 
Youth and Community Protection Act of 2016; and S. 2916, a bill 
to provide a bill to provide that the Pueblo of Santa Clara 
Ohkay Owingeh Pueblos may lease for 99 years certain restricted 
lands.
    S. 2920, the Tribal Law and Order Reauthorization Act 
brought about necessary and important changes in addressing 
public safety in Indian Country. Our experiences in 
implementing TLOA have highlighted additional areas that still 
need to be addressed.
    In the six years since TLOA was passed in 2010, the 
Department of Interior still strongly supports the purposes of 
TLOA. We believe there is no substitute for having enough 
officers on the ground and will continue working to improve law 
enforcement in Indian Country.
    I am pleased to be before the Committee today to provide 
the department's full support of and recommendations for S. 
2920.
    A major focus of TLOA was to address challenges related to 
reporting and data collection. We want to continue this effort 
to build robust data and provide the public with information it 
needs. Section 103 provides for sharing Federal data with the 
tribes. One gap we recognize is the lack of incorporation of 
tribally-owned data into State and Federal data bases.
    To foster respect and reciprocity for tribally-collected 
data, the department would like to encourage the bills' authors 
to consider extending the Department of Justice's new tribal 
access program for national crime information which provides 
tribes access to national crime information for both civil and 
criminal purposes and to include a pilot program or other 
mechanism to support tribes interested in sharing tribal court 
criminal records with other law enforcement agencies.
    In reviewing S. 2920, we note it does not address some of 
the issues such as those related to resumption of concurrent 
Federal jurisdiction in P.L. 280 States and extended sentences 
provisions for tribes. We would appreciate the opportunity to 
work with the authors to ensure the tribes can utilize our full 
authority and jurisdiction to prosecute crimes in Indian 
Country.
    The department appreciates the inclusion of alternatives to 
detention in the bill as many of our offenders are engaging in 
criminal activity due to untreated mental health, alcohol and 
substance abuse issues. We want to continue to look for ways to 
get these individuals the help they need to break the cycle of 
recidivism.
    We also recommend the following number of technical changes 
to TLOA in the areas of technical assistance and training, data 
sharing, annual reporting requirements, background checks and 
the Bureau of Prisons pilot program. We look forward to working 
with the Committee on these recommendations.
    Regarding S. 2785, the Tribal Youth and Community 
Protection Act of 2016, the Administration has made it a 
priority to improve the health, welfare and safety of tribal 
communities. The department supports S. 2785.
    S. 2785 would authorize Section 4206 and 4218(b) of the 
Indian Alcohol and Substance Abuse Prevention and Treatment Act 
of 1986 to authorize funding for tribal action plans and 
training programs. The department supports this 
reauthorization.
    The department, however, does recommend changing the tribal 
action plan to a tribal strategic plan based on feedback 
received from tribes regarding current tribal practices. Such a 
change would allow for plans driven by tribes rather than the 
Federal Government.
    S. 2785 would also amend 25 U.S.C. Section 1304, tribal 
jurisdiction over crimes of domestic violence to include tribal 
jurisdiction over crimes of tribal violence and drug offenses, 
as well as amending the definitions for dating and domestic 
violence to include felony and misdemeanor violations of the 
tribe's criminal law within its own lands.
    S. 2785 also amends the current authorized amount of 
appropriations from $5 million to $10 million for fiscal years 
2016-2020 pursuant to DOJ grant programs for tribes under 
Subsection (f).
    Since these amounts represent DOJ resources specifically 
authorized to strengthen and support tribal criminal justice 
systems, we are open to continued conversations about the 
appropriate reporting mechanism.
    Regarding S. 2916, to amend the Act of August 9, 1955 to 
authorize the Pueblo of Santa Clara Ohkay Owingeh Pueblos 99 
year lease authority for certain restricted lands.
    The Administration strongly supports the principles of self 
determination and self governance, recognizing that intrinsic 
to these principles is tribal control over tribal resources, 
especially over tribal homelands and the welfare of Native 
people.
    This concludes my testimony for today. I am happy to answer 
any questions.
    [The prepared statement of Mr. Black follows:]

  Prepared Statement of Michael S. Black, Director, Bureau of Indian 
                Affairs, U.S. Department of the Interior
    Chairman Barrasso, Vice-Chairman Tester, and members of the 
Committee, my name is Mike Black and I am the Director for the Bureau 
of Indian Affairs (BIA) at the Department of the Interior (Department). 
Thank you for the opportunity to provide testimony before this 
Committee on S. 2785, the Tribal Youth and Community Protection Act of 
2016. The Department supports S. 2785.
    The Obama Administration has made it a priority to improve the 
health, welfare, and safety of Tribal communities. Two separate federal 
taskforces, the Indian Law and Order Commission and the Attorney 
General's Task Force on American Indian/Alaska Native Children Exposed 
to Violence, concluded local control is the key for promoting public 
safety in Indian Country. The tribal provisions in the Violence Against 
Women Reauthorization of 2013 employed this principle and since its 
enactment, a number of tribes are making strides in combatting domestic 
violence. S. 2785 continues to move in this direction by strengthening 
tribes' ability to protect their communities and prosecute non-Indian 
offenders.
S. 2785
    S. 2785 would reauthorize Section 4206 and 4218(b) of the Indian 
Alcohol and Substance Abuse Prevention and Treatment Act of 1986 (25 
U.S.C. Section 2412 and Section 2451(b) respectively) to authorize 
funding for Tribal Action Plans (Section 4206) and Training Programs 
(Section 4218(b) for fiscal years 2016 through 2020. The Department 
supports this reauthorization.
    S. 2785 would amend 25 U.S.C. Section 1304, Tribal jurisdiction 
over crimes of domestic violence, to include Tribal jurisdiction over 
crimes of child violence and drug offenses. S. 2785 amends 25 U.S.C. 
Section 1304 definitions for dating violence and domestic violence to 
include ``felony and misdemeanor violations'' of the Tribe's criminal 
law within its own lands. S. 2785 also amends Section 1304 by including 
definitions for ``caregiver,'' ``child violence,'' ``drug offense,'' 
and ``related conduct.''
    The Department recommends changing the ``Tribal Action Plan'' (TAP) 
to a ``Tribal Strategic Action Plan'' (TSAP) based on feedback received 
from Tribes regarding current tribal practices. Such change would allow 
for plans that are driven by tribes, rather than the Federal 
Government.
    The Department recommends adding language to 25 U.S.C. Section 2412 
(c) provisions that provide more deference to the Tribal Strategic 
Action Plan.
    S. 2785 also amends the current authorized amount of appropriations 
from $5 million to $10 million for fiscal years 2016 through 2020 
pursuant to DOJ grant programs for tribes under subsection (f). Since 
these amounts represent DOJ resources specifically authorized to 
strengthen and support tribal criminal justice systems, we are open to 
continuing conversations about the appropriate reporting mechanism.
Conclusion
    Thank you for providing the Department the opportunity to prove 
input into S. 2785. The Department supports S. 2785 and recommends a 
few changes as noted above. I am available to answer any questions the 
Committee may have.

S. 2916

    I am here today to provide the Department's position on S. 2916, a 
bill to provide that the Pueblo of Santa Clara and the Ohkay Owingeh 
Pueblo may lease for 99 years certain restricted land.
    The purpose of S. 2916 is to amend the Act of August 9, 1955, to 
authorize the Pueblo of Santa Clara and the Ohkay Owingeh Pueblo a 99-
year lease authority for restricted land. The Administration strongly 
supports the principles of self-determination and self-governance, 
recognizing that intrinsic to these principles is tribal control over 
tribal resources, especially over tribal homelands, and the welfare of 
Native people. In line with these principles, the Administration 
believes that tribal governments are in the best position to determine 
the duration of tribal leases. Accordingly, the Department supports S. 
2916.
Background
    Since the enactment of the Act of June 30, 1834, 4 Stat. 730, 
codified as 25 U.S.C. Sec. 177, and predecessor statutes, land 
transactions with Indian tribes were prohibited unless specifically 
authorized by Congress. This law is commonly known as the Non-
intercourse Act. Congress enacted the Act of August 9, 1955, codified 
at 25 U.S.C. Sec. 415, commonly known as the Long-Term Leasing Act, to 
overcome the prohibition of the Non-intercourse Act. The Long-Term 
Leasing Act permitted some land transactions between Indian tribes and 
nonfederal parties--specifically, the leasing of Indian lands. The Act 
required that leases of Indian lands be approved by the Secretary of 
the Interior and limited lease terms to 25 years.
    As business opportunities and economic considerations changed over 
time, leases longer than 25 years were desired. To facilitate economic 
development on Indian lands, over the years, a number of tribes have 
obtained amendments to the Long-Term Leasing Act so that they could 
enter into leases for terms longer than 25 years. Approximately 50 
tribes have obtained these amendments and all are listed in the Long-
Term Leasing Act as having authority to enter into leases for terms as 
long as 99 years.
    S. 2916 would further amend the Long-Term Leasing Act by amending 
the Long-Term Leasing Act to add the Pueblo of Santa Clara and the 
Ohkay Owingeh Pueblo to the list of tribes that may enter into 99-year 
leases within the boundaries of their respective Pueblo lands. The 
Pueblo of Santa Clara and the Ohkay Owingeh Pueblo are currently listed 
in 25 U.S.C. Section 415(a), but the listing is restricted to ``lands 
held in trust for the Pueblo of Santa Clara'' and ``lands held in trust 
for the Ohkay Owingeh Pueblo.'' There exists, and in the future there 
could exist, lands within the boundaries of either Pueblo's boundaries, 
owned by either Pueblo, but not held in trust for the Pueblo of Santa 
Clara or Ohkay Owingeh Pueblo. Thus, S. 2916 seeks to include all the 
lands within the boundaries either Pueblo. The Department supports S. 
2916.

S. 2920

    Thank you for the opportunity to provide testimony before this 
Committee on S. 2920 the Tribal Law and Order Reauthorization Act 
(TLORA) of 2016.
    The Tribal Law and Order Act (TLOA) brought about necessary and 
important changes in addressing public safety in Indian Country. Our 
experiences implementing TLOA have highlighted additional areas that 
still need to be addressed. TLOA was passed to clarify the 
responsibilities of Federal, state, tribal, and local governments with 
respect to crimes committed in Indian country; to increase coordination 
and communication among Federal, state, tribal, and local law 
enforcement agencies; to empower tribal governments with the authority, 
resources, and information necessary to provide public safety in Indian 
country effectively; to reduce the prevalence of violent crime in 
Indian country and to combat sexual and domestic violence; to prevent 
drug trafficking and reduce rates of alcohol and drug addiction in 
Indian country; and to increase and standardize the collection of 
criminal data and the sharing of criminal history information among 
Federal, state, and tribal officials responsible for responding to and 
investigating crimes in Indian country.
    In the six years since TLOA was passed in 2010, the Department of 
the Interior still strongly supports the purposes of TLOA. We believe 
there is no substitute for having enough officers on the ground, and we 
will continue working to improve law enforcement in Indian country. The 
Obama Administration has made it a priority to improve the health, 
welfare, and safety of tribal communities, and I am pleased to be here 
before this Committee today to provide the Department's full support of 
and recommendations for S. 2920.
    A major focus of TLOA was to address challenges related to 
reporting and data collection. We want to continue this effort to build 
robust data and provide the public with the information it needs. 
Section 103 provides for sharing of federal data with tribes. One gap 
we recognize is the lack of incorporation of tribally-owned data into 
state and federal databases. For example, an individual may have prior 
tribal arrests that are not reflected in state and federal databases. 
To foster respect and reciprocity for tribally-collected data, the 
Department would like to encourage the bill's authors to consider 
extending the Department of Justice's new Tribal Access Program for 
National Crime Information, which provides tribes access to national 
crime information for both civil and criminal purposes, to include a 
pilot program or other mechanism to support tribes interested in 
sharing tribal court criminal records with other law enforcement 
agencies. The Department recognizes many tribes are currently doing 
this; however, we should encourage law enforcement agencies and courts 
to adopt this practice across Indian Country.
    Even with the information improvement efforts of TLOA, Indian 
Country still lacks data on criminal justice, or, more accurately, the 
ability to identify and analyze the information needed to paint an 
accurate picture of law enforcement in Indian Country. This is a 
challenge in multiple sectors, including health, child welfare, and 
others, but it is particularly problematic in the context of criminal 
justice, in which Federal, state, tribal, and local governments share 
responsibilities.
    Further, as the nation moves toward evidence-based policy making, 
there has been increased focus on the quality of information the 
Department and other agencies are required to collect in order to 
report back to Congress. This bill has numerous reporting requirements, 
but stops short of providing additional resources for us to effectively 
meet this direction effectively and in a timely manner. We would 
appreciate the opportunity to share more with the bill's sponsors about 
our capacity to analyze complex data sets in a way that is meaningful 
for Congress.
    Tribal courts are an essential part of tribal governments, which 
provide local delivery of justice in tribal communities. We support 
Section 107, which reauthorizes tribal court training programs. Those 
training programs are critical to assisting tribes with building 
capacity.
    We are encouraged by the tremendous progress some tribes are making 
to build their courts up. Many more tribes continue to face challenges. 
TLOA's Indian Law and Order Commission (ILOC) recognized that tribes in 
Public Law 280 states, particularly those in California and Alaska, 
have even greater hurdles to the development of their justice systems. 
Additionally, TLOA allowed for re-assumption of concurrent federal 
jurisdiction in Public Law 280 states and extended sentencing 
provisions for tribes, followed by the Violence Against Women 
Reauthorization Act of 2013, which contained special domestic violence 
criminal jurisdiction provisions. Despite their strong desire, 
relatively few tribes are able to take on these additional 
responsibilities. In reviewing S. 2920, we note that it does not 
address these issues and would appreciate the opportunity to work with 
the authors to ensure that tribes can utilize their full authority and 
jurisdiction to prosecute crimes in Indian Country.
    The Department appreciates the inclusion of alternatives to 
detention in the bill as many of our offenders are engaging in criminal 
activity due to untreated mental health and alcohol and substance abuse 
issues. We want to continue to look for ways to get these individuals 
the help they need to break the cycle of recidivism.
    One detention issue not addressed in the bill is the 
disproportionately high costs of time and expense for transporting 
prisoners within the current system of facilities. We believe issues 
associated with transportation of prisoners contribute to the scarcity 
of detention funding. Transporting a prisoner requires two officers, 
and in remote areas this pulls officers off patrol and out of the 
community for days at a time. This creates severe safety risks across 
Indian County, where a tribe may have only two officers in its entire 
police force. Transporting juveniles presents an additional challenge, 
as it often requires traveling a longer distance in order for the 
individual to be housed at one of a very limited number of juvenile 
facilities. These high transportation costs soak up the already scarce 
resources available for detention. We believe one method to solve this 
problem may be to create incentives for intergovernmental cooperation 
with regard to bed space in detention facilities to allow tribal 
prisoners to be housed closer to home in local or county facilities.
    TLOA's ILOC devoted an entire chapter to intergovernmental 
cooperation, noting that some tribal governments have seen success 
through partnerships with local counties and state agencies using 
cross-deputization agreements and memoranda of understanding. We know 
not every tribe, state, local, or county official will feel enough 
groundwork has been laid to foster a strong working relationship today. 
However, we believe encouraging them to pool their limited resources 
makes good fiscal sense, and can lead to better cooperation in other 
areas that face similar jurisdictional challenges, such as health care 
delivery, natural resources management, or road maintenance. 
Recognizing that all these entities have a role to play will ensure 
communities as a whole, Indian and non-Indian, are safer. With this in 
mind, we recommend additional bill language to create strong incentives 
toward intergovernmental cooperation.
    Collaboration is also important within the Federal family. Federal 
interagency collaboration, breaking down silos within government, 
remains a priority for this Administration as it seeks to create an 
``all of government'' approach to Indian Affairs. S. 2920 recognizes 
that public safety in Indian Country is an issue which needs attention 
from multiple agencies. Section 102 asks us specifically to work with 
Health and Human Services and the Department of Justice to integrate 
and coordinate around our respective criminal justice programs. We 
believe the fragmentation of programs across agencies is confusing for 
tribes and impedes our ability to care for tribal members once they 
enter into the criminal justice system. Interior stands ready to 
collaborate with its counterparts.
    We also recommend the following technical changes to TLOA in 
addition to our views on TLORA:
    Currently TLOA Section 211(c)(13) requires BIA to provide technical 
assistance and training to tribes on the DOJ National Crime Information 
Center (NCIC) databases. As this Committee is aware, the NCIC and other 
national crime information databases are maintained by the DOJ. It 
would be more appropriate if this responsibility were assigned to the 
Department of Justice, with input from BIA Office of Justice Services 
(OJS).
    TLOA Section 211(c)(15) allows BIA to share with the Department of 
Justice all relevant crime data delivered to BIA by tribes. The BIA 
does share all relevant data including Uniform Crime Reports Data. To 
maximize this opportunity, the Department recommends language that 
allows FBI's Criminal Justice Information Services (CJIS) to work with 
OJS to ensure each tribal jurisdiction is assigned an ORI number for 
uniform crime reporting purposes.
    Finally, Section 211 of TLOA provided for BIA-OJS to develop an 
annual report of unmet staffing needs of the law enforcement, 
corrections, and tribal court programs. The Department is concerned 
with the proposal to withhold funding in the event the reports 
currently required to Congress are delayed. All funding for law 
enforcement within the BIA-OJS is essential and withholding such 
funding would negatively impact the BIA's delivery of public safety 
needs to tribes and Indian Country. The Department acknowledges the 
delay in providing this report and is working to provide accurate and 
relevant data to the Committee. We hope to have an opportunity to work 
with the Committee to refine the annual reporting requirements.
    Currently, Section 231(a)(4)(A) of TLOA states that if a request 
for a background check is made by an Indian Tribe that has contracted 
or entered into a compact for law enforcement or corrections services, 
OJS must complete the check no later than 60 days after the date it 
received the request. As the Office of Personnel Management (OPM) has 
the responsibility for completing background checks for the Federal 
Government, we recommend tribal background investigations be reassigned 
to OPM. If not reassigned, the 60-day requirement should be changed to 
120 days, which would allow more time for completion.
    Section 234(c)(1) of TLOA established a four-year pilot program 
under which the Federal Bureau of Prisons would accept up to 100 
offenders convicted in tribal court. We agree that this program should 
be continued, and that a working group should be established to assist 
in streamlining a process in which tribal court judges can more easily 
sentence individuals into the program.
Conclusion
    Thank you for inviting the Department to testify. We look forward 
to working with this Committee on S. 2920 Tribal Law and Order 
Reauthorization Act. We want to take full advantage of making TLOA 
stronger in order to make significant steps toward to the goals of 
TLOA, which was and continues to aim at improving and addressing law 
and order in Indian country.
    This concludes my prepared statement. I will be happy to answer any 
questions the Committee may have.

    The Chairman. Thank you, Mr. Black.
    Mr. Toulou.

STATEMENT OF TRACY TOULOU, DIRECTOR, OFFICE OF TRIBAL JUSTICE, 
                   U.S. DEPARTMENT OF JUSTICE

    Mr. Toulou. On behalf of the Department of Justice, I want 
to thank Chairman Barrasso, Vice Chairman Tester and members of 
the Committee for focusing attention on the critically 
important issues of protecting Native American children and 
promoting public safety in Indian Country.
    My name is Tracy Toulou. I am the Director of the Justice 
Department's Office of Tribal Justice.
    Protecting Indian families from violence in their homes, 
whether committed by an Indian or non-Indian, has been a 
central concern of our department for years. Our conversations 
and consultations with tribes after passage of the Tribal Law 
and Order Act of 2010 and the 2013 VAWA reauthorization has 
underscored the urgent public safety issues facing tribal 
communities.
    The department remains dedicated to working with tribes to 
identify and implement tribally-driven solutions to these 
problems.
    I would like to focus on gaps in coverage that have been 
identified by tribes such as Mr. Urbina at the end of the table 
that have already begun exercising jurisdiction over non-
Indians under Section 1304 of Title 25 and gaps that S. 2785 
seeks to address.
    Tribal efforts to implement Section 1304 have been 
impressive. Actual tribal experience prosecuting cases under 
Section 1304 has revealed three significant gaps in the Federal 
law. First, there has been some confusion about the scope of 
conduct covered by Section 1304's definition of domestic 
violence and dating violence. This confusion is compounded by 
dicta in the 2014 U.S. Supreme Court case, United States v. 
Castleman.
    As a result, there is a need to clarify when a tribe can 
prosecute a non-Indian. Because tribes have been cautious not 
to exceed their authority under Section 1304, they have 
hesitated to prosecute non-Indians who have attempted or 
threatened to cause bodily injury without causing actual 
physical injury.
    In a real world example of this, a non-Indian boyfriend in 
an intoxicated state attempted to punch his Indian girlfriend 
but missed and fell to the ground. Concerned that a case with 
no actual physical contact would not meet the definition of 
dating violence in Section 1304, the tribe declined to 
prosecute. That defendant later returned to assault his victim 
again and was arrested again by the tribe. Language in S. 2785 
would amend Section 1304(a) to address this serious problem.
    The second gap in law addressed by S. 2785 involves Indian 
children. Too often a child is victimized during an episode of 
domestic violence, yet the current version of Section 1304 
allows a tribe to prosecute only the crime committed against 
the adult victim and not the equally serious crime committed 
against the child.
    In one example, a non-Indian boyfriend, after a 
methamphetamine binge, forced both his Indian girlfriend and 
her child to sit in a chair while he threw knives at them. 
While this particular case was prosecuted federally, the tribe 
should also have the ability to prosecute these crimes.
    The third gap in the law is that the law does not clearly 
recognize that tribes exercising this jurisdiction have 
authority to protect tribal law enforcement officers, 
prosecutors, judges and courtroom officials. For example, there 
is uncertainty about a tribe's authority to charge an offender 
for resisting arrest by a tribal police officer. This 
uncertainty threatens the tribe's power and practical ability 
to successfully prosecute domestic and dating violence crimes. 
The department supports S. 2785's efforts to address these 
problems.
    The 2013 VAWA reauthorization that gave rise to Section 
1304 was closely and carefully tied to problems caused by non-
Indian perpetrators of domestic violence. We support Congress' 
efforts to empower tribal criminal justice systems to deal 
strongly and appropriately with all persons already subject to 
tribal jurisdiction under Section 1304.
    While the department fully recognizes the terrible impact 
of drugs on Native American communities, we recommend against 
expanding the universe of potential tribal court criminal 
defendants beyond domestic violence offenders in this 
particular bill. We would be happy to work with Committee staff 
to more effectively target these non-DV related offenders.
    Finally, the department is still in the process of working 
through the Tribal Law and Order Act reauthorization and 
amendments of 2016. We will provide our comments as soon as 
that process is finished.
    That said, there are two important issues contained in the 
bill upon which the department has already commented. The 
department appreciates the support for the tribal access to 
Federal law enforcement databases or TAP program. Initial 
feedback from tribes using the program has been overwhelmingly 
positive. We appreciate the support for expansion of this 
program.
    Second, as I mentioned in my December 2015 Tribal Law and 
Order Act testimony, the department supports extension of the 
Bureau of Prisons Pilot Project, another program which has 
broad tribal support.
    Senator Barrasso, I want to apologize for the fact that 
these items did not make it to my written testimony but 
obviously they are very important. I thank the Committee for 
its willingness to address these important issues. I look 
forward to answering any questions you might have.
    [The prepared statement of Mr. Toulou follows:]

Prepared Statement of Tracy Toulou, Director, Office of Tribal Justice, 
                       U.S. Department of Justice
    On behalf of the United States Department of Justice, I want to 
thank Chairman Barrasso, Vice Chairman Tester, and the members of this 
Committee for focusing attention on the critically important issues of 
protecting Native American children and promoting public safety in 
Indian country. My name is Tracy Toulou, and I am the Director of the 
Department of Justice's Office of Tribal Justice. I also want to thank 
you for holding this hearing on pending legislation including S. 2785, 
the Tribal Youth and Community Protection Act of 2016. Protecting 
Indian families from violence in their homes, regardless of whether it 
is committed by Indians or non-Indians, has been a central concern of 
our Department for many years. Our conversations and consultations with 
tribes after the passage of the Tribal Law and Order Act of 2010, or 
TLOA, and the Violence Against Women Reauthorization Act of 2013, or 
VAWA 2013, have only underscored the urgent public-safety issues facing 
tribal communities. The Department remains dedicated to working with 
tribes to identify and implement tribally driven solutions to these 
problems. My testimony today will address S. 2785 and the specific 
issues that gave rise to it, as the Department of Justice is still in 
the process of formulating views on the other bills that are the 
subject of today's hearing.
    S. 2785 primarily would amend Section 1304 of Title 25 of the 
United States Code, which is part of the Indian Civil Rights Act of 
1968, as amended. Congress enacted Section 1304 as the tribal-criminal-
jurisdiction provision of VAWA 2013. We commend the entire Committee, 
and Senators Tester and Franken in particular, for their willingness to 
listen to Indian tribal leaders and to take action to improve and 
strengthen VAWA 2013 and Section 1304.
Domestic Violence and the Jurisdictional Gap in Indian Country
    Before describing in detail the Department's views on Section 1304, 
some background may be helpful. Criminal jurisdiction in Indian country 
generally is shared among the federal, state, and tribal governments, 
according to an extraordinarily complex matrix that depends on the 
nature of the crime, whether the crime has victims or is victimless, 
whether the defendant is Indian or non-Indian, whether the victim is 
Indian or non-Indian, and sometimes other factors as well. In 1978, in 
Oliphant v. Suquamish Indian Tribe, the U.S. Supreme Court held that, 
absent express Congressional authorization, tribes lack jurisdiction 
over crimes committed by non-Indians. Prior to VAWA 2013, even violent 
crimes committed by a non-Indian husband against his Indian wife, in 
the presence of their Indian children, in their home on the Indian 
reservation, could not be prosecuted by the tribe. Instead, these 
crimes fell within the exclusive criminal jurisdiction of the United 
States or, in some circumstances, of the state.
    In the decades following Oliphant, too many cases of domestic 
violence and dating violence committed by non-Indians against their 
Indian spouses and dating partners went unprosecuted and unpunished. 
This was particularly true for misdemeanor crimes of domestic violence, 
which, absent a response from law enforcement, often escalated to 
domestic-violence felonies within weeks or months.
    As a result of this jurisdictional gap, as well as other factors, 
Native American women have suffered some of the highest rates of 
violence at the hands of intimate partners in the United States. A 
recent National Institute of Justice analysis of 2010 survey data 
collected by the Centers for Disease Control and Prevention found that 
more than half (55.5 percent) of American Indian and Alaska Native 
women have experienced physical violence by an intimate partner in 
their lifetimes. Among these victims, 90 percent have experienced such 
violence by a non-Indian intimate partner. Over their lifetimes, 
American Indian and Alaska Native women are about five times as likely 
as white women to have experienced physical violence at the hands of an 
intimate partner who is of a different race.
The Department's 2011 Legislative Proposal
    In 2011, the Justice Department took the unusual step of drafting 
and proposing to Congress legislation responding to this crisis. The 
Department's proposed legislation was designed to decrease domestic 
violence in Indian country, to strengthen the capacity of Indian tribes 
to exercise their inherent sovereign power to administer justice and 
control crime, and to ensure that perpetrators of domestic violence are 
held accountable for their criminal behavior. Part of the legislation 
amended 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.
    Another part of the legislation focused on tribal, rather than 
federal, prosecution. Specifically, it proposed to amend the Indian 
Civil Rights Act by recognizing 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 certain protection orders, in Indian 
country.
    While the Department focused tightly on the problems of domestic 
violence and dating violence in crafting this proposed legislation, the 
broad principles undergirding the proposal were clear: The division of 
labor between federal and tribal prosecutors should depend more on the 
nature and seriousness of the crimes and less on the Indian or non-
Indian identity of the victim or of the defendant. U.S. Attorneys' 
Offices and the FBI will have the greatest positive impact on public 
safety in Indian country when they can concentrate on the most 
dangerous crimes. And local tribal prosecutors can be most effective 
when they focus on offenses that, if left unaddressed, can escalate to 
more dangerous crimes.
VAWA 2013 and Special Domestic Violence Criminal Jurisdiction
    Following the Department's 2011 legislative proposal, this 
Committee held hearings and received extensive testimony on these 
issues. Its members ultimately played key roles in enacting, as part of 
VAWA 2013, the law that is now codified at 25 U.S.C. 1304. Section 1304 
recognizes and affirms tribes' inherent power to exercise ``special 
domestic violence criminal jurisdiction,'' or SDVCJ, over certain 
defendants, regardless of their Indian or non-Indian status, who commit 
acts of domestic violence or dating violence or violate certain 
protection orders in Indian country. For the first time in decades, 
tribes therefore could prosecute non-Indian perpetrators of domestic 
violence and dating violence.
    In broadening the set of persons who could potentially be 
prosecuted by tribes, Congress also carefully delineated the scope of 
tribal authority recognized by VAWA 2013. First, Congress included two 
important exceptions to tribes' exercise of SDVCJ. Tribes may exercise 
SDVCJ only if the defendant resides in the tribe's Indian country, is 
employed in the tribe's Indian country, or is a spouse, intimate 
partner, or dating partner of a member of the tribe or of an Indian who 
resides in the tribe's Indian country. Tribes also may not exercise 
SDVCJ over an offense with a non-Indian victim. These provisions ensure 
that the defendant has adequate ties to the tribe and its reservation 
and that this jurisdiction does not include cases involving only non-
Indians, which typically fall within a state's exclusive criminal 
jurisdiction.
    Second, Congress effectively ensured that the protections for a 
defendant's federal rights and civil liberties would be as robust in 
tribal court as they would be if the defendant were prosecuted in any 
state court. Specifically, in any case in which a term of imprisonment 
of any length may be imposed, the defendant is afforded all applicable 
rights under the Indian Civil Rights Act of 1968, all rights applicable 
to defendants charged with felony offenses under TLOA, and also the 
right to trial by an impartial jury chosen from a jury pool that 
reflects a fair crosssection of the community, including both Indians 
and non-Indians.
    Third, to give tribes time to prepare to meet the requirements of 
the statute, Section 1304 generally did not take effect until March 7, 
2015, two years after VAWA 2013 was signed into law by President Obama. 
In the interim, VAWA 2013 established a voluntary Pilot Project 
authorizing tribes to commence exercising SDVCJ on an accelerated 
basis, but only if the tribe could establish to the Attorney General's 
satisfaction that it would fully protect defendants' rights. Once the 
two-year Pilot Project concluded, other tribes were authorized to 
exercise SDVCJ without seeking the Attorney General's approval.
The Pilot Project for Tribal Jurisdiction over Crimes of Domestic 
        Violence
    After enactment, the Department moved quickly to implement the 
Pilot Project, which we recognized would lay the groundwork for the 
success of SDVCJ in general. After consulting with tribal officials and 
requesting public comment, on November 29, 2013, the Department 
published a final notice establishing procedures for tribes to request 
accelerated designation, establishing procedures for the Attorney 
General to act on such requests, and soliciting such requests from 
tribes. Two months later, on February 6, 2014, the Department of 
Justice announced that the Pascua Yaqui Tribe of Arizona, the Tulalip 
Tribes of Washington, and the Confederated Tribes of the Umatilla 
Indian Reservation in Oregon were selected for the Pilot Project. On 
March 6, 2015, the Department announced the designation of two 
additional pilot tribes, the Sisseton Wahpeton Oyate of the Lake 
Traverse Reservation in South Dakota and the Assiniboine and Sioux 
Tribes of the Fort Peck Indian Reservation in Montana.
    The three original Pilot Project tribes achieved notable success 
implementing SDVCJ during the Pilot Project period from February 2014 
through March 2015. In this first year of implementation, the three 
pilot tribes had a total of 27 SDVCJ cases involving 23 separate 
offenders. Of the 27 cases, 11 were ultimately dismissed for 
jurisdictional or investigative reasons, 10 resulted in guilty pleas, 5 
were referred for federal prosecution, and 1 offender was acquitted 
after a jury trial in tribal court.
    Although these tribes moved swiftly to implement SDVCJ, they also 
acted with deliberation. They worked closely with their local United 
States Attorneys' Offices to identify which cases were best prosecuted 
by the tribes and which were more suitable for federal prosecution, 
with the common goal of holding offenders accountable and keeping 
tribal communities safe. And not one of their SDVCJ non-Indian 
defendants petitioned for habeas corpus review in federal court, which 
is a testament to the tribes' ability to safeguard the rights of all 
defendants in their tribal courts.
    Statistics from the individual Pilot Project tribes reveal that 
many SDVCJ defendants have long histories with the police, underscoring 
how VAWA 2013 has empowered tribes to respond to long-time abusers who 
previously had evaded justice. The Pascua Yaqui Tribe reported that 
their non-Indian defendants had at least 80 documented tribal-police 
contacts, arrests, or reports attributed to them over the past four 
years. Similarly, the Tulalip Tribes reported that their non- Indian 
defendants had at least 88 documented tribal-police contacts, arrests, 
or reports in the past.
Ongoing Implementation of VAWA 2013 by Tribes and the Department
    During the course of consultation about how to structure the Pilot 
Project, tribal officials and employees repeatedly highlighted the 
usefulness of exchanging ideas with their counterparts in other tribes. 
With these views in mind, in June 2013, the Department established the 
Intertribal Technical-Assistance Working Group on Special Domestic 
Violence Criminal Jurisdiction, or ITWG. Approximately 45 tribes have 
voluntarily joined the ITWG, sharing their experiences implementing or 
preparing to implement SDVCJ, attending six inperson meetings, and 
participating in numerous webinars on subjects such as jury pools and 
juror selection, defendants' rights, victims' rights, and prosecution 
skills. The Department is supporting the ITWG with training and 
technical assistance, including an award by its Office on Violence 
Against Women to the National Congress of American Indians to support 
the ITWG's ongoing work.
    Since the end of the pilot period, we understand that five more 
tribes have implemented SDVCJ, including two in the last two months. In 
the ten communities that have now implemented SDVCJ, tribal governments 
are working to end impunity for non-Indian abusers and to bring safety 
and justice to Native American victims. Together, as of February 2016, 
the implementing tribes reported having made a total of 51 SDVCJ 
arrests (involving 41 separate offenders), resulting in 18 guilty 
pleas, 5 referrals for federal prosecution, 1 acquittal by jury, and 12 
dismissals, with 13 cases pending.
    Just as the implementing tribes have been working to hold non-
Indian abusers accountable, the Department has stepped up prosecutions 
of felony-level domestic-violence offenders in Indian country. Since 
the passage of VAWA 2013, our United States Attorneys have been making 
good use of their new ability to seek more robust federal sentences for 
certain acts of domestic violence in Indian country, including the ten-
year offense for assaulting an intimate partner by strangling or 
suffocating. Over the past three years, federal prosecutors have 
indicted more than 100 defendants on strangulation or suffocation 
charges.
    Based on reports from tribal members of the ITWG, the Department 
anticipates that many more tribes will choose to implement SDVCJ in the 
coming year. We know, however, that tribes cannot be expected to 
shoulder this responsibility without the support of the federal 
government. To this end, United States Attorneys' Offices will continue 
to collaborate with tribes that exercise this jurisdiction, and the 
Department will continue to support peer-to-peer technical assistance 
to tribes. In addition, by the end of this fiscal year, the Office on 
Violence Against Women anticipates announcing awards under its new 
Grants to Tribal Governments to Exercise Special Domestic Violence 
Criminal Jurisdiction program.
Gaps in Coverage of Special Domestic Violence Criminal Jurisdiction
    Although tribal efforts to implement Section 1304 have been 
impressive, actual tribal experience prosecuting cases under Section 
1304 has revealed three significant gaps in the federal law. Our 
reading of S. 2785 is that it is intended principally to address these 
gaps. While we applaud that effort, we believe it is important that any 
legislation effectively and precisely target the areas of greatest 
need. We would be happy to work with the Committee's members and staff 
to refine some of the bill's language to achieve that goal.
    First, there has been some unfortunate confusion in the field about 
the scope of conduct covered by Section 1304's definitions of 
``domestic violence'' and ``dating violence.'' This confusion was 
exacerbated by dicta in footnotes in the majority and concurring 
opinions in a 2014 U.S. Supreme Court case, United States v. Castleman. 
As a result, there is a need to clarify whether a tribe can prosecute a 
non-Indian whose acts against an Indian spouse or partner arguably 
would fall short of constituting ``violence'' in a nondomestic context, 
but nonetheless use a sufficient degree of force to support a common-
law battery conviction. Moreover, because tribes have been cautious not 
to exceed their authority under Section 1304, implementing tribes' 
prosecutors have hesitated to prosecute a non-Indian who attempts or 
threatens to cause his Indian spouse or partner bodily injury, without 
causing physical injury. In a real-world example of this, a non-Indian 
boyfriend, in a highly intoxicated state, attempted to punch his Indian 
girlfriend but missed and fell to the ground. Concerned that a case 
with no actual physical contact would not meet the definition of 
``domestic violence'' in Section 1304, the tribe declined to prosecute. 
The defendant later returned to assault his victim again--and was 
arrested again by the tribe.
    Given this uncertainty, the Department recommends legislation 
clarifying that Section 1304 covers the use, attempted use, or 
threatened use of physical force against the person or property of the 
victim, including any offensive touching of the victim (consistent with 
the common-law crime of battery). It appears that the language S. 2785 
proposes to add to Section 1304(a) was intended to achieve this result, 
but it may inadvertently sweep in a far broader range of criminal 
conduct, including acts that do not even involve physical force (or an 
attempt or threat to use force). The Department would be glad to 
provide technical drafting assistance to ensure that this provision is 
properly tailored.
    The second gap in the law involves Indian children. All too often, 
a husband or boyfriend who assaults or batters his Indian wife or 
girlfriend also assaults or abuses her children during the same 
incident. Yet Section 1304 allows the tribe to prosecute only the 
former crime (committed against the wife or girlfriend) and not the 
latter crime (committed against the children). In these circumstances, 
the only effective way to hold the perpetrator accountable for all his 
misconduct, including his crimes against the children, is to prosecute 
him federally, rather than tribally. In one example from a Pilot 
Project tribe, a non-Indian boyfriend, after a prolonged 
methamphetamine binge, forced both his Indian girlfriend and her child 
to sit in a chair while he threw knives at them. Given the tribe's 
inability to prosecute the defendant for crimes committed against the 
child, as well as the severity of the conduct, the tribe referred the 
case for federal prosecution.
    The Department believes that Congress should close this gap in the 
law as well. And the Department would welcome the opportunity to work 
with the Committee to make sure that this fix is narrowly tailored to 
the circumstances we have just described--where the crime against a 
spouse, intimate partner, or dating partner goes hand-in-hand with a 
crime against the victim's children.
    The third gap in the law, exposed by practical experience, is that 
it does not clearly recognize that tribes exercising SDVCJ have the 
authority to protect the tribal law-enforcement officers, prosecutors, 
judges, and courtroom officials who administer justice. For example, 
there is uncertainty about a tribe's authority to charge an SDVCJ 
offender for resisting arrest by a tribal police officer. In one case, 
an SDVCJ defendant attempted to escape mandatory court appearances and 
physically struck a tribe's bailiff in tribal court. Obviously, this 
sort of misconduct is a direct affront to the tribe's power and 
practical ability to successfully prosecute domestic- and dating-
violence crimes under Section 1304.
    The Department therefore believes that Section 1304 should be 
amended to protect tribal criminal-justice officers and employees from 
crimes that directly frustrate the successful arrest, detention, and 
prosecution of SDVCJ defendants and the adjudication of their criminal 
cases. This appears to be the intended focus of S. 2785's proposal for 
new Sections 1304(a)(12) and 1304(c)(3). The Department would be glad 
to provide the Committee with technical drafting assistance to sharpen 
the focus of these provisions, as well.
    At this time, the Department would recommend against expanding the 
universe of potential tribal-court criminal defendants, although we 
fully recognize the terrible impact of drugs on Native American 
communities. For now, we believe Congress's focus instead should be to 
empower tribal criminal-justice systems to deal strongly and 
appropriately with all persons who are already subject to tribal 
criminal jurisdiction under Section 1304.
    As federally recognized Indian tribes, usually with financial 
support from Congress and the federal government, continue to build 
their capacity to effectively enforce their own criminal laws, Congress 
may well choose to expand the universe of potential criminal defendants 
in tribal courts, and also to expand the sentencing authority of those 
courts. Soon, it may make sense to vindicate the broad principles 
underlying VAWA 2013 and Section 1304 by expanding tribal criminal 
jurisdiction to cover additional non-Indian perpetrators, perhaps 
starting with those offenders who abuse Indian children (regardless of 
whether they also are abusing a spouse or intimate partner) and then 
considering other offenders, such as perpetrators of sexual assault, 
stalking, and sex trafficking, and criminals who bring illegal drugs 
into tribal communities.
    But today, less than 15 months after the effective date of VAWA 
2013, the Department believes the most important and timely legislative 
reforms should focus instead on clarifying and expanding tribal 
prosecutors' tools for bringing to justice the defendants who are 
already within the tribe's jurisdiction.
    We thank the Committee for its willingness to undertake this 
important project. And we look forward to working with you and your 
staff as you shape properly targeted language to accomplish our common 
objectives. I will be happy to answer any questions you may have.

    The Chairman. Thank you, Mr. Toulou.
    Mr. Chavarria.

 STATEMENT OF HON. J. MICHAEL CHAVARRIA, GOVERNOR, SANTA CLARA 
                             PUEBLO

    Mr. Chavarria. [Greeting in Native Language.] Good 
afternoon, Chairman Barrasso, Vice Chairman, and members of the 
Committee.
    My name is J. Michael Chavarria. I serve as Governor for 
Santa Clara Pueblo in New Mexico. I appreciate the opportunity 
to testify before this Committee regarding S. 2916, a bill 
which would allow the Pueblo to lease all of our lands for up 
to 99 years.
    In 1992, Congress adopted an amendment to 25 U.S.C Section 
415 that allowed 99-year leasing authority for lands held in 
trust for the Pueblo Santa Clara. Unfortunately, those lands 
consisted of forested lands, our spiritual sanctuary, which we 
would never lease to outsiders for any type of economic 
development ventures for such an amount of time.
    The request in 1992 should have been inclusive of all our 
lands which include not only lands held in trust but also lands 
inclusive of what is known as the Santa Clara Pueblo grant. 
This is a square piece of land comprising about 17,300 acres 
that under Spanish colonial law dating back to the 1600s are 
considered to be the minimum area of land to which New Mexico 
Pueblo is entitled.
    In 1851, Congress enacted legislation extending the terms 
of the Indian Non-Intercourse Act over Pueblo Indians. The Act 
prohibits any Indian tribe from disposing of its lands or any 
interest therein, except for authority granted by Congress. 
That made the Pueblo fee simple title to its lands restricted 
fee because it was subject to Federal law restrictions on 
alienation.
    In 1858, Congress confirmed our title to the grant but it 
was subject to Federal law restrictions on alienation. That 
land is held in trust whether the term uses restricted fee or 
ownership under Federal supervision.
    These restrictive fee lands are extremely important for 
current and proposed future economic development ventures as we 
diversify our economic portfolio. Currently, 25 U.S.C. Section 
415 generally restricts a lease of tribal land to a term of 25 
years with the possibility of one renewal period for another 25 
years. However, these terms are not economically feasible as 
the terms of these lengths are too short to allow for the 
amortization of substantial capital investments which means 
that big businesses are deterred from locating on tribal lands.
    I do have a map here that shows our trust lands and the 
restrictive fee. The square in red is the 17,300 acres dating 
back to the colonial law. These are the Santa Clara Pueblo 
grant lands we want to utilize for commercial interests for 
economic development. Senator Udall's bill fixes that problem 
by allowing us to enter into long term leases with our 
commercially valid lands.
    Again, I appreciate the opportunity to come before this 
Committee to testify to gain support not only from this 
Committee but also from Congress. Chairman, members of the 
Committee, I now stand for any questions.
    [The prepared statement of Mr. Chavarria follows:]

Prepared Statement of Hon. J. Michael Chavarria, Governor, Santa Clara 
                                 Pueblo

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    The Chairman. Thank you so much for your testimony.
    Mr. Buckles.

  STATEMENT OF HON. DANA BUCKLES, COUNCILMAN, ASSINIBOINE AND 
              SIOUX TRIBES, FORT PECK RESERVATION

    Mr. Buckles. Good afternoon, Mr. Chairman, Vice Chairman 
and members of the Committee.
    I am Dana Buckles, Councilman of the Assiniboine and Sioux 
Tribes of the Fort Peck Reservation. I would like to thank the 
Committee for the invitation to testify.
    I am pleased to testify in strong support of the Tribal 
Youth and Community Protection Act. This bill would recognize 
the inherent tribal authority to protect our children and our 
communities.
    At Fort Peck, we have long believed that a strong tribal 
government is the way that we can best keep our communities 
safe. The Fort Peck Tribes have provided law enforcement and 
correction services on our reservation since 1996 under an 
Indian Self-Determination and Education Assistance Act 
contract.
    We are also one of the first Indian tribes in the Nation to 
enter into a cross-deputization agreement with State, county 
and city law enforcement agencies. Under this agreement, tribal 
officers are deputized to enforce State and local law on the 
reservation and State and local officers are authorized to 
enforce tribal law.
    For more than 40 years, the Fort Peck tribes have had an 
independent judicial system, including an appellate court. It 
is through this system that we provide justice to our victims 
and our defendants. Currently, our judicial system includes 
law-trained judges, law-trained prosecutors, and law-trained 
public defenders.
    Given the strong foundation of our court and the tribal 
council's desire to combat domestic violence with every tool 
possible, the tribes elected to pursue the opportunity 
presented by the Violence Against Women Act and exercise our 
inherent jurisdiction to prosecute non-Indian defendants who 
commit domestic violence on our reservation.
    We did this not because we lack good partners in our U.S. 
attorney and local law enforcement, but because this is simply 
another avenue to provide justice to the victims. We are 
pleased to share that we are working with the U.S. Attorney to 
designate our special prosecutor as a Special Assistant U.S. 
Attorney, so he will be able to prosecute crimes not only in 
tribal court, but also Federal court. In short, we think 
providing justice to victims is an important step in providing 
them a pathway to heal and move on with their lives.
    Unfortunately, violent crime is all too common in our 
community. A new study by the National Institute of Justice 
confirmed that violence in our community is a constant reality. 
According to this study, 84 percent of Indian women have 
experienced violence in their lifetime and 49 percent 
experienced violence in the past year. This violence is 
impacting our children.
    Since 2012, over half of the clients served by the tribe' 
Family Violence Resource Center were children. This amounts to 
approximately 1,000 children who were in need of family crisis 
services as victims or witnesses to violence in their homes.
    That is why we so strongly support the Tribal Youth and 
Community Protection Act. We know that prosecuting crimes 
against children is the highest priority for our U.S. Attorney. 
The Fort Peck Tribes recently experienced two horrible crimes 
against two little girls. We are thankful that our Federal 
partners came forward quickly to bring justice to the victims.
    However, our children are victims of crime every day. In 
2015, our tribal court had 329 criminal cases involving crimes 
against children. These cases included aggravated sexual 
assault of a child, felony abuse of a child and endangering the 
welfare of child.
    These cases only reflect the cases where we had the 
jurisdiction to prosecute. These do not reflect the cases where 
the perpetrator was a non-Indian. Those cases must be addressed 
by the U.S. Attorney.
    Our U.S. Attorney is a good partner, but he does not have 
the resources to prosecute all the crimes against children that 
our community experiences. Moreover, as the Department of 
Justice notes in its 2014 declination report, there are 
structural barriers in the Federal system that make certain 
prosecutions like child molestation cases difficult.
    These challenges include the fact that the victims and 
witnesses are reluctant to travel outside their communities to 
testify and that Federal investigators do not have a rapport in 
the community the same way local law enforcement officers do.
    Our tribal law enforcement and our courts are the resources 
that are working on the ground every day in our community. They 
know the victims and they know the perpetrators. In order to 
respond to this tide of violence, Congress must empower tribes 
to recognize our inherent jurisdiction to prosecute non-Indians 
who commit crimes against our children.
    I want to thank you for the opportunity to testify on this 
vitally important issue of making our communities and our 
children safer.
    [The prepared statement of Mr. Buckles follows:]

 Prepared Statement of Hon. Dana Buckles, Councilman, Assiniboine and 
                  Sioux Tribes, Fort Peck Reservation
    I am Dana Buckles, Councilman of the Assiniboine and Sioux Tribes 
of the Fort Peck Reservation. I would like to thank the Committee for 
the invitation to testify on these two important bills.
    The Fort Peck Reservation is in northeast Montana, forty miles west 
of the North Dakota border, and fifty miles south of the Canadian 
border, with the Missouri River defining its southern border. The 
Reservation encompasses over two million acres of land. We have 
approximately 12,000 enrolled tribal members, with approximately 7,000 
tribal members living on the Reservation. We have a total Reservation 
population of approximately 11,000 people.
    I am pleased to testify in strong support of the Tribal Youth and 
Community Protection Act. This bill would recognize the inherent tribal 
authority to protect our children and our communities. Specifically, 
this bill would extend the exercise of the special jurisdiction 
recognized in the 2013 Violence Against Women Act, to include crimes 
against Indian children, drug offenses, and for crimes committed 
against our tribal officials that are connected to the exercise of this 
jurisdiction.
    At Fort Peck, we have long believed that a strong tribal government 
is the way that we can best keep our communities safe. Furthermore, we 
have taken action to maximize our authorities to protect everyone 
living within our boundaries. In this regard, the Fort Peck Tribes have 
provided law enforcement and correction services on our Reservation 
since 1996 under an Indian Self-Determination and Education Assistance 
Act contract. We are also one of the first Indian tribes in the nation 
to enter into a cross-deputization agreement with state, county and 
city law enforcement agencies. Under this agreement, first ratified 
almost twenty years ago, tribal officers are deputized to enforce state 
and local law on the Reservation and state and local officers are 
authorized to enforce tribal law.
    For more than forty years, the Fort Peck Tribes have had an 
independent judicial system, including an appellate court. It is 
through this system that we provide justice to our victims and our 
defendants. Currently, our judicial system includes law-trained judges, 
law-trained prosecutors, law-trained public defenders, probation 
officers, a published tribal code, and experienced court clerks and 
court reporters. Our court's opinions are published and available to 
the public. Our tribal courts and our court services are largely 
supported by tribal funds.
    Given the strong foundation of our court and the Tribal Council's 
desire to combat domestic violence with every tool possible, the Tribes 
elected to pursue the opportunity presented by the Violence Against 
Women Act (VAWA) and exercise our inherent jurisdiction to prosecute 
non-Indian defendants who commit domestic violence on our Reservation. 
We did this--not because we lack good partners in our U.S. Attorney and 
local law enforcement--but because this is simply another avenue to 
provide justice to the victims. We are pleased to share that we are 
working with the U.S. Attorney to designate our special prosecutor as a 
Special Assistant U.S. Attorney, so he will be able to prosecute crimes 
not only in tribal court, but also federal court. In short, we think 
providing justice to victims is an important step in providing them a 
pathway to heal and move on with their lives. Thus, we are working hard 
to ensure that we fully utilize all the tools available to do this.
    Unfortunately, violent crime is all too common in our community. We 
are all familiar with the statistics regarding domestic violence in 
tribal communities. A new study by the National Institute of Justice 
confirmed that violence in our community is a constant reality. 
According to this study, 84 percent of Indian women have experienced 
violence in their lifetime and 49 percent experienced violence in the 
past year. And while we are right to focus on violence against women; 
the men in our community experience violence as well. Eighty-one 
percent of Indian men have experienced violence, including 27 percent 
who experienced sexual violence. This violence impacts every aspect of 
our Tribes from the mental and physical health of our people to our 
economy. According to this study, 40 percent of the women and 9.7 
percent of the men missed work because of the violence committed 
against them. Even more startling is that while Indian women are only 7 
percent of the population in Montana, they are 13 percent of the 
intimate partner deaths in the State. During a one-year period, from 
October 1, 2013 to September 30, 2014, the Roosevelt County/Fort Peck 
Tribes' 911 Call Center received 718 reports of domestic violence. This 
means that nearly twice a day, every day, our law enforcement officers 
were responding to a domestic violence call. It is not known how many 
more incidents were not reported, but nationwide it is estimated that 
domestic violence is reported only 60 percent of the time.
    Since 2012, over half of the clients served by the Tribes' Family 
Violence Resource Center were children. This amounts to approximately 
1000 children, who were in need of family crisis services as victims or 
witnesses to violence in their homes. Every year brings new challenges 
that our families are facing, including meth and other drug-related 
violence. The latest challenge in this regard is Bath Salts. We have 
all heard the stories in the news of people essentially having 
psychotic breakdowns and committing horrendous acts of violence when 
they are under the influence of these drugs. We are now experiencing 
this on our Reservation.
    According to the Indian Tribal Trauma Center, Indian children 
nationally are 2.5 times more likely to suffer trauma than non-Indian 
children, and violence accounts for 75 percent of the deaths of Indian 
children between the ages of 12 and 20. This is leaving a devastating 
legacy for our children. As stated in the November 2014 Report from the 
Department of Justice Task Force on American Indian/Alaska Native 
Children Exposed to Violence, Indian children experience Post Traumatic 
Stress Disorder (PTSD) at a rate of 22 percent. This is the same level 
as Iraq and Afghanistan war veterans. That means more than 1 in 5 
Indian children in this country is suffering from battlefield PTSD.
    That is why we so strongly support the Tribal Youth and Community 
Protection Act. We know that prosecuting crimes against children is the 
highest priority for our U.S. Attorney. The Fort Peck Tribes recently 
experienced two horrible crimes against two little girls. We are 
thankful that all of our federal partners came forward quickly to bring 
justice to the victims. We cannot commend enough the work of our U.S. 
attorney and all of our law enforcement partners in these two tragic 
cases.
    However, our children are victims of crime every day. In 2015, our 
tribal court had 329 criminal cases involving crimes against children. 
These cases included aggravated sexual assault of a child, felony abuse 
of a child and endangering the welfare of child. These cases only 
reflect the cases where we had the jurisdiction to prosecute. These do 
not reflect the cases where the perpetrator was a non-Indian. Those 
cases must be addressed by the U.S. Attorney.
    Our U.S. Attorney is a good partner, but he does not have the 
resources to prosecute all the crimes against children that our 
community experiences. Moreover, as the Department of Justice notes in 
its 2014 declination report, there are structural barriers in the 
federal system that make certain prosecutions like child molestation 
cases difficult. These challenges include the fact that the victims and 
witnesses are reluctant to travel outside their communities to testify 
and that federal investigators do not have a rapport in the community 
the same way local law enforcement officers do.
    Our tribal law enforcement and our courts are the resources that 
are working on the ground every day in our community. They know the 
victims and they know the perpetrators. They do not have the same 
structural barriers to prosecuting these difficult cases encountered by 
the U.S. Attorney. In order to respond to this tide of violence, 
Congress must empower tribes by recognizing our inherent jurisdiction 
to prosecute non-Indians who commit crimes against our children and 
bring drugs into our communities.
    It should be noted however, that none of this will be realized 
without the proper funding from Congress. We appreciate that last year 
Congress provided funding to assist tribes, like Fort Peck, as we 
exercise our inherent jurisdiction to prosecute individuals who commit 
domestic violence on our Reservation. If Congress expands this to 
include violence against children, the funding will also have to 
increase. On that point last year, we testified about the need to 
expand tribal funding within the Victims of Crime Fund (VOCA). I want 
to thank Senator Tester and Senator Daines for their work this year in 
the Appropriations Committee to create a tribal set-aside for tribes in 
VOCA with an amendment to the Commerce, State and Justice 
Appropriations bill. This funding will go a long way to support the 
work that we do at the Family Violence Resource Center to serve the 
victims in our community.
    Finally, we support the goals of S. 2920, a bill to reauthorize and 
expand the services and programs under the Tribal Law and Order Act. We 
are, in particular, supportive of the focus on tribal youth and 
addressing the reality that Indian youth are over-represented in the 
state and federal juvenile systems. We strongly support the provision 
in the bill that would allow federal juvenile cases to be referred to 
tribal courts, and the provision in the bill that would require states 
to provide notice to tribes when a tribal member youth enters a state 
or local justice system. We urge our two Senators from Montana to join 
the Chairman and Senator McCain in sponsoring this bill.
    Thank you for the opportunity to testify on the vitally important 
issue of making our communities and our children safer. I would be 
pleased to answer any questions and to provide any additional 
information that may assist the Committee.

    The Chairman. Thank you very much, Mr. Buckles, for your 
testimony. I am very grateful.
    Now we will turn to Mr. Urbina.

STATEMENT OF HON. ALFRED URBINA, ATTORNEY GENERAL, PASCUA YAQUI 
                             TRIBE

    Mr. Urbina. Good afternoon, Chairman Barrasso and 
distinguished members of the Committee.
    My name is Alfred Urbina and I currently serve as the 
Attorney General of the Pascua Yaqui Tribe. It is an honor to 
be here today to provide testimony to the Committee regarding 
the need for public safety improvement and tribal law and order 
in Indian Country.
    On behalf of my tribal council and our membership, thank 
you for this opportunity. I am pleased to offer support for the 
Tribal Youth and Community Protection Act and the Tribal Law 
and Order Reauthorization Act.
    Both bills will go a long way to help tribes close 
lingering jurisdictional gaps regarding violence against 
families, help stop the spread of illegal drugs and provide 
additional tools for cross jurisdiction cooperation.
    Before expanding on the need for the new proposed 
legislation, I will talk briefly about the current state of 
VAWA and TLOA implementation on the Pascua Yaqui Reservation 
because it provides relevant context to the bipartisan measures 
brought forward today.
    Domestic violence is considered a serious crime against the 
tribe and our families. Recent tribal justice measures 
presented Indian Nations with an opportunity to restore and 
exercise additional authority and jurisdiction to protect their 
citizens from crime and violence.
    However, aside from VAWA and TLOA and the crime fighting 
efforts of tribes, there still exists a super storm of 
injustice that has darkened Indian Country for decades. Today 
in 2016, a public safety and public health crisis is still 
present on most Native American reservations.
    The Pascua Yaqui Tribe sought to afford victims of crime 
and domestic violence the maximum protection the law provides 
when we enacted the provisions of TLOA and VAWA. On February 
20, 2014, pursuant to VAWA 2013, the Pascua Yaqui Tribe began 
exercising special domestic violence criminal jurisdiction over 
non-Indian perpetrators of domestic violence.
    On July 2, 2014, for the first time since 1978 when the 
U.S. Supreme Court stripped tribal governments of their 
criminal authority over non-Indians, the Pascua Yaqui Tribe 
obtained the first conviction of a non-Indian, 26-year-old 
Hispanic male for the crime of domestic violence and assault 
committed on our reservation.
    Since that time, the tribe has prosecuted a total of 22 
non-Indian cases and 30 VAWA related criminal investigations. 
That has resulted in 8 criminal convictions. To us it is clear 
that the starting place to reverse historical jurisdictional 
problems and injustice in Indian Country is by empowering 
tribal justice systems.
    Tribes are in the best position to close Indian Country 
safe havens being exploited by lawbreakers. Local tribal 
government is the best option to protect Indian Country 
mothers, daughters, sisters and brothers.
    Regarding S. 2920, the reauthorization of the Bureau of 
Prisons pilot project is a critical part of any plan that will 
address tribal law and order. The current regime is unworkable, 
unreliable and jail conditions and programs are unacceptable.
    Reauthorizing law enforcement and judicial training for the 
investigation and prosecution of illegal narcotics is also 
critical. Substance abuse problems brought on by illegal drug 
sales, drug manufacturing and the explosion of the opioid 
addiction epidemic is crippling Indian Country.
    The implementation of VAWA 2013 confirms that tribes 
require access to NCIC and Federal background-check information 
both in the criminal and civil context. Data collection and 
sharing and criminal information database access is critical in 
a cross-jurisdiction environment.
    Improving justice outcomes for Indian youth is long 
overdue. Juvenile justice issues are very important to the 
Pascua Yaqui tribe and the legislative provisions in S. 2920 
provide the necessary starting points for understanding and 
coordinating future juvenile justice matters.
    Creating tribal liaisons and special assistant Federal 
public defenders, similar to the U.S. attorney liaisons and 
special assistant U.S attorneys will be an important tool. 
However, tribes need direct funding to provide public defender 
services.
    Regarding S. 2785, it is clear to the tribe that after 
exercising valid jurisdiction that several important provisions 
are still needed. First, when responding to domestic violence, 
there is a strong likelihood that children will be present as 
well as other family members. In our VAWA cases, a total of 20 
children, all under the age of 11, were exposed to violence, 
were victims or reported crimes while they were in progress.
    Without criminal jurisdiction to address this issue, the 
tribe had to remove the children from their homes in order to 
protect them. VAWA domestic violence jurisdiction must be 
expanded to include children.
    The tribe is also unable to charge a VAWA offender with 
secondary crimes that were committed during the commission of a 
VAWA offense. For example, this applies in instances where a 
VAWA offender may be in possession of illegal drugs, assaults a 
police or detention officer, destroys property or commits a 
crime of child violence while being prosecuted for a VAWA 
offense.
    Federal definition of domestic violence as defined by 
Federal case law stops tribes from properly addressing the full 
range of domestic violence offenses. The tribe had to dismiss 
VAWA cases and refrain from charging cases that did not meet 
the requisite Federal definition of violence.
    S. 2785 provides a workable solution to this problem by the 
use of tribal code provisions that define domestic violence in 
corresponding crimes according to the community.
    The Pascua Yaqui Tribe also supports S. 710, the SURVIVE 
Act, and the current efforts by Congress to set aside 5 percent 
of VOCA funding for tribal government victim programs.
    As we work to strengthen measures for tribes to protect 
themselves and provide additional protections for defendants, 
it is important that we balance those efforts with enhanced 
rights and protections for victims and families who have 
suffered loss and injury.
    Finally, tribes need permanent and direct funding to 
properly address crime and violence in a comprehensive and 
sustainable manner. Periodic and short term grant funding does 
not allow tribes to build the necessary capacity to operate 
robust court systems.
    Thank you very much. This concludes my statement. Thank 
you, Mr. Chairman and members of the Committee. Thank you, 
staff, for your hard work on these important issues.
    [The prepared statement of Mr. Urbina follows:]

  Prepared Statement of Hon. Alfred Urbina, Attorney General, Pascua 
                              Yaqui Tribe
    Chairman Barrasso and Distinguished Members of the Committee:
    Good afternoon, my name is Alfred Urbina, and I currently serve as 
the Attorney General of the Pascua Yaqui Tribe, a Federally Recognized 
Tribe from the State of Arizona. On behalf of our Tribal Council and 
membership, thank you for this opportunity. It is an honor to be here 
today to provide testimony to the Committee regarding the need for 
public safety improvement and tribal law and order in Indian Country. I 
am pleased to offer support for the ``Tribal Youth and Community 
Protection Act of 2016,'' and the ``Tribal Law and Order 
Reauthorization Act of 2016.'' Both Bills will go a long way to help 
tribes confront lingering jurisdictional gaps regarding violence 
against tribal families, help stop the proliferation of illegal drugs, 
and provide additional tools for cross-jurisdiction cooperation.
    First, I would like to thank the Committee and staff for your 
leadership on these matters. The drafting, passage, and implementation 
of the ``Tribal Law & Order Act of 2010'' (TLOA) and the ``Violence 
Against Women Reauthorization Act of 2013,'' (VAWA 2013) is having a 
positive impact in Indian Country. Recent TLOA and VAWA authority 
provided measured tools that foster longstanding policies of tribal 
self-determination and tribal self-governance.
    Before expanding on the need for the new proposed legislation, I 
will talk briefly about the current state of VAWA and TLOA 
implementation on the Pascua Yaqui Reservation because it provides 
relevant context to the bipartisan measures brought forward today.
The Success of TLOA & VAWA Implementation
    To begin, the strength of the Pascua Yaqui Tribe flows directly 
from our people. Domestic violence is considered a serious crime 
against the Tribe, and our families. In enacting the provisions of TLOA 
and VAWA, the Tribe sought to afford the victims of domestic violence 
the maximum protection that the law provides. The safety of victims of 
domestic violence and drug related crimes, especially children, became 
easier to address through the intervention of Tribal law enforcement, 
Tribal Special Assistant U.S. Attorneys (SAUSA), and support from our 
federal partners and Tribal Liaisons. \1\
    On February 20, 2014, pursuant to VAWA 2013, the Pascua Yaqui Tribe 
was one of three Tribes to begin exercising Special Domestic Violence 
Criminal Jurisdiction (SDVCJ) over non-Indian perpetrators of domestic 
violence. On July 2, 2014, for the first time since 1978 when the U.S. 
Supreme Court stripped tribal governments of their criminal authority 
over non-Indians, \2\ the Pascua Yaqui Tribe obtained the first 
conviction of a non-Indian, a twenty-six year old Hispanic male, for 
the crime of domestic violence assault committed on the Pascua Yaqui 
Reservation.
    Since that time, the Pascua Yaqui Tribe has prosecuted a total of 
22 non-Indian cases involving 15 males and 1 non-Indian female involved 
in 30 VAWA investigations that have thus far resulted in 8 criminal 
convictions. VAWA cases include crimes of domestic violence and 
violations of protection orders where 15 tribal females and 2 tribal 
male were victims. Most of the VAWA perpetrators have extensive 
criminal records in the State of Arizona.

   Two offenders had active state warrants for their arrests, 
        one for armed robbery out of the State of Oklahoma.

   Four of the cases were serious enough to warrant referrals 
        for federal prosecution.

   On average, VAWA offenders were contacted by Tribal police 
        at least six times before VAWA authority existed on the Pascua 
        Yaqui Reservation and VAWA offenders have been involved in 
        close to 90 Pascua Yaqui police incidents, pre and post VAWA.

   Eleven of the cases involved children in the home. A total 
        of 20 children, all under the age of eleven, were exposed to 
        violence, were victims, or actually reported the crime while it 
        was in progress.

   Three of the VAWA offenders have already reoffended with the 
        same victim, demonstrating a pattern of abusive behavior that 
        we know can be a part of domestic violence relationship 
        dynamics.

   Thirteen (13) of the offenders are of Hispanic descent, 2 
        are ``Legal Permanent Residents'' from Mexico. Two (2) 
        offenders are Caucasian males, 4 are African-American, 1 is of 
        Asian descent, and 1 offender is a lineal tribal descendant who 
        does not qualify for enrollment.

   Thirteen (13) of the incidents involved alcohol or drugs. 
        Ten (10) of the offenders have been previously arrested for 
        cases involving drug use, possession, DUI, or alcohol related 
        offenses.

   Most of the offenders appeared to be unemployed and only 2 
        offenders did not have a criminal record in the State of 
        Arizona. Seven of the offenders had previously been arrested 
        for violent crimes, weapons, or threats in the State of 
        Arizona. Two offenders are felons, both having been convicted 
        for Burglary in the State of Arizona.

   Five cases remain open and in 2 cases, tribal warrants have 
        been issued, one post-conviction (probation absconder) and one 
        pre-trial for failure to appear. Seven (7) cases were declined 
        after review.

   Seven (7) cases were dismissed for issues related to the 
        U.S. v. Castleman case. \3\

Problems Persist
    Recent and important Tribal justice measures presented some Indian 
Nations with an opportunity to restore and exercise selected authority 
to protect their people from crime and violence. However, 
notwithstanding VAWA, TLOA, and the crime fighting efforts of tribes, 
there still exists a super storm of injustice that has darkened Indian 
Country for decades. Today, in 2016, a public safety and public health 
crisis is still present on most Native American reservations. The long-
term lack of security for women and children has brought on a ``crisis 
of confidence'' in both tribal and federal justice systems. The 
restoration of authority, new proposed legislation, and enhanced 
coordination with federal authorities represents a new dawn. Not only 
are we now able to address human rights abuses perpetuated for decades 
upon women, but we are also able to do this while guaranteeing the 
civil rights of the accused. On the other hand, just like when a major 
storm passes, our community will have to take time to survey the 
damage, reconcile with victims and families, and rebuild the trust that 
has been lost. There are shattered homes across our Reservation and 
across Indian Country. Many men, women, and children will continue to 
suffer through this storm of injustice. The new legal and 
jurisdictional framework, while slightly changed, will not work absent 
the proper funding for tribal courts, victims, and support services. 
The majority of tribes simply do not have the resources to provide 
comprehensive changes to their systems or guarantee suitable services 
for victims and their families.
Tribal Control Is the Key
    The starting place to reverse historical jurisdictional problems 
and injustices in Indian Country is with strong tribal justice systems. 
Criminal investigations occur at the local level. Local government is 
the best government to protect Indian Country's mothers, daughters, 
sisters and brothers. Tribes are in the best position to close 
jurisdictional gaps and safe havens for lawbreakers.
    With a self-reported 500 non-Indian community members living on the 
Pascua Yaqui Reservation and approximately 800 Non-Indians working or 
attending school on the Pascua Yaqui Reservation, the probability that 
additional VAWA cases will arise is foreseeable and likely.
    Regarding S. 2920, the reauthorization of the Bureau of Prisons 
pilot program is a critical part of any plan that will address tribal 
law and order. The current regime is unworkable, disorganized, and jail 
conditions are deplorable. Reentry programming will be unsuccessful 
without a strong primary detention system and a humane corrections 
option. Reauthorizing law enforcement and judicial training for 
investigation and prosecution of illegal narcotics is critical. 
Substance abuse problems brought on by illegal drug sales, 
manufacturing, and the explosion of the opioid addiction epidemic is 
crippling Indian Country. The implementation of VAWA 2013 SDVCJ 
confirms that Tribes require access to federal background-check 
information in the criminal and civil context. Data collection and 
criminal information database access is critical in a cross-
jurisdiction environment. Also, given that access would allow for the 
sharing of tribal criminal justice information, increased data sharing 
would allow for the closure of criminal information gaps that now 
stretch across the tribal-federal landscape. The Shadow Wolves drug-
trafficking-prevention program is an important tool for drug 
interdiction and the prevention of terrorism in our homeland. The 
Shadow Wolves are also an organization that operates in a traditional 
manner that respects the culture of the indigenous people who have 
inhabited the desert southwest for thousands of years. Improving 
justice for Indian youth is long overdue. When Native youth are 
prosecuted federally, there is a lack of programming and coordination. 
When youth are held in the State juvenile system, there is an absence 
of culturally relevant curriculum available. Creating tribal liaisons 
and special assistant federal public defenders, similar to the liaisons 
and special assistant U.S attorneys in the U.S. attorneys' offices is a 
great idea, however, Tribes also need direct funding to provide these 
critical services. A liaison will be helpful if Tribes have established 
the Public Defense infrastructure to begin with.
    Regarding S. 2785, ``A bill to protect Native children and promote 
Public Safety in Indian Country,'' it is clear to the Pascua Yaqui 
Tribe after exercising Special Domestic Violence Criminal Jurisdiction 
under VAWA 2013, that several important provisions were omitted. First, 
when addressing domestic violence, there is a strong likelihood that 
children will be part of most relationships, as will other family 
members who may live in the home. In our cases, we found that at least 
13 of our incidents included children in the home. Some children were 
victims of violence or were exposed to violence. In three cases, tribal 
officials had to remove the children from the home and place them in a 
foster home for their protection. Also, the Tribe found that we could 
not charge a VAWA offender with ancillary crimes that were committed 
during the commission of a VAWA offense or during the prosecution of 
that offense. For example, in one case, a VAWA offender was brought in 
for violating a court probation order. Since the infraction was not an 
original DV VAWA offense, the Tribe could not proceed. This would apply 
to instances where the offender was in possession of illegal drugs, 
assaulted a police or detention officer, destroyed property, or 
committed any other crime while they were being prosecuted for a VAWA 
offense. Finally, in recent VAWA cases, criminal background checks of 
VAWA offenders found that many had criminal convictions for drug or 
alcohol offenses and many of our cases were alcohol related. If VAWA 
offenders are on the Reservation and they are associated with drug use, 
drug sales, or the facilitation of such conduct, Tribes require the 
necessary authority to address this behavior.
                         background information
Pascua Yaqui VAWA Implementation
    On March 7, 2013, VAWA 2013 was signed into law by President Obama. 
On Jun 26, 2013, the U.S. Attorney for the District of Arizona, John 
Leonardo, visited the Pascua Yaqui Tribe and toured our court facility. 
The Tribe expressed an interest in the implementation of Special 
Domestic Violence Criminal Jurisdiction. On July 09, 2013, the Tribal 
Chairman submitted a letter to the Department of Justice's, Mr. Tracy 
Toulou, as a preliminary expression of interest in exercising SDVCJ and 
asked to be designated as a participating Tribe. On July 15, 2013, the 
Pascua Yaqui Tribe was one of approximately 27 federally recognized 
Indian tribes that timely sent ``preliminary expressions of interest'' 
in participating in the Pilot Project. By doing so, tribes expressed an 
interest in participating in both Phase One and Phase Two of the Pilot 
Project.
    The Department of Justice launched the Intertribal Technical-
Assistance Working Group on Special Domestic Violence Criminal 
Jurisdiction (ITWG), as part of Phase One of the Pilot Project. The 
ITWG is a voluntary working group of designated tribal representatives 
who exchange views, information, and advice, peer to peer, about how 
tribes may best exercise SDVCJ, combat domestic violence, recognize 
victims' rights and safety needs, and safeguard defendants' rights. 
Between July, 2013 and December 2013, Tribal representatives 
participated in a series of teleconferences, participated as panelists, 
and participated in ITWG in-person meetings.
    On December 30, 2013, the Tribe submitted an extensive application 
to the DOJ to be designated a Pilot Tribe and to start exercising SDVCJ 
(Phase II). \4\ On February 6, 2014, the Tribe received official notice 
that the Tribe was designated a participating Pilot Tribe authorized to 
exercise SDVCJ. \5\ The Pascua Yaqui Tribe SDVCJ Pilot status story was 
picked up and released locally, statewide, and nationally, via press 
release by the White House. \6\ On February 12, 2014, VAWA Pilot 
information was posted for notice in the Federal Register by the 
Department of Justice. \7\ Official Tribal notice was sent out via 
global e-mail to all tribal government and casino enterprise employees, 
as well as being posted on the official Pascua Yaqui Tribal Internet 
site on February 6th, 2014. \8\ On February 10th, 2014, the Arizona 
Daily Star ran a front page story that circulated to 238,000 readers in 
Southern Arizona, including the City of Tucson. The story was also 
posted on their online news site. The online AZSTARNET has a reach of 1 
million independent views per month and has approximately 12 million 
page views per month. \9\ The Pascua Yaqui press release was shared 
online through a leading Internet Indian Country legal news blog called 
``Turtle Talk,'' it was posted on February 7, 2014. \10\
    The Tribe conducted interviews with several news outlets to 
include, the Arizona Daily Star, the Seattle Times, the L.A. Times, 
Washington Post, Tucson KVOA television news, Colorlines, Aljazeera, 
NPR, 91.5 KJZZ, MintPress, the Arizona Daily Wildcat, and Cronkite 
News. \11\ The Tucson area news story by KVOA ran on the nightly news 
on February 23, 2014 and on the morning of February 24, 2014, and was 
broadcast in the greater Southern Arizona area, to include the City of 
Tucson and the Pascua Yaqui Reservation.
    On February 20, 2014, pursuant to VAWA 2013, the Pascua Yaqui Tribe 
was one of three Tribes to begin exercising Special Domestic Violence 
Criminal Jurisdiction (SDVCJ) over non-Indian perpetrators of domestic 
violence. On July 2, 2014, for the first time since 1978 when the U.S. 
Supreme Court stripped tribal governments of their criminal authority 
over non-Indians, \12\ the Pascua Yaqui Tribe obtained the first 
conviction of a non-Indian, a twenty-six year old Hispanic male, for 
the crime of domestic violence assault committed on the Pascua Yaqui 
Reservation. The Tribe has had one jury trial where the jury found that 
there was not sufficient evidence of a dating relationship between the 
victim and defendant. The case, PYT v. Garris, ended in the acquittal 
of the defendant. Although we would have preferred a guilty verdict, 
this first full jury trial fleshed out many pre-trial arguments, and 
proved our system works. A non-Indian was arrested and held by Pascua 
Yaqui law enforcement, he was represented by two attorneys, and a 
majority Yaqui jury, after hearing evidence presented by a tribal 
prosecutor, in front of an Indian judge, determined that the Tribe did 
not have jurisdiction in a fairly serious DV Assault case.
    Recently, after the Tribe started to exercise VAWA SDVCJ, a survey 
was administered by the Prosecutor's Office. 220 surveys were filled 
out by community members about VAWA and the Tribe's implementation. Of 
the 220 people surveyed, 130 respondents thought that DV/family 
disputes were a big problem. Thirty-six people knew someone who was a 
victim of domestic violence and the perpetrator was a non-Indian. An 
additional twenty-seven were the victims of DV and the perpetrator was 
Indian. An additional thirty-six knew someone who was a victim of DV 
and the ethnicity of the perpetrator was unknown. Twenty-five had been 
an actual victim of DV, of those, six were victims of non-Indian 
perpetrators. 140 respondents had heard of VAWA and 155 had heard of 
the tribe having VAWA jurisdiction.
Lessons Learned
    Some offenders have had a long history of contact with Tribal 
Police & generally have a State criminal history:

        1. NCIC access is required to properly assess who the offender 
        is (DOJ TAP Program).

        2. Offenders may have warrants or a history of harming the 
        victim in another jurisdiction.

        3. Offenders are using Indian Country to exploit jurisdictional 
        gap and offenders are aware of jurisdictional gap.

        4. Victims were reluctant to report DV incidents due to 
        jurisdictional gap and no safety option from Tribal, State, or 
        Federal system (no trust).

        5. Difficult DV cases are increasingly difficult in VAWA SDVCJ 
        context.

    Multi-jurisdictional environment makes prosecution difficult:

        1. Offenders can flee Tribal jurisdiction and Tribal Court 
        process. Tribes may require a State/Tribal IGA/MOU to 
        extradite, ensure comity to tribal court order, and domesticate 
        & execute tribal warrants. Outreach between tribes and 
        surrounding jurisdictions need to occur.

        2. Proximity to Mexico raises issues of prosecuting Legal 
        Permanent Residents, or undocumented aliens, must advise Border 
        Patrol upon arrest. There is heightened scrutiny as a 
        conviction can also trigger deportation. Tribes may be required 
        to provide Spanish language court interpreters.

        3. The limited nature of jurisdiction & the Supreme Court 
        Castleman decision makes cross-deputization and jurisdictional 
        flexibility important. This allows officers to arrest into 
        surrounding State or Federal jurisdictions on ancillary charges 
        (trespassing, drugs, non-victim crimes, etc.).

        4. Criminal investigations are more difficult and police 
        officers require additional training. Depending on the facts, 
        an SDVCJ case can have several different matters evolve from 
        one incident (Tribal criminal case, federal case, tribal 
        dependency case, or a state criminal case).

        5. Offender can have a state felony or misdemeanor warrants. 
        Coordination, extradition and inter-jurisdictional movement of 
        offenders have to occur.

        6. Ethical issues arise if a Defendant is not provided 
        effective assistance of counsel. Public Defenders must have a 
        working knowledge of Indian Law and how to operate in a cross-
        jurisdictional environment.

    Non-Indian offender issues:

        1. There is no requirement from the VAWA law to collect 
        offender or victim data.

        2. VAWA convictions are not being entered into NCIC, national 
        database (yet).

        3. Preliminary profile of PYT VAWA offender is unemployed male 
        in long term relationship with Tribal member, who may have drug 
        or alcohol use history, previous criminal history and previous 
        tribal police contact.

        4. Healthcare costs are an issue. Who covers when a non-Indian 
        is in Tribal custody? While in BIA custody? Jail costs & 
        transportation?

        5. Indirect costs have increased: Healthcare, case related 
        investigative costs, expert witnesses, mental health 
        evaluations, child welfare matters, ancillary cases, post-
        conviction costs, additional litigation.

        6. Who funds Offender sanctioned classes and programming. There 
        will be a requirement to loop in state services or contract for 
        such services.

        7. Equal protection and due process issues may arise, fairness 
        & equal treatment in sentencing, pre-trial release 
        determinations, and jury composition.

        8. Composition of jury is difficult when attempting to hail 
        non-Indian jurors and not excluding non-Indian jurors.

        9. Non-Indians can be lineal tribal descendants who don't meet 
        blood quantum requirements (1 case for Pascua Yaqui).

    TLOA//VAWA authority maximized, gives tribes the flexibility to 
control crime:

        1. The purpose of VAWA Pilot Program was to develop best 
        practices.

        2. Exercising integrated authority of TLOA and VAWA through 
        Tribal SAUSAs, Tribal Law enforcement with SLEC cards, NCIC 
        access, and State law enforcement & prosecution authority, 
        provides 360 degree jurisdictional management and complete 
        criminal data intelligence. This provides an opportunity for 
        planning, prevention, and crime control policy creation.

        3. Hybrid systems allow for better coordination with DOJ, BIA, 
        and State authorities. The DOJ sponsored Inter-Tribal Working 
        Group (ITWG), SAUSA Program, SLEC Cards, Central Violations 
        Bureau (CVB) citations program, BIA Purpose Code X Program, and 
        the DOJ Tribal Access Program (TAP), provides maximum 
        jurisdictional flexibility for tribal justice systems.

        4. The TLOA DOJ Bureau of Prisons (BOP) Pilot program must be 
        reauthorized by Congress and expanded to include VAWA 
        defendants and lower level crimes and convictions involving 
        multi-year sentences related to Domestic Violence.

    Victim issues:

        1. VAWA victim Profile: Single tribal female with children, 
        unemployed, living in Tribal housing as head of household or in 
        a multi-generational household, in long term relationships with 
        Non-Indian males. (Married, children in common, or residing in 
        same household).

        2. VAWA does not include funding for prevention services.

        3. Tribal Orders of Protection are not being entered into NCIC, 
        making it difficult to enforce off Reservation.

        4. VAWA Offender Tribal Criminal history currently iscnot being 
        added to NCIC.

        5. Women, children, and non-intimate partners living in the 
        household are not being fully protected by VAWA. (Grandparents, 
        elders, cousins, etc.)

        6. Many Domestic Violence crimes can't be prosecuted due to 
        Castleman issues.

        7. Sexual assault by a non-Indian ``stranger'' who is not in a 
        relationship with the victim is not covered by VAWA 2013.

Challenges
    There have been challenges during Pascua Yaqui's VAWA SDVCJ 
implementation. For example, on March 26, 2014, the Supreme Court 
decided U.S. v. Castleman. \13\ Castleman had an immediate impact on 
the Tribe's criminal charging decisions when evaluating arrests under 
SDVCJ authority. In the Castleman case, James Castleman moved to 
dismiss his 2008 federal indictment under 18 U. S. C.  922(g)(9), 
which forbids the possession of firearms by anyone convicted of a 
``misdemeanor crime of domestic violence.'' He argued that his 2001 
conviction in Tennessee did not qualify as a ``misdemeanor crime of 
domestic violence'' because it did not involve ``the use or attempted 
use of physical force'' required by 18 U. S. C.  921(a)(33)(A)(ii). 
The Court held that the use of physical force was ``satisfied by even 
the slightest offensive touching.'' What is problematic for new SDVCJ 
cases is that the VAWA defines the term domestic violence as 
``violence'' committed by a current or former spouse or intimate 
partner of the victim. . .'' 25 U.S. Code   1304 (a)(2). The federal 
definition of a ``misdemeanor crime of domestic violence'' used to 
determine Castleman, will likely be used by federal and tribal courts 
to establish the charging boundaries under VAWA. The Tribe, like many 
other jurisdictions commonly charge crimes that arise early in the 
cycle of domestic violence relationships that may not include an 
``offensive touching'' as an element to the crime, but nonetheless, 
they are violent and dangerous. These crimes can include Trespassing, 
Threatening and Intimidation, Tampering with Communications, Burglary, 
Breaking & Entering, Stalking, Disorderly Conduct, Unlawful 
Imprisonment, Harassment, Endangerment, Custodial Interference, and 
Malicious Mischief.
    The dynamics and cycle of intimate partner violence is that 
offenders, in order to maintain power and control, will use escalating 
abusive and violent behavior against their partner. Over the life of a 
relationship, aggressive and hostile behavior increases in both 
frequency and severity. The cycle may end in the eventual separation of 
the couple, harm to the victim, or even the death of the victim. The 
Tribe's ability to address and prevent violent encounters through the 
limited authority of VAWA SDVCJ appears to be further restricted by the 
holding in Castleman.
VAWA Funding
    The Pascua Yaqui Tribe is requesting that Congress or the 
Department of Justice, make sufficient funds directly available to 
Tribes to properly implement and sustain into the future VAWA, SORNA, 
and the Tribal Law and Order Act (TOLA), during and beyond the 
implementation phase. Tribes require permanent funding and access to 
resources and services that are available to state, county, and 
municipal governments. Within VAWA 2013, there is authorization for 
appropriations of up to $5,000,000 for each of fiscal years 2014 
through 2018 for participating tribes that are exercising SDVCJ. The 
Pascua Yaqui Tribe has officially requested a proportional share of the 
funding for the 2015-2018 fiscal years, in order that we may carry out 
all of the many responsibilities that we have as a VAWA Pilot Project 
Tribe.
    Section 904 of VAWA 2013, Public Law 113-4(2013) as codified in 25 
U.S.C. 1304(f) allows the Attorney General to award grants to Indian 
Tribes for the following purposes:

        (f) Grants to tribal governments
         The Attorney General may award grants to the governments of 
        Indian tribes (or to authorized designees of those 
        governments)-
           (1) to strengthen tribal criminal justice systems to assist 
        Indian tribes in exercising special domestic violence criminal 
        jurisdiction, including-
             (A) law enforcement (including the capacity of law 
        enforcement or court personnel to enter information into and 
        obtain information from national crime information databases);
             (B) prosecution;
             (C) trial and appellate courts;
             (D) probation systems;
             (E) detention and correctional facilities;
             (F) alternative rehabilitation centers;
             (G) culturally appropriate services and assistance for 
        victims and their families; and
             (H) criminal codes and rules of criminal procedure, 
        appellate procedure, and evidence;
           (2) to provide indigent criminal defendants with the 
        effective assistance of licensed defense counsel, at no cost to 
        the defendant, in criminal proceedings in which a participating 
        tribe prosecutes a crime of domestic violence or dating 
        violence or a criminal violation of a protection order;
           (3) to ensure that, in criminal proceedings in which a 
        participating tribe exercises special domestic violence 
        criminal jurisdiction, jurors are summoned, selected, and 
        instructed in a manner consistent with all applicable 
        requirements; and
           (4) to accord victims of domestic violence, dating violence, 
        and violations of protection orders rights that are similar to 
        the rights of a crime victim described in section 3771(A) of 
        title 18, consistent with tribal law and custom.

    The Pascua Yaqui Tribe currently expends considerable resources on 
all of the above programs, through both federal grants as well as 
significant sums of tribal dollars. The Tribe had two cases arise that 
implicated SDVCJ within the first two weeks of implementation and have 
had a total of 30 VAWA investigations and filed 22 into Tribal Court. 
Significant resources have been dedicated to the cases. The Tribe would 
be better able to fund these programs as well as additional programs 
going forward if monies are appropriated under VAWA 2013, which are 
intended, pursuant to 25 USC 1304(g) to ``supplement and not supplant 
any other Federal, State, tribal, or local government amounts made 
available to carry out activities described in this section.'' A 
possible mechanism would be for the Department of Justice OVW Office to 
develop a Tribal Funding Plan and distribute the funds as tribal set-
aside funding which could be added to existing Tribal 638 Contract as a 
modification. This method would allow the funding to be easily 
transferred to the Tribe. As such, we respectfully request that 
Congress or the Department of Justice provide a mechanism for 
disbursement of the funding provided for in VAWA 2013.
    Costs: The implementation of some of the provisions of the Tribal 
Law & Order Act, and the Violence Against Women Act, have raised costs 
that have been fully covered by the Tribe, with virtually no additional 
federal assistance. Through the Office of the Public Defender and 
contracted defense attorneys, the Pascua Yaqui Tribe now provides free 
legal representation to over 95 percent of all persons arrested on the 
reservation. All VAWA defendants who have been prosecuted have had a 
public defender or contracted defense attorney appointed at the Tribes 
expense in their cases to assist them.
Pascua Yaqui Justice System
    Historically, the Yaqui people have always had some form of law 
enforcement and dispute resolution, most notably through our ceremonial 
societies. In 1982, the Tribe adopted a Criminal Code, some parts of 
our Civil Code, and adopted our Constitution in 1988, all of which 
helps spell out current Yaqui Law. In addition to our Constitution, our 
elders, chose to create a Tribal Court system as the arbiter of Yaqui 
justice and our forum for the resolution of disputes. Our official 
justice system has been operating in one form or another, for more than 
25 years. Pursuant to its sovereign authority, our Tribal Council also 
created a law enforcement department and a tribal prosecutor's office 
as the representatives of the tribe in matters both criminal and civil 
in nature. The various functions performed by the Office of the 
Prosecutor, law enforcement, and the Tribal Court, are instrumental in 
ensuring that the Tribal Council can help guarantee the safety and 
protection of our people. A sustainable future for our government and 
people is largely dependent on a robust judiciary and a strong 
executive arm to enforce the mandates of our Constitution, ensure the 
protection of the people, and defend individual rights guaranteed by 
our laws.
    In 1978, the Tribe was originally subject to Arizona State 
jurisdiction under 25 U.S.C.   1300f(c) and PL280. In 1985, the State 
of Arizona retroceded criminal & civil jurisdiction. \14\ Between 1985 
and 1988, the Department of Interior operated the Pascua Yaqui tribal 
court system through a ``Court of Indian Offenses,'' a ``CFR'' Court 
operated by the Bureau of Indian Affairs, (B.I.A.). In 1988, the Tribe 
took over the Tribal Court from the B.I.A. through a 638 contract. \15\
    The Bureau of Indian Affairs police patrolled the Reservation 
exclusively until 1991. In 1991, the Tribe hired three Tribal police 
officers who served alongside the B.I.A. officers. In 1998, The Tribe 
signed a 638 agreement with the B.I.A. to direct its own law 
enforcement services. In 1997, the Tribe started the Pascua Yaqui 
Victim Services program. Currently, the Tribe employs twenty-six 
uniformed patrol officers who are certified by Arizona P.O.S.T as State 
certified officers and most are federal Special Law Enforcement 
Commissioned (SLEC) certified officers. Three of the officers are 
Criminal Investigators. The Tribe also employs a number of Victim 
advocates.
    The Tribe is also served by the Federal Bureau of Investigation 
(F.B.I.) (Phoenix Division), for assistance with major criminal 
investigations. In 1993, the Tribe entered into a User Agreement with 
the Arizona Department of Public Safety (DPS) for limited NCIC \16\ and 
ACJIS \17\ criminal information access. In 2005, the Tribe entered into 
an Intergovernmental Agreement with Pima County to participate in the 
Pima County Regional Special Weapons and Tactics (SWAT) Team program 
for police SWAT services. In 2006, the Tribe approved an 
Intergovernmental Agreement with Arizona DPS for crime laboratory 
services for the purpose of examining and processing evidence collected 
during criminal investigations. In 2009, the Tribe entered into an 
Intergovernmental Agreement (IGA) with the Pima County Sheriff's 
Department for participation in the Spillman Records Management System 
and Computer Aided Dispatch System for enhanced access to ACJIS, NCIC, 
ALETS, NLETS, and MVD databases. In 2010, the Tribe entered into an IGA 
with Pima County to take part in the Pima County Wireless Integrated 
Network (PCWIN). PCWIN provides improved public emergency services and 
regionally coordinated mutual aid.
    In 2011, through the American Reinvestment Recovery Act (ARRA), the 
Tribe constructed a $21 Million dollar, state-of-the-art multi-purpose 
justice/court complex. In May of 2012, the Tribe began operating the 
Pre-Trial Services (PTS) Division of the Tribal Court. Pre-Trial 
Services has effectively reduced the number of Yaqui defendants being 
held for pre-trial detention, kept some offenders employed, and 
monitors offenders in the community who are released during the pre-
trial phase of their case. In 2011, the Tribe, in partnership with the 
Department of Justice (DOJ) and the U.S. Attorney's Office, appointed 
tribal prosecutors as federal Special Assistant United States Attorneys 
(SAUSA). The Tribe was also certified by the DOJ as substantially 
implementing the Sex Offender Registration and Notification Act 
(SORNA).
    Adult and Juvenile Detention Services are mostly handled by the 
Bureau of Indian Affairs, (B.I.A.). Adult Tribal inmates, including 
Non-Indian VAWA defendants, are transported to a private regional 
B.I.A. contracted detention facility in San Luis, Arizona. On Dec 20, 
2013, the BIA began delivering Tribal inmates to the B.I.A. detention 
Pilot program at Emerald Corporation in San Luis, Arizona. The 
contracted facility, while located far from the tribal Reservation, is 
sensitive to tribal detainee needs. The Tribe employs detention 
officers for short-term tribal detention, booking, transportation, and 
pre-trial detention needs.
Due Process
    In 1995, the Tribe opened the Pascua Yaqui Public Defenders Office 
to provide public defense services to indigent tribal members. In 2010, 
the Tribal Council amended the Pascua Yaqui Court Rules to implement 
federal amendments to the Indian Civil Rights Act (ICRA), \18\ which 
was modified by the 2010 Tribal Law & Order Act (TLOA). The 2010 
amendment guaranteed tribal members, (including Indians from other 
tribes) the right to defense counsel at the Tribe's expense if the 
Tribe seeks any amount of jail time in their criminal cases. On Dec 18, 
2013, the Tribal Council passed Ordinance 20-13, the Court Rules 
Amendments of 2013 to comply with VAWA 2013 implementation 
requirements. Ordinance 20-13 changed the Tribe's jurisdiction, ensured 
defense counsel for indigent non-Indian defendants, and changed the 
composition of the Tribe's jury pool to ensure that a fair cross-
section of the community is included in the jury selection process. 
VAWA contains explicit language that requires tribes choosing to 
exercising authority under the new provisions, draw people from jury 
pools that reflect a fair cross-section of the community and do not 
systematically exclude any distinct group of people, including non-
Indian community members.
    The Pascua Yaqui tribal court provides all defendants with the same 
rights in tribal court as they would have in state or federal court. 
The original Pascua Yaqui Constitution expressly incorporated the 
language of the Indian Civil Rights Act (ICRA) for the Tribe's own Bill 
of Rights. The tribe funds a full-fledged Public Defenders Office with 
four licensed defense attorneys who represent those accused of crimes. 
The Tribe also funds four private contracted defense attorneys for 
those cases where a conflict of interest exists. Defendants are 
guaranteed all protections, including an indigent defendant's right to 
appointed counsel at the expense of the tribe. Our Tribal Court 
enforces the Indian Civil Rights Act (ICRA), fundamental due process, 
Tribal common law, U.S. Supreme Court case law, and fundamental human 
rights.
    The right to counsel and due process that are products of American 
jurisprudence are deeply rooted in Yaqui indigenous tradition and 
practice. Our Tribal culture and history supports the right of having a 
person speak on behalf of the accused. These concepts, teachings, and 
traditions pre-date the U.S. Constitution and the Bill of Rights and 
are rooted in beliefs that are arguably as old as English Common Law. 
As early as 1918, in the United States, the Yaqui formed a quasi-
governmental body in charge of the ``Yaqui Nation'' within the United 
States, presided over by a ``commandante-general'' (captain) which is 
equated to a war chief, (wikoijaut) of a Yaqui Pueblo in present day 
Sonora, Mexico (it can also be equated to the executive branch of 
government). \19\
    The Captain was responsible for maintaining order, recruiting a 
police force, preside over trial courts, and administering punishments. 
The Yaqui Nation also had a Kovanau, or, in Spanish, gobernador, 
(governor). The `kovanau's duty was first, to administer the land of 
the pueblo, and, second, to concern himself in all disputes and 
difficulties that arose. The war chief presided over ``trials'' and the 
`Kovanau gathered witnesses for defense and tried to uncover 
extenuating circumstances. \20\ While courts generally enforce 
individual responsibility for crime and enforce individual rights, 
Pascua Yaqui historical cultural practices revolve around the principle 
of collective responsibility arising from a foundational social kinship 
system. Some concepts of traditional practices and norms included, 
``Lutu'uria,'' which translates to ``truth.'' The phrase ``yo'ora 
lutu'uria'' refers to ``elders truth'' and the notion of senu noka (one 
word) was used to describe historical decisions (precedent). The 
concern for not just majority but a collective decision beyond 
individualism was prominent. \21\
Demographics & Statistics
    Approximately 4-5000 people reside on the 2,200 acre Pascua Yaqui 
Reservation, located in Pima County, Arizona, near the southwestern 
edge of the City of Tucson. The Reservation is approximately 60 miles 
north of the United States-Mexico International Border. \22\ The Tribe 
is located near a major metropolitan city, while this is important for 
business ventures, it can have a negative impact on crime that occurs 
on the reservation. Crime does not respect borders and the influx of 
illegal drugs, guns, and wrongdoers from surrounding communities is a 
major issue that impacts the safety of our community and strains our 
criminal justice system. Tribal members are exposed to drug smuggling, 
drug cartels, human traffickers, and gang members. The most recent 
murder of a tribal member to occur on the Pascua Yaqui Reservation was 
a shooting that was committed by a non-Indian, Hispanic male.
    According to U.S. Census data, Pascua Yaqui Reservation residents 
include non-Indians and a small number of individuals who are members 
of other tribes. Nearly 43 percent of all Pascua Yaqui households 
consist of a mother and children with no father present, making single 
mother households the most common type of household on the reservation. 
Approximately 800 Non-Indians work for the Tribal government, work for 
Tribal casino enterprises, or attend school on the Reservation. The 
2010 U.S. Census, estimates that a large percentage of Tribal members 
on the Reservation live in poverty. Per capita income on the 
reservation is $9,039, a third of the per capita income in Pima County 
($25,093) and the State of Arizona ($25,680). Pascua Yaqui households 
are four times more likely to receive Food Stamps (49 percent) and 
eight times more likely to receive public assistance than are residents 
of the county or state. Nearly forty percent of Pascua Yaqui adults, 
and forty-two percent of children, live at or below the federal poverty 
level, more than twice the county and state rates.
    The Pascua Yaqui Police responds to approximately 6000 calls for 
service a year. A percentage of the criminal cases are referred to the 
Pascua Yaqui Prosecutor's office, the U.S. Attorney, or the Pima County 
Attorney for possible prosecution. The cases referred are evaluated and 
the majority are independently charged into tribal court.

   In FY 2011-2012, the Tribal Prosecutor's Office filed a 
        total of 684 cases. Of those, 650 were criminal and 267 were 
        domestic violence cases. 121 cases were declined.

   In FY 2012-2013, the Tribal Prosecutor's Office filed a 
        total of 698 cases. Of those, 600 were criminal matters and 155 
        cases were declined. A large percentage of the cases involved 
        alcohol and domestic violence.

   In FY 2013-2014, the Tribal Prosecutor's Office filed a 
        total of 934 cases. Of those, 610 were adult criminal matters 
        and 176 cases were declined, (including 3 potential VAWA 
        cases). A large percentage of the cases have been related to 
        alcohol and domestic violence. Our recent VAWA cases increased 
        the number of adult criminal cases filed by 5 percent.

    The Pascua Yaqui Prosecutor's Office also routinely handles 
criminal extradition cases. In the past few years, the office has 
extradited murder suspects, sex offenders, burglary suspects, 
witnesses, and people who were evading justice in other jurisdictions 
by hiding on our reservation. The Tribe has conducted 30 criminal 
extraditions in the past few years. Over all we have conducted a total 
of 65 criminal extraditions, mostly to the State of Arizona through The 
Pima County Prosecutor's Office, and the Tucson Police Department.
Criminal Jurisdiction
    The Pascua Yaqui Pueblo's criminal jurisdiction is divided into 
three separate prongs: tribal jurisdiction, federal jurisdiction, and 
state jurisdiction. The court system where a person is prosecuted 
depends on the accused person's citizenship status, status as an 
``Indian,'' and the status of any victims. The determination can be 
complex. Roughly speaking, the Tribe has jurisdiction over all Indians 
who commit crimes within the reservation boundaries. The federal 
government also has jurisdiction over major crimes committed by Indians 
in our community. The federal government and the State of Arizona, by 
and large retain jurisdiction over crimes committed by non-Indians on 
the reservation. However, the Tribe now has criminal jurisdiction 
pursuant to VAWA 2013 over non-Indians in crimes of domestic violence 
committed on our Reservation. In the near future, the Pascua Yaqui 
Tribe hopes to better coordinate all three prosecution prongs from the 
reservation. This coordination will ensure that the Tribe can seek 
better outcomes for victims and be more accountable to the members of 
our community. For example, four Pascua Yaqui tribal prosecutors now 
have the opportunity to prosecute reservation based crimes in federal 
court as Special Assistant United States Attorneys, (SAUSAs). The 
Tribal Council recently signed a historic agreement with the Arizona 
U.S. Attorney's Office that allows this to occur.
Tribal Law and Order Act of 2010
    On September 22, 2010, the Pascua Yaqui Tribal Council amended the 
Pascua Yaqui Rules of Criminal Procedure and Criminal Court Rules to 
implement the federal amendment to the Indian Civil Rights Act (ICRA), 
to benefit from the changes to Indian Country criminal justice by the 
Tribal Law & Order Act, (TLOA). \23\ Prior to the signing of the Act, 
the Tribal Council and the Office of the Attorney General were actively 
involved in shaping the federal language and urging our federal 
representatives to pass the law. For years, the Pascua Yaqui Tribal 
Council worked to change the status quo and informed Congress and 
federal officials about our struggles with crime control, safety, and 
security.
    Beginning on October 1, 2010, any Indian accused of a crime, 
including Indians from other tribes, have had the right to defense 
counsel at the Tribe's expense, if the Tribe will seek any amount of 
jail time in their criminal cases. Soon, the Tribe will also be able to 
take advantage of additional authority to sentence criminals up to 
three years of incarceration per offense, up to a maximum total of nine 
years. At the time, TLOA was the most significant change in federal law 
affecting Indian Country and the Pascua Yaqui Tribe in close to 40 
years. However, in order to benefit from the additional sentencing 
authority, the Pascua Yaqui Tribe had to amend our tribal Constitution. 
The Pascua Yaqui Constitution of 1988 adopted the provisions of the 
Indian Civil Rights Act, and incorporated the provisions as our ``Bill 
of Rights.'' Pascua Yaqui Constitution, Art. 1, Section 1(g). Our 
Constitution limited punishment to one (1) year per offense. On July 
24, 2015, the Tribe held an election and removed the sentencing 
restrictions. In a few months, the Tribal Council will vote to consider 
changes to the criminal code that will adopt the enhanced sentencing 
authority found in TLOA.
Tribal Law and Order Act 2010 Implementation
    The Pascua Yaqui Tribal Prosecutor's Office and the Office of the 
Attorney General took lead roles in providing input to federal 
authorities as they revised the ICRA. The Prosecutor's office sent a 
representative to Washington D.C. and Minneapolis, Minnesota, to speak 
to lawmakers and the U.S. Attorney General to advocate for changes to 
tribal criminal justice. The Prosecutor's office also worked closely 
with the U.S. Attorney's Office for Arizona to help create an Indian 
Country framework that was put into practice by the U.S. Attorney to 
combat crime on Arizona reservations. The Tribe aggressively sought to 
promote an enhanced coordinated response to crime on reservations. This 
led directly to a sharp increase in tribal, federal, and state 
prosecutions for crimes that occur on our reservation. This policy and 
work will continue and it will hopefully increase the federal 
prosecution and convictions of those who commit major crimes and prey 
on our people.

        1.  Costs: The implementation of some of the provisions of the 
        Tribal Law & Order Act, namely, Title III, Section 304, has 
        cost the Tribe approximately $300,000-$400,000 a year in 
        additional attorney salaries and benefits by the hiring of 4 
        full time attorneys (2 prosecutors and 2 defense attorneys), 
        and 4 defense conflict (contract) attorneys.

        2.  Representation: Through the office of the Public Defender 
        and contracted defense attorneys, the Pascua Yaqui Tribe now 
        provides free legal representation to 95 percent of all Indians 
        and non-Indians arrested on the reservation. Approximately 2.5 
        percent of individuals arrested do not qualify for free legal 
        representation and approximately 2.5 percent waive 
        representation.

        3.  Resources and Complexity: The majority of Pascua Yaqui 
        criminal cases are appointed to the Pascua Yaqui Public 
        Defender's Office. Although the Tribe has hired additional 
        attorneys, there is still a deficiency in resources when 
        considering the resulting complexity of a full adversarial 
        system. For example, the process has spurned additional 
        appeals, evidentiary hearings, additional scientific 
        evidentiary analysis, expert testimony, competency evaluations, 
        and an increase in criminal trials.

Pascua Yaqui Tribal-Federal Sausa Program
    Between October 31, 2011 and November 4, 2011, the United States 
Attorney's Office for the District of Arizona held a week-long course 
to train prosecutors from several of Arizona's tribal governments so 
they could participate in the federal prosecution of offenders from 
their communities. The training kicked off the U.S. Attorney's Office 
Tribal Special Assistant United States Attorney (SAUSA) program. \24\ 
This cross-commissioning is encouraged by the Tribal Law and Order Act 
and mandated by the District of Arizona's Operational Plan for Public 
Safety in Indian Country. The goal of the Tribal SAUSA program is to 
train eligible tribal prosecutors in federal law, procedure, and 
investigative techniques to increase the likelihood that every viable 
criminal offense is prosecuted in tribal court, federal court, or both 
if necessary. The program also allows the tribal prosecutors to co-
counsel with federal prosecutors on felony investigations and 
prosecutions of offenses arising out of their respective tribal 
communities. After completing training, each tribal SAUSA is mentored 
by an experienced federal prosecutor assigned to the District of 
Arizona's Violent Crime Section.
SAUSA Program Implementation
    The early phase of implementing the SAUSA program has focused on 
coordination of cases through federal/tribal Multidisciplinary Team 
Meetings (MDT), advancing the timeline for presentation of cases for 
federal prosecution, and improving coordination and management of cases 
between Tribal and Federal authorities. Special attention is given to 
cases involving violent crimes, sex crimes, and habitual domestic 
violence offenders, even in cases where the Defendant is a non-Indian. 
The tribal program has been in operation since 2011. The U.S. 
Attorney's Office has been diligent in working cooperatively with the 
assigned tribal SAUSA and the Tribal Prosecutor's Office.
    A primary challenge has become coordinating time and scheduling. 
The Tribal SAUSA has a full criminal case load with the Pascua Yaqui 
Prosecutor's Office in addition to the evaluation, follow-up, and 
assisting with the prosecution of cases at the federal level. As the 
program continues, it may be helpful for the SAUSAs to have dedicated 
support staff to help with logistics, coordination of calendars, and 
case management. Communication, coordination, and cooperation has been 
enhanced with several different agencies responsible for law 
enforcement on the Pascua Yaqui Reservation, to include, the U.S. 
Attorney's Office (Tucson), the F.B.I., tribal Law Enforcement, and 
federal victim services. Cases are being filed, reopened, and 
appropriate cases are being declined after thorough review and 
coordinated follow-up investigations. Tribal criminal investigators, 
F.B.I. agents, and crime labs are working closely together to bring 
strong tribal and federal investigations. Defendants are being 
transferred and transported to tribal court and federal court via writ 
and arrest warrants. The charging and prosecution of federal crimes 
committed on the Pascua Yaqui Reservation has increased exponentially 
due to the SAUSA program and enhanced local MDT meetings. Although 
federal prosecution is not the ultimate answer to social problems in 
our community, the Pascua Yaqui Tribe will continue to work with our 
federal partners to develop a coordinated crime control policy for our 
community.
Adam Walsh Sex Offender Registration and Notification (SORNA)
    The Tribe has recently enacted the Adam Walsh Sex Offender 
Registration and Notification Act (SORNA). \25\ The Prosecutor's Office 
is working with the Tribal Council, Attorney General, and Law 
Enforcement to completely implement the new law. SORNA provides a 
comprehensive set of minimum standards for sex offender registration 
and notification to the Tribal community. SORNA aims to close potential 
gaps and loopholes that existed under prior law and strengthens the 
nationwide network of sex offender registration and notification 
programs. The Pascua Yaqui Tribe has substantially implemented SORNA 
and is registering, monitoring, and informing the community about the 
presence of twenty-four (24) registered sex offenders who are living on 
the Reservation.
Office of the Prosecutor
    The Prosecutor's Office performs several different functions for 
the Pascua Yaqui Tribe. The Office is responsible for representing our 
government in Tribal Court in all misdemeanor and felony type criminal 
matters, including adult and juvenile crimes. The Pascua Yaqui Police 
respond to approximately 6000 calls for service a year. A large 
percentage of the criminal calls are referred to the Prosecutor's 
office for possible prosecution. The cases are evaluated and many are 
independently charged into tribal court. The Tribal Prosecutor also 
represents the tribe in civil related matters, to include civil 
forfeiture of property used in the transportation or sale of narcotics 
and all civil Child Welfare/Child Dependency matters that originate on 
the Reservation. The Prosecutor's office advises, coordinates, and 
collaborates with Pascua Yaqui Law Enforcement, Pre-Trial Services, 
Probation, Victim Services, Centered Spirit, Education, and Social 
Services. The Tribal Prosecutor's Office also handles victim 
notification in criminal cases. Victims are notified about the status 
of their case, the release conditions involving the defendant, plea 
agreements, provided transportation if needed, and advised of the terms 
of any sentence imposed by the court.
Department of Justice Indian Country Legal Fellow
    On Thursday, December 4, 2014, the Department of Justice selected 
the First ever Indian Country Justice fellow Charisse Arce, of Bristol 
Bay, Alaska, to serve in the District of Arizona. \26\ Arce will also 
serve a portion of her appointment in the Pascua Yaqui tribal 
prosecutor's office. This is the first Gaye L. Tenoso Indian Country 
Fellowship within the Attorney General's Honors Program, and it is 
awarded to an extraordinarily well-qualified new attorney with a deep 
interest in and enthusiasm for improving public safety in tribal 
communities.
    ``The Pascua Yaqui Tribe is pleased to have the opportunity to 
partner with the District of Arizona U.S. Attorney's Office and the 
Attorney General's Honors Program, through the Gaye L. Tenoso Indian 
Country Fellowship,'' said Pascua Yaqui Tribal Chairman Peter 
Yucupicio. ``We welcome the new Department of Justice fellow and look 
forward to a productive partnership as we fight violent crime, work to 
keep our community safe, and continue to implement the Violence Against 
Women Act (VAWA), and Special Domestic Violence Criminal Jurisdiction 
(SDVCJ).''
Access to National Criminal Information Databases
    On November 5, 2015, the Department of Justice announced that the 
Pascua Yaqui Tribe would participate in the initial User Feedback Phase 
of the Tribal Access Program for National Crime Information (TAP), \27\ 
a program that provides federally recognized tribes the ability to 
access and exchange data with national crime information databases for 
both civil and criminal purposes. ``TAP will support tribes in 
analyzing their needs for national crime information and help provide 
appropriate solutions, including a state-of-the-art biometric/
biographic computer workstation with capabilities to process finger and 
palm prints, take mugshots and submit records to national databases, as 
well as the ability to access the FBI's Criminal Justice Information 
Service (CJIS) systems for criminal and civil purposes through the 
Department of Justice. TAP will also provide specialized training and 
assistance for participating tribes.''
    Currently, the Tribe has limited NCIC ``read only'' access through 
an IGA with the Arizona Department of Public Safety (DPS). The TAP 
program will help the Tribe upload outstanding tribal warrants, orders 
of protection, and criminal conviction information.
Purpose Code X
    The Pascua Yaqui Tribe has requested to formally participate in the 
Bureau of Indian Affairs' Office of Justice Services (BIA-OJS) Purpose 
Code X \28\ program that was created in 2015 to assist our tribal 
Social Services Department when they are seeking to place children in 
safe homes. ``The BIA-OJS Purpose Code X Program will provide tribal 
social service agencies with the information they need [through name-
based checks] to protect the children they place into care in emergency 
situations when parents are unable to provide for their welfare.'' 
Currently, Pascua Yaqui social workers may be able to conduct a warrant 
check or private research of potential placement options, but warrant 
checks do not generally reveal criminal history. Also, the checks are 
impractical at night and after regular work hours in emergency 
situations.
Bureau of Indian Affairs Tiwahe (Family) Initiative
    This year, the Pascua Yaqui Tribe was selected by the Bureau of 
Indian Affairs to participate in the federal Tiwahe initiative. \29\ 
``The initiative promotes a comprehensive and integrated approach to 
supporting family stability and strengthening tribal communities by 
addressing interrelated issues associated with child welfare, domestic 
violence, substance abuse, poverty, and incarceration. Tiwahe means 
``family'' in the Lakota language. The Tiwahe initiative directly 
supports the Generation Indigenous initiative, which is focused on 
addressing barriers to success for Native youth, by leveraging BIA 
programs in concert with other Federal programs that support family and 
community stability and cultural awareness.''
    The Pascua Yaqui Tribe will work with our federal partners to 
implement the Tiwahe program this fiscal year, through a tribal 
centered plan. The Tribe will attempt to address the interrelated 
problems of poverty, violence, and substance abuse faced by our 
community. The Tribe will do this through the coordination and 
integration of social service programs with our Tribal Court. We will 
work to strengthen and maintain family cohesiveness, prepare our family 
wage earners for work opportunities, and provide rehabilitative 
alternatives to incarceration for family members with substance abuse 
issues.
Federal Court Sentencing, Prior Convictions, and Disparity
    Violent crime in Indian Country has created a public safety and 
public health crisis across the Nation. Although federal sentencing is 
not the main issue, it is a contributing factor when violent crime is 
not prosecuted, cases are declined, or when sentencing outcomes do not 
fit the crime. In order to help address this problem, counseled Tribal 
Court convictions should be recognized, considered, and applied to 
federal sentencing determinations of persons who commit crimes in 
Indian Country and additional data must be collected by all agencies 
responsible for criminal investigations.
    Federal prosecutions of offenders from Pascua Yaqui Indian Country 
generally consist of dangerous felony level cases. \30\ In Arizona, 
Tribal borders do not protect Reservations from crimes related to 
gangs, drug sales, human smuggling, and major drug cartel enterprises. 
We are on the front line. The majority of offenders prosecuted 
federally have lengthy tribal criminal histories. Their criminal acts 
and individual crime sprees have harmed tribal families, injured 
vulnerable children, and have disrupted the peace of our tribal 
community. Tribal criminal convictions are not included as part of the 
criminal history determination of the federal sentencing guidelines in 
our Indian Country cases, (particularly felony-level crimes) and 
sentences only average approximately 32 months in length (when outliers 
are removed). Our outcomes are certainly less than a Native or non-
Native offender would receive in Arizona State court for similar 
serious and violent felony crimes. Thirty-two months is generally not a 
long enough period to properly consider punishment, rehabilitation, 
justice, job training, or other restorative practices and policies 
prior to an offender returning home to our Tribal community.
    Criminal jurisdiction in Indian Country is evolving and many tribal 
Courts are as sophisticated as their state counterparts. Some of the 
arguments against recognition and reliance of tribal sentencing 
outcomes are outdated, paternalistic, do not afford comity and respect 
for tribal decisionmaking, and do not account for present day reality. 
There are now dozens of Tribes that are exercising either enhanced 
Special Domestic Violence Criminal Jurisdiction (SDVCJ) under the 
Violence Against Women Act, (VAWA) or that have implemented the Tribal 
Law and Order Act (TLOA) provisions. The Pascua Yaqui Tribe is one of 
those Tribes. The Tribe has investigated 30 different cases of domestic 
violence committed by Non-Indians on our Reservation. The cases 
involved incidents of strangulation, hair-dragging, physical assaults, 
and conduct that repeatedly victimized whole families. Of those cases, 
the offenders had close to 90 separate Tribal police contacts, pre and 
post VAWA implementation. The majority of the offenders also had 
lengthy state criminal histories that consisted of violent offenses, 
drug and alcohol related offenses, and weapons related offenses. Three 
of the offenders were felons. Three offenders had felony warrants, two 
for burglary and one for armed robbery out of the State of Oklahoma. 
Two of the offenders were Legal Permanent Residents (LPR) from Mexico. 
The Tribe has convicted eight of the non-Indian offenders in Tribal 
court for domestic violence related offenses. Tribal Court convictions 
of Non-Indians and Indians should be recognized by federal courts. This 
is the new reality and the future of Indian Country jurisdiction. 
Jurisdiction is changing, tribes are fighting hard to protect their 
community, crime is multi-jurisdictional in nature, and there is no 
reason the federal court process should not properly account for this.
    Moreover, every person arrested and charged in the Pascua Yaqui 
Tribal Court is guaranteed legal representation if they face a day in 
jail, that has been the case now for many years. Most of the offenders 
that will be prosecuted in federal court will have a tribal criminal 
history and possibly, a State criminal history. The majority of their 
relevant Tribal court convictions will be counseled, unless they chose 
to waive legal representation. The actions of major crime offenders are 
not traditional, they are not cultural, and they are not the norm for 
our tribal community.
    Policymakers should also consider the unique nature of each tribe 
and each federal district. The District of Arizona is different than 
the District of South Dakota. Likewise, the Pascua Yaqui Tribe differs 
from the Navajo Nation and any other Tribe. Although we may be faced 
with some of the same realities, crime is different, laws are 
different, and approaches to justice, punishment, restoration, and 
sentencing are different. For example, in Arizona, federal priorities 
and resources are largely spent on immigration related enforcement. 
Federal courts in Arizona are clogged with immigration reentry cases, 
drug smuggling matters, and criminal charges centered on the policies 
of Operation Streamline. \31\ Although necessary, the result is that 
there are less resources devoted to Indian Country crime in Arizona. 
This means that less Indian Country cases are investigated, less cases 
are referred, more cases are declined, and the cases that are referred 
are more likely to be declined due to inadequate investigations and 
delayed indictments. \32\ We should also consider jurisdictional 
realities and how each Federal District policy impacts sentencing 
outcomes.
    In Arizona, generally, the U.S. Attorney's Office does not 
prosecute Indian Country drug cases. It is hard to recall the last 
federal drug case prosecuted from the Pascua Yaqui Reservation. Drug 
use and sales, including marijuana, cocaine, crack, heroine, and 
methamphetamine have reached epidemic levels on the Pascua Yaqui 
Reservation. There have been drop houses, drug related shootings, gang 
violence, drug related violence, and serious crimes related to the sale 
of drugs. Many of the social ills in our community are directly related 
to drug use. The reason given for the lack of federal prosecutions of 
street level drug sales in Indian Country is that there is a threshold 
issue concerning ``drug mules'' who smuggle large quantities of drugs 
into the Country from Mexico.
    Disparity in sentencing is not an issue in Southern Arizona when 
comparing Indian defendants prosecuted for major violent felony crimes 
with similarly situated defendants prosecuted in Arizona. Often, 
federal ``crack'' conviction sentencing will be compared to sentences 
of tribal defendants to indicate that disparity that exists in Indian 
Country criminal outcomes. Because of the lack of federal drug 
prosecutions and our actual major crimes sentencing results, the 
analogy does not fit in the District of Arizona cases that flow from 
the Pascua Yaqui Reservation. However, if there is a glaring disparity, 
it may be in the justice received by victims and families. Victims may 
face language barriers, cultural barriers, discrimination, and 
inadequate federal jury representation. Largely, the Pascua Yaqui 
community and our victims were dissatisfied with our federal court 
outcomes, and our tribal court outcomes for that matter. Justice was 
hampered and limited by our tribal Constitution, our code, scarce 
resources, and decades enduring federal agencies who were not 
investigating or prosecuting our major crimes. This history helped to 
create a lawless atmosphere and a situation where the community simply 
does not trust our justice systems. Tribal Court outcomes should be 
respected and given as much weight as mitigating factors would have on 
downward departures during federal sentencing determinations. Tribal 
court criminal history should also play a factor when federal courts 
are considering pre-trial release of tribal defendants, especially if a 
court is contemplating release back into the Tribal community. Federal 
policies, regional factors, and Reservation crime rates should be 
considered when allocating prosecution, victim, and investigative 
resources.
Federal Declinations
    Any consideration of federal sentencing, federal prosecution, or 
Indian Country jurisdiction should include an analysis of federal 
declinations, as federal jurisdiction has been primary since the 
passage of the Major Crimes Act of 1885. Federal prosecutions and 
sentencing must be considered in light of federal declinations and 
federal resources for law enforcement investigations. On the Pascua 
Yaqui Reservation, the declination rate has actually risen 
dramatically. The U.S. Attorney advised the Tribe in 2008 that there 
was no crime on the Pascua Yaqui Reservation and no declinations. 
Although that may have been true when reviewing federal referrals and 
convictions, it was not an accurate representation of what was actually 
occurring on the ground. As expected, once federal crimes started to 
get prosecuted in earnest in 2009, the local declination rate 
increased. However, the rate is not as high as other places in Indian 
Country. Interrelated, less than half of the major crime incidents 
reported since 2008 have been officially referred for federal 
prosecution. However, in the major crime cases that have been 
officially referred since 2009, a majority have been indicted by the 
U.S. Attorney's Office. Most of the cases were investigated and 
referred by tribal detectives who have their federal Special Law 
Enforcement Commission (SLEC) and they were assisted by local F.B.I. 
agents in complex cases. The prosecution process was facilitated by 
tribal prosecutors who are tabbed as Special Assistant United States 
Attorneys, (SAUSAs). Attached is a recent breakdown of most of the 
Pascua Yaqui Tribe's Federal case outcomes from 2009-2014 (taken from 
federal Sentencing Orders and press releases). The attached spreadsheet 
notes thirty-two federal convictions and six revocations. When you 
remove outliers, the average federal sentence involving Pascua Yaqui 
defendants is between 32-36 months, with 36 months of federal 
Supervision. That is fairly low when you compare a federal sentence to 
a sentence from the State of Arizona for a comparable crime. The Tribe 
has had approximately sixty cases officially referred over this time 
span. Referred means that a Tribal investigator, tribal police officer, 
or a federal agent sent an investigation to the U.S. Attorney for 
prosecution. This is much higher than what was occurring prior to 2008. 
Approximately fifteen cases have been officially declined, three cases 
were dismissed, one person was found not guilty at trial, and one case 
was prosecuted by the State. Five non-Indians were prosecuted federally 
over this time span (two for domestic violence incidents). Twenty of 
these cases were also prosecuted tribally, some were joint 
prosecutions, and most outcomes were concurrent to each other. The 
investigation, timing, (Statute of limitations) evidence, and 
coordination issues impact when, how, and by who a case gets prosecuted 
by.
    There were many potential federal (felony) cases, (probably close 
to 50 between 2008-2014) that were reported and investigated, but never 
officially referred, indicted, or prosecuted because the investigation 
did not yield the proper probable cause to support charges or there 
were witness issues or a lack of cooperation.
    The Tribe has been working well with the F.B.I. and the U.S. 
Attorney's Office and the listed outcomes serve as evidence of overall 
improved cooperation and good work by police, victim services, and 
other support divisions in our criminal justice system. The Tribe 
believes that recent federal arrests and convictions have helped to 
lower the overall crime rate on the Reservation, increased the quality 
of life, and also helped to provide a general deterrent, now and for 
the foreseeable future.
Recommendations
   The Pascua Yaqui Tribe strongly recommends that Congress 
        require that counseled tribal court convictions be considered 
        in federal sentencing determinations.

   Federal Courts should also consider Tribal criminal history 
        during pretrial release determinations.

   The Pascua Yaqui Tribe recommends that federal sentences, 
        release dates, and timely notification occur to Tribal 
        authorities and victims.

   The Tribe strongly recommends other sentencing alternatives, 
        reentry programs, education, and or job related programming be 
        included as part of criminal sentences, especially if the 
        tribal defendant is going to return to the reservation.

   The Pascua Yaqui Tribe recommends that federal declinations 
        by the U.S. Attorney's Office be broken out by Tribal 
        jurisdiction, annually.

   The Pascua Yaqui Tribe recommends that all criminal 
        investigations with a potential federal nexus that are opened 
        by tribal law enforcement, B.I.A., and the F.B.I. be accounted 
        for separately, aggregated annually, broken out by crime, and 
        distinguished from investigations that are actually referred 
        for prosecution.

Previous & Relevant Pascua Yaqui Habeas Matter
    On August 17, 2011, the United States Court of Appeals for the 9th 
Circuit issued an Opinion in the case of Miranda v. Anchondo, \33\ 
supporting the Pascua Yaqui Tribe's argument that our Tribal Court has 
the authority to sentence those convicted of multiple offenses to more 
than one year in jail. The case had wide ranging implications because 
it set precedent concerning the issue and affected tribes across the 
United States.
    The Pascua Yaqui Tribal Court convicted Miranda of eight criminal 
violations. The Honorable Cornelia Cruz sentenced her to two 
consecutive one-year terms, two consecutive ninety-day terms, and four 
lesser concurrent terms, for a total term of 910 days imprisonment. 
While serving her sentence, Miranda, through Chief Public Defender, 
Nicholas Fontana, appealed her conviction and sentence to the Pascua 
Yaqui Tribe Court of Appeals, arguing, inter alia, that her 910-day 
sentence violated the Indian Civil Rights Act (ICRA), 25 U.S.C.   
1302(7).The tribal appellate court rejected Petitioner's arguments and 
affirmed her conviction on all counts.
    Miranda then sought redress through the federal court system via a 
writ of habeas corpus. On habeas review, by the U.S. District Court of 
Arizona, the court concluded that the Indian Civil Rights Act, 25 
U.S.C.   1302(7) prohibited the tribal court from imposing consecutive 
sentences cumulatively exceeding one year for multiple criminal 
violations arising from a single criminal transaction and ordered that 
Miranda be released.'' The United States, through the U.S. Attorney's 
Office, and the Pascua Yaqui Tribe, through the Office of the Attorney 
General, appealed the Arizona District court's order granting Miranda's 
petition for writ of habeas corpus. The 9th Circuit ultimately 
disagreed with the district court and held that the Indian Civil Rights 
Act   1302(7), unambiguously permits tribal courts to impose up to a 
one-year term of imprisonment for each discrete criminal violation and 
reversed the lower court's ruling. ``Because   1302(7) unambiguously 
permits tribal courts to impose up to a one-year term of imprisonment 
for each discrete criminal violation, and because it is undisputed that 
Petitioner committed multiple criminal violations, we reverse the 
district court's decision to grant Petitioner's amended habeas corpus 
petition.''
    Although the Miranda case never should have required federal court 
intervention, it cleared up any lingering doubt that tribal courts and 
our Tribal Council have the authority to impose punishments that are 
consistent with the Indian Civil Rights Act (ICRA), due process, and 
necessary to help keep our community members and visitors safe from 
harm.
Conclusion
    The first responsibility of any government, tribal or otherwise, is 
the safety and protection of its people. For there can be no security 
or peace where there is insecurity and fear. Pascua Yaqui tribal 
officials no longer have to simply stand by and watch their people be 
victimized with no recourse. Violent behavior against intimate partners 
or vulnerable family members by tribal members or non-Indians is 
conduct that is no longer tolerated. Protecting victims of violent 
crime, domestic violence, and sexual assault is about justice and 
safety, and it is also about fairness, and dignity.
    Full restoration of criminal jurisdictional authority for Tribal 
governments over all crimes and persons should be the next step. 
Currently, SDVCJ under VAWA 2013 is limited to only crimes of domestic 
violence, dating violence, or violations of an order of protection 
committed in Indian country, where the defendant is a spouse or 
intimate partner of a tribal member. VAWA does not permit tribal 
prosecutions unless the defendant has ``sufficient ties to the Indian 
tribe,'' meaning he/she must either reside in the Indian country of the 
prosecuting tribe, be employed in the Indian country of the prosecuting 
tribe, or be the spouse or intimate partner of a member of the 
prosecuting tribe. The proposed ``Tribal Youth and Community Protection 
Act of 2016'' will help address some of the gaps to cover children and 
ancillary crimes a VAWA defendant may commit. However, more problems 
exist, like the fact that the law does not cover sexual assaults or 
stalking committed by strangers.
    Full restoration would help ensure fairness, safeguard tribal 
communities, and help clear up long standing jurisdictional problems. 
When a resident of one State crosses the border to visit another, that 
individual is subject to the criminal jurisdiction of the State he or 
she is visiting, even though he or she cannot vote or serve on a jury 
there, his external criminal history may also be considered. 
Noncitizens visiting or residing in the United States are also subject 
to federal and State criminal jurisdiction despite their exclusion from 
the political process.
Additional Tribal Empowerment and Support Is Key
    The starting place to reverse historical jurisdictional problems 
and injustices in Indian Country is with strong tribal justice systems 
that are supported with the required resources. Criminal investigations 
occur at the local level. Along with strong and meaningful federal 
prosecutions, our local government and court system is the best vehicle 
to protect Yaqui victims, mothers, and children from violent 
perpetrators. The recent Pascua Yaqui VAWA and TLOA implementation 
process bear those beliefs out. However, without the resources to fund 
robust court and victim services, the gains may only lead to the same 
revolving door of repeat violence and ineffective criminal prosecutions 
that we are all too familiar with. The Tribal Law & Order Act, the 
amendments to the Indian Civil Rights Act, the Adam Walsh Act, VAWA, 
and changes to the Pascua Yaqui code will enhance the safety and 
security of our community as the laws are implemented, followed, and 
properly enforced.
    For several different reasons, the challenges facing law 
enforcement and the justice system in our community are substantial. 
However, a window of opportunity exists to revolutionize and strengthen 
our court system and heal our community. The Pascua Yaqui Tribal 
Council, law enforcement, the Tribal Court, the Prosecutor's office, 
technical assistance providers, and our federal partners have 
recognized our current needs and have taken the opportunity to work 
together to effect change. In short, the Tribe has taken significant 
steps to protect our people, dedicated significant resources, and spent 
countless hours to see these changes through. However, it will take 
additional hard work, federal legislation, resources, and dedication to 
continue to fully and effectively protect and support our victims who 
have been impacted by violence. We respectfully request additional 
Congressional assistance to help address the persistent violence and 
drug abuse that plagues our community. Additional support for Tribal 
Court systems will also further the current federal strategy that 
promotes the longstanding policies of Indian self-determination, tribal 
self-governance, and tribal self-sufficiency.
    In closing, we thank the United States Congress, the Obama 
Administration, the Department of Justice (DOJ), our sister Tribes, 
advocacy groups, the National Congress of American Indians (NCAI), the 
Tribal Law & Policy Institute (TLPI), the National Indigenous Women's 
Resource Center (NIWRC), the Center for Court Innovation (CCI), and the 
National Council of Juvenile & Family Court Judges (NCJFCJ) \34\ for 
the leadership, cooperation, and assistance during the past few years 
as we worked to better protect our Reservation community.

                                endnotes

    \1\ Senior Litigation Counsel and Tribal Liaison, John Joseph 
Tuchi, 2009-2012 (now United States District Judge-District of 
Arizona), Tribal Liaison Rui Wang, Assistant U.S. Attorney, District of 
Arizona.
    \2\ Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
    \3\ The Supreme Court issued a decision in United States v. 
Castleman, 134 S. Ct. 1405 (2014) during the Pilot Project for tribal 
special domestic violence criminal jurisdiction. Both the majority 
opinion and Justice Scalia's concurrence included footnotes referencing 
the definition of the term ``domestic violence'' under the new federal 
law, 25 U.S.C.  1304. The discussion of the VAWA statute by the 
Justices in dicta raised questions about the scope and severity of 
``violence'' required for crimes that can be charged by tribes who have 
implemented special domestic violence criminal jurisdiction (SDVCJ) 
under VAWA. Several of the tribes who have implemented SDVCJ report 
that the Castleman decision had an immediate impact on their charging 
decisions. There have been several cases where the tribes felt it could 
not prosecute based on the dicta in Castleman and dismissed the cases 
only to have the offenders subsequently reoffend with a more serious 
crime.
    \4\ https://www.justice.gov/sites/default/files/tribal/legacy/2014/
02/06/appl-questionnaire-pascua-yaqui.pdf
    \5\ http://www.justice.gov/tribal/docs/letter-to-pascua-yaqui.pdf
    \6\ (http://www.whitehouse.gov/blog/2014/02/06/moving-forward-
protect-native-american-women-justice-department-announces-vawa-2013-), 
Department of Justice (Attorney General) (http://www.justice.gov/opa/
pr/2014/February/14-ag-126.html), the U.S. Attorney for the District of 
Arizona, http://www.justice.gov/usao/az/press_releases/2014/
PR_02062014_Vawa.html), and a Pascua Yaqui press release, that was sent 
to the following Southern Arizona news organizations: Television 
Stations: KOLD, KVOA, FOX, and KGUN; Newspaper: AZ Daily Star, Explorer 
News, Wick Publications, and the Tucson Weekly. http://www.pascuayaqui-
nsn.gov/index.php?option=com_content&view=article&id=144:pascua-yaqui-
tribe-asserts-authority-to-prosecute-all-persons-including-non-indians-
for-domestic-violence&catid=12:newa There was also some television 
coverage in Phoenix via a news video segment available at http://
www.azcentral.com/news/free/20140206tribes-authority-non-indians.html
    \7\ Fed. Reg. Volume 79, Number 29 (Wednesday, February 12, 
2014)][Notices][Pages 8487-8488] Federal Register Online via the 
Government Printing Office [www.gpo.gov] [FR Doc No: 2014-03023]http://
regulations.justia.com/regulations/fedreg/2014/02/12/2014-03023.html 
See also 78 Fed. Reg. 71645 (Nov. 29, 2013)
    \8\ (http://www.pascuayaqui-nsn.gov/).
    \9\ See (http://azstarnet.com/news/local/pascua-yaqui-gain-added-
power-to-prosecute-some-non-indians/article_3417ac6e-c683-50d4-9a55-
cc386524c468.html)
    \10\ (http://turtletalk.wordpress.com/2014/02/07/pascua-yaqui-
press-release-re-vawa-pilot-program-selection/)
    \11\ http://www.kvoa.com/news/domestic-violence-not-tolerated-by-
pascua-yaqui-tribe/), (http://colorlines.com/archives/2014/02/
a_small_victory_for_native_women.html), http://america.aljazeera.com/
watch/shows/the-stream/the-stream-officialblog/2014/2/21/native-
american-tribesbeginpilotprogramtoprosecutedomesticviolen.html, http://
n.pr/Nei2Mx, http://www.nativeamericacalling.com/, http://kjzz.org/
content/24088/pascua-yaqui-begins-prosecuting-non-natives-under-vawa, 
http://www.washingtonpost.com/national/arizona-tribe-set-to-prosecute-
first-non-indian-under-a-new-law/2014/04/18/127a202a-bf20-11e3-bcec-
b71ee10e9bc3_story.html, http://uanews.org/story/ua-alums-involved-in-
effort-to-legally-prosecute-non-indians-on-pascua-yaqui-tribe,http://
america.aljazeera.com/articles/2014/4/23/for-one-arizona-
tribeachanceforjusticeafterdecadesoflegallimbo.html, http://
www.wildcat.arizona.edu/article/2014/04/ua-alum-aides-american-indian-
tribe-in-suing-non-indians, http://cronkitenewsonline.com/2014/10/
pascua-yaqui-begin-prosecuting-non-tribal-members-for-domestic-
violence/
    \12\ Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
    \13\ United States v. Castleman, 134 S. Ct. 1405 (2014).
    \14\ 50 Fed. Reg. 34,555 (Aug.26, 1985)
    \15\ Indian Self-Determination and Education Assistance Act, Pub. 
L. 93-638
    \16\ https://www.fbi.gov/about-us/cjis/ncic
    \17\ Arizona Criminal Justice Information System (ACJIS)
    \18\ 25 U.S.C.   1301-1304
    \19\ Spicer, Edward. Pascua: A Yaqui Village in Arizona, University 
of Chicago Press, 1940. Reprint: University of Arizona Press, 1984.
    \20\ Id.
    \21\ Via email, Dr. David Delgado Shorter.
    \22\ The Tribe has more than 19,000 members, many of whom have 
relatives residing on both sides of the border. Both the Pascua Yaqui 
Tribe and our Yaqui relatives in Mexico regularly visit each other for 
religious, cultural, and tribal purposes.
    \23\ https://www.justice.gov/sites/default/files/usao-az/legacy/
2010/10/14/Tribal%20Law%20%20Order%20Act%202010.pdf
    \24\ https://www.justice.gov/opa/blog/tribal-community-prosecutors-
receive-federal-cross-commissioning
    \25\ http://pascuayaqui.nsopw.gov/Home.aspx
    \26\ https://www.justice.gov/legal-careers/attorney-generals-
indian-country-fellowship
    \27\ https://www.justice.gov/opa/pr/department-justice-announces-
10-tribes-participate-initial-phase-tribal-access-program
    \28\ http://www.bia.gov/cs/groups/public/documents/text/idc1-
031473.pdf
    \29\ http://www.bia.gov/cs/groups/xasia/documents/document/idc1-
032110.pdf
    \30\ Offenses like murder, manslaughter, aggravated assault, sexual 
offenses, child abuse, child molestation, gang related crimes, gun 
related offenses, burglary, home invasions, and arson make up a 
majority of Pascua Yaqui cases referred for federal prosecution.
    \31\ https://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-95_May15.pdf
    \32\ https://www.justice.gov/tribal/file/796976/download
    \33\ Miranda v. Anchondo, 684 F.3d 844 (9th Cir. 844), cert. 
denied, 2012 WL 2396988 (U.S. Oct. 1, 2012); Bustamante v. Valenzuela, 
715 F.Supp.2d 960 (D.Ariz.2010). Tribes are allowed to impose 
consecutive one year terms for separate offenses charged in a single 
criminal proceeding.
    \34\ Humble thanks to the United States Congress for drafting and 
passing TLOA & the Reauthorization of VAWA, thanks to the Department of 
Justice, (DOJ) Deputy Associate Attorney General Sam Hirsch, Director 
Tracy Toulou, Counsel to the Director, Marcia Hurd, National Indian 
Country Training Coordinator Leslie Hagen, Native American Issues 
Coordinator Jeremy Jehangiri. And the U.S. Attorney's Office, District 
of Arizona. Thanks for the efforts of the Department of the Interior 
(DOI), Kevin Washburn, Associate Solicitor Michael Berrigan, Attorney 
Advisor Leta Hollon, Director of the office of Tribal Justice, Darren 
Cruzan, Associate Director Tricia Tingle, and Deputy Associate Director 
Steve Juneau. Thanks to Technical Assistance providers: The National 
Congress of American Indians, (NCAI) Natasha Anderson, Virginia Davis, 
and John Dossett. The Tribal Law & Policy Institute (TLPI), Chia 
Halpern Beetso & Jerry Gardner and the National Council of Juvenile & 
Family Court Judges (NCJFCJ), Jessica Singer and Steve Aycock. The 
University Of Arizona School Of Law, and Professor Melissa Tatum, 
Finally, thank you to all the members of the Intertribal Technical 
Assistance Working Group on Special Domestic Violence Criminal 
Jurisdiction (ITWG). 


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    The Chairman. Thank you very much for your testimony.
    Senator Daines.
    Senator Daines. Thank you, Chairman Barrasso.
    In Montana, the Northern Cheyenne and Fort Belknap Tribes, 
as well as the Fort Peck Tribes, recently declared states of 
emergency due to the increase in drug-related crimes on the 
reservations. This is how serious it is back home.
    Clearly there is a strong need for additional measures to 
help keep tribal communities safe and secure. In the last 
Congress, I was proud to pass the Violence Against Women Act 
which created a number of grant programs designed to prevent 
violence, investigate crimes and prosecute offenders and 
provide victim services.
    This piece of legislation was especially important for our 
tribes, as we know, which are disproportionately affected by 
domestic violence. However, we still have a lot to do.
    I want to thank the authors of the two safety-related bills 
we are discussing today for their work on this legislation. In 
particular, I am pleased to see the Tribal Law and Order 
Reauthorization and Amendments Act include critical tools to 
better equip law enforcement officials, reduce crime and 
recidivism, increase the Federal Government's consultation with 
tribes and improve juvenile delinquency programs.
    Councilman Buckles, welcome again. It is good to have 
another Montanan in Washington.
    You shared in your testimony that while Indian women 
comprise only seven percent of the population in Montana, they 
represent 13 percent of the intimate partner deaths in the 
State. As you see it, from your position, what is the root of 
domestic violence against women in Indian Country?
    Mr. Buckles. I think the main root of it is drugs. We see 
it so evident and so much more noticeable. It comes from all 
over and other communities. I think that is the root of what is 
happening to our Native American women, not only them but also 
our children.
    Senator Daines. You mentioned the shared importance of a 
strong tribal government in keeping our tribal communities 
safe. As a tribal council member, could further explain the 
link you see between a strong tribal government and also having 
a safe community?
    Mr. Buckles. As far as us being legislators, we are trying 
to enhance our court system and help our court system. We are 
looking at the findings, stiffer sentencing to help build a 
stronger community.
    Also, we are looking at avenues of hiring other help from 
law enforcement by hiring drug enforcement officers to make our 
communities better and to crack down on all the drugs on our 
reservation.
    Senator Daines. It is good to see that Fort Peck is seeing 
some success there. I think we can all agree that we have a 
long way to go to improve public safety in Indian Country. I am 
glad we are visiting some much needed solutions today such as 
Chairman Barrasso's Tribal Law and Order Act and the 
reauthorization bill.
    I would like to know from your view what provisions in that 
bill are going to be most important to the Fort Peck Tribes?
    Mr. Buckles. I guess the part to prosecute juveniles in 
Federal court is part of it. Overall, the court systems and 
hopefully we will see a lot of help from the Federal system.
    Senator Daines. You mentioned the kidnapping of the little 
girl and that she was rescued alive. Could you also share how 
the tribe worked with their Federal law enforcement partners to 
find her and bring her home? What can we learn from this 
successful operation?
    Mr. Buckles. It worked well with not only the State but 
with the city officials, officers, along with the Federal 
officers and all the communication, also with the Montana 
Highway Patrol and game wardens too that really pushed the 
issue.
    I think the Federal officials really helped out a lot and 
spent a lot of good time with the person that was arrested. 
With the Federal agency's help, it moved faster. I am glad they 
found the child alive.
    With those agencies and our partnering together, we saw a 
good and fast recovery even though it took three or four days. 
I know the person did not really want to say but the Federal 
agency's experience in finding someone really helped us a lot. 
We are glad that child is safe. I am glad they found her.
    Senator Daines. Thank you, Councilman Buckles.
    The Chairman. Thank you, Senator Daines.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman.
    Director Toulou, as you know, the opioid crisis has 
disproportionately affected American Indians in this country 
and certainly in Minnesota. Last month over the course of three 
days, the White Earth, a band of the Ojibwe in northwestern 
Minnesota, reported eight overdoses. All the victims survived 
but we need to do everything we can to prevent these.
    Law enforcement agencies obviously have an important role 
to play in working to combat the opioid epidemic.
    In June 2013, White Earth became the first reservation and 
still the only reservation to have the Department of Justice 
assume concurrent criminal jurisdiction on their land under the 
Tribal Law and Order Act.
    This law is supposed to encourage development of more 
effective prevention programs to fight alcohol and drug abuse 
among at risk youth. Despite this goal, the White Earth has not 
received any funding to support their designation, nor have 
they been provided any FBI agents to patrol their land as 
tribes without this designation have received.
    Director, after three years, why has White Earth not 
received funding under this designation? Why have FBI agents 
not been provided to White Earth? Why has White Earth not 
received funds from the Department of Justice to help address 
the opioid epidemic on the reservation?
    Mr. Toulou. I think one of the issues everyone at the table 
recognizes is we could use more funding in Indian Country, 
particularly around the opioid issue. I would say that I do 
know White Earth. I was involved in their designation when they 
applied for assumption of jurisdiction.
    While there has not been the funding, you are absolutely 
correct, and I am sure that would be helpful, but there have 
been a number of things that have happened recently on the 
reservation that were at least tangentially related to the 
designation.
    Within the last year, about a year ago, the FBI in 
conjunction with tribal law enforcement, had a raid on White 
Earth that took down 41 individuals involved in a heroin 
conspiracy ring. I think that probably would have happened, but 
the cooperation that the assumption of jurisdiction engendered 
helped in that matter.
    Just in March, ONDCP, BIA, HHS, SAMHSA, the FBI, and the 
Department of Justice met with the tribe regarding a pilot 
project to set up a tribal action plan for drug abuse. They are 
the first tribe to get the kind of attention through ONDCP.
    Again, that was not the direct result of the assumption of 
jurisdiction but it was in recognition of the relationship we 
have with the tribe and the problems they are having. There is 
a lot more to be done but we are aware and are interested.
    Senator Franken. Was some of that initiated by Erma 
Vizenor, the chairwoman?
    Mr. Toulou. She was a really strong partner as we went 
through all this. We miss her.
    Senator Franken. Thank you.
    Attorney General Urbina, a one size fits all approach does 
not always work in correction systems or interventions. The 
interventions need to be targeted to the community.
    Leech Lake Chief Judge Paul Day recently testified before 
this Committee regarding the importance of tribal healing to 
wellness courts which uses traditional healing practices and 
other cultural activities to help people recover from drug and 
alcohol addiction. The program incorporates the unique culture 
and history of each tribe and promotes community involvement.
    Can you describe how the use of cultural activities and 
traditional healing methods have impacted recidivism rates and 
drug recovery in Indian Country? Have these methods impacted 
your work?
    Mr. Urbina. Yes, sir, I think it has. I know of programs 
currently operating across Indian Country. I am not exactly 
sure of the outcomes. However, I think it is a good idea to 
focus on those issues.
    For us, as offenders come into our system, I think it is 
important that we do an assessment of their needs. Trying to 
address their substance abuse issues is part of a healing to 
wellness court. We call it a drug court where we are in Pascua 
Yaqui.
    I think the incorporation of cultural and traditional 
practices is important, along with the substance abuse 
treatment and also job training and various things that would 
help that person not come back into the system. Those are very 
important issues that need to be addressed.
    I think we are focused on correction and on jail but I 
think the approach needs to be more holistic across the board.
    Senator Franken. When you say drug treatment, my 
understanding from the Minnesota tribes is that they try to do 
their drug treatment in a culturally sensitive way or in a 
culturally consonant way?
    Mr. Urbina. I think you can do that. We have a BIA-funded 
program that is culturally relevant, a program within the 
system. They do what is called cognitive behavioral therapy but 
it is also culturally relevant to the people there. There are a 
number of tribes that filter into this jail system.
    Senator Franken. Thank you. Sorry, Mr. Chairman, for going 
over.
    The Chairman. No, no, thank you, Senator Franken.
    Senator Murkowski.
    Senator Murkowski. Thank you, Senator Barrasso.
    Mr. Toulou, I want to start with you. I appreciate your 
testimony. Our staff had very complimentary words about the 
statement you had placed in the record.
    Your statement explains the concept of special domestic 
violence jurisdiction that originated in the legislative 
proposal the department submitted back in 2011. A tribe could 
only exercise that jurisdiction with respect to an offense 
which occurred within a tribe's Indian Country.
    If a tribe does not have Indian Country under its 
jurisdiction, it could not utilize that jurisdiction, is that 
correct?
    Mr. Toulou. I did speak with your staff, Mr. Bergerbest, 
about this initially. I think that is correct. I would say 
there have been a lot of discussions about this.
    In Alaska, as you know, jurisdiction is very different. I 
would appreciate the opportunity to talk further with your 
staff and the experts that I have dealt with when we develop 
the bill and get back to you. That seems consistent with my 
understanding.
    Senator Murkowski. I am trying to figure out where we were 
so that we know where we need to move to so that with Alaska, 
as we are talking about how we can make a difference within a 
State, that because it is different, because of the Supreme 
Court's decision in Venetie holding that these lands are not 
Indian Country.
    We have this special domestic violence jurisdiction that is 
of very limited value to our Alaska tribes.
    It would be helpful if you could let me know whether it is 
correct in your understanding that the department, in its 2011 
legislative proposal, had no suggestion this should be a 
Venetie fix that would have made it more meaningful to the 
special domestic violence jurisdiction?
    Mr. Toulou. I think that is consistent with my 
recollection. Again, I really would like to talk with staff.
    Senator Murkowski. Know that I would like to work with you 
and others about this. As we are trying to provide for a 
process in a State that is different for a host of different 
reasons, I think we need to be looking beyond the world as we 
know it or as it is structured today.
    If it means that we have to look to new jurisdictional 
definitions, these are some of the paths we want to explore.
    Mr. Black, I want to ask you basically the same question I 
asked the Acting Assistant Secretary related to BIA law 
enforcement resources in the State.
    Some in the Alaska Native community are of the impression 
that if the department would take land into trust for their 
tribes that we would see substantially greater BIA law 
enforcement resources that would follow with that.
    When I asked the question, I was told, we are a P.L. 280 
State and it might be somewhat overly optimistic to assume that 
additional resources come. The more direct question to you 
would be whether or not the BIA has any plans to put BIA police 
or tribally-compacted officers in our Native villages in the 
event that land encompassing that village would be taken into 
trust?
    Can you speak to this impression that there would be 
resources that follow if, in fact, this land is taken into 
trust?
    Mr. Black. Speaking to the 280 State status of Alaska, that 
would be something we would have to weigh into any decision we 
would make related to that and also working with the State 
under that 280 retrocession process or anything that 
potentially could come, I think there are a lot of questions 
around the jurisdictional authority that will come with any 
land into trust in Alaska.
    That is just one of the many factors I think we have to 
consider if that were to happen and how we would apply that. 
Right now, I do not know that we have any immediate plans or 
available resources to put toward that right now.
    Senator Murkowski. That is where the huge frustration is. 
You have villages that simply lack any law enforcement 
presence. Our State is facing some very, very difficult 
financial pressures right now, so I think we are going to see a 
currently bad situation unfortunately possibly get worse.
    We are kind of talking hypothetically here but if Vinati 
had come out differently and all of these ANCSA lands were 
Indian Country, granted different Indian Country in a P.L. 280 
State, but you would be sitting in a situation where 
effectively you have to wonder if BIA would have been prepared 
to ramp up its support for law enforcement in public safety 
tribes and really at the cost of it.
    When you think about the burden you have within BIA now or 
the responsibility you have for the substantial costs related 
to law enforcement, you have a situation in Alaska where 
because the courts have determined no Indian Country, because 
we are in this P.L. 280 State status, we do not see the level 
of support from the Federal side when it comes to any level of 
enforcement in our States, a State that has more than half the 
tribes in the country.
    I am kind of speaking again hypothetically but as we are 
thinking about a new paradigm for public safety in our Native 
villages, I think it may be time for us to explore with the BIA 
and the Department of Justice some avenues as to how we 
contribute to an on the ground public safety presence in rural 
Alaska as well as how we empower our tribes to protect their 
communities.
    I think we know it does not come without cost. We recognize 
that. I certainly do. As Chairman of the Interior 
Appropriations Committee, believe me, I know the cost 
associated with it but it is a conversation that I think we 
need to be prepared to have in the future because we have a 
situation that is not getting better.
    My fear is that we are going in the wrong direction. I 
would like to explore with both of you further how we work to 
address this.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Murkowski.
    Senator Heitkamp.

               STATEMENT OF HON. HEIDI HEITKAMP, 
                 U.S. SENATOR FROM NORTH DAKOTA

    Senator Heitkamp. Thank you, Mr. Chairman.
    Mr. Toulou, who is responsible for protecting children 
against major crimes on the reservation in North Dakota?
    Mr. Toulou. I would say we all have a duty to protect 
children on any reservation but Major Crimes Act violations are 
prosecuted by the U.S. Attorney's office.
    Senator Heitkamp. And investigated?
    Mr. Toulou. And investigated by the FBI.
    Senator Heitkamp. I think the same is true on the Fort Peck 
Reservation in Montana as well?
    Mr. Toulou. That is absolutely correct.
    Senator Heitkamp. Let me read something to you from a 
recent Reuters' article, ``Drug users are selling their babies, 
daughters and sisters for the potent stimulant that is ravaging 
Native American communities such as the Assiniboine & Sioux 
Tribes living in the desolate Plains,'' I dispute that, ``of 
Fort Peck say community leaders. We are in crisis says the 
tribal chairman. We have mothers giving their children away for 
sexual favors for drugs. We have teenagers and young girls 
giving away sexual favors for drugs.
    ''No number records specific rates of local sex trafficking 
which can often be buried in crimes of sexual assault, abuse, 
prostitution, abandonment or kidnapping but it is a crime 
poorly documented in the field by drug abuse plaguing Indian 
reservations. The rate of meth use among American Indians is 
the highest of any ethnic group in our country and is more than 
twice as high as any group according to the National Congress 
of American Indians. The number of drug cases in Indian Country 
has risen sevenfold from 2009 to 2014.''
    It is a crisis and we somehow do not seem to get a crisis 
response from the Department of Justice. I am beyond 
frustrated. I asked the FBI Chairman in this room to come to 
North Dakota to actually give us a plan.
    We get, well, let's put an FBI agent in Bismarck and 
hopefully they will get over to New Town sometime. In this 
story, six children in two weeks were born affected by 
methamphetamines. We do not know what the long term 
consequences of that is.
    I agree with you that this is a community problem but we 
have to have a cop on the beat. I will tell you I do not think 
we have a cop on the beat in Indian Country. The National 
Congress of American Indians calls it the asterisk nation.
    As I was just reminded at a hearing, Senator Kennedy once 
said, ``Our first children have become our last children.'' 
They are last in peoples' minds and memories but they and their 
families are suffering. We need law enforcement. We need to 
have attention to this problem.
    We cannot suffer another generation and sacrifice them to 
methamphetamines. It is beyond frustrating for me that in spite 
of our repeated requests, we do not seem to get the level of 
attention to this problem that we need to give to this problem.
    I hope you take back to the Department of Justice that our 
Preamble to the Constitution says ``to provide justice.'' Where 
is the justice in Indian Country for Native American children 
and families who are terrified by this epidemic? Where is the 
justice? Where is the accountability? Where is the law 
enforcement?
    This is a major crime. You are the cop on the beat and you 
are absent. We have to get this fixed because we cannot begin 
to solve the cultural issues or the public health problems 
until we have a cop on the beat providing deterrence.
    When you do not have a deterrence of any kind, you have 
rampant abuse. That is what we are seeing. The people who are 
suffering are children and families working very hard in very 
difficult situations.
    You just happened to be the guy in the line of fire today 
but I hope you take that back to the Department of Justice 
where I know there are many people working. I have directly 
talked about this with the Attorney General. This is not a new 
issue for us.
    This is a committee that sees it every day and we have to 
get some help. We have to have you treat it at the Department 
of Justice like the crisis it is.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Heitkamp.
    Senator Heitkamp, would you like the article you referenced 
included in the record?
    Senator Heitkamp. Yes, I would.
    The Chairman. Without objection, so ordered.
    Thank you, Senator Heitkamp.
    Senator Tester.
    Senator Tester. Thank you, Mr. Chairman.
    Thank you, Senator Heitkamp for your question. 
Unfortunately, I did not hear an answer. I do want to find out 
what is going on.
    Senator Heitkamp is right. You are in the line of fire 
today but she is also right that quite frankly, we have huge 
problems in Indian Country. There are a lot of reasons for them 
but why isn't the Department of Justice stepping up in Indian 
Country to meet the problems out there?
    Mr. Toulou. I want to say to both of you, Senator Tester 
and Senator Heitkamp, I appreciate the passion you bring to 
this important issue. I was a prosecutor in the U.S. Attorney's 
office in Montana and I worked on Fort Peck. I have a lot of 
friends there. I understand how important this issue is.
    I think we do take it seriously but clearly there is more 
we need to do. I will take back those concerns and talk to the 
FBI and our folks who specifically focus on drug trafficking. 
Yes, it has gotten worse at least from what I am hearing from 
tribal leaders.
    That is not something I would have expected to happen 
having seen methamphetamine abuse in Montana in the 1990s. We 
hear the problem and with the resources we have, we will move 
to address it as we can. I will take back that passion.
    Senator Tester. Is the problem where it is located? If this 
was going on in a place closer to an airport, would we be 
dealing with it in a different way?
    Mr. Toulou. I don't know that we would be dealing with it 
in a different way but I think law enforcement resources have 
something to do with this. Again, I am talking outside of my 
depth. I know Indian Country. I did violent crime. I did not do 
drug cases but when you see drugs coming into large cities, you 
have major suppliers.
    What we have seen and what I have been told by tribal 
leaders is you have relatively small amounts diversely spread 
across Indian Country. That is harder to handle from a law 
enforcement perspective.
    We all know that on the ground, first responders in Indian 
Country are limited as compared to other communities. Those are 
the guys who would initially deal with those crimes.
    That is not an excuse. We need to figure out how to work 
with the reality we have but I think those are some of the 
explanations.
    Senator Tester. Not only that but are the statistics in the 
Reuters article right? Did you say six kids in the last two 
weeks?
    Senator Heitkamp. That is correct.
    Senator Tester. Six kids in the last two weeks is not 
insignificant.
    Mr. Toulou. No.
    Senator Tester. That is a huge problem.
    We are not the committee that deals with your budget at 
least in the Department of Justice. I know oftentimes we use 
money as an excuse but it is also about prioritization quite 
frankly. Prioritization is really important.
    You said you would take it back to the department. I hope 
you do. I would hope the department might give us, the Chairman 
and me, some sort of information so we can distribute to the 
Committee what we are doing proactively to stop this. I am 
telling you, it ain't going to get better.
    Mr. Toulou. No, and I will commit to getting the 
information.
    Senator Tester. We are talking about Fort Peck. I would 
suggest the Salish and Kootenai in the western part of the 
State have probably the least poverty. Still its poverty rate 
is probably 50 percent or higher, the unemployment rate, I 
mean. It is probably the least poverty stricken of any of the 
reservations in Montana. Seventy to 80 percent of those kids 
born on the reservation are born addicted to drugs. It is a 
problem all over.
    Mike Black, the Santa Clara bill would allow you to lease 
up to 99 years on tribal lands. We have done this before for 
individual tribes. My question is, why don't we do it for all 
the tribes?
    Mr. Black. I think on its face that sounds like probably a 
pretty good idea. I just do not know for sure unless we hear 
from all the other tribes whether or not they have issues or 
why they would not want to do it. I testified on a number of 
bills just like this.
    Senator Tester. Is there a reason we would not want to do 
it? From a Federal perspective, is there a problem with doing 
it?
    Mr. Black. Nothing that comes to my mind right now.
    Senator Tester. It would be good to get your perspective on 
that after you do your due diligence.
    Mike Chavarria, tell what extending the lease for 99 years 
does for you from a certainty standpoint for economic 
development?
    Mr. Chavarria. It gives us the option to go ahead and lease 
these lands for larger businesses. Right now, you have 25 which 
is an option of 25 years and that is 50 total. It is not good 
for us to go to the larger businesses because of the 
substantial capital investments. The bigger businesses are 
deterred from partnering with us in Santa Clara. That is very 
important.
    That would allow us to do longer term leases. It is up to 
the tribe to determine which business they want to venture 
into. It is not going to be for all; it is going to be for 
certain projects.
    Senator Tester. Dana, thanks for being here. I really 
appreciate your testimony and being available to answer a few 
questions.
    The Fort Peck tribal court was one of the first tribal 
courts to implement VAWA jurisdiction. Your tribe needs to be 
commended on that for being a leader.
    Where do the resources come from for the tribe to have law-
trained judges, prosecutors and defense attorneys?
    Mr. Buckles. The tribes largely support their tribal court 
at the expense of other programs.
    Senator Tester. It came out of the tribal conference?
    Mr. Buckles. Yes
    Senator Tester. What aspect of implementing VAWA has been 
the most resource intensive? What have you had to spend the 
most money on? If you do not know, that is fine. You can get 
back to me on that.
    Mr. Buckles. Can I get back to you on that?
    Senator Tester. Absolutely you can.
    If you had more dollars, if you had more resources, do you 
have any idea where the tribe might focus those resources?
    Mr. Buckles. If we had more dollars, as well as the court 
system, but I think we would focus on law enforcement. Law 
enforcement is a biggie for us. I just heard the discussion 
here. That is what a lot of tribes are facing not only Fort 
Peck. A lot of the tribes in general lack more officers. That 
is what we need.
    Senator Tester. I want to thank you all for being here and 
for your testimony and I want to thank the Chairman for having 
this hearing.
    Going back to the first line of questioning, I just want to 
say nobody expects the Department of Justice to do this alone. 
I do think there is an expectation that you guys are leading 
the charge. There are other support groups around who will help 
you. I believe that to be the case.
    We have someone I think is a very, very, very good U.S. 
Attorney in the State of Montana. I think we have a history of 
good U.S. Attorneys in the State of Montana.
    I have to tell you, this has been going on for a while now. 
We really do need to get on it. It is a big problem. It is not 
made up; it is not imagined; and it is not someone trying to 
bilk money from the Federal Government. It is a problem we need 
to get fixed.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Tester.
    Director Black, S. 2920 includes several provisions to 
improve justice for Indian youth. One of the key provisions 
would require State notice to tribes when one of their members 
enters the State or local juvenile justice system. That would 
also include a tribal representative on State advisory groups 
for juvenile justice.
    I am wondering how you think these provisions would help 
Indian youth? Should the Office of Justice Services have a role 
in State notification or advisory group requirements?
    Mr. Black. I think all of that would probably be beneficial 
to Indian Country and our ability to deal with the youth and 
some of the issues that are out there. Increased collaboration 
always leads to additional resources and additional data 
sharing.
    I think there would be some questions as to the logistics 
of how that would work. Are we talking about communities 
located right near Indian Country? Are we talking about 
communities and Indian youth that are arrested in a large city, 
far away from Indian Country?
    I do think that does give us a better picture of exactly 
what the issues are facing our Indian youth out there, whether 
they are in a big or small city. Improved data sharing of that 
kind of information would give us a lot better idea of those 
issues and how we can better address them by coordinating with 
all of our partners.
    The Chairman. Violent crimes, we have heard, drug 
trafficking, it seems they affect Indian communities much more 
acutely than many other communities. Tribes have long sought 
help with these problems.
    To address the problems, in part, my legislation would 
establish a new Federal crime of criminal trespass for 
violating tribal exclusion orders which arise from convictions 
of tribal violent crimes and drug trafficking.
    Do you think this approach would help address the problem 
or is there another alternative to perhaps tackling violent 
crimes and drug trafficking?
    Mr. Black. I would want to talk with my colleagues at the 
department but I think anything we can do to assist tribes in 
maintaining law and order on the reservation is important. It 
seems like a good strategy to me if that includes addressing 
crimes by people coming off the reservation or onto the 
reservation.
    The Chairman. One of the provisions, based on 
circumstances, is a Federal referral to tribal court for 
juvenile cases. Is that something you think would be helpful?
    Mr. Black. I think we talk quite a bit with tribes when we 
take Federal cases. There are not all that many juveniles who 
are in the Indian Federal system. It runs between 25, 30 to 35 
in a given year. It is important that we take care of each of 
those children appropriately but it is a small number of very 
troubled offenders.
    Yes, I think any communication is a good idea. We do have 
pretty extensive communication.
    The Chairman. Mr. Urbina, the Pascua Yaqui Tribe is 
surrounded by the City of Tucson, Pima County, and the Tohono 
O'odham Nation. I am just looking at the map of the 
surroundings.
    Can you identify the jurisdictional issues that you have 
encountered while trying to implement the Tribal Law and Order 
Act?
    Mr. Urbina. It has been difficult. For us, crime does not 
respect borders. In addition to being outside of Tucson, we are 
about 60 miles from the U.S. and Mexican border. We are located 
on a major drug corridor. I think that impacts crime on our 
reservation.
    The last homicide on our reservation was committed by a 
non-Indian male who shot a young tribal male. I went out to the 
scene that night to help with the search warrant. I still 
remember that night. I still see his mom. That is pretty much 
what we are dealing with jurisdictionally.
    For our VAWA offenders, for the most part, probably almost 
90 percent of those folks have significant criminal histories, 
have committed offenses on the reservation pre-VAWA, some of 
them had warrants, and one who had a warrant from the State of 
Oklahoma for armed robbery lived in tribal housing.
    That is our biggest problem, encountering folks and not 
having the tools to address these issues on the reservation 
from both non-Indian offenders and tribal members who might 
offend in the State of Arizona.
    The Chairman. Can you talk a bit about how the Tribal Law 
and Order Act helped the tribe work with Federal agencies to 
keep your community safer?
    Mr. Urbina. For us, it has been night and day. I think 
shortly after 2010, we started our SAUSA program. We now have 
four SAUSAs working out of our prosecutor's office who help 
staff those cases with the U.S. Attorney's office.
    The U.S. Attorney liaison is on the reservation quite 
often. It is fairly close to their Tucson office but she also 
has an office in our prosecutor's department. There is a lot of 
communication and a lot of working together.
    Our MDP process is not simply looking at child-related 
crimes, but we look at all major crimes. We staff them as a 
group. Our SAUSAs are helping bring those cases to Federal 
court.
    Along the same timeline, we also worked with the U.S. 
Attorney's office to set up our Special Law Enforcement 
Commission cards for our law enforcement. That gives them 
Federal authority. They also have State authority and are State 
certified. Our system has a lot of flexibility built into it.
    When we encounter jurisdictional problems, we are able to 
address them on the front end by law enforcement or by our 
SAUSAs and our prosecutor's office. For us, the Tribal Law and 
Order Act has been fairly successful. It has caused our Federal 
cases to churn and be processed by the court system.
    I personally believe it has reduced the crime on the 
reservation over the past few years. Anecdotally, I know that 
is true, so the whole process since 2010 until now, I think has 
been successful.
    There are things we need to work on and things in the bill 
that will help. Certainly, the base has helped the Pascua Yaqui 
Tribe address crime.
    The Chairman. Thank you.
    Senator Hoeven.

                STATEMENT OF HON. JOHN HOEVEN, 
                 U.S. SENATOR FROM NORTH DAKOTA

    Senator Hoeven. Thank you, Mr. Chairman.
    I would like to thank all of our witnesses for being here 
today.
    My question relates to not only the Tribal Law and Order 
Reauthorization Act, which Chairman Barrasso has brought 
forward, which would allow tribes access to certain databases 
for criminal background checks which I think is a very good 
thing.
    It also relates to legislation I have put forward, the 
Native American Children's Safety Act, which we passed through 
the Senate. It is now in the House. Actually, the House has 
passed their version which essentially is the same bill. I am 
working to get the bill finalized.
    Essentially, the Native American Children's Safety Act 
would provide or require the tribal social service agencies 
conduct background checks on any adults living in a foster home 
before a foster child is placed in that foster home. I think 
Director Black is familiar with it.
    That is actually a requirement we put at the State level 
when I was Governor in North Dakota. Many other States have 
done the same. It is not something applied or required 
consistently across reservations.
    Starting with Director Black and then Director Toulou, I 
would like you to talk for a minute about the importance of 
being able to conduct these criminal background checks, first, 
on a more broad scale as related to the Tribal Law and Order 
Reauthorization Act of Chairman Barrasso and then also in 
regard to foster care, both the ability of the BIA to implement 
and support that, your willingness to support it and your 
feelings in regard to its efficacy both in terms of reducing 
crime and protecting children.
    Mr. Black. I think this goes back to a lot of the 
discussion we have had here today related to data sharing. I 
think the more data we can make available, including criminal 
background checks and the opportunity for tribes to participate 
in all of that, will increase their ability to protect their 
citizens in Indian Country, especially when we talk about the 
kids.
    We have implemented that in some areas on a pilot basis to 
make sure we have the necessary tools to do background checks 
on the foster families to ensure that when we are placing 
children in those homes, we are placing them in a safe 
environment.
    I think we do support that because I think that is critical 
to ensuring those kids have a good, safe place to be while we 
are working through the other issues related to their family 
and whatever we can to try and reunite the family but in the 
meantime, we are providing a safe environment for those kids.
    Senator Hoeven. Thank you, Director. I want to note and 
express my appreciation for your help in this effort.
    Mr. Toulou.
    Mr. Toulou. Thank you, Senator.
    We believe that access to databases is absolutely critical 
on many different levels on the reservation. Clearly, it is a 
public safety issue, both for its citizens and for police 
officers responding to a crime on the macro level of calling in 
on the radio and being able to find out the car you are pulling 
over has somebody who just committed an armed robbery.
    As we reached out to tribes about their data access issues, 
we found there were a lot of other things that were important 
that they did not have access to beyond pure criminal justice 
issues, for instance, tribal courts having the ability to put 
protection orders in databases to be recognized in nearby 
towns.
    The issues involved in child placement were critical. One 
of the things we have done in conjunction with BIA is made BIA 
a portal. They have agreed to be a portal for tribes who want 
to use Program Category X which allows the placement officers 
in social services to go through a portal at BIA to find out 
whether the individual is on a name-based check system and have 
the criminal record before you put that child in the home. This 
could be in the middle of the night or at 2:00 a.m.
    We also have the TAP Program, our tribal access program. 
The kiosk we put in allows tribes to automatically enter 
fingerprint information in order to quickly do a fingerprint 
check.
    There are a lot of important issues beyond those kind of 
law enforcement issues we have talked about to make those 
communities safer.
    Senator Hoeven. Thank you.
    Mr. Urbina, from the reservation side, do you see any 
concerns in terms of embracing use of background checks? Is 
this something the tribes are looking for, will embrace and 
use?
    Mr. Urbina. Yes, sir. We are looking forward to that. We 
are part of the TAP Program being rolled out. We should have 
implementation in place for the tribe in the next few months. 
We are also looking to be a part of the Purpose Codex Program 
through the BIA. It is necessary for us.
    We also get calls from the State folks looking to place 
tribal children on the reservation or in foster homes in the 
State. They can do those checks stateside but it is important 
for us to have that ability as well.
    I can recall an incident where some children were placed in 
the home of a sex offender because we did not have these things 
in place. Right now, we have to wait a number of weeks before 
we get a fingerprint background check to see about those folks 
in the home. By that time they are already in the home for at 
least a month.
    Senator Hoeven. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Hoeven.
    I want to thank all of the witnesses for being here today. 
I am very grateful that you took the time to visit with us and 
testify.
    Members of the Committee may submit follow-up written 
questions for the record. The hearing record will remain open 
for two additional weeks.
    I want to thank all of you for your time and your 
testimony.
    The hearing is adjourned.
    [Whereupon, at 3:44 p.m., the Committee was adjourned.]

                            A P P E N D I X

    Prepared Statement of the National Congress of American Indians
    Honorable Chairman and members of the Committee, thank you for the 
opportunity to provide testimony on two very important legislative 
efforts that will improve public safety in Indian Country. Nine years 
ago, the National Congress of American Indians passed a resolution at 
its Midyear conference in Anchorage, Alaska, and provided testimony to 
this Committee calling for Congress to redirect the law enforcement 
priorities of the Department of Justice on Indian reservations, and to 
empower tribal government law enforcement. This was followed by several 
years of hearings and legislative drafting in the Senate Committee on 
Indian Affairs. From that resolution, as well as a great deal of effort 
from many tribes and the leadership of this Committee, Congress enacted 
the Tribal Law and Order Act of 2010 (TLOA) and set the stage for 
expanded tribal jurisdiction under the Violence Against Women Act 
Reauthorization of 2013 (VAWA 2013). We recognize your commitment in 
introducing the legislation that is the subject of this hearing, and 
greatly appreciate your continuing efforts to build on those laws and 
improve public safety in tribal communities.
    NCAI is the oldest and largest national organization representing 
American Indian and Alaska Native tribal governments in the United 
States. We are steadfastly dedicated to protecting the rights of tribal 
governments to achieve self-determination and self-sufficiency, and to 
the safety and security of all persons who reside or visit within 
Indian Country.
S. 2785, The Tribal Youth & Community Protection Act
    We appreciate Senator Tester and Senator Franken's leadership in 
introducing the Tribal Youth and Community Protection Act, S. 2785. 
This legislation would amend the domestic violence criminal 
jurisdiction provision included as Section 904 of VAWA 2013, which 
established a framework for tribal prosecution of certain non-Indian 
domestic violence offenders . Since passage of VAWA 2013, NCAI has been 
providing technical assistance to the tribes who are implementing the 
law pursuant to a cooperative agreement with the DOJ. Through this 
work, we have witnessed the ways in which expanded tribal jurisdiction 
has transformed the criminal justice landscape in some tribal 
communities and also the ways in which it falls short. The lessons 
learned from implementation of VAWA 2013 are summarized in the attached 
``Special Domestic Violence Criminal Jurisdiction Pilot Project 
Report,'' which provides a comprehensive overview of the experience of 
the tribes implementing the new law during the pilot project period. 
While NCAI supports full reaffirmation of tribal authority on tribal 
lands, we welcome introduction of this bill, which would address some 
of the gaps in the existing law and make important strides toward 
restoring public safety and justice on tribal lands. We are 
particularly encouraged that this legislation recognizes that Native 
children are equally in need of the protections that were extended to 
Native women in VAWA 2013. We look forward to discussing this bill with 
tribes in more depth at our upcoming Midyear conference, and are 
pleased to share our preliminary thoughts about this important 
legislation.
    Tribal communities continue to be plagued by the highest crime 
victimization rates in the country. A recent study by the National 
Institute of Justice found that over 80 percent of Native Americans 
will be a victim of violent crime in their lifetime. The study also 
found that 90 percent of these victims were victimized by a non-Indian 
perpetrator. \1\ Sadly, Native children are particularly affected by 
this violence. Native children are 50 percent more likely to experience 
child abuse and sexual abuse than white children. \2\ Rates of child 
maltreatment in certain states are even more alarming. According to 
data from the Department of Health & Human Services, Native children in 
Alaska experience maltreatment at a rate more than six and a half times 
the rate for white children. \3\ In North Dakota, the rate of 
maltreatment for Native children is more than three times the rate for 
white children. Native children also experience extremely high rates of 
secondary victimization and exposure to violence. In 2013, Attorney 
General Holder appointed an Advisory Committee on American Indian and 
Alaska Native Children Exposed to Violence that held field hearings 
across the nation. In their final report the Committee concluded that 
service providers and policy makers should assume that all Native 
children have been exposed to violence and ``the immediate and long 
term effects of this exposure to violence includes increased rates of 
altered neurological development, poor physical and mental health, poor 
school performance, substance abuse, and overrepresentation in the 
juvenile justice system. This chronic exposure to violence often leads 
to toxic stress reactions and severe trauma; which is compounded by 
historical trauma.'' \4\
---------------------------------------------------------------------------
    \1\ Rosay, Andre, Ph.D., National Institute of Justice Research 
Report: Violence Against Indian and Alaska Native Women and Men 2010 
Findings from the National Intimate Partner and Sexual Violence Survey, 
p. 2-3 (May 2016) U.S. Dept. of Justice, Office of Justice Programs, 
available at: https://www.ncjrs.gov/pdffiles1/nij/249736.pdf.
    \2\ Children's Bureau, U.S. Department of Health and Human 
Services, Child Maltreatment 2011, 28 (2012).
    \3\ http://www.acf.hhs.gov/sites/default/files/cb/cm2012.pdf, pg. 
37.
    \4\ Attorney General's Advisory Committee on American Indian/Alaska 
Native Children Exposed to Violence: Ending Violence so Children Can 
Thrive (2014), pg. 6.
---------------------------------------------------------------------------
    Children who experience abuse and neglect are at higher risk for 
depression, suicidal thoughts, and suicide attempts. As this Committee 
knows, Indian youth have the highest rate of suicide among all ethnic 
groups in the U.S., and suicide is the second-leading cause of death 
(after accidental injury) for Native youth aged 15-24. \5\ Due to 
exposure to violence, Native children experience post-traumatic stress 
disorder at a rate of 22%--the same levels as Iraq and Afghanistan war 
veterans and triple the rate of the rest of the population. \6\
---------------------------------------------------------------------------
    \5\ SAMHSA, National Survey on Drug Use and Health, 2003.
    \6\ AG Advisory Committee, supra, note 12, at 38.
---------------------------------------------------------------------------
    One of the most important provisions of S. 2785 would reaffirm 
tribal jurisdiction over certain non-Indians who commit crimes against 
Native children in Indian Country. This is in line with one of the key 
recommendations of the AG's Advisory Committee who noted that ``it is 
troubling that tribes have no criminal jurisdiction over non-Indians 
who commit heinous crimes of sexual and physical abuse of [American 
Indian and Alaska Native] children in Indian country,'' and called on 
Congress ``to restore the inherent authority of AI/AN tribes to assert 
full criminal jurisdiction over all persons who commit crimes against 
AI/AN children in Indian country including both child sexual abuse and 
child physical abuse.'' \7\
---------------------------------------------------------------------------
    \7\ Id.
---------------------------------------------------------------------------
    Although there are no statistics available on the number of non-
Indians who abuse Native children on tribal lands, the Attorney 
General's Advisory Committee looked at available data and concluded 
that ``it is clear from what we do know that it is a very substantial 
problem.'' \8\ In drawing this conclusion, the AG's Advisory Committee 
relied on available statistics about the rates of non-Indian 
perpetrated violence against Native people aged 12 and older and 
national studies showing that men who batter their partners also abuse 
their children in more than half of the cases. This is consistent with 
the experience of the tribes who have implemented the criminal 
jurisdiction provision of VAWA 2013. The implementing tribes report 
that in most of their cases, Native children are present either as 
additional victims or witnesses. S. 2785 would untie the hands of 
tribal governments and allow them to protect Native children who are 
abused on tribal lands, regardless of the race of the perpetrator.
---------------------------------------------------------------------------
    \8\ Id.
---------------------------------------------------------------------------
    We cannot think of a single principled reason why Native children 
are less deserving of the protection that Congress extended to Native 
domestic violence victims in VAWA 2013, and we strongly support this 
provision of S. 2785. Those who suggest that Indian tribes are not 
ready for this responsibility or need more time to develop the capacity 
of their court systems leave Native children without the protection 
they desperately need. As with the SDVCJ provision, we recognize that 
not all tribes will chose to implement this expanded authority 
immediately. The experience of SDVCJ implementation over the past three 
years demonstrates that tribal governments take their responsibility to 
administer justice fairly for all involved seriously and will act with 
care and deliberation. Where tribes have the capacity and desire to 
exercise criminal jurisdiction over those individuals who commit 
violent crimes against Native children, federal law should not stand in 
the way.
    S. 2785 would also reaffirm tribal criminal jurisdiction over drug 
offenses. The illegal manufacture, sale and use of illegal drugs on 
American Indian reservations and in Alaska Native villages creates a 
dangerous environment with enormous costs for tribal communities. Many 
tribal communities are targeted by non-Indians as centers for 
distribution because of their geographic isolation and persistent 
poverty. This has a significant impact on overall health-care costs in 
tribal communities, where recovery treatment is largely unavailable, 
and access to primary care is limited. Drugs and alcohol abuse also are 
a contributing factor in far too many cases of domestic violence, 
sexual assault, and child abuse. As this legislation recognizes, Indian 
tribes need authority to protect themselves from those who bring drugs 
onto tribal lands.
    S. 2785 would also address two a significant gaps in VAWA 2013. 
First, since tribal SDVCJ jurisdiction is limited to domestic violence, 
dating violence, and protection order violations, any other attendant 
crimes that occur fall outside the scope of the tribe's jurisdiction. 
The tribes that have implemented SDVCJ have reported cases, for 
example, where a domestic violence offender also committed a drug or 
alcohol offense or a property crime that the tribe was unable to 
charge. Tribes also lack jurisdiction to charge an offender for crimes 
that may occur within the context of the criminal justice process, like 
resisting arrest, assaulting an officer, witness tampering, juror 
intimidation, or obstruction of justice. This creates an obvious public 
safety concern. S. 2785's inclusion of ``related crimes'' would address 
this gap.
    In addition, S. 2785 makes an important technical change to the 
definition of ``domestic violence'' that would clarify current 
confusion about the severity of violence that must occur for a tribe to 
have jurisdiction in the wake of the Supreme Court's decision in U.S. 
v. Castleman. \9\ When Castleman was decided in March of 2014, it had 
an immediate impact on the tribal criminal charging decisions when 
evaluating misdemeanor arrests under SDVCJ authority. The Justices 
suggested in dicta in Castleman that the domestic violence crime in an 
SDVCJ case must involve actual ``violence,'' which is not a defined 
term. As a result, some tribes have declined to prosecute certain 
offenses like emotional or financial abuse and harassment that would 
otherwise constitute ``domestic violence'' under tribal law, but may 
not be considered a ``violent crime.'' S. 2785 would make clear that 
tribes who are exercising SDVCJ are able to reach the full range of 
crimes that may occur within the domestic violence context.
---------------------------------------------------------------------------
    \9\ U.S. v. Castleman, 134 S. Ct. 1405 (2014)
---------------------------------------------------------------------------
    We appreciate Senator Franken and Senator Tester's effort to 
advance legislation that will fill some of the gaps in jurisdiction 
that continue to leave women and children without adequate protection 
on tribal lands. As the Committee continues its work, we ask you to 
also consider some of the other gaps in jurisdiction that 
implementation of SDVCJ have brought to light:

   Tribes have no criminal jurisdiction if a non-Indian commits 
        an otherwise qualifying crime on tribal lands against an Indian 
        woman from another tribe who is visiting the reservation. This 
        is true even if the crime involved the violation of a 
        protection order that was validly issued by the tribe.

   Tribes have no criminal jurisdiction if an Indian person is 
        raped on tribal lands by a non- Indian, even if the offender 
        lives on tribal lands and is employed by the tribe.

   Tribes have no criminal jurisdiction if an Indian person is 
        stalked on tribal lands by a non-Indian, even if the offender 
        lives on tribal lands and is employed by the tribe.

   Tribes have no criminal jurisdiction if an Indian person is 
        trafficked on tribal lands by a non-Indian, even if the 
        offender lives on tribal lands and is employed by the tribe.

   Tribes have no criminal jurisdiction if an Indian elder is 
        assaulted by their non-Indian family member on tribal lands, 
        even if the offender lives on tribal lands and is employed by 
        the tribe.

S. 2920, Tribal Law and Order Act Reauthorization
    We also extend great appreciation to Senator Barrasso for his 
leadership in introducing the reauthorization of the TLOA. Since 2010, 
NCAI has been deeply involved in the implementation of this critically 
important law. The TLOA is a comprehensive law designed to improve 
numerous facets of the public safety system in Indian Country: to 
increase coordination and communication among federal, state, tribal, 
and local law enforcement agencies; empower tribal governments with the 
authority, resources, and information necessary to safely and 
effectively provide public safety in Indian Country; reduce the 
prevalence of violent crime in Indian Country, combat sexual and 
domestic violence; prevent drug trafficking and reduce rates of alcohol 
and drug addiction in Indian Country; and increase and standardize the 
collection of criminal data to and the sharing of criminal history 
information among federal, state, tribal, and local officials 
responsible for responding to and investigating crimes in Indian 
Country. The TLOA authorizes expanded sentencing authority for tribal 
justice systems, clarifies jurisdiction in P.L. 280 states, and 
requires enhanced information sharing. In addition, the law authorizes 
programs for alcohol and substance abuse and programs for at-risk 
youth.
    However, even when we began working on the law in 2007, tribal 
leaders knew that it wouldn't resolve every issue. This is why we so 
greatly appreciate a reauthorization that continues to address the 
problems and concerns regarding public safety on tribal lands. The 
introduced legislation includes a number of important provisions, 
particularly for juvenile justice, and serves as a strong foundation 
for continued work with tribal governments. All authorized funding 
under the TLOA expired in 2015 and it is important that Congress 
reauthorize this funding. Tribal justice systems also have more than 
five years of experience with implementing the law, and that 
implementation has led to proposals to continue to improve the law. In 
the following two sections we include comments on the introduced bill, 
as well as additional suggestions.
Section 101: Bureau of Indian Affairs Law Enforcement
    Under this section, if the Director of the BIA Office of Justice 
Services fails to submit two reports required by the original Act in 
2010, administrative funds would be withheld so long as the withholding 
does not adversely impact the capacity to provide law enforcement 
services in Indian Communities. The two missing reports are (1) annual 
reports to the appropriations committees on unmet tribal law 
enforcement needs, and (2) annual reports summarizing technical 
assistance and training provided to tribal law enforcement and 
corrections agencies that operate pursuant to self-determination 
contracts or self-governance compacts.
    NCAI strongly supports the effort for completion of these vital 
reports. In particular, we need the annual report on unmet law 
enforcement needs in order to justify the deep need for increases in 
public safety funding. We have some concerns about withholding funds 
from the BIA as a mechanism to compel completion, because it seems 
likely that this will result in diminution of services. We urge 
communication with the Secretary of Interior, and that pressure be 
placed on the overall administrative budget. We believe this will lead 
more quickly to the desired result.
Section 102: Integration and Coordination of Programs
    We appreciate the proposal to require consultation with tribes 
regarding the integration of diverse funding for law enforcement, 
public safety, and substance abuse and mental health programs. However, 
the DOJ has been under a similar consultation requirement in the 
Commerce, Justice, State appropriations reports for at least the last 
four funding cycles, and no consultation has been initiated. Instead, 
we encourage the Committee to move forward with legislation to 
accomplish this goal of funding integration and coordination. At the 
end of this testimony we attach a proposal for legislative language 
that would accomplish this goal, and we encourage the Committee to 
consult directly with tribal governments about it.
    Currently, base funding for law enforcement is provided through the 
BIA and is entirely inadequate. Additional funding is provided through 
the Departments of Justice and Health and Human Services under a series 
of grant programs that have the typical problems of competitive grant 
programs. Within the DOJ these funds are further divided into dozens of 
competitive grants for specific purposes. Moreover funding for 
prevention, rehabilitation, and treatment programs, which are key 
components of any community's approach to reducing crime, are located 
at IHS, SAMHSA, and elsewhere withing the DHHS. In order to obtain this 
funding, tribes often must compete against each other under the 
priorities and guidelines set by the administering agency. These 
proposals are then peer reviewed by individuals who may or may not have 
experience with Indian tribes and tribal justice systems. In the end, 
the tribes that have the financial and human resources to employ 
experienced grant writers end up receiving funding, while the 
underresourced tribes may be left without. Moreover, tribes cannot 
count on funding continuing beyond the current grant period, and Indian 
Country has countless stories of successful programs disappearing at 
the end of a two- or three-year grant cycle.
    This system requires a large grant writing capability and a good 
bit of creativity in order to access the funds. Millions could easily 
be spent providing the technical assistance tribes need just to 
navigate this overly complex system. Under this ad hoc system, tribal 
law enforcement will receive vehicles, but no maintenance. They will 
get a detention facility, but no staff. They will receive radios, but 
no central dispatch. The system doesn't make sense. We believe that 
tribal public safety funding should be streamlined into a single 
funding vehicle that would be negotiated on an annual basis and made 
more flexible to meet local needs.
    We hope to develop a streamlined and consistent funding mechanism 
supported by tribes that would be acceptable to Congress. A proposal 
for statutory text that could be the basis for a discussion among 
tribal stakeholders and Congress is included as an appendix.
Section 103: Data Sharing with Indian Tribes
    We strongly support these provisions to improve criminal database 
information sharing with tribal governments. In addition, we urge that 
the legislation address a specific problem with access to background 
checks for non-law enforcement purposes.
    28 USC 534(d) authorizes release of criminal history information to 
tribal law enforcement agencies, but doesn't allow release of criminal 
information to other tribal agencies for important purposes, like child 
welfare background checks on foster parents, or teachers or childcare 
workers. The DOJ interprets the appropriations rider language from P.L. 
92-544 as a permanent statute that prevents sharing this information 
with tribal governments. In their view, criminal history for licensing 
of foster parents can only be shared `` if authorized by State statute 
and approved by the Attorney General, to officials of State and local 
governments for purposes of employment and licensing,'' We suggest to 
add a subsection to 534(d): ``If authorized by tribal law and approved 
by the Attorney General, the Attorney General shall also permit access 
to officials of tribal governments for non-criminal justice, non-law 
enforcement employment and licensing purposes.''
Section 104: Judicial Administration in Indian Country
    This section extends the Bureau of Prisons Tribal Prisoner Program 
for seven years. This pilot project has already been successful as a 
temporary program, and then suddenly shut down. We urge the Committee 
to go further, and permanently authorize the program.
    Permanently extending the TLOA Federal Bureau of Prisons Pilot 
Program is an essential part of overcoming the many challenges facing 
tribal criminal justice agencies. The Pilot Program, which expired on 
November 24, 2014, gives tribes the option to send highly violent 
offenders to federal corrections facilities. Many tribes do not have 
the resources or personnel to adequately and safely house these types 
of offenders. The federal system also offers greater access to 
treatment, rehabilitation, and reentry programs. The Bureau of Prisons 
also strongly supports extending the program.
    When the BOP Pilot Project was authorized under the TLOA, NCAI 
believed that the program would be used sparingly for only the most 
violent offenders. However, some in Congress were concerned about 
costs, and imposed the limitations of only four years and up to 100 
detainees. But in that short time the program had only begun to work. 
Tribal governments must develop new criminal codes and procedures and 
train staff to use the program, and generally take a steady approach to 
implementing change. Two tribes transferred a total of four prisoners 
to federal prisons, so it is clear that the floodgates are not a 
problem.
    We urge that the program is made permanent and tribes continue to 
have the opportunity to exercise this option. Tribal governments are 
increasingly seeking to enhance their sentencing authority under the 
TLOA. Providing tribes this flexibility to house violent offenders will 
allow tribal governments to concentrate their resources on other 
pressing criminal justice and public safety needs. The Federal Bureau 
of Prisons has echoed all of these recommendations in its report to 
Congress required by the TLOA.
    NCAI also supports the provision to require the Director of BIA, 
Director of Bureau of Prisons, Director of IHS, and the Administrator 
of the Substance Abuse and Mental Health Services Administration to 
consult with Indian Tribes regarding juvenile justice and 
incarceration. For decades tribal leaders have encouraged a more 
proactive and humane approach to juvenile justice that is focused on 
prevention and mentoring and rehabilitation rather than 
criminalization. Tribal leaders strongly believe that we owe it to our 
youth and future generations to focus resources on our young people 
right at the beginning, rather than waiting for them to go astray and 
then begin the cycle of institutionalization and incarceration that has 
proven to be so ineffective.
Section 105: Federal Notice
    This section requires the Office of the United States Attorney's 
that convict any enrolled member of a federally recognized tribe shall 
provide notice of that conviction to the appropriate tribe. NCAI 
supports this provision, but also encourages that the Bureau of Prisons 
be required to provide notice when any tribal member is released from 
federal prison. This is the time when the community needs to be aware, 
and services need to be provided to released inmates.
Section 106: Detention Facilities
    Under these provisions, a tribe may request to use any available 
detention funding from a contract or compact for appropriate 
alternatives to detention. NCAI supports this provision but urges 
removal of the requirement that the tribe, Secretary, and Director of 
the Office Justice Services mutually agree. The requirement of 
agreement will add significant costs and delay and will undermine the 
intention. Tribal governments must be trusted to implement programs for 
alternatives to incarceration, just as tribal courts are trusted to 
make decisions regarding guilt or innocence.
Section 108: Amendments to the Indian Civil Rights Act
    The right to a jury trial would be amended to include only those 
crimes where there is a possibility of imprisonment of 180 days or 
more. This would match the federal and state constitutional 
requirements, and relieve tribal courts of the obligation to provide a 
jury trial for misdemeanors. Tribal courts suffer from a significant 
lack of resources. On some reservations, defendants have learned to act 
collectively and request a jury trial for every misdemeanor, and have 
succeeded in forcing the dismissal of many cases because the tribal 
court cannot afford the time or money for a jury trial for every petty 
crime. This provision would bring the Indian Civil Rights Act jury 
requirements into line with the federal constitutional rule.
Section 109: Special Assistant Public Defender Liaisons
    NCAI supports the purpose of this section to provide greater 
coordination on indigent defense in Indian Country. However, the truly 
great need is for funding for indigent defense services. As background, 
the Indian Civil Rights Act of 1968 requires that defendants in tribal 
courts have the right to counsel, but at their own expense. Our 
testimony suggests a mechanism for Congress to finally provide funding 
for indigent defense in Indian Country, which would come at no 
additional costs to the federal budget.
    First, tribes have strongly supported the provision of counsel to 
indigent defendants in tribal courts for many years, but have generally 
lacked adequate funding. Some tribes with greater resources provide 
indigent defense from their own funds, and have done so for many years. 
Tribes sought and welcomed the provision in the TLOA that although 
Legal Services Corporation grantees generally are prohibited from using 
federal funds to provide assistance in criminal proceedings, Congress 
specifically exempted tribal court proceedings from that ban. See 42 
U.S.C. 2996f(b)(2). As a result, indigent defendants often can obtain 
counsel. In addition, tribes sought the provision in the Indian Tribal 
Justice Act that seeks to enhance tribal courts' capacity to provide 
indigent defense counsel. 25 U.S.C.  3613(b). Tribes have also 
repeatedly urged Congress to appropriate the funds necessary to support 
indigent defense throughout Indian Country, as one component of support 
for tribal justice systems. See, NCAI Resolution #ABQ- 10-116, and NCAI 
Resolution SD-02-015.
    Second, under the TLOA and VAWA 2013, tribes can exercise greater 
criminal authority and better protect their communities with extended 
sentencing authority and jurisdiction over non- Indian domestic 
violence offenders, but only if they provide indigent defense. Thus, 
the lack of resources for indigent defense is a barrier to greater 
public safety on tribal lands.
    Third, at this moment the case of U.S. v. Bryant is pending before 
the Supreme Court. Mr. Bryant is challenging his conviction under 18 
USC 117, Domestic Assault by an Habitual Offender, because he was not 
provided with indigent counsel in the tribal court convictions that 
serve as the predicate crimes. In passing Section 117, Congress acted 
with the goal of ``safeguarding the lives of Indian women.'' Violence 
Against Women Reauthorization Act of 2005, Pub. L. No. 109-162,  901, 
119 Stat. 2960, 3077-78 (2006). NCAI has urged the Supreme Court to 
uphold Mr. Bryant's conviction, but this case once again sheds light on 
the direct relationship between public safety and the provision of 
indigent defense in tribal courts. We believe that this can be 
accomplished, and suggest the authorization of a set-aside of 3 percent 
of Defender Services program in the Financial Services and General 
Government (FSGG) Appropriations bill. This account funds the 
operations of the federal public defender and community defender 
organizations, and compensation, reimbursements, and expenses of 
private practice panel attorneys appointed by federal courts to serve 
as defense counsel to indigent individuals. The FY2016 request is 
$1,057.6 million, an increase of 4.0 percent over the FY2015 enacted 
level. A 3 percent set-aside would result in approximately $30 million 
annually for tribal court indigent defense. If combined with the 4 
percent increase, the set-aside would result in no diminution of 
funding for the Federal Public Defenders, and would establish a greatly 
needed source of funding for indigent defense in tribal courts.
Section 110: Criminal Trespass on Indian Land
    Under Section 1165 of Title 18, the misdemeanor offense of hunting, 
trapping, or fishing would be expanded to include felony offenses for 
violations of a tribal exclusion order. NCAI greatly appreciates this 
section as it would address a great source of harm on tribal lands. 
Indian reservations are experiencing increasing problems with serious 
criminal trespass and a lack of deterrence. Tribes are unable to 
address problems with sexual assault and stalking offenders who 
continue to return to the reservation to harass victims. Drug dealers 
are a perennial problem. Violating a tribal protection order or 
exclusionary order should be subject to more serious federal penalties. 
Tribes also have difficulties with former lease tenants who overstay 
agricultural and residential leases for many years and refuse to leave 
or pay rent. Tribes are also experiencing problems with timber theft, 
repeated poaching, illegal mining and illegal marijuana operations, 
serious crimes that are infrequently enforced because there is no 
relevant criminal statute. There are also repeat offenders who dump 
hazardous waste and serious property crimes and are warned again and 
again but refuse to respect tribal property rights.
    Because of this, we would urge two amendments to this section to 
set an appropriate scale of criminal penalties for increasingly severe 
criminal trespass crimes. First, we suggest that an offense should be 
added for persons who commit serious property crimes on tribal lands 
with fines and penalties of up to $15,000 and three years imprisonment 
or both. We suggest consultation with the U.S. Attorneys to determine 
an appropriate range of penalties that will create deterrence for those 
who cause serious threats to persons or damage to property.
    Secondly, we urge that the provision should include violation of 
tribal protection orders as well as exclusionary orders. Protection 
orders are often issued against persons who commit crimes of domestic 
violence, sexual assault or stalking. There is an existing crime at 18 
U.S. Code  2262--Interstate violation of protection order. However, 
this crime is rarely enforced because it requires proof beyond a 
reasonable doubt of intent: that the person traveled into Indian 
country for the specific purpose of violating a protection order. This 
is very difficult to prove, so even if a perpetrator traveled into 
Indian country and beat up his former girlfriend in violation of a 
protection order, it is difficult to show that he had this specific 
intent when he set out on his journey. Instead, we propose that the 
provisions for exclusionary orders would also include protection 
orders. We also suggest consultation with the U.S. Attorneys to 
determine an appropriate range of penalties that will create 
deterrence. The following is a proposal for statutory text:
    18 U.S. Code  1165--Hunting, trapping, or fishing on Indian land 
(to be retitled ``Criminal Trespass on Indian Lands,'' the first 
section retained, and renumbered subsection (a) with additional 
subsections for escalating penalties for severe offenses).

        b)  Repeated trespassing offenses and persons who commit crimes 
        against persons or property on tribal lands shall be subject to 
        fines and penalties of up to $15,000 and three years 
        imprisonment or both.

        c)  VIOLATION OF TRIBAL PROTECTION ORDER OR TRIBAL EXCLUSION 
        ORDER--

           (1) IN GENERAL.-It shall be unlawful for any person to 
        knowingly violate the terms of a tribal protection order or 
        exclusion order that was issued by a court or other tribunal of 
        an Indian tribe in accordance with the requirements of 
        paragraph (4).
           (2) PENALTY.-Any person who violates paragraph (1) shall be 
        guilty of a crime and fined up to $10,000, imprisoned for up to 
        5 years, or both.
           (3) DEFINED TERMS.-For the purposes of this subsection, the 
        term-
           (A) ``protection order'' includes any order which
             (i) satisfies the definitions set forth in 18 USC 2266(5);
             (ii) satisfies the jurisdiction and notice provisions set 
        forth in 18 USC 2265(b); and
           (B) ``exclusion order'' means an order issued in a 
        proceeding by a court or other tribunal of an Indian tribe 
        which temporarily or permanently excludes a person from tribal 
        land for violation of the criminal laws of the tribal 
        government.
           (4) REQUIREMENTS FOR ORDERS.-
           (A) PROTECTION ORDERS--A violation of a protection order 
        shall constitute an offense under paragraph (1) if the order 
        includes a statement that violation of the order will result in 
        criminal prosecution under Federal law and the imposition of a 
        fine, imprisonment, or both; and
           (B) EXCLUSION ORDERS--A violation of an exclusion order 
        shall constitute an offense under paragraph (1) if the 
        respondent was served with or had actual notice of--
             (i) a complaint setting forth a plain statement of facts 
        which, if true, would provide the basis for the issuance of an 
        exclusion order against the respondent;
             (ii) the date, time and place for a hearing on the 
        complaint; and
             (iii) a statement informing the respondent that if he or 
        she fails to appear at the hearing a order may issue, the 
        violation of which may result in criminal prosecution under 
        Federal law and the imposition of a fine, imprisonment, or 
        both;
             (iv) a hearing on the complaint was held on the record at 
        which the respondent was provided an opportunity to be heard 
        and present testimony of witnesses and other evidence as to why 
        the order should not issue;
             (v) the order temporarily or permanently excludes the 
        respondent from Indian land under the jurisdiction of that 
        Indian tribe;
             (viii) the order includes a statement that a violation of 
        the order may result in criminal prosecution under Federal law 
        and the imposition of a fine, imprisonment, or both; and
             (ix) the respondent was served with or had actual notice 
        of the order.
           (5) NO LIMITATION ON TRIBAL AUTHORITY; EFFECT OF 
        SUBSECTION.--Nothing in this subsection limits or otherwise 
        affects the application of the Violence Against Women Act, (18 
        U.S.C. 2261-2266).

Section 201: Federal Jurisdiction Over Indian Juveniles
    The words ``Indian Tribe'' and ``tribal'' are added to Section 5032 
of Title 18 of the U.S. Code, so that federal offenses could be 
referred to tribal court. NCAI supports this provision, but also 
recognizes that there are a relatively small number of serious felonies 
committed by youth that could result in referral for federal 
prosecution.
Section 203: Justice for Indian Youth
    This section improves justice for Indian youth under the Juvenile 
Justice and Delinquency Prevention Act (JJDPA) by requiring notice to 
tribes when a member youth enters a state or local justice system, 
requiring tribal participation on advisory groups, coordinating 
services for tribal youth, and including tribal traditional or cultural 
programs which reduce recidivism as authorized activities for federal 
funding.
    NCAI strongly supports these provisions, and particularly notice to 
tribes when a youth enters state or local justice system. In many 
cases, Indian tribes have developed programs and services for Native 
youth that are more culturally appropriate, and will be welcomed by 
county court judges as alternatives to incarceration. However, these 
programs and remedies cannot work unless the tribal government has 
notice and is able to communicate with the local court system.
    Although the above amendments and additions to the Reauthorization 
of TLOA set a strong foundation towards improving public safety in 
Indian Country, we would still like to request consideration that the 
following provisions be added to the reauthorization.
    1)  Annual declination reporting. The TLOA was passed by Congress 
against a backdrop of criticism that far too many Indian Country crimes 
were never adequately investigated, and prosecution was too frequently 
declined. For many years, tribal leaders had raised the concern that 
the U.S. Attorneys did not consider Indian Country crimes a priority 
and declined to prosecute an extraordinary percentage of cases. A 
Denver Post investigative reporting series from November of 2007 raised 
these concerns:

   Between 1997 and 2006, federal prosecutors rejected nearly 
        two-thirds of the reservation cases brought to them by FBI and 
        Bureau of Indian Affairs investigators, more than twice the 
        rejection rate for all federally prosecuted crime.

   Investigative resources spread so thin that federal agents 
        are forced to focus only on the highest-priority felonies while 
        letting the investigation of some serious crime languish for 
        years. Long delays in investigations without arrest leave 
        sexual assault victims vulnerable and suspects free to commit 
        other crimes.

   Many low-priority felonies never make it to federal 
        prosecutors in the first place. Of the nearly 5,900 aggravated 
        assaults reported on reservations in fiscal year 2006, only 558 
        were referred to federal prosecutors, who declined to prosecute 
        320 of them. Of more than 1,000 arson complaints reported last 
        year on Indian reservations, 24 were referred to U.S. 
        Attorneys, who declined to prosecute 18 of them.

   From top to bottom, the Department of Justice's commitment 
        to crime in Indian Country was questionable. Former United 
        States Attorney for the Western District of Michigan Margaret 
        Chiara was quoted saying, ``I've had (assistant U.S. attorneys) 
        look right at me and say, 'I did not sign up for this'. . . 
        .They want to do big drug cases, white-collar crime and 
        conspiracy.'' Comments from former United States Attorney for 
        Arizona, Paul Charlton indicate that this attitude came from 
        the top. Charlton has related a story where a high-level 
        Department of Justice official asked him why he was prosecuting 
        a doublemurder in Indian Country in the first place. \10\
---------------------------------------------------------------------------
    \10\ Mike Riley, ``Principles and Politics Collide: Some U.S. 
Attorneys who emphasize fighting crime on Indian lands have seen 
themselves fall out of favor in D.C.,'' DENVER POST, Nov. 14, 2007.
---------------------------------------------------------------------------
         This dire and long-term institutional dysfunction required a 
        response. Therefore a key feature of the TLOA requires both the 
        FBI and the U.S. Attorneys to submit annual reports to Congress 
        compiling information regarding decisions not to refer 
        investigated cases, and all declinations to prosecute in Indian 
        Country, including the types of crimes alleged and the reasons 
        for declination. The law also requires coordination with tribal 
        law enforcement if a federal law enforcement official 
        terminates an investigation or declines to prosecute an alleged 
        violation of Federal criminal law in Indian country. The annual 
        reports to Congress are to be organized in the aggregate; and 
        for the FBI, by Field Division; and for U.S. Attorneys, by 
        judicial district; and including any relevant explanatory 
        statements.
         In general, we believe that the annual reports have led to an 
        increased awareness of responding to Indian Country crime 
        within the DOJ. However, there are a number of aspects of the 
        reporting system that should be improved. The first is 
        straightforward. The TLOA requires annual declination reporting 
        on a calendar year, but the existing reporting system at the 
        DOJ is on a fiscal year basis. Our understanding is that this 
        creates unnecessary difficulty. We recommend consultation with 
        the U.S. Attorneys and the EOUSA and resolve this difference to 
        improve reporting.
         Secondly, and more importantly, we recommend additional 
        consultation with tribal leaders and prosecutors regarding 
        specific improvements to the declination reporting system. For 
        example, tribal prosecutors routinely request more case-
        specific and tribe-specific sharing of information between 
        federal and tribal prosecutors so that they can use the data to 
        allocate resources and prosecution efforts. In addition, the 
        annual reports showed prosecution being declined in 50 to 60 
        percent of reported crimes due to ``insufficient evidence.'' 
        Although Congress has required the ``reasons'' for a 
        declination, ``insufficient evidence'' is so broad as to 
        provide little analytic value. Tribal leaders frequently 
        describe cases with little or no investigation, or that occur 
        many months after the crime. It is impossible to tell from the 
        declination reports whether more robust investigations would 
        have resulted in additional prosecutions.
         Another example is that many referred crimes are declined 
        because they ``are not a federal crime.'' It is impossible to 
        tell from the declination reports how often this designation is 
        used for crimes such as theft, destruction of property; 
        domestic violence and low-level gang activity that commonly 
        involves both Indian and non-Indian defendants. We have also 
        heard reports that many of these crimes are never compiled into 
        the reports. In fact, these are federal crimes in Indian 
        country under the Assimilative Crimes Act, 18 U.S.C.  13, 
        which makes state laws applicable to conduct occurring in 
        federal territory. Despite this, the ``no federal offense 
        evident'' category is used in a discretionary and informal 
        manner. However, the absence of tribal jurisdiction to deal 
        effectively with non-Indians in these cases creates a 
        perception that the likelihood of being caught and punished is 
        low, and encourages a disregard for tribal law enforcement.
         Third, we urge greater engagement with the Federal Bureau of 
        Investigations on its role in investigating Indian Country 
        crimes. On May 30, 2013 the first report of statistics gathered 
        under the Act was released by the DOJ. It covered 2011 and 2012 
        and showed a 54 percent increase in prosecutions in 2012 as 
        compared to 2008. However substantial problems remained with 
        prosecution being declined in 60 percent of reported crimes due 
        to ``insufficient evidence,'' which tribal leaders attribute, 
        at least in substantial part, to inadequate and slow 
        investigations.
         Prior to the 1980's, the Bureau of Indian Affairs law 
        enforcement had a significant budget for investigations, and 
        they had their own investigators. In the late 1980's 
        responsibility for investigations in Indian country was 
        transferred to the FBI, as well as the financial appropriations 
        for that responsibility. We recall that approximately 90 
        million was transferred out of the Interior appropriations and 
        into the FBI appropriations. At that time promises were made 
        that the FBI would do far more professional work with 
        investigations and it would result in greater public safety on 
        Indian reservations.
         However, over time the FBI leadership has lost sight of this 
        commitment, diminishing its Indian country responsibilities and 
        staffing, while keeping all the funding. In 1993, the FBI 
        entered a Memorandum of Understanding with the BIA, stating 
        that investigations were a ``shared'' responsibility, and that 
        ``determining which law enforcement agency, federal or tribal, 
        has primary responsibility for investigation of a particular 
        crime may depend on the nature of the crime committed and any 
        applicable local guidelines, which vary across jurisdictions.'' 
        A significant amount of resources were reprogrammed after 9/11, 
        and smaller numbers of FBI agents have trickled away from 
        Indian country on a continuous basis in almost every year. In 
        May of 2008, FBI Director Mueller testified at a hearing of the 
        House Judiciary Committee. In response to a question regarding 
        the FBI's role in and commitment to fighting crime in Indian 
        Country, he stated his hope was that other agencies would grow 
        to fill that need and that the FBI would no longer have to 
        provide services in Indian country.
         More recently, in the FY2011 budget, 20 million was 
        transferred from the BIA law enforcement budget to the FBI to 
        improve resources for investigations. Then, in the most recent 
        President's budget, it initially included a proposed cut of 
        seventeen FBI agents in Indian country. NCAI protested and it 
        was quickly corrected, but the proposal demonstrates the lack 
        of awareness among FBI leadership about their commitment to 
        Indian country law enforcement. Meanwhile the declination data 
        shows most federal declinations to prosecute are from 
        insufficient evidence. While FBI agents are in short supply in 
        Indian Country, the funds reprogrammed out of the BIA remain 
        steadily in the FBI budget.

    2)  Tribal Criminal Code Development Program, with focus on 
Juvenile Justice. NCAI encourages the authorization of $10 million 
annually for a program to update tribal criminal codes and justice 
systems. The Department of Interior recently published a new model 
tribal juvenile justice code. The Model Indian Juvenile Code 2015 
Revision reflects a core commitment to providing tribes with juvenile 
statutes assuring the fundamental rights of children and their parents, 
guardians and custodians, and allowing opportunities for restorative 
diversions at each stage of the juvenile justice process. Too many 
juvenile codes are nearly indistinguishable from adult criminal codes 
and provide too few diversions to rehabilitative services, and rely too 
heavily on detention. Many judges have voiced frustration with the lack 
of a comprehensive and flexible code which encourages the development 
of alternatives to standard juvenile delinquency, truancy, and child 
in-need-ofservices systems.
         However, in general tribal governments lack the funding to go 
        through the process of updating criminal codes. Most tribal 
        criminal codes were developed by the BIA in the 1960's and 
        70's, and are growing painfully outdated. Tribal criminal codes 
        need to be updated in many other areas, including domestic 
        violence, sexual assault, protection of children, and a raft of 
        procedural improvements needed to protect victims, improve 
        rehabilitation and reduce recidivism. There have been many 
        advances in criminal justice that need to be integrated into 
        tribal codes, and that will not happen without some level of 
        funding for code update projects.

    3)  Access to Firearms for Tribal Police--NCAI Resolution ABQ-10-
029--NCAI supports legislation to amend the National Firearms Act of 
1934 and the Gun Control Act of 1968 so that Tribal Police Departments 
are recognized as governmental entities similar to agencies of the 
United States government, or of a state government, or a political 
subdivision thereof without the requirement of special law enforcement 
commissions so that Tribal Police Departments are exempt from payment 
of the transfer tax for NFA firearms, are eligible to receive firearms 
interstate, and can possess a machine gun manufactured after May 18, 
1986.

    4)  Alaska Native Villages--The legislation in its current form 
does not address the unique law enforcement issues in Alaska Native 
communities. Alaskan tribal lands are not considered ``Indian country'' 
after the Supreme Court's decision in Alaska v. Native Village of 
Venetie. Tribal communities in Alaska experience high rates of domestic 
violence and sexual assault and significant problems with substance 
abuse. Most of the native communities are only accessible by plane or 
boat, and are completely dependent on state law enforcement. The 
Village Public Safety Officer program has had its budget slashed by the 
state, and many tribal communities in Alaska are terribly underserved 
by state police and other services. We know that the Committee is aware 
of these problems and would urge the Committee to reach out to Alaska 
tribal leaders to develop ways to improve law enforcement in Alaska. 
Our primary recommendations are that the federal government provide 
direct funding for rural law enforcement in Alaska, to strengthen 
victims services, to support the land to trust process in Alaska, to 
strengthen tribal courts, and that tribal communities in Alaska be 
given greater control over alcohol and substance abuse policies.

    5)  Eliminate Requirement of ``Indian'' Status for Purpose of Major 
Crimes Act--In cases such as U.S. v. Zepeda, defendants have repeatedly 
challenged their status as an ``Indian'' under the Major Crimes Act. 
However, given that 1152 covers non-Indian crimes, and 1153 covers 
Indian crimes, the provisions could be amended in a manner so that 
Indian status would be irrelevant for most crimes. Major crimes on 
tribal land are subject to essentially identical federal criminal 
prohibitions no matter the status of the defendant. The endless 
litigation over these common law definitions of Indian also pose a 
continuing threat to the political status of tribal citizens and 
threaten precedent such as Morton v. Mancari and U.S. v. Antelope. The 
following is an initial proposal for replacement language for 1153 that 
would eliminate the requirement of Indian status.
         18 U.S. Code  1153--Major offenses committed within Indian 
        country
         (a) Any person who commits against the person or property of 
        another person any of the following offenses, namely, murder, 
        manslaughter, kidnapping, maiming, a felony under chapter 109A, 
        incest, a felony assault under section 113, an assault against 
        an individual who has not attained the age of 16 years, felony 
        child abuse or neglect, arson, burglary, robbery, and a felony 
        under section 661 of this title within the Indian country, 
        shall be subject to federal law and penalties within the 
        jurisdiction of the United States.
         (b) Any offense referred to in subsection (a) of this section 
        that is not defined and punished by Federal law in force within 
        the exclusive jurisdiction of the United States shall be 
        defined and punished in accordance with the laws of the State 
        in which such offense was committed as are in force at the time 
        of such offense.
Conclusion
    NCAI greatly appreciates the work of the Senators and the Committee 
on this important legislation. This is the stage in the process where 
we must listen to tribal leaders and other public safety professionals 
and take advantage of the insights they can provide. The proposed 
legislation was introduced recently so we will need time for response. 
In particular, we have found that the best information often comes from 
people who work in the criminal justice system--tribal police officers, 
tribal prosecutors, tribal judges and the like. I would encourage the 
Committee to make a special effort to reach out for their views on how 
the legislation can be strengthened. We urge continuing dialogue with 
tribal leaders on the proposals in this testimony, and those received 
from all tribal governments.

Proposal to Integrate and Coordinate Public Safety and Justice System 
        Funding Intended for the purpose of providing concepts for 
        consultation with tribal governments
    Section 1. DEFINITIONS.

    The following definitions apply:

    (1) Indian tribe. The terms ``Indian tribe'' and ``tribe'' shall 
have the meaning given the term ``Indian tribe'' in section 4(e) of the 
Indian Self-Determination and Education Assistance Act.
    (2) Indian. The term ``Indian'' shall have the meaning given such 
term in section 4(d) of the Indian Self-Determination and Education 
Assistance Act.
    (3) Secretary. Except where otherwise provided, the term 
``Secretary'' means the Secretary of the Interior.

    Section 2. INTEGRATION OF SERVICES AUTHORIZED.

    The Secretary of the Interior, in cooperation with the Attorney 
General and the Secretary of Health and Human Services shall, upon the 
receipt of a plan acceptable to the Secretary of the Interior submitted 
by an Indian tribal government, authorize the tribal government to 
coordinate, in accordance with such plan, its federally funded law 
enforcement, public safety, justice systems, and substance abuse and 
mental health programs in a manner that integrates the program services 
involved into a single, coordinated, comprehensive program and reduces 
administrative costs by consolidating administrative functions.

    Section 3. PROGRAMS AFFECTED.

    The programs that may be integrated in a demonstration project 
under any such plan shall include any program under which an Indian 
tribe is eligible for receipt of funds under a statutory or 
administrative formula for the purposes of funded law enforcement, 
public safety, justice systems and substance abuse and mental health 
programs.

    Section 4. PLAN REQUIREMENTS.

    For a plan to be acceptable pursuant to section 4, it shall -

    (1) identify the programs to be integrated;
    (2) be consistent with the purposes of this Act authorizing the 
services to be integrated in a demonstration project;
    (3) describe a comprehensive strategy which identifies the full 
range of law enforcement, public safety, justice systems and substance 
abuse and mental health program needs;
    (4) describe the way in which services are to be integrated and 
delivered and the results expected from the plan;
    (5) identify the projected expenditures under the plan in a single 
budget;
    (6) identify the agency or agencies of the tribal government to be 
involved in the delivery of the services integrated under the plan;
    (7) identify any statutory provisions, regulations, policies, or 
procedures that the tribal government believes need to be waived in 
order to implement its plan; and
    (8) be approved by the governing body of the affected tribe.

    Section 5. PLAN REVIEW.

    Upon receipt of the plan from a tribal government, the Secretary of 
the Interior shall consult with the Secretary of each Federal 
department providing funds to be used to implement the plan, and with 
the tribal government submitting the plan. The parties so consulting 
shall identify any waivers of statutory requirements or of Federal 
departmental regulations, policies, or procedures necessary to enable 
the tribal government to implement its plan. Notwithstanding any other 
provision of law, the Secretary of the affected department shall have 
the authority to waive any regulation, policy, or procedure promulgated 
by that department that has been so identified by such tribal 
government or department, unless the Secretary of the affected 
department determines that such a waiver is inconsistent with the 
purposes of this Act or those provisions of the statute from which the 
program involved derives its authority which are specifically 
applicable to Indian programs.

    SEC. 6. PLAN APPROVAL.

    Within 90 days after the receipt of a tribal government's plan by 
the Secretary, the Secretary shall inform the tribal government, in 
writing, of the Secretary's approval or disapproval of the plan. If the 
plan is disapproved, the tribal government shall be informed, in 
writing, of the reasons for the disapproval and shall be given an 
opportunity to amend its plan or to petition the Secretary to 
reconsider such disapproval.

    SEC. 7. FEDERAL RESPONSIBILITIES.

    (a) Responsibilities of the Department of the Interior. Within 180 
days following the date of enactment of this Act, the Secretary of the 
Interior, Attorney General, and the Secretary of Health and Human 
Services and the Secretary of Education shall enter into an 
interdepartmental memorandum of agreement providing for the 
implementation of the demonstration projects authorized under this Act. 
The lead agency for a demonstration program under this Act shall be the 
Bureau of Indian Affairs, Department of the Interior. The 
responsibilities of the lead agency shall include--

    (1) the use of a single report format related to the plan for the 
individual project which shall be used by a tribal government to report 
on the activities undertaken under the project;
    (2) the use of a single report format related to the projected 
expenditures for the individual project which shall be used by a tribal 
government to report on all project expenditures;
    (3) the development of a single system of Federal oversight for the 
project, which shall be implemented by the lead agency; and
    (4) the provision of technical assistance to a tribal government 
appropriate to the project, except that a tribal government shall have 
the authority to accept or reject the plan for providing such technical 
assistance and the technical assistance provider.
    (b) Report Requirements. The single report format shall be 
developed by the Secretary, consistent with the requirements of this 
Act. Such report format, together with records maintained on the 
consolidated program at the tribal level shall contain such information 
as will allow a determination that the tribe has complied with the 
requirements incorporated in its approved plan and will provide 
assurances to each Secretary that the tribe has complied with all 
directly applicable statutory requirements and with those directly 
applicable regulatory requirements which have not been waived.

    SEC. 8. NO REDUCTION IN AMOUNTS.

    In no case shall the amount of Federal funds available to a tribal 
government involved in any demonstration project be reduced as a result 
of the enactment of this Act.

    SEC. 9. INTERAGENCY FUND TRANSFERS AUTHORIZED.

    The Secretary of the Interior, Attorney General, and Secretary of 
Health and Human Services, as appropriate, are authorized to take such 
action as may be necessary to provide for an interagency transfer of 
funds otherwise available to a tribal government in order to further 
the purposes of this Act.

    SEC. 10. ADMINISTRATION OF FUNDS AND OVERAGE.

    (a) Administration of Funds.--

    (1) In general. Program funds shall be administered in such a 
manner as to allow for a determination that funds from specific 
programs (or an amount equal to the amount attracted from each program) 
are spent on allowable activities authorized under such program.
    (2) Separate records not required. Nothing in this section shall be 
construed as requiring thetribe to maintain separate records tracing 
any services or activities conducted under its approved plan to the 
individual programs under which funds were authorized, nor shall the 
tribe be required to allocate expenditures among such individual 
programs.
    (b) Overage. All administrative costs may be commingled and 
participating Indian tribes shall be entitled to the full amount of 
such costs (under each program or department's regulations), and no 
overage shall be counted for Federal audit purposes, provided that the 
overage is used for the purposes provided for under this Act.

    SEC. 11. FISCAL ACCOUNTABILITY.

    Nothing in this Act shall be construed so as to interfere with the 
ability of the Secretary or the lead agency to fulfill the 
responsibilities for the safeguarding of Federal funds pursuant to the 
Single Audit Act of 1984.

    SEC. 12. REPORT ON STATUTORY OBSTACLES TO PROGRAM INTEGRATION.

    (a) Preliminary Report. Not later than two years after the date of 
the enactment of this Act, the Secretary shall submit a preliminary 
report to the Select Committee on Indian Affairs of the Senate and the 
Committee on Interior and Insular Affairs of the House of 
Representatives on the status of the implementation of the 
demonstration program authorized under this Act.
    (b) Final Report. Not later than five years after the date of the 
enactment of this Act, the Secretary shall submit a report to the 
Committee on Indian Affairs of the Senate and the Committee on Natural 
Resources on the results of the implementation of the demonstration 
program authorized under this Act. Such report shall identify statutory 
barriers to the ability of tribal governments to integrate more 
effectively their services in a manner consistent with the purposes of 
this Act.

 Special Domestic Violence Criminal Jurisdiction Pilot Project Report--
                            October 29, 2015

        ``The first responsibility of any government, tribal or 
        otherwise, is the safety and protection of its people, for 
        there can be no security or freedom for all, if there is 
        insecurity and fear for any of us. Pascua Yaqui tribal 
        officials no longer have to simply stand by and watch their 
        women be victimized with no recourse.''

        -- The Honorable Peter Yucupicio Chairman, Pascua Yaqui Tribe 
        of Arizona

        This project was supported by Grant # 2013-TA-AX-K011 awarded 
        by the Office on Violence Against Women. The opinions, 
        findings, and conclusions or recommendations expressed in this 
        publication are those of the author and do not necessarily 
        reflect the view of the Department of Justice.

Introduction
    On March 7, 2013, President Obama signed the Violence Against Women 
Reauthorization Act of 2013 (VAWA 2013) into law. \1\ For the first 
time since the U.S. Supreme Court stripped tribal governments of their 
criminal authority over non-Indians in Oliphant v. Suquamish Tribe 
(1978), \2\ VAWA 2013 recognized and reaffirmed the inherent sovereign 
authority of Indian tribes to exercise criminal jurisdiction over 
certain non-Indians who violate protection orders or commit dating 
violence or domestic violence against Indian victims on tribal lands. 
\3\ Known as Special Domestic Violence Criminal Jurisdiction (SDVCJ), 
this limited tribal criminal jurisdiction over non-Indians has 
fundamentally changed the landscape of tribal criminal jurisdiction in 
the modern era. Communities currently exercising SDVCJ have increased 
safety and justice for victims who had too often slipped through the 
cracks.
---------------------------------------------------------------------------
    \1\ Pub. L. No. 113-4, 127 Stat. 54 (2013).
    \2\ Oliphant v. Suquamish, 435 U.S. 191 (1978).
    \3\ 25 U.S.C. 1304.
---------------------------------------------------------------------------
    Although the law did not take general effect until March 7, 2015, 
VAWA 2013 created a ``Pilot Project'' that enabled Indian tribes who 
received prior approval from the United States Department of Justice 
(DOJ) to exercise SDVCJ on an accelerated basis. \4\ After consultation 
with tribal governments, DOJ established a process for interested 
tribes to submit applications demonstrating that the tribe was in 
compliance with the federal law and afforded adequate due process to 
non-Indian defendants. \5\ DOJ approved three tribes--the Confederated 
Tribes of the Umatilla Indian Reservation (CTUIR) in Oregon, the Pascua 
Yaqui Tribe in Arizona, and the Tulalip Tribes of Washington--to 
implement SDVCJ in February 2014. Two additional tribes--the 
Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation in 
Montana and the Sisseton-Wahpeton Oyate of the Lake Traverse 
Reservation in North and South Dakota--were approved to exercise SDVCJ 
on March 6, 2015, the last day of the pilot project period.
---------------------------------------------------------------------------
    \4\ Pub L. No. 113-4, 127 Stat. 54 (2013), Sec. 908(b).
    \5\ 78 Fed. Reg. 35,961 (June 14, 2013); 78 Fed. Reg. 71,645 (Nov. 
29, 2013).
---------------------------------------------------------------------------
    All five of the pilot project tribes participated along with 40 
other tribes in an Inter-Tribal Technical- Assistance Working Group on 
SDVCJ Intertribal Working Group (ITWG), which is composed of tribes who 
expressed preliminary interest in exploring implementation of SDVCJ to 
DOJ and agreed to work peer-to-peer to answer questions about 
implementation of SDVCJ and develop best practices.

        Tribes currently exercising SDVCJ have increased safety and 
        justice for victims who have too often slipped through the 
        cracks.

    This report provides a brief report on activities during the Pilot 
Project period (February, 2014 through March 6, 2015) and shares 
recommendations for next steps.
Overview of Special Domestic Violence Criminal Jurisdiction
    As of March 7, 2015, two years after Violence Against Women 
Reauthorization Act of 2013 (VAWA 2013) was enacted, Indian tribes 
across the country can exercise criminal jurisdiction over non-Indians 
for certain acts of domestic violence or dating violence and protection 
order violations so long as the statutory requirements of VAWA 2013 are 
met. \6\ The full text of the statute is included as Appendix A to this 
report. In summary, for a tribe to exercise jurisdiction over a non-
Indian offender:
---------------------------------------------------------------------------
    \6\ 25 U.S.C. 1304; see also id. at 1304 note.

---------------------------------------------------------------------------
   the victim must be Indian;

   the crime must take place in the Indian country of the 
        participating tribe; and

   the non-Indian defendant must have ``ties to the Indian 
        tribe,'' which means the defendant:

        --resides in the Indian country of the participating tribe;
        --is employed in the Indian country of the participating tribe; 
        or
        --is a current or former spouse, intimate partner, or dating 
        partner of a member of the participating tribe, or an Indian 
        who resides in the Indian country of the participating tribe. 
        \7\
---------------------------------------------------------------------------
    \7\ 25 U.S.C. 1304(b)(4).

    VAWA 2013 requires that any tribe exercising SDVCJ must provide 
certain due process protections to defendants. Specifically, the tribe 
must provide all of the protections that have long been guaranteed by 
the Indian Civil Rights Act, many of which mirror the U.S. Bill of 
Rights. \8\ In addition, VAWA 2013 requires implementing tribes, in any 
SDVCJ case where a term of imprisonment may be imposed, to provide a 
number of additional rights. Many of these rights are the same as those 
that were required of tribes in order to exercise felony jurisdiction 
under the Tribal Law and Order Act of 2010:
---------------------------------------------------------------------------
    \8\ 25 U.S.C. 1304(a)'s protections include: freedom of speech and 
religion; freedom from illegal or warrantless search or seizure; a 
prohibition on double jeopardy; the right not to be compelled to be a 
witness against oneself; the right to a speedy trial and to confront 
witnesses; the right to a jury trial; and the right not to be subjected 
to cruel or unusual punishment, excessive fines, or excessive bail.

   ``provide to the defendant the right to effective assistance 
        of counsel at least equal to that guaranteed by the United 
        States Constitution''; \9\
---------------------------------------------------------------------------
    \9\ 25 U.S.C. 1302(c)(1).

   ``at the expense of the tribal government, provide an 
        indigent defendant the assistance of a defense attorney 
        licensed to practice law by any jurisdiction in the United 
        States that applies appropriate professional licensing 
        standards and effectively ensures the competence and 
        professional responsibility of its licensed attorneys''; \10\
---------------------------------------------------------------------------
    \10\ 25 U.S.C. 1302(c)(2).

   ``require that the judge presiding over the criminal 
        proceeding has sufficient legal training to preside over the 
        criminal proceedings and is licensed to practice law in any 
        jurisdiction in the United States''; \11\
---------------------------------------------------------------------------
    \11\ 25 U.S.C. 1302(c)(3).

   make publicly available the tribe's ``criminal laws 
        (including regulations and interpretative documents), rules of 
        evidence, and rules of criminal procedure (including rules 
        governing the recusal of judges in appropriate 
        circumstances)''; \12\ and
---------------------------------------------------------------------------
    \12\ 25 U.S.C. 1302(c)(4).

   ``maintain a record of the criminal proceeding, including an 
        audio or other recording of the trial proceeding.'' \13\
---------------------------------------------------------------------------
    \13\ 25 U.S.C. 1302(c)(5).

---------------------------------------------------------------------------
    VAWA 2013 also guarantees a defendant in a SDVCJ case:

   ``the right to a trial by an impartial jury that is drawn 
        from sources that reflect a fair cross section of the community 
        and do not systematically exclude any distinctive group in the 
        community, including non-Indians''; \14\ and
---------------------------------------------------------------------------
    \14\ 25 U.S.C. 1304(d)(3).

   ``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 SDVCJ over the defendant.'' \15\
---------------------------------------------------------------------------
    \15\ 25 U.S.C. 1304(d)(4).

Overview of the Pilot Project
    Although the tribal criminal jurisdiction provision of VAWA 2013 
was generally not effective until March 7, 2015, \16\ tribes could 
implement SDVCJ on an accelerated basis before that date with approval 
from the Attorney General during a ``Pilot Project'' period. \17\ The 
DOJ developed a Pilot Project Application Questionnaire, which 
interested tribes used to request that the Attorney General designate 
them as ``participating tribes'' and approve their accelerated 
implementation of SDVCJ. \18\ This Application Questionnaire was DOJ's 
final notice and solicitation of applications for the pilot project, 
which was published in the Federal Register on November 29, 2013. \19\
---------------------------------------------------------------------------
    \16\ Pub. L. No. 113-4, 127 Stat. 54 (2013), Sec. 908(b)(1).
    \17\ Pub. L. No. 113-4, 127 Stat. 54 (2013), Sec. 908(b)(2).
    \18\ Although completing the Application Questionnaire is no longer 
required for a tribe who wants to implement SDVCJ, it is a useful guide 
for a tribe to conduct a self-assessment prior to implementing SDVCJ. 
In addition, the completed Application Questionnaires from the Pilot 
Project tribes provide helpful information about options for meeting 
the requirements of the statute. The completed questionnaires can be 
found at www.ncai.org/tribalvawa.
    \19\ Fed. Reg., vol. 78, no. 230, p. 71645, Nov. 29, 2013.

        Five tribes received approval to implement SDVCJ during the 
---------------------------------------------------------------------------
        Pilot Project Period

    Three tribes received approval to implement SDVCJ in February 
2014--the CTUIR in Oregon, the Pascua Yaqui Tribe in Arizona, and the 
Tulalip Tribes in Washington. These tribes exercised SDVCJ for a little 
more than a year during the Pilot Project period before the law took 
general effect on March 7, 2015. Two additional tribes' applications 
were approved during the Pilot Project period on March 6, 2015--the 
Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, and 
the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation. Since 
these tribes received approval the day before VAWA 2013 took general 
effect nationwide, these tribes did not have any SDVCJ cases during the 
Pilot Project period.
Exercise of Special Domestic Violence Criminal Jurisdiction during 
        Pilot Period
    While ultimately five tribes were approved to exercise SDVCJ during 
the pilot period, only the first three tribes were approved early 
enough to have any SDVCJ cases before the conclusion of the Pilot 
Project on March 7, 2015. During the first year of SDVCJ 
implementation, the three original pilot tribes had a total of 27 SDVCJ 
cases involving 23 separate offenders. Of the 27 cases, 11 were 
ultimately dismissed for jurisdictional or investigative reasons, 10 
resulted in guilty pleas, 5 were referred for federal prosecution and 1 
offender was acquitted by a jury. None of the SDVCJ non-Indian 
defendants have petitioned for habeas corpus review in federal court. 
All of the Pilot Project tribes have had additional cases since the 
conclusion of the Pilot Project period. This report, however, only 
discusses those cases that occurred between February 20, 2014 and March 
7, 2015.

    Pilot Project Statistics:
   28 arrests of 24 offenders
   13 guilty pleas
   2 referrals for federal prosecution
   1 acquittal
   11 dismissals
   1 outstanding warrant
   No habeas corpus appeals

Pascua Yaqui Tribe
    The Pascua Yaqui Tribe submitted its final Pilot Project 
Application Questionnaire to DOJ on December 30, 2013. The Tribe 
received approval to begin exercising SDVCJ on February 6, 2014, and 
jurisdiction went into effect on February 20, 2014. The Tribe 
immediately issued a press release and formal notice to the community 
regarding implementation of the new law. After the Pilot Project 
concluded, the Tribe released an Implementation Timeline and 
comprehensive Pilot Project Summary of SDVCJ implementation at Pascua 
Yaqui. All of these materials are available online at www.ncai.org/
tribal-vawa.
    The Pascua Yaqui Tribe is located on a 2,200-acre reservation in 
southwest Arizona near Tucson, Arizona, approximately 60 miles north of 
the United States-Mexico border. The Tribe has approximately 19,000 
members, with 4-5,000 members living on the reservation. Approximately 
90 percent of the reservation population is American Indian and the 
most common household demographic on the reservation is single-mother 
households, which account for nearly 43 percent of all Pascua Yaqui 
households. The vast majority of criminal cases filed in the Pascua 
Yaqui Tribal Court are domestic-violence related offenses. Several of 
the Pascua Yaqui prosecutors are designated as Special Assistant United 
States Attorneys (SAUSAs), which allow them to also serve as 
prosecutors in federal court. The Tribe funds a full-fledged Public 
Defenders Office (originally opened in 1995) with four licensed defense 
attorneys who represent those accused of crimes. The Tribe also funds 
four private contracted defense attorneys for those cases where a 
conflict of interest exists. The Tribe has employed law-trained judges 
and recorded its court proceedings since long before VAWA 2013.
    Of the three original Pilot Project tribes, Pascua Yaqui has had 
the highest number of SDVCJ cases. Between February 20, 2014 and March 
6, 2015, the Tribe handled 18 SDVCJ cases, involving 15 separate 
offenders. Four of these cases resulted in guilty pleas, four were 
referred for federal prosecution due to the seriousness of the 
violence, 10 cases were declined for jurisdictional, investigative, or 
evidentiary problems, and one resulted in an acquittal. Significantly, 
the 18 cases at Pascua Yaqui involved 18 children as either witnesses 
or victims. In the four-year period prior to their arrest, the 15 non-
Indian defendants charged under SDVCJ had more than 80 documented 
tribal police contacts, arrests, or reports attributed to them.

        In the four-year period prior to the implementation of the VAWA 
        Pilot Project and during the Pilot Project period, the 15 non-
        Indian defendants charged under SDVCJ had more than 80 
        documented tribal police contacts, arrests, or reports 
        attributed to them.

    Because of jurisdictional limitations in place at the time under 
federal law, the tribal court could not prosecute any of these prior 
incidents that involved criminal violations.
    Pascua Yaqui is the only tribe to have had a jury trial for a SDVCJ 
case during the Pilot Project period. \20\ The case was a domestic 
violence assault involving two men allegedly in a same-sex 
relationship. The defendant was acquitted by the jury. Interviews with 
the jurors suggest that the jury was not convinced that the two 
individuals had a relationship that would meet the requirements for 
tribal jurisdiction under VAWA 2013, which limits tribal jurisdiction 
to ``domestic violence'' defined as ``violence committed by a current 
or former spouse, or intimate partner of the victim, by a person with 
who the victim shares a child in common, by a person who is 
cohabitating or has cohabitated with the victim as a spouse or intimate 
partner, or by a person similarly situated to a spouse of the victim 
under the domestic or family violence laws of an Indian tribe that has 
jurisdiction over the Indian country where the violation occurs.'' \21\ 
There was no question that the assault occurred. In fact, if the 
defendant had been an Indian, the prosecutor would not have had to 
prove any particular relationship between the offender and the victim. 
But because SDVCJ is limited to the specific crimes of domestic or 
dating violence, both of which require a particular relationship, that 
was not an option in this case. The non-Indian defendant was 
subsequently extradited to the State of Oklahoma on an outstanding 
felony warrant.
---------------------------------------------------------------------------
    \20\ As of the date of this report, the Pascua Yaqui case discussed 
here is still the only jury trial in a SDVCJ case.
    \21\ 25 U.S.C. 1304(a)(2).

    Pascua Yaqui: Pilot Project Stats-at-a-Glance
   18 SDVCJ cases, involving 15 separate offenders.

        -- 1 jury trial resulted in an acquittal and subsequent 
        extradition to Oklahoma
        --5 guilty pleas
        --1 referral for federal prosecution
        --10 dismissals
        --1 defendant on warrant status

   The 15 non-Indian defendants had over 80 documented tribal 
        police contacts, arrests, or reports attributed to them over 
        the past 4 years.

   11 defendants had criminal records in Arizona.

   2 of the defendants had outstanding felony arrest warrants.

   18 children involved as witnesses and/or victims.

                        pascua yaqui: case study
    Defendant, a non-Indian, Hispanic male, was charged with Domestic 
Violence Assault and Domestic Violence Threatening and Intimidating. On 
March 4, 2015, Defendant was arrested for threatening to harm his live-
in girlfriend and mother of his six children. This was Defendant's 
third VAWA arrest. In this instance, a relative of the victim witnessed 
the Defendant dragging the victim by her hair across the street back 
towards their house. Defendant pled guilty to Domestic Violence Assault 
and was sentenced to over two months of detention followed by 
supervised probation and domestic violence counseling.
    Defendant had at least 7 prior contacts with Pascua Yaqui Law 
Enforcement and 3 felony convictions out of Pima County, Arizona. This 
was the defendant's second domestic violence conviction, and the first 
on the Pascua Yaqui Reservation. Because of the tribal conviction, if 
the defendant reoffends, he will now be eligible for federal domestic 
violence prosecution as a habitual offender.

                             Tulalip Tribes
    The Tulalip Tribes submitted their final Pilot Project Application 
Questionnaire to the DOJ on December 19, 2013. The Tribes received 
approval to implement SDVCJ on February 6, 2014, and jurisdiction took 
effect on February 20, 2014. The Tribes issued a press release 
regarding implementation of the new law on February 6, 2014. All of 
these materials are available online at www.ncai.org/tribal-vawa.
    The Tulalip Tribes are located on a 22,000-acre reservation in 
western Washington State, approximately 30 miles north of Seattle. The 
Tribes have 4,533 members, about 2,500 of whom live on the reservation. 
The Tulalip Tribal Court operates a separate Domestic Violence Court 
docket and SDVCJ cases are handled there. The Tribe also employs a 
specialized domestic violence and sexual assault prosecutor, who was 
approved as a Special Assistant United States Attorney (SAUSA) at the 
beginning of the Pilot Project. The Tribes obtained retrocession in 
2001 and created a police department and criminal court shortly 
thereafter.
    The Tribes implemented the Tribal Law and Order Act enhanced 
sentencing provisions prior to the passage of VAWA 2013 and have 
provided indigent defense, included non-Indians in the jury pool, 
recorded court proceedings, and employed law-trained judges in the 
criminal court since 2002.
    Between February 20, 2014 and March 6, 2015, the Tulalip Tribes had 
a total of six SDVCJ cases. Four cases resulted in guilty pleas, one 
was dismissed for insufficient evidence, and one was transferred for 
federal prosecution because the injuries were so severe and children 
were also involved as victims. All of the SDVCJ offenders are ordered 
to undergo tribally-certified batterer's intervention programs.

    Tulalip Tribes: Pilot Project Statistics At-A-Glance

   6 SDVCJ cases

        -- 4 cases resulted in guilty pleas.

        -- 1 referral for federal prosecution because the injuries were 
        so severe and children were involved as victims

        -- 1 dismissal

   Those who have been convicted are subject to tribal 
        probation, including the requirement to undergo batterer 
        intervention programming.

   The 6 non-Indian defendants had over 88 documented tribal 
        police contacts, arrests, or reports attributed to them in the 
        past.

   4 defendants had criminal records in Washington.

   6 children involved as witnesses and/or victims

                       tulalip tribes: case study
    Defendant was charged with Assault in the First Degree Domestic 
Violence and Rape Domestic Violence, but was not immediately 
apprehended. Based on the conduct alleged, victim/wife petitioned for a 
civil Order for Protection, which was granted. Prior to defendant's 
arraignment on the violent crimes, he was served with, and twice 
violated, the Order for Protection. At the scene of these violations, 
the defendant was taken into custody. Defendant had nineteen contacts 
with Tulalip Police prior to these incidents, however, after the 
implementation of VAWA 2013 SDVCJ the defendant was held accountable 
for his crimes. Defendant served a significant jail sentence, and is 
now supervised by Tulalip Probation. He is getting the treatment 
intervention he needs. The victim and her children were finally able to 
make a life for themselves away from the violence and abuse.

         Confederated Tribes of the Umatilla Indian Reservation
    The Confederated Tribes of the Umatilla Indian Reservation (CTUIR) 
submitted their final Pilot Project Application Questionnaire to the 
DOJ on December 19, 2013. The Tribes received approval to implement 
SDVCJ on February 6, 2014, and jurisdiction went into effect on 
February 20, 2014. In conjunction with the U.S. Attorney's Office for 
the District of Oregon, the Tribes issued a press release regarding 
implementation of the new jurisdiction on February 6, 2014. All of 
these materials are available online at www.ncai.org/tribal-vawa.
    The CTUIR are located on a land base of 173,470 acres in southeast 
Oregon with a population of approximately 3,280 people, 46 percent of 
whom are non-Indian. The Confederated Tribes have exercised expansive 
criminal jurisdiction since the State of Oregon retroceded Public Law 
280 criminal jurisdiction in 1981. The CTUIR implemented felony 
sentencing under Tribal Law and Order Act (TLOA) in 2011, and the 
tribal prosecutor serves as a SAUSA. CTUIR has provided indigent 
counsel, recorded tribal judicial proceedings, employed law-trained 
judges, and included non-Indians on tribal juries since long before 
VAWA 2013 was enacted. The Tribes report that in 2011, over 60 percent 
of the cases seen by the Umatilla Family Violence Program involved non-
Indian.
    Between February 20, 2014 and March 6, 2015, there were four SDVCJ 
cases involving 3 defendants filed in the CTUIR court. The Tribes 
report that this is double the amount ever prosecuted by the U.S. 
Attorney's Office. All four cases resulted in guilty pleas. Those who 
have been convicted are subject to tribal probation, including the 
requirement to undergo batterer intervention treatment, which the CTUIR 
provide free of charge. The CTUIR Court issues an automatic protection 
order in every pending domestic violence criminal case.

    Confederated Tribes of Umatilla Indian Reservation: Pilot Project 
Statistics At-A-Glance

   4 SDVCJ cases involving 3 offenders

        --4 guilty pleas

        --Those who have been convicted are subject to tribal 
        probation, including the requirement to undergo batterer 
        intervention treatment provided by the Tribes.

        --At least 3 children involved as witnesses.

     confederated tribes of umatilla indian reservation: case study
    On October 21, 2014, during an argument with his girlfriend, a male 
non-Indian defendant ripped her clothes off, pushed her to the bed, and 
strangled her while a comforter was over her face, all while repeatedly 
delivering death threats. All of this occurred in front of their infant 
child. The police found the victim with scratch marks on her neck and 
in such fear that she was only partially dressed, hyperventilating, and 
unable to maintain balance. The defendant is an Iraq war veteran who 
suffers from PTSD, and he reportedly missed taking his medication 
immediately preceding the assault. He wished to take responsibility at 
arraignment; however, the Tribe suggested that they appoint him an 
attorney. After being appointed an attorney, the defendant ultimately 
pled guilty to felony DV assault with terms consistent to what he would 
see if prosecuted in the State. Specific terms include compliance with 
his VA treatment recommendations and completion of a tribally funded 
12-month batterer's intervention program. He is currently on track to 
graduate from the batterer's program in February and will be the first 
tribal VAWA defendant to graduate, while otherwise remaining under 
tribal supervision for another 2 years.

    Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation
    The Assiniboine and Sioux Tribes of the Fort Peck Indian 
Reservation submitted their initial Pilot Project Application 
Questionnaire to the DOJ on December 26, 2013. After amending their 
application, the Fort Peck Tribes received approval to implement SDVCJ 
on March 6, 2015. Jurisdiction took effect on March 7, 2015. Articles 
have appeared in tribal and county newspapers explaining the 
jurisdiction. All of these materials are available online at 
www.ncai.org/tribal-vawa.
    The Fort Peck Indian Reservation is home to the Assiniboine and 
Sioux Tribes, which are two separate Nations comprised of numerous 
bands and divisions. Located in northeast Montana, the Reservation 
extends over four counties and is the 9th largest Indian reservation in 
the United States. The Assiniboine and Sioux Tribes of Fort Peck have 
an estimated 10,000 enrolled members with approximately 6,000 members 
living on the Reservation. The population on the reservation is 60 
percent Indian and 40 percent non-Indian. The Fort Peck Tribal Court 
operates a domestic violence docket. The Tribes implemented felony 
sentencing under TLOA in 2012. The Tribes did not have any SDVCJ cases 
prior to the end of the Pilot Project period on March 7, 2015.

        Sisseton-Wahpeton Oyate of the Lake Traverse Reservation
    The Sisseton-Wahpeton Oyate of the Lake Traverse Reservation 
submitted its final Pilot Project Application Questionnaire to DOJ on 
March 4, 2015. The Tribe received approval to implement SDVCJ on March 
6, 2015. All of these materials are available online at www.ncai.org/
tribal-vawa.
    The Sisseton-Wahpeton Oyate is comprised of two subdivisions of 
Dakotah Indians that reside on the Lake Traverse Reservation, 
established by treaty in 1867. This reservation extends into five 
counties in northeast South Dakota and two counties in southeast North 
Dakota. The Tribe has 13,177 enrolled members with approximately 9,894 
members living on the Reservation. According to the 2010 Census, more 
than 6,000 non-Indians also reside on the Lake Traverse Reservation. 
The Tribe has implemented felony sentencing under TLOA. The Tribe did 
not have any SDVCJ cases prior to the end of the Pilot Project on March 
7, 2015.
Comparing the Implementing Codes of the Five Pilot Tribes
    Each of the five Pilot Project tribes submitted an application to 
the DOJ demonstrating how they met the statutory requirements of VAWA 
2013 and subsequently received approval from the Attorney General to 
implement SDVCJ. Because the tribal codes, policies, and procedures 
from the Pilot Project tribes had the benefit of review by DOJ, they 
provide particularly instructive examples of how other Indian tribes 
can implement the statutory requirements in VAWA 2013. This section 
analyzes the codes and procedures of the five Pilot Project tribes and 
highlights areas of major difference. Two primary areas of difference 
that emerge are how each tribe has approached the jury pool and 
indigent defense requirements of VAWA 2013.
JURY POOLS
    In order to exercise SDVCJ, a tribe must ensure that non-Indian 
defendants have the right to a trial by an impartial jury that is drawn 
from sources that--

        1.  reflect a fair cross section of the community; and

        2.  do not systematically exclude any distinctive group in the 
        community, including non-Indians. \22\
---------------------------------------------------------------------------
    \22\ 25 U.S.C. 1304(d)(3).
---------------------------------------------------------------------------
    Both the Tulalip Tribes and CTUIR included non-Indians in their 
jury pools for a number of years prior to the passage of VAWA 2013. For 
the other Pilot Project tribes, implementation of VAWA 2013 required 
them to change their tribal codes and procedures to include non-Indians 
in their jury pools. Pascua Yaqui chose to include non-Indians in their 
jury pool for all cases. The Fort Peck Tribes and Sisseton Wahpeton, in 
contrast, include non-Indians in the jury pool only for SDVCJ cases.
    Although VAWA 2013 requires the jury pool to reflect a ``fair cross 
section of the community,'' it is left to the tribe to define their 
``community'' for these purposes. There are slight variations in the 
approaches taken by the Pilot Project tribes. All of the Pilot Project 
tribes include non-Indian residents on the reservation in the jury 
pool. Some also include, non-Indians employed by the tribe, non-Indian 
spouses of tribal members, or non-Indian leaseholders. These 
differences are discussed below.
    Fort Peck Tribes: The Fort Peck Tribes have devised two separate 
jury pools, utilizing a process that incorporates non-member residents 
of the reservation for SDVCJ cases only. \23\ The Tribes' Jury 
Management Plan for SDVCJ cases states that the jury pool will be drawn 
from a master juror list utilizing the list of enrolled members of the 
Tribes and a jury source list prepared by the clerk of the 15th 
Judicial District of Montana, which comprises 98 percent of the 
Reservation. In order to avoid underrepresentation of non-Indians, who 
make up 40 percent of the reservation population, the Tribes will 
select 50 non-Indian residents for the jury pool and 50 enrolled 
members. The Tribes will randomly summon 21 people from each list for 
each jury trial, and then choose six persons to serve on each jury. The 
tribal code requires unanimous verdicts for six person juries.
---------------------------------------------------------------------------
    \23\ This process is set out in the Fort Peck Tribes' Comprehensive 
Code of Justice (CCOJ) at Title 6, Section 507, available at http://
www.fptc.org/ccoj/title_6/title_6.html.
---------------------------------------------------------------------------
    The tribal code sets out a process to issue subpoenas for jurors in 
order to compel non-member resident attendance. Jurors will be 
compensated at the rate paid by Roosevelt County, which overlays a 
significant portion of the reservation. The presiding judge has 
discretion to compensate jurors for mileage.
    Sisseton-Wahpeton Oyate: The Sisseton-Wahpeton Oyate Codes of Laws 
also creates two separate jury pools. For cases outside of SDVCJ, 
jurors must be an adult resident member of the Tribe. For SDCVJ cases, 
potential jurors may be selected from a variety of sources including 
but not limited to enrolled members of the Sisseton-Wahpeton Oyate, 
residents within the jurisdiction of the Lake Traverse Reservation, 
full-time employees of the Tribe or its entities, and persons leasing 
lands from the Tribe. A list of at least 21 potential jurors is 
prepared and maintained by the Clerk. Each voting district on the 
Reservation is to be represented on the list. Defendants have the right 
to a trial by a jury made up of at least six persons. \24\
---------------------------------------------------------------------------
    \24\ SWO Codes of Law, Chapter 23, Sections 23-10-01 through 23-10-
10, available at http://www.swonsn.gov/departments/justice-department/
legal-department/.
---------------------------------------------------------------------------
    Pascua Yaqui: Pascua Yaqui uses the same jury pool for all crimes, 
and empanels its juries using enrolled members, spouses of tribal 
members, employees of the Tribe, and permanent residents of the 
reservation. In order to qualify for jury duty, enrolled members must 
be residents of Arizona, with preference given to those living in 
nearby counties. The Tribe draws its jury pools from the Tribal Census 
Roll, Housing Department records, and Human Resources records of the 
Tribe. Failure to appear for jury duty constitutes contempt of court 
and every jury summons includes a warning to this effect. The Tribe 
also incorporates a ``severe hardship'' exception for jury duty and 
jurors may be excused from service for limited reasons, including 
having to travel more than 150 miles one-way. \25\
---------------------------------------------------------------------------
    \25\ Pascua Yaqui Tribe, SDVCJ Application Questionnaire, available 
at http://www.justice.gov/sites/default/files/tribal/legacy/2014/02/06/
appl-questionnaire-pascua-yaqui.pdf.
---------------------------------------------------------------------------
    Tulalip Tribes: The Tulalip Tribes use the same jury pool for all 
crimes. The Tribes include tribal members living on or near the 
reservation, residents within the boundaries of the reservation, and 
employees of the Tulalip Tribes. The Tribes devise the juror list from 
the tribal Enrollment Department and the Human Resources departments of 
the Tulalip Resort Casino and Quil Ceda Village. The Tribes then 
compare these numbers with census data to ensure the jury pool reflects 
a fair cross section of the community. The Tribes randomly select 25 
names from the jury pool and issue a jury summons by mail or personal 
service. Those who fail to appear for jury duty are held in contempt of 
court. \26\
---------------------------------------------------------------------------
    \26\ Tulalip Tribal Code, Title 2, Sec. 2.05.110 available at 
http://www.codepublishing.com/wa/tulalip/.
---------------------------------------------------------------------------
    Confederated Tribes of the Umatilla Indian Reservation (CTUIR): The 
CTUIR Court uses the same jury pool for all crimes. Even before SDVCJ 
implementation, CTUIR had incorporated non-Indians in tribal jury pools 
by including residents within the boundaries of the reservation. The 
Court empanels all tribal juries from a voter registration list 
provided by the local county, which represents a rough overlay of the 
reservation boundaries. The judge chooses 50 names per year to serve as 
prospective jurors and 18 names are summoned per trial. \27\
---------------------------------------------------------------------------
    \27\ CTUIR, SDVCJ Application Questionnaire, available at http://
www.justice.gov/sites/default/files/tribal/legacy/2014/02/06/appl-
questionnaire-vawa.pdf.


                               Jury Pools
------------------------------------------------------------------------
                                         Non-Indians Included Only In
    Same Jury Pool For All Crimes         Special Domestic  Violence
                                          Criminal Jurisdiction Cases
------------------------------------------------------------------------
Confederated Tribes of Umatilla       Fort Peck Tribes
 Indian Reservation
Pascua Yaqui Tribe                    Sisseton-Wahpeton Oyate
Tulalip Tribe
------------------------------------------------------------------------


Indigent and Effective Assistance of Counsel
    Under VAWA 2013, tribes must afford non-Indian offenders with 
effective assistance of counsel and pay for defense counsel for 
indigent offenders whenever a term of imprisonment may be imposed. \28\ 
Such counsel must be ``licensed to practice law by any jurisdiction in 
the United States that applies appropriate professional licensing 
standards and effectively ensures the competence and professional 
responsibility of its licensed attorneys.'' \29\ All of the Pilot 
Project tribes were providing indigent counsel before VAWA 2013 was 
enacted. In the case of Ft. Peck, the tribal public defender office was 
staffed by experienced lay advocates and a licensed attorney was hired 
to comply with VAWA 2013's requirements.
---------------------------------------------------------------------------
    \28\ 25 U.S.C. 1302(c)(1) and (2).
    \29\ 25 U.S.C. 1302(c)(2).
---------------------------------------------------------------------------
    Fort Peck Tribes: The Fort Peck Tribes guarantee indigent counsel 
for any person charged with the following three separate offenses: 
special domestic violence criminal offense, severe physical domestic 
abuse, and domestic abuse. \30\ The Tribes screen for indigence, with a 
presumption of indigence if the defendant's household income is less 
than 125 percent of the federal poverty guidelines. The Tribal Public 
Defender Office is staffed both by a licensed attorney and by 
experienced lay advocates. If the Public Defender is not available, a 
licensed attorney will be hired on contract. All SDVCJ defendants will 
be represented by a licensed attorney. \31\
---------------------------------------------------------------------------
    \30\ Ft. Peck Tribes, SDVCJ Application Questionnaire, submitted 
Dec. 26, 2013, available at http://www.justice.gov/sites/default/files/
tribal/pages/attachments/2015/03/13/fortpeckapp322015.pdf.
    \31\ Ft. Peck Tribes, SDVCJ Application Questionnaire, submitted 
Dec. 26, 2013, available at http://www.justice.gov/sites/default/files/
tribal/pages/attachments/2015/03/13/fortpeckapp322015.pdf.
---------------------------------------------------------------------------
    Pascua Yaqui: The Tribe affords state-licensed indigent defense in 
all SDVCJ cases, as well as to indigent Indian offenders in ``any 
criminal proceeding in which the Tribe is seeking punishment by loss of 
liberty.'' \32\ Representation is generally provided by the Pascua 
Yaqui Public Defender Office. The Tribe also provides for contract 
attorneys in cases where a conflict of interest arises. All such 
attorneys must also be barred in the Pascua Yaqui Tribal Court. The 
Tribe screens for indigence, with a presumption of indigence if the 
defendant's household income is less than 125 percent of the federal 
poverty guidelines.
---------------------------------------------------------------------------
    \32\ Pascua Yaqui Tribal Code, Title 3, Part II, Ch. 2-2, Sec. 310 
available at http://www.pascuayaquinsn.gov/--static_pages/tribalcodes/.
---------------------------------------------------------------------------
    Confederated Tribes of the Umatilla Indian Reservation(CTUIR): The 
Tribes appoint state-licensed public defenders to any criminal 
defendant that requests one, including on appeal. Although the Tribes' 
indigence standard is set at 150 percent of the federal poverty 
guidelines, as a matter of practice the Tribes provide indigent counsel 
regardless of income to anyone who requests it. \33\
---------------------------------------------------------------------------
    \33\ CTUIR, SDVCJ Application Questionnaire, available at http://
www.justice.gov/sites/default/files/tribal/legacy/2014/02/06/appl-
questionnaire-vawa.pdf.
---------------------------------------------------------------------------
    Sisseton-Wahpeton Oyate: The Tribe does not distinguish between 
Indians and non-Indians, or between those who are indigent or not, for 
purposes of representation by the Tribal Public Defender's Office, 
which was first established in 2000. The tribal code states that all 
defendants will be provided ``with assistance of counsel if requested 
and if available.'' \34\
---------------------------------------------------------------------------
    \34\ SWO Codes of Law, Chapter 23, Section 23-08-02, available at 
http://www.swo-nsn.gov/wpcontent/uploads/2015/03/law3.pdf
---------------------------------------------------------------------------
    Tulalip Tribes: The Tribes provide indigent defense to all criminal 
defendants, regardless of race. Defense services are primarily provided 
by the Tribal Court Public Defense Clinic at the University of 
Washington Native American Law Center. The clinic has handled over 2000 
cases in Tulalip Tribal Court since 2002. All clinic advocates must 
pass the Tulalip Court Bar Exam and be admitted to practice by the 
Tribal Court. The Tribes also hire attorneys on contract when the 
clinic is not available because of a conflict. Such attorneys must also 
be barred in the Tulalip Tribal Court. The Tribes screen for indigence, 
with a presumption of indigence if the defendant's household income is 
less than 200 percent of the federal poverty guideline. \35\
---------------------------------------------------------------------------
    \35\ Tulalip Tribal Court, Rule 6.


                            Right to Counsel
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Indigent Counsel For All              Confederated Tribes of the
                                       Umatilla Indian Reservation;
                                       Pascua Yaqui Tribe; Tulalip Tribe
Counsel Guaranteed for SDVCJ and      Fort Peck Tribes
 Domestic Abuse
Indigent Counsel for all ``If         Sisseton-Wahpeton Oyate
 Available'' but Guaranteed for
 SDVCJ
------------------------------------------------------------------------

Court Processes & Reforms
    VAWA 2013 requires that a tribal judge overseeing a SDVCJ case has:

        1. ``sufficient legal training to preside over criminal 
        proceedings''; and be

        2. ``licensed to practice law by any jurisdiction in the United 
        States.'' \36\
---------------------------------------------------------------------------
    \36\ 25 USC 1302(c)(3).
---------------------------------------------------------------------------
    All five of the Pilot Project tribes have at least one state-barred 
judge. Although the Fort Peck Tribes hired a state-barred judge to meet 
this requirement, the long-time chief judge of the Fort Peck Tribal 
Court is not state-barred. Instead, this judge has an undergraduate 
degree, is licensed in tribal court, and has two certificates from 
judicial college for ``Tribal Judicial Skills'' and ``Special Court 
Trial Skills.'' This judge also completes 40 hours of annual training 
and presides over criminal trials on a weekly basis.
Victim's Rights & Safety
    The Pascua Yaqui, Confederated Tribes of the Umatilla Indian 
Reservation (CTUIR), and Tulalip Tribes have comprehensive codes that 
account for victims' rights and promote victims' safety. The CTUIR 
Court issues automatic protection orders in all pending criminal 
domestic violence cases. The Tulalip and Fort Peck Tribes have 
instituted a domestic violence docket to handle all cases involving 
domestic violence, dating violence, or violation of protection orders. 
This domestic violence docket is separate from the existing criminal 
docket and allows the court to have an increased focus on victim safety 
and offender accountability.
    The five Pilot Project tribes also have a host of other programs 
aimed at ensuring the rights and safety of victims. For example, the 
Umatilla Family Violence Program provides community-based advocacy to 
domestic violence victims. The Fort Peck Tribes also have a well-
established Family Violence Resource Center that provides comprehensive 
services to domestic violence and sexual assault victims. This program 
offers a court advocate, housing, counseling and other support services 
for any victim. The Fort Peck Tribal Court issues a ``Hope Card'' in 
conjunction with any orders of protection it grants. This card is 
wallet-sized and allows the person who has been granted an order of 
protection to easily prove this in other jurisdictions.
Definition of Offenses
    The Pilot Project tribes have chosen slightly different ways to 
define VAWA 2013's covered offenses.
    Fort Peck Tribes: The Tribes incorporate the VAWA 2013 statutory 
definitions of domestic violence and dating violence, but the tribal 
code also includes two other offenses of ``severe physical domestic 
abuse'' and ``domestic abuse'' as domestic violence. \37\
---------------------------------------------------------------------------
    \37\ Ft. Peck Tribal Code, Title 7, Sec. 249(c), available at 
http://www.fptc.org/ccoj/title_7/title_7.html.
---------------------------------------------------------------------------
    Pascua Yaqui: The Tribe does not use VAWA 2013's definitions of 
domestic and dating violence in its tribal code. These offenses are 
defined by language devised by the Tribe. The tribal code includes a 
maximum statement of jurisdiction that it has authority over ``all 
subject matters which, now and in the future, are permitted to be 
within the jurisdiction of any Tribal Court of any Indian tribe 
recognized by the United States of America.'' \38\
---------------------------------------------------------------------------
    \38\ Pascua Yaqui Tribal Code, Title III, Part I, Ch. 1-1, Sec. 20 
available at http://www.pascuayaquinsn.gov/_static_pages/tribalcodes/.
---------------------------------------------------------------------------
    Confederated Tribes of the Umatilla Indian Reservation (CTUIR): The 
Tribes incorporate the VAWA 2013 statutory definitions to define 
offenses of domestic violence, dating violence and violations of 
protection orders. \39\
---------------------------------------------------------------------------
    \39\ CTUIR Criminal Code, Sec. 1.01, available at http://ctuir.org/
criminal-code.
---------------------------------------------------------------------------
    Sisseton-Wahpeton Oyate: The Tribe does not use VAWA 2013's 
definitions of domestic and dating violence or protection order 
violations in its tribal code. These offenses are defined by language 
devised by the Tribe. \40\
---------------------------------------------------------------------------
    \40\ SWO Codes of Law, Chapter 52, Section 52-01-04, available at 
http://www.swo-nsn.gov/wpcontent/uploads/2015/03/law3.pdf.
---------------------------------------------------------------------------
    Tulalip: The Tribes largely track the federal statutory definitions 
of domestic and dating violence. However, the tribal code provides 
illustrative examples of behaviors that constitute domestic violence 
under tribal law. \41\
---------------------------------------------------------------------------
    \41\ Tulalip Tribal Code, Title 4, Sec. 4.25.050 available at 
http://www.codepublishing.com/wa/tulalip/.
---------------------------------------------------------------------------
Intertribal Technical-Assistance Working Group
    All five of the tribes that were approved to exercise SDVCJ during 
the Pilot Project period participated in the ITWG on SDVCJ. In its June 
14, 2013 Federal Register Notice, the DOJ asked tribes to indicate 
interest in joining the ITWG, which is a voluntary working group of 
designated tribal representatives intended to help exchange views, 
information, and advice, peer-to-peer, about how tribes may best 
implement SDVCJ, combat domestic violence, recognize victims' rights 
and safety needs, and safeguard defendants' rights. \42\
---------------------------------------------------------------------------
    \42\ 78 Fed. Reg. 35,961 (June 14, 2013).
---------------------------------------------------------------------------
    This peer-to-peer technical assistance covers a broad set of 
issues, from drafting stronger domestic violence codes and victim-
centered protocols and policies, to improving public defender systems, 
to analyzing detention and correctional options for non-Indians, to 
designing more broadly representative jury pools and strategies for 
increasing juror compliance with a jury summons. The objective of the 
ITWG is to develop not a single, one-size-fits-all ``best practice'' 
for each of these issues, but rather multiple successful examples that 
can be tailored to each tribe's particular needs, preferences, and 
traditions.
    Tribes participating in the ITWG have also had opportunities to 
engage with DOJ and the Department of Interior (DOI), both of whom have 
made key staff available to provide technical advice to the working 
group as a whole and work with individual tribes to address specific 
issues or concerns as needed.

                              itwg tribes:
    1. Cherokee Nation
    2. Cheyenne River Sioux Tribe
    3. Chickasaw Nation
    4. Colorado River Indian Tribes of the Colorado River Indian 
Reservation
    5. Confederated Tribes of the Umatilla Indian Reservation
    6. Eastern Band of Cherokee Indians
    7. Eastern Shawnee Tribe of Oklahoma
    8. Fort Peck Assiniboine & Sioux Tribes
    9. Gila River Indian Community
    10. Hopi Tribe of Arizona
    11. Iipay Nation of Santa Ysabel
    12. Kickapoo Tribe of Oklahoma
    13. Little Traverse Bay Band of Odawa Indians
    14. Menominee Indian Tribe of Wisconsin
    15. Mississippi Band of Choctaw Indians
    16. Muscogee (Creek) Nation
    17. Nez Perce Tribe
    18. Nottawaseppi Huron Band of Potawatomi
    19. Oneida Tribe of Indians of Wisconsin
    20. Pascua Yaqui Tribe of Arizona
    21. Passamaquoddy Tribe
    22. Pauma Band of Mission Indians
    23. Pawnee Nation of Oklahoma
    24. Penobscot Nation
    25. Pokagon Band of Potawatomi Indians
    26. Port Gamble S'Klallam Tribe
    27. Prairie Band Potawatomi Nation
    28. Pueblo of Isleta
    29. Pueblo of Laguna
    30. Pueblo of Santa Clara
    31. Quapaw Tribe of Oklahoma
    32. Quinault Indian Nation
    33. Sac and Fox Nation
    34. Salt River Pima-Maricopa Indian Community
    35. Sault Ste. Marie Tribe of Chippewa Indians
    36. Seminole Nation of Oklahoma
    37. Sisseton-Wahpeton Oyate
    38. Spokane Tribe of Indians
    39. Standing Rock Sioux Tribe
    40. Suquamish Indian Tribe
    41. Swinomish Indian Tribal Community
    42. Three Affiliated Tribes of the Fort Berthold Reservation
    43. Tulalip Tribes of Washington
    44. White Earth Nation
    45. Winnebago Tribe of Nebraska

    The ITWG has met in-person four times \43\ and has also 
participated in a series of teleconferences and webinars and produced 
white papers and other resources on a range of topics. As of August 
2015, 45 tribes participate in the ITWG (see column).
---------------------------------------------------------------------------
    \43\  A 5th in-person meeting will be held November 2-3, 2015 at 
the Squaxin Island reservation in Washington.
---------------------------------------------------------------------------
    The first formal in-person meeting of the ITWG was hosted at DOJ's 
National Advocacy Center in Columbia, South Carolina on August 20-21, 
2013. The ITWG divided into topical breakouts on: code development and 
publication; jury selection, judicial requirements, and recording 
proceedings; and victims' rights, law enforcement training and 
detention. Defender issues and defendants' rights were focused into a 
``Tribal Defender Advisory Group.'' The ITWG also divided into tracks 
based on readiness: getting started; ramping up; and final stages. 
Tribal participants from justice systems that were already equipped to 
implement SDVCJ readily shared information with others who were in more 
preliminary stages of planning.
    The second formal in-person meeting of the ITWG was held on October 
29-30, 2013, in Bismarck, North Dakota. The Bismarck meeting included a 
round-robin from ITWG tribes of their implementation updates; a habeas 
corpus response panel; a panel on improving communication and 
coordination with U.S. Attorneys; discussion of arrest authority and 
detention issues; and a discussion on access to the federal criminal 
information databases.
    The third formal in-person meeting of the ITWG was held on May 28-
29, 2014, on the Pascua Yaqui reservation in Arizona. The meeting 
included a panel discussion from the three approved Pilot Project 
tribes as well as updates from ITWG tribes on their implementation 
efforts; a discussion of jurisdictional requirements and habeas 
responses; a session on prosecution best practices in domestic violence 
cases; a discussion of access to federal criminal information 
databases; and a mock first appearance at the Pascua Yaqui Justice 
Center.
    The fourth in-person meeting of the ITWG was held on December 9-10, 
2014 on the Agua Caliente reservation in California. The meeting 
included an update from the two tribes with pending applications for 
Pilot Project approval; an update from the three Pilot Project tribes; 
an update from the Bureau of Indian Affairs on law enforcement arrest 
authority and detention guidance; an update and discussion on access to 
the National Crime Information Center; and a presentation on risk 
assessment and lethality in domestic violence cases. The meeting also 
included in-depth discussion sessions on complaint drafting and jury 
instructions; jury selection and composition; pleas agreements; data 
collection; and code development.
Intertribal Technical-Assistance Working Group Resources
    In conjunction with a team of technical assistance providers, the 
ITWG has produced a number of resources to aid tribes seeking to 
implement SDVCJ. Many of these resources are maintained on the National 
Congress of American Indians (NCAI) VAWA Implementation website. \44\ 
Additional implementation resources can also be found on the Tribal Law 
and Policy Institute's (TLPI) VAWA website. \45\ The ITWG has produced 
a ``Code Development Checklist,'' which is designed as a tool to assist 
tribal governments seeking to develop tribal codes that comply with 
VAWA 2013's statutory requirements. It includes citations to existing 
tribal codes implementing the new law. The ITWG has also produced a 
sample tribal code, sample complaints, sample jury instructions, a 
sample law enforcement pocket card, a sample press release for 
community notification, training materials, and papers on the following 
topics:
---------------------------------------------------------------------------
    \44\ www.ncai.org/tribal-vawa.
    \45\ http://www.tribal-institute.org/lists/vawa_2013.htm

---------------------------------------------------------------------------
   Jury Issues

        --Fair Cross Section Requirement
        --Jury size & unanimity
        --Constitutionality of maintaining two jury systems
        --Practical Considerations for Jury Selection in SDVCJ

          *Creating a master jury list
          *Selecting the Jury Pool
          *Summoning Jurors/Venire
          *Terms of Service & Paying for Juries

   Tribal Court Exhaustion
   Habeas Corpus
   Ideas for implementing SDVCJ cost efficiently

    The ITWG has also facilitated an ongoing webinar series on key 
areas of SDVCJ implementation, including defendants' rights issues; 
VAWA 2013's fair cross-section requirement and jury pool selection; and 
victims' rights. The full webinar series includes the following topics:

   Jury Pools & Selection

        --Part I--Developing an Effective and Defensible Jury Plan for 
        Tribal Courts
        --Part II--Jury Selection Plans

   Defendants' Rights

        --Part I--Competency of Defenders & Timing of Appointment
        --Part II--Use of Contract Attorneys for Primary and Conflict 
        Counsel
        --Part III--Indigency

   Victims' Rights

        --Part I--Victims' Rights Overview
        --Part II--Confidentiality and Privilege

   Protection Orders

        --Crafting, Serving, and Enforcing Protection Orders

   Prosecution Skills

        --Jury Instructions
        --Improving Victim Participation While Preparing for Non-
        Participation

   Pilot Project Application Questionnaire

        --Application Questionnaire Overview (VAWA Pilot Project)

   Lessons Learned

        --Lessons Learned from the VAWA Pilot Period

   Code Revision and Drafting

        --VAWA Code Drafting

        --Law School Clinical Assistance: Tribal Violence Against Women 
        Act

    TLPI, one of the technical assistance providers supporting the work 
of the ITWG, has also developed an in-depth guide for implementation of 
Tribal Law and Order Act and VAWA 2013. \46\ In addition, 
representatives of the Pilot Project tribes and the technical 
assistance team have presented at numerous conferences and meeting 
across Indian country with the goal of educating other tribes about 
implementation of VAWA 2013.
---------------------------------------------------------------------------
    \46\ Tribal Law and Policy Institute, ``Tribal Legal Code Resource: 
Tribal Laws Implementing TLOA Enhanced Sentencing and VAWA Enhanced 
Jurisdiction,'' (2015), available at http://www.tribalinstitute.org/
download/codes/TLOA_VAWA_3-9-15.pdf.
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Lessons Learned from the Pilot Project & Recommendations
    The Pilot Project proved incredibly successful in allowing the 
participating tribes to prosecute many long-time repeat offenders who 
had threatened the tribal community. At the same time, however, the 
Pilot Project revealed a number of inherent limitations in SDVCJ, as 
well as unforeseen obstacles in implementation. These issues are 
discussed in more detail below.
1. Non-Indian domestic violence is a significant problem in tribal 
        communities
    When VAWA 2013 was pending before Congress, many policy-makers and 
commentators questioned whether the tribal jurisdiction provision was 
needed and whether a significant number of non-Indians were committing 
domestic violence crimes in Indian country. The experience of the three 
original Pilot Project tribes provides an unequivocal answer to that 
question. Since beginning to exercise SDVCJ, Pascua Yaqui has found 
that 25 percent of its domestic violence caseload involves non-Indians. 
The statistics collected by Pascua Yaqui and Tulalip about the prior 
police contacts of their SDVCJ offenders demonstrate that the non-
Indian offenders menaced the tribal community for years and had been a 
drain on the tribes' law enforcement resources. Where SDVCJ was 
implemented during the Pilot Period, impunity has ended for non-Indian 
domestic abusers.
2. Most Special Domestic Violence Criminal Jurisdiction defendants have 
        significant ties to the tribal communities
    Most SDVCJ offenders had established themselves in the tribal 
community. For example, Pascua Yaqui reports that at least 9 of the 
SDVCJ offenders were living on the reservation in tribal subsidized 
housing; two of the incidents involved married couples who lived on the 
reservation; four incidents involved children who belonged to the non-
Indian offender. At least two of the SDVCJ arrests involved unenrolled 
Indians from either the U.S. or Canada.
3. Children are impacted by non-Indian domestic violence at high rates 
        All three of the Pilot Project tribes report that children are 
        usually involved as victims or witnesses in SDVCJ cases. A 
        majority of SDVCJ incidents involved children who were at home 
        during the domestic violence that occurred. These children have 
        been assaulted or have faced physical intimidation and threats, 
        are living in fear, and are at risk for developing school 
        related problems, medical illnesses, post-traumatic stress 
        disorder (PTSD), and other impairments. \47\ Although children 
        are frequently witnesses to domestic violence or victims 
        themselves, SDVCJ currently only applies to crimes committed 
        against romantic or intimate partners or persons covered by a 
        qualifying protection order. The implementing tribes are unable 
        to prosecute non-Indians for many of the crimes against 
        children that co-occur with domestic violence. Instead, they 
        are left to refer these cases to state or federal authorities, 
        who may not pursue them.
---------------------------------------------------------------------------
    \47\ See Attorney General's Advisory Committee on American Indian 
and Alaska Native Children Exposed to Violence, U.S. Department of 
Justice, Report of the Advisory Committee on American Indian and Alaska 
Native Children Exposed to Violence: Ending Violence so Children Can 
Thrive (November 2014).

        Case Study: A non-Indian boyfriend, engaged in a 3-day 
        methamphetamine bender, refused to let his Indian girlfriend 
        and her children leave the home. The non-Indian forced both the 
        woman and her child to sit in a chair while he threw knives at 
        them. Because of the severity of the violence, and because 
        SDVCJ does not provide accountability for the crimes committed 
        against the child, the case was referred to the U.S. Attorney 
---------------------------------------------------------------------------
        for prosecution.

4. Training is critical for success
    While much of the work as tribes prepare to implement SDVCJ focuses 
on revising tribal codes, policies, and procedures, the Pilot Project 
tribes all devoted considerable resources to training for tribal law 
enforcement officers, prosecutors, judges, and other key stakeholders. 
Oftentimes the need for training became evident as the tribes 
encountered an unexpected obstacle of one kind or another. For example, 
the day after SDVCJ was enacted on one reservation, a non-Indian 
offender was arrested and delivered to the county authorities where he 
was promptly released.
    That incident served as a reminder that tribal and Bureau of Indian 
Affairs (BIA) officers needed to be fully trained about the scope of 
the tribe's authority. Similarly, Pascua Yaqui's experience with its 
jury trial demonstrated the importance of training law enforcement 
about how to properly investigate whether there is a qualifying 
relationship sufficient to trigger SDVCJ in a particular case.
5. Federal partners have an important role
    The implementing tribes have worked closely with Bureau of Indian 
Affairs (BIA) and DOJ officials to address challenges that have come up 
as a result of the complicated and fragmented criminal justice system 
at work in Indian Country. It has been important, for example, to 
clarify that BIA detention facilities are permitted to house non-Indian 
SDVCJ offenders and that tribes can use their 638 contract funds to pay 
for costs associated with housing non-Indian SDVCJ offenders. Likewise, 
the Pilot Project tribes have all worked closely with their local U.S. 
Attorney's Offices to make decisions about which jurisdiction is most 
appropriate to prosecute a particular case.
6. Peer-to-Peer learning is important
    The ITWG has proven to be an incredibly productive and useful 
mechanism for tribes to share information and best practices among 
themselves, to discuss challenges, and to jointly strategize about how 
to overcome obstacles. With the logistical support and substantive 
expertise of a group of DOJ funded technical assistance providers, \48\ 
the tribes participating in ITWG have tackled many difficult questions 
and have developed a collection of resources that will make it easier 
for tribes who wish to implement SDVCJ in the future. The ITWG 
continues to serve as an important resource for the implementing tribes 
as they encounter new questions and challenges.
---------------------------------------------------------------------------
    \48\ The National Congress of American Indians and the National 
Center for Juvenile and Family Court Judges have been supporting the 
work of the ITWG and providing technical assistance to implementing 
tribes through grants from the Office on Violence Against Women. The 
Tribal Law and Policy Institute has also partnered in this effort with 
support from the Bureau of Justice Assistance
---------------------------------------------------------------------------
    The success of the ITWG has been driven by the engagement of 
dedicated and knowledgeable attorneys and tribal representatives from 
across Indian country. This engagement has been possible because of the 
travel support provided by DOJ, which allowed many of the members to 
participate in productive in-person meetings. The engagement and 
expertise of the technical assistance team has provided important 
coordination and leadership to the ITWG, while also helping the ITWG to 
track issues as they arise and to connect with necessary resources.
7. Special Domestic Violence Criminal Jurisdiction is too narrow
    One area of major concern among the Pilot Project tribes is the 
narrow class of crimes covered under SDVCJ. \49\ The limitations with 
regard to children who are victimized by domestic abusers was discussed 
above. Additionally, since tribal jurisdiction is limited to domestic 
violence, dating violence, and protection order violations, any other 
attendant crimes that occur also fall outside the scope of the tribe's 
jurisdiction. The Pilot Project tribes reported, for example, cases 
where the offender also committed a drug or alcohol offense or a 
property crime that the tribe was unable to charge. There is also 
uncertainty about a tribe's authority to charge an offender for crimes 
that may occur within the context of the criminal justice process, like 
resisting arrest, assaulting an officer, witness tampering, juror 
intimidation, or obstruction of justice. Because tribal prosecutors are 
unable to charge the full range of criminal conduct that may occur in a 
domestic violence incident, they may be more dependent on victim 
cooperation and the offenders' criminal history may not accurately 
reflect the severity of his actions.
---------------------------------------------------------------------------
    \49\ We note that there are many crimes, in addition to the ones 
discussed in this section, that also fall outside the scope of SDVCJ 
and leave tribal victims without access to justice in too many cases. 
Sexual assault committed by a stranger or acquaintance and elder abuse, 
for example, are also not covered by SDVCJ.

        Case Study: At 2:00 am, the tribal police were called to a 
        domestic violence incident involving a non-Indian man. 
        Methamphetamines were found on the premises, and tribal police 
        requested an oral search warrant from the tribal judge to 
        perform a urine analysis on the non-Indian. While being under 
        the influence could be relevant to a DV investigation, the 
        tribal judge ruled against issuing the search warrant. Some 
        state case law has held that tribal police lack the authority 
        to investigate crimes where they do not have jurisdiction, and 
        the judge did not want to compromise a potential state case for 
---------------------------------------------------------------------------
        drug possession.

8. There is confusion about the statutory definition of ``domestic 
        violence"
    Tribal prosecutors from the Pilot Project tribes also report 
uncertainty regarding the definition of ``domestic violence'' \50\ in 
the wake of the Supreme Court's decision in United States. v. 
Castleman. \51\ When Castleman was decided in March of 2014, it had an 
immediate impact on the three original Pilot Project tribes' criminal 
charging decisions when evaluating misdemeanor arrests under SDVCJ 
authority.
---------------------------------------------------------------------------
    \50\ For purposes of SDVCJ, VAWA defines domestic violence as 
``violence committed by a current or former spouse or intimate partner 
of the victim, by a person who is cohabitating with or has cohabitated 
with the victim as a spouse or intimate partner, or by a person 
similarly situated to a spouse of the victim under the domestic- or 
family- violence laws of an Indian tribe that has jurisdiction over the 
Indian Country where the violence occurs.'' 25 U.S.C. 1304 (a)(2).
    \51\ United States v. Castleman, 134 S. Ct. 1405 (2014)
---------------------------------------------------------------------------
    The Justices suggested in dicta in Castleman that the domestic 
violence crime in an SDVCJ case must involve actual ``violence,'' which 
is not a defined term. As a result, the original Pilot Project tribes 
have declined to prosecute certain offenses like offensive touching, 
harassment, or interference with domestic violence reporting that would 
otherwise constitute ``domestic violence'' under tribal law, but do not 
include an element of ``offensive touching'' or may not be considered a 
``violent crime.'' DOJ and the technical assistance team have provided 
guidance to the ITWG about what type of conduct likely constitutes 
``violence'' for SDVCJ purposes, but confusion persists.
    The prosecutors for the Pilot Project tribes report that SDVCJ will 
be more effective if it is amended to (1) clarify that Indian tribes 
possess the authority to prosecute a non-Indian for the types of 
offenses that often occur in the cycle of domestic abuse that might not 
qualify as ``violence'' in isolation; (2) reaffirm tribal jurisdiction 
over crimes that frequently co-occur with domestic violence; (3) 
reaffirm tribal jurisdiction over all crimes of violence against women 
or that occur within the family, including child abuse.
    Case Study: A woman called the police to remove her highly 
intoxicated partner from her home. The defendant returned an hour 
later. He was so intoxicated that when he swung to punch the victim, he 
missed and fell to the ground. The tribal prosecutor declined to 
prosecute because there was no actual physical contact, and they were 
concerned the incident did not meet the definition of domestic violence 
in the federal law. The defendant subsequently assaulted the victim 
again and was arrested.
9. Tribes need resources for SDVCJ implementation
    VAWA 2013 authorized $5,000,000 for each of fiscal years 2014 
through 2018 for SDVCJ implementation. \52\ Unfortunately, Congress has 
not appropriated these funds and no resources have been made available 
specifically for tribal implementation of SDVCJ. While 45 tribes have 
been actively participating in the ITWG, as of the date of this report, 
only 8 tribes have implemented the law. The primary reason tribes 
report for why SDVCJ has not been more broadly implemented is lack of 
resources. During and beyond the implementation phase, Tribes need 
funding and access to resources and services to support implementation.
---------------------------------------------------------------------------
    \52\ 25 U.S.C. 1304(h)
---------------------------------------------------------------------------
                      summary of 9 lessons learned
    1.  Non-Indian domestic violence is a significant problem in tribal 
communities

    2.  Most Special Domestic Violence Criminal Jurisdiction defendants 
have significant ties to the tribal communities

    3.  Children are impacted by non-Indian domestic violence at high 
rates

    4.  Training is critical for success

    5.  Federal partners have an important role

    6.  Peer-to-peer learning is important

    7.  Special Domestic Violence Criminal Jurisdiction is too narrow

    8.  There is confusion about the statutory definition of ``domestic 
violence"

    9.  Tribes need resources for Special Domestic Violence Criminal 
Jurisdiction implementation

                               Appendix A
    Indian Civil Rights Act, 25 U.S.C.  1301-1304, as amended by VAWA 
2013:
     1301. Definitions: For purposes of this subchapter, the term

        1.  ``Indian tribe'' means any tribe, band, or other group of 
        Indians subject to the jurisdiction of the United States and 
        recognized as possessing powers of self-government.

        2.  ``powers of self-government'' means and includes all 
        governmental powers possessed by an Indian tribe, executive, 
        legislative, and judicial, and all offices, bodies, and 
        tribunals by and through which they are executed, including 
        courts of Indian offenses; and means the inherent power of 
        Indian tribes, hereby recognized and affirmed, to exercise 
        criminal jurisdiction over all Indians;

        3.  ``Indian court'' means any Indian tribal court or court of 
        Indian offense, and

        4.  ``Indian'' means any person who would be subject to the 
        jurisdiction of the United States as an Indian under section 
        1153, title 19, United States Code, if that person were to 
        commit an offense listed in that section in Indian country to 
        which that section applies.

     1302. Constitutional Rights: No Indian tribe in exercising powers 
of self-government shall:
    (a) In general
    No Indian tribe in exercising powers of self-government shall--
        1.  make or enforce any law prohibiting the free exercise of 
        religion, or abridging the freedom of speech, or of the press, 
        or the right of the people peaceably to assemble and to 
        petition for a redress of grievances;

        2.  violate the right of the people to be secure in their 
        persons, houses, papers, and effects against unreasonable 
        search and seizures, nor issue warrants, but upon probable 
        cause, supported by oath or affirmation, and particularly 
        describing the place to be searched and the person or thing to 
        be seized;

        3.  subject any person for the same offense to be twice put in 
        jeopardy;

        4.  compel any person in any criminal case to be a witness 
        against himself;

        5.  take any property for a public use without just 
        compensation;

        6.  deny to any person in a criminal proceeding the right to a 
        speedy and public trial, to be informed of the nature and cause 
        of the accusation, to be confronted with the witnesses against 
        him, to have compulsory process for obtaining witnesses in his 
        favor, and at his own expense to have the assistance of counsel 
        for his defense;

        7.
          (A)  require excessive bail, impose excessive fines, or 
        inflict cruel and unusual punishments;
          (B)  except as provided in subparagraph (C), impose for 
        conviction of any 1 offense any penalty or punishment greater 
        than imprisonment for a term of 1 year or a fine of $5,000, or 
        both;
          (C)  subject to subsection (b), impose for conviction of any 
        1 offense any penalty or punishment greater than imprisonment 
        for a term of 3 years or a fine of $15,000, or both; or
          (D)  impose on a person in a criminal proceeding a total 
        penalty or punishment greater than imprisonment for a term of 9 
        years;

        8.  deny to any person within its jurisdiction the equal 
        protection of its laws or deprive any person of liberty or 
        property without due process of law;

        9.  pass any bill of attainder or ex post facto law; or

        10.  deny to any person accused of an offense punishable by 
        imprisonment the right, upon request, to a trial by jury of not 
        less than six persons.

    (b) Offenses subject to greater than 1-year imprisonment or a fine 
greater than $5,000

    A tribal court may subject a defendant to a term of imprisonment 
greater than 1 year but not to exceed 3 years for any 1 offense, or a 
fine greater than $5,000 but not to exceed $15,000, or both, if the 
defendant is a person accused of a criminal offense who--

        1.  Has been previously convicted of the same or a comparable 
        offense by any jurisdiction in the United States; or

        2.  Is being prosecuted for any offense comparable to an 
        offense that would be punishable by more than 1 year of 
        imprisonment if prosecuted by the United States or any of the 
        States.

    (c) Rights of defendants

    In a criminal proceeding in which an Indian tribe, in exercising 
powers of self-government, imposes a total term of imprisonment of more 
than 1 year on a defendant, the Indian tribe shall--

        1.  provide to the defendant the right to effective assistance 
        of counsel at least equal to that guaranteed by the United 
        States Constitution; and

        1.  at the expense of the tribal government, provide an 
        indigent defendant the assistance of a defense attorney 
        licensed to practice law by any jurisdiction in the United 
        States that applies appropriate professional licensing 
        standards and effectively ensures the competence and 
        professional responsibility of its licensed attorneys;

        3.  require that the judge presiding over the criminal 
        proceeding--
          (A)  has sufficient legal training to preside over criminal 
        proceedings; and
          (B)  is licensed to practice law by any jurisdiction in the 
        United States;

        4.  prior to charging the defendant, make publicly available 
        the criminal laws (including regulations and interpretative 
        documents), rules of evidence, and rules of criminal procedure 
        (including rules governing the recusal of judges in appropriate 
        circumstances) of the tribal government; and

        5.  maintain a record of the criminal proceeding, including an 
        audio or other recording of the trial proceeding.

    (d) Sentences

    In the case of a defendant sentenced in accordance with subsections 
(b) and (c), a tribal court may require the defendant--

        1.  to serve the sentence--

          (A)  in a tribal correctional center that has been approved 
        by the Bureau of Indian Affairs for long-term incarceration, in 
        accordance with guidelines to be developed by the Bureau of 
        Indian Affairs (in consultation with Indian tribes) not later 
        than 180 days after July 29, 2010;

          (B)  in the nearest appropriate Federal facility, at the 
        expense of the United States pursuant to the Bureau of Prisons 
        tribal prisoner pilot program described in section 304(c)[1] of 
        the Tribal Law and Order Act of 2010

          (C)  in a State or local government-approved detention or 
        correctional center pursuant to an agreement between the Indian 
        tribe and the State or local government; or

          (D)  in an alternative rehabilitation center of an Indian 
        tribe; or

        2.  to serve another alternative form of punishment, as 
        determined by the tribal court judge pursuant to tribal law.

    (e) Definition of offense

    In this section, the term ``offense'' means a violation of a 
criminal law.

    (f) Effect of section

    Nothing in this section affects the obligation of the United 
States, or any State government that has been delegated authority by 
the United States, to investigate and prosecute any criminal violation 
in Indian country.

     1303. Habeas corpus

    The privilege of the writ of habeas corpus shall be available to 
any person, in a court of the United States, to test the legality of 
his detention by order of an Indian tribe.

     1304. Tribal Jurisdiction over Crimes of Domestic Violence

    (a) Definitions.--In this section:

        1.  Dating Violence.--The term `dating violence' means violence 
        committed by a person who is or has been in a social 
        relationship of a romantic or intimate nature with the victim, 
        as determined by the length of the relationship, the type of 
        relationship, and the frequency of interaction between the 
        persons involved in the relationship.

        2.  Domestic Violence.--The term `domestic violence' means 
        violence committed by a current or former spouse or intimate 
        partner of the victim, by a person with whom the victim shares 
        a child in common, by a person who is cohabitating with or has 
        cohabitated with the victim as a spouse or intimate partner, or 
        by a person similarly situated to a spouse of the victim under 
        the domestic- or family-violence laws of an Indian tribe that 
        has jurisdiction over the Indian country where the violence 
        occurs.

        3.  Indian country.--The term `Indian country' has the meaning 
        given the term in section 1151 of title 18, United States Code.

        4.  Participating tribe.--The term ``participating tribe' means 
        an Indian tribe that elects to exercise special domestic 
        violence criminal jurisdiction over the Indian country of that 
        Indian tribe.

        5.  Protection order.--The term `protection order'--

          (A)  means any injunction, restraining order, or other order 
        issued by a civil or criminal court for the purpose of 
        preventing violent or threatening acts or harassment against, 
        sexual violence against, contact or communication with, or 
        physical proximity to, another person; and

          (B)  includes any temporary or final order issued by a civil 
        or criminal court, whether obtained by filing an independent 
        action or as a Pendente lite order in another proceeding, if 
        the civil or criminal order was issued in response to a 
        complaint, petition, or motion filed by or on behalf of the 
        person seeking protection.

        6.  Special domestic violence criminal jurisdiction.--The term 
        `special domestic violence criminal jurisdiction' means the 
        criminal jurisdiction that a participating tribe may exercise 
        under this section but could not otherwise exercise.

        7.  Spouse or intimate partner.--The term `spouse or intimate 
        partner' has the meaning given the term in section 226 of title 
        18, United States Code.

    (b) Nature of Criminal Jurisdiction.--

        1.  In general.--Notwithstanding any other provision of law, in 
        addition to all powers of self-government recognized and 
        affirmed by sections 201 and 203 [25 USC  1301 and 1303, 
        respectively], the powers of self-government of a participating 
        tribe include the inherent power of that tribe, which is hereby 
        recognized and affirmed, to exercise special domestic violence 
        criminal jurisdiction over all persons.

        2.  Concurrent jurisdiction.--The exercise of special domestic 
        violence criminal jurisdiction by a participating tribe shall 
        be concurrent with the jurisdiction of the United States, of a 
        State, or of both.

        3.  Applicability.--Nothing in this section--

          (A)  creates or eliminates any Federal or State criminal 
        jurisdiction over Indian country; or

          (B)  affects the authority of the United States or any State 
        government that has been delegated authority by the United 
        States to investigate and prosecute a criminal violation in 
        Indian country.

        4.  Exceptions.--

          (A)  Victim and defendant are both non-Indians.--

            i.  In general.--A participating tribe may not exercise 
        special domestic violence criminal jurisdiction over an alleged 
        offense if neither the defendant nor the alleged victim is an 
        Indian.

            ii.  Definition of victim.--In this subparagraph and with 
        respect to a criminal proceeding in which a participating tribe 
        exercises special domestic violence criminal jurisdiction based 
        on a violation of a protection order, the term `victim' means a 
        person specifically protected by a protection order that the 
        defendant allegedly violated.

          (B)  Defendant lacks ties to the Indian tribe.--A 
        participating tribe may exercise special domestic violence 
        criminal jurisdiction over a defendant only if the defendant--

            i. resides in the Indian country of the participating 
        tribe;

            ii. is employed in the Indian country of the participating 
        tribe; or

            iii.  is a spouse, intimate partner, or dating partner of--

              1.  a member of the participating tribe; or

              2.  an Indian who resides in the Indian country of the 
        participating tribe.

    (c) Criminal Conduct.--A participating tribe may exercise special 
domestic violence criminal jurisdiction over a defendant for criminal 
conduct that falls into one or more of the following categories:

        1.  Domestic violence and dating violence.--An act of domestic 
        violence or dating violence that occurs in the Indian country 
        of the participating tribe.

        2.  Violations of protection orders.--An act that--

          (A)  occurs in the Indian country of the participating tribe; 
        and

          (B)  violates the portion of a protection order that--

            i.  prohibits or provides protection against violent or 
        threatening acts or harassment against, sexual violence 
        against, contact or communication with, or physical proximity 
        to, another person;

            ii. was issued against the defendant;

            iii. is enforceable by the participating tribe; and

            iv. is consistent with section 2265(b) of title 18, United 
        States Code.

    d) Rights of Defendants.--In a criminal proceeding in which a 
participating tribe exercises special domestic violence criminal 
jurisdiction, the participating tribe shall provide to the defendant--

        1.  all applicable rights under this Act;

        2.  if a term of imprisonment of any length may be imposed, all 
        rights described in section 202(c) [25 USC 1302(c)];

        3.  the right to a trial by an impartial jury that is drawn 
        from sources that--

          (A)  reflect a fair cross section of the community; and

          (B)  do not systematically exclude any distinctive group in 
        the community, including non-Indians; and

        4.  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 special domestic violence criminal 
        jurisdiction over the defendant.

    (e) Petitions to Stay Detention.--

        1.  In general.--A person who has filed a petition for a writ 
        of habeas corpus in a court of the United States under section 
        203 [25 USC  1303] may petition that court to stay further 
        detention of that person by the participating tribe.

        2.  Grant of stay.--A court shall grant a stay described in 
        paragraph (1) if the court--

          (A)  finds that there is a substantial likelihood that the 
        habeas corpus petition will be granted; and

          (B)  after giving each alleged victim in the matter an 
        opportunity to be heard, finds by clear and convincing evidence 
        that under conditions imposed by the court, the petitioner is 
        not likely to flee or pose a danger to any person or the 
        community if released.

        3.  Notice.--An Indian tribe that has ordered the detention of 
        any person has a duty to timely notify such person of his 
        rights and privileges under this subsection and under section 
        203 [25 USC  1303].

                               Appendix B
Helpful Resources
    Resource Center for Implementing Tribal Provisions of VAWA 2013 was 
developed and is maintained by the National Congress of American 
Indians (NCAI) to provide information, news, resources, notice of 
events, and funding opportunities on the implementation of tribal 
provisions of VAWA 2013. It also contains information on the 
Intertribal Technical-Assistance Working Group (ITWG), a group of 
tribal representatives that met to discuss issues and best practices 
relative to tribal VAWA 2013 implementation. See: www.ncai.org/tribal-
vawa
    Tribal VAWA Resource Page is housed on the Tribal Court 
Clearinghouse website. This page contains the language of VAWA, videos 
from the VAWA signing ceremony, publications, reports, articles and 
other important resources on VAWA's SDVCJ, as well as relevant upcoming 
and past events focusing on SDVCJ. See: http://www.tribal-
institute.org/lists/vawa_2013.htm
    Tribal Protection Order website was developed and is maintained by 
TLPI. It is a clearinghouse of information and resources on tribal 
protection orders and tribal enforcement. See: 
www.TribalProtectionOrder.org
    Federal Register, vol. 78, no. 115, p. 35961, June 14, 2013 This 
notice proposes procedures for an Indian tribe to request designation 
as a participating tribe under section 204 of the Indian Civil Rights 
Act of 1968, as amended, on an accelerated basis, pursuant to the 
voluntary pilot project described in section 908(b)(2) of the Violence 
Against Women Reauthorization Act of 2013 (``the Pilot Project''), and 
also proposes procedures for the Attorney General to act on such a 
request. This notice also invites public comment on the proposed 
procedures and solicits preliminary expressions of interest from tribes 
that may wish to participate in the Pilot Project.
    Federal Register, vol. 78, no. 230, p. 71645, Nov. 29, 2013 This 
final notice establishes procedures for Indian tribes to request 
designation as participating tribes under section 204 of the Indian 
Civil Rights Act of 1968, as amended, on an accelerated basis, under 
the voluntary pilot project described in the Violence Against Women 
Reauthorization Act; establishes procedures for the Attorney General to 
act on such requests; and solicits such requests from Indian tribes.
    The U.S. Supreme Court in Oliphant v. Suquamish Indian Tribe, 435 
U.S. 191 (1978), held that tribal sovereignty does not extend to the 
exercise of criminal jurisdiction over a non- Indian for crimes 
committed in Indian country.
    Public Law 113-4, 127 Stat. 54 (2013) The Violence Against Women 
Reauthorization Act of 2013 (VAWA 2013), recognized and reaffirmed the 
inherent sovereign authority of Indian tribes to exercise criminal 
jurisdiction over certain non-Indians who violate protection orders or 
commit dating violence or domestic violence against Indian victims on 
tribal lands.
    25 U.S.C. 1304 Tribal jurisdiction over crimes of domestic 
violence.
    The Tribal Law and Order Act (Public Law 111-211, Congress passed 
the legislation as part of another bill regarding Indian Arts and 
Crafts. See Title II.) enhanced tribal authority to prosecute and 
punish criminals. However, tribes are required to provide certain due 
process requirements. The requirements are listed in the amended Indian 
Civil Rights Act (25 U.S.C.  1301-1304).
    Tribal Law and Order Act Resource Center is a website specifically 
developed by NCAI to share information and resources relative to TLOA. 
It contains many of the resources described in this resource sections 
and many more, as well as news, events, webinars, and other helpful 
information. See: tloa.ncai.org
    The five tribes' applications to participate in the pilot project 
permitting early use of jurisdiction over non-Indians may also be 
helpful, as the applications look for compliance with the VAWA 2013 
requirements and provide the tribes examples of their compliance. The 
applications are publically available: Confederated Tribes of the 
Umatilla Indian Reservation application, Pascua Yaqui Tribe 
application, Tulalip Tribes application, Assiniboine and Sioux Tribes 
of the Fort Peck Indian Reservation application and Sisseton-Wahpeton 
Oyate of the Lake Traverse Reservation application. See: 
www.justice.gov/tribal/vawa-2013-pilot-project
    ''Considerations in Implementing V AWA's Special Domestic Violence 
Criminal Jurisdiction and TLOA 's Enhanced Sentencing Authority--A Look 
at the Experience of the Pascua Yaqui Tribe,'' compiled by Alfred 
Urbina, Attorney General, Pascua Yaqui Tribe and Melissa Tatum, 
Research Professor of Law, The University of Arizona James E. Rogers 
College of Law. See: indianlaw.org/safewomen/resources
    28 U.S.C. 543(a) Special Assistant United States Attorneys 
(SAUSAs), appointed by the Attorney General, who assist in prosecuting 
Federal offenses committed in Indian country.
    The five pilot project codes: http://ctuir.org/criminal-code
    Two articles by M. Brent Leonhard, Attorney in the Office of Legal 
Counsel for the Confederated Tribes of the Umatilla Indian Reservation, 
on implementing VAWA 2013. The Federal Lawyer, October/November 2015 
and ABA Human Rights Magazine Volume 40 Number 4.
    Tulalip Tribal Court Rules including rules regarding indigency 
standards and rights afforded under VAWA special domestic violence 
criminal jurisdiction. See: www.codepublishing.com/wa/Tulalip/ITWG Code 
Development Checklist for implementing VAWA 2013. This checklist is 
designed as a tool to assist tribal governments seeking to develop 
tribal codes that comply with VAWA 2013's statutory requirements. It 
includes citations to existing tribal codes implementing the new law. 
See: www.ncai.org/tribal-vawa
    Simple checklist for Law Enforcement Officers. Implementation of 
VAWA 2013 may require changes in law enforcement policies and 
procedures. Training for law enforcement officers will be an important 
part of implementation. See: www.ncai.org/tribal-vawa requirement and 
jury pool selection; and victims' rights. The full webinar series can 
be found on the NCAI website Resource Center for Implementing Tribal 
Provisions of VAWA 2013. See www.ncai.org/tribal-vawa.
    TLPI, one of the technical assistance providers supporting the work 
of the ITWG, has also developed an in-depth guide for implementation of 
Tribal Law and Order Act and VAWA 2013, which includes a model code 
that the ITWG tribes developed. See: www.tlpi.org and 
www.Home.TLPI.org.
    The final report of the Attorney General's Task Force on American 
Indian and Alaska Native Children Exposed to Violence--''Ending 
Violence So Children Can Thrive,'' US Senator Byron Dorgan et al. The 
task force is part of Attorney General's Defending Childhood 
Initiative, a project that addresses the epidemic levels of exposure to 
violence faced by our nation's children. The task force was created in 
response to a recommendation in the Attorney General's National Task 
Force on Children Exposed to Violence December 2012 final report. The 
report noted that American Indian and Alaska Native children have an 
exceptional degree of unmet needs for services and support to prevent 
and respond to the extreme levels of violence they experience. See: 
www.justice.gov/defendingchildhood
                                 ______
                                 
 Prepared Statement of the Central Council of Tlingit and Haida Indian 
                            Tribes of Alaska
    Dear Senate Select Committee on Indian Affairs:
    The Central Council of Tlingit and Haida Indian Tribes of Alaska 
(``Central Council'') offers written comments to supplement the hearing 
held on May 18, 2016 on Senate Bills 2920 and 2785. We are appreciative 
that the Senate Select Committee on Indian Affairs is proactively 
looking at reauthorization of Tribal Law and Order Act (TLOA) and also 
to close jurisdictional gaps of 25 USC 1304, the Special Domestic 
Violence Court Jurisdiction over non-Indians section.
    This letter will begin with a brief overview of our Tribe, followed 
by general comments about the unique legal issues to Alaska, and 
specific recommendations about the proposed bills. It is worth stating 
upfront that the Supreme Court case in the Native Village of Venetie, 
along with the Alaska Native Claims Settlement Act (ANCSA) have created 
a challenging situation for Alaska Native Villages and Tribes to 
address village safety issues, especially as it relates to 
accountability of criminal defendants and domestic violence 
perpetrators. We ask that the Senate consider a legislative fix to 
these jurisdictional issues.
Who We Are
    Central Council is a federally recognized Tribal government for 
Alaska's Tlingit and Haida population, with more than 30,000 tribal 
citizens worldwide. Central Council is one of approximately 229 
federally recognized tribes in the State of Alaska. Alaska tribes 
comprise nearly 40 percent of all federally recognized tribes in the 
United States.
    On September 4, 2007, Central Council began operating a formal, 
regional tribal court, located in Juneau, Alaska, to provide child 
support services to 20 villages and communities that are spread over 
43,000 square miles within the Alaska Panhandle. The region encompasses 
a 525-mile strip of coastline and interior waterways, bordered by 
Canada on the north, south, and east, with the Gulf of Alaska on the 
west. There is no road system linking Southeast Alaska communities; 
therefore, communities can only be reached by airplane, boat or ferry.
    Prior to 2007, the tribal court had elected judges but no budget 
for staffing or operation of tribal court. This all changed when the 
Tribe applied for and received Title IV-D funding to open a tribal 
child support agency. This funding source allowed the tribe to hire one 
judge and one court clerk to hear paternity, child support order 
establishment and enforcement for cases involving children enrolled or 
eligible for enrollment with the tribe. Since that time, despite 
continued limited grant funding, the tribe has expanded its services to 
include domestic violence, child custody, divorce, guardianship, 
adoption and is currently in the process of expanding services to 
include juvenile justice and child welfare cases.
    Central Council's tribal court is located in Juneau, as part of a 
tribal government office building. Juneau has the highest concentration 
of tribal citizens in Alaska, but Central Council has citizens all 
across Southeast, and out of state. Central Council compacts with a few 
Southeast Tribes for social services, such as Indian Child Welfare Act 
(ICWA).
Unique Status of Alaska Tribes
    Historically, Alaska tribes, for various reasons, have been treated 
differently than lower 48 tribes, often making fundamentals of tribal 
court jurisdiction difficult to understand or ascertain. In a rather 
remarkable turn of events, the federal government settled its land 
claims with the aboriginal people of Alaska not by compensating the 
tribal governments of the aboriginal people, but rather by establishing 
corporations whose shareholders would be the aboriginal people and 
bestowing on those corporations the goal of leveraging the land and 
money received in compensation to operate for-profit businesses. With 
the passage of the ANCSA in 1971. the only remaining reservation in the 
state is the Annette Island Reserve in Southeast Alaska. Rather than 
recognize sovereign tribal lands, ANCSA tasked the for-profit 
corporations to manage more than 40 million acres of fee land. ANCSA 
divided the state into 12 regional corporations and over 200 village 
corporations that would identify with their regional corporation. Many 
of these villages had corresponding tribal village governments. but 
with the passage of ANCSA. no meaningful land base. As a result, unlike 
most court systems that have defined territorial jurisdiction and 
personal jurisdiction. Alaska Tribal courts generally exercise 
jurisdiction through tribal citizenship. and not through a geographic 
space defined as ``Indian Country'' because of ANCSA and in part due to 
a United States Supreme Court case.
    As a result of the United States Supreme Court's unfavorable 
decision in Alaska v. Native Village of Venetie Tribal Government, 522 
U.S. 520 (1998), most of the Tribe's traditional territory is not 
considered ``Indian Country''. Without the ability to tax. without 
Indian gaming, and without consistent and predictable tribal court 
appropriations. Alaska Tribes lack the revenue typically available to 
other tribal governments to fund and sustain essential governmental 
programs. All Alaska Tribes are in a similar position. and must find 
innovative ways to raise governmental revenue and to leverage other 
resources to sustain their Tribal Courts and public safety programs. As 
a result of this resource dilemma, available grants for developing and 
sustaining programs are incredibly important for Alaska Tribes.
    As mentioned, Alaskan tribal governments are not positioned to take 
advantage of the traditional tools local governments use to generate 
revenue. Except for Metlakatla, Alaskan tribal governments have no 
taxable land base and subsistence economies--also known as non-cash 
economies--are unable to generate strong steady revenues in the form of 
a sales tax. property tax, or other taxes.
    Making matters worse, in 2003, Alaska's own Senator Ted Stevens 
singled out Alaska Tribes for exceptionally harsh financial 
restrictions through legislative riders to the FY 04 Consolidated 
Spending Bill (Sec. 1 12 of HR 2673). The riders eliminated funds to 
tribal courts and tribal law enforcement programs in Alaska Native 
Villages, and specifically excluded certain Southeast Alaska 
communities from receiving any Department of Justice funding. Although 
Congress recently eliminated these restrictions, they set back Alaska 
Tribes even further while they were in place. Without adequate 
resources, tribal court jurisdiction and law enforcement floundered.
    All told, these funding restrictions have severely hindered the 
approximately 78 tribal justice systems in Alaska from developing. The 
vast majority of Alaska tribal courts are not able to operate on a 
full-time basis or hire full-time employees. Central Councirs tribal 
court staff are funded by a delicate balance BIA compact funds and 
temporary grants.
    Against the backdrop of this funding desert, Alaskan tribal 
citizens are suffering. The absence of an effective justice system has 
disproportionately harmed Alaska Native women who are continually 
targeted for all forms of violence. Alaska Natives comprise only 15.2 
percent of the state's population, but make up 47 percent of victims of 
domestic violence and 61 percent of victims of sexual assault are 
Alaska Native. And among other Indian Tribes, Alaska Native women 
suffer the highest rates of domestic and sexual violence in the 
country.
    Although, in a PL 280 state, Alaska tribal communities should have 
access to state justice services, those services are centered in a 
handful of Alaskan urban areas, making them often more theoretical than 
real. Many communities have no law enforcement, no 91 1, no state 
official they could conceive of raising a complaint to, given the 
separation of geography, language, and culture. Also, because Alaska is 
a mandatory PL 280 state and because of other factors identified below, 
jurisdictional issues in Alaska create extremely dangerous conditions 
for our small, remote communities. The TLOA of 2010 created the Indian 
Law and Order Commission and authorized the Commission to conduct an 
extensive study of jurisdictional issues in Alaska. The Commission 
devoted an entire chapter to Alaska and found that:

         ``The strongly centralized law enforcement and justice systems 
        of the State of Alaska . . do not serve local and Native 
        communities adequately, if at all. The Commission believes that 
        devolving authority to Alaska Native communities is essential 
        for addressing local crime. Their governments are best 
        positioned to effectively arrest, prosecute, and punish, and 
        they should have the authority to do so-or to work out 
        voluntary agreements with each other, and with local 
        governments and the State on mutually beneficial terms.'' \1\
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    \1\ A Roadmap for Making Native America Safer: Report to the 
President and Congress of the United States (November 2013), available 
at http://www.aisc.ucla.edu/iloc/report/.

    While there have been recent gains that benefited Alaska, we still 
have laws and policies that make support for strong Alaska Native 
Judicial systems erratic. if not impossible. For example, the U.S. 
Department of Justice's support for repeal of the Special Rule for the 
State of Alaska included in section 910 of VAWA 2013 was applauded in 
Alaska. but the issue of Indian Country, described further below, 
remains. The Obama administration has supported our tribal governments 
in ways not seen for years. In a July 28, 2014, letter from Associate 
Attorney General Tony West to the Alaska state Attorney General, West 
reminded him of the State's obligation to give full faith and credit to 
tribal court orders of protection. Prior to this time, enforcement and 
recognition of Alaska tribal court orders was essentially non-existent. 
Basically, Alaska law required orders of protection issued by tribal 
courts to be registered with the state before enforcement would be 
available. As a result of Associate Attorney General West's assistance, 
the State of Alaska has recently evaluated its role in supporting 
Alaska Native protection orders. While still encouraging registration 
of tribal and foreign protection orders, in 2015, the State recognized 
that it must enforce unregistered Alaska tribal orders.
Senate Bill 2920
    We greatly appreciate the introduction of this bill. We ask that 
the Senate look to recent studies such as the newly released, National 
Institute of Justice. Research Report on the Violence Against American 
Indian and Native Women and Men, that document the dire safety 
circumstances that Alaska native villages are in as a result of their 
unique geographic situation, the 229 tribes state wide and the 
inability for the state to address the public safety state of emergency 
for Alaska Tribes.
Solutions to Solve the Jurisdictional Quagmire
    The repeal of section 910 of VAWA 2013 was a victory as it was a 
necessary step towards removing a discriminatory provision in the law 
that excluded all but one Alaska tribe from ever being able to enhance 
their response to violence against Native women in ways afforded all 
other federally recognized tribes. Nevertheless, because of the Venetie 
decision, additional reforms are needed before Alaska tribes will be 
able to increase safety for Alaska Native women and hold all offenders 
accountable. This is because section 904 of VAWA 2013 limits the 
exercise of the special domestic violence criminal jurisdiction 
restored to tribes to certain crimes committed in ``Indian Country.'' 
Yet, at the same time, the State does not have the resources to provide 
the level of justice needed in our communities. A legislative fix is 
necessary to address this injustice. Such a fix could be inserted in 
the Tribal Law and Order Act, or the next reauthorization of VAWA, or 
as an amendment to ANCSA, which recognizes a tribe's territorial 
jurisdiction equivalent to the corresponding Village Corporation's land 
base and traditional territory, or to other federal laws such as the 
statute defining Indian Country, \2\ or accomplished through other 
changes in federal policy allowing the Department of the Interior to 
accept land into trust for all federally recognized Alaska tribes. \3\
---------------------------------------------------------------------------
    \2\ 18 U.S.C.  1 151. Section 1151 provides in pertinent part 
that: ``Except as otherwise provided in sections 1154 and 1156 of this 
title, the term `Indian country', as used in this chapter, means (a) 
all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government. notwithstanding the 
issuance of any patent. and, including rights-of-way running through 
the reservation, (b) all dependent Indian communities within the 
borders of the United States whether within the original or 
subsequently acquired territory thereof, and whether within or without 
the limits of a state, and (c) all Indian allotments, the Indian titles 
to which have not been extinguished, including rights-of-way running 
through the same.''
    \3\ A federal regulation was developed after the U.S. District 
Court for the District of the Columbia held that exclusion of Alaska 
tribes from the land-into-process was not lawful. See Akiachak Native 
Community v. Salazar, 935 F. Supp. 2d 195 (D.D.C. 2013). The State of 
Alaska has appealed the decision and its motion to stay was granted to 
prevent the Interior Department from considering specific applications 
or taking lands into trust in Alaska until resolution of the appeal. On 
December 18, 2014, the Interior Department published its final rule 
rescinding the ``Alaska Exception,'' which became effective on January 
22, 2015. 79 Fed. Reg. 76888. This regulatory change could help some 
Alaska tribes exercise local governance to address violence against 
Native women.
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    We fully support the recommendations of the Tribal Law and Order 
Act Commission and ask that they all be priorities for inclusion in the 
reauthorization of TLOA. Specifically, we ask that the Senate Select 
Committee on Indian Affairs:

   Craft a legislative fix for the U.S. Supreme Court's Venelle 
        decision.

   Amend the definitions of Indian Country- to include Alaska 
        native allotments and native owned town sites.

   Support land into trust applications by Alaska Native 
        Tribes.

   Channel more resources directly to Alaska Native Tribal 
        governments for the provision of governmental services.

   Support Alaska Native Tribes and Villages with the exercise 
        of criminal jurisdiction within their communities.

        As described by the TLOA Commission:

        ``problems in Alaska are so severe and the number of Alaska 
        Native communities affected, so large, that continuing to 
        exempt the State from national policy change is wrong.''

    We ask that the Commission's specific recommendation to the federal 
government ``to channel more resources directly to Alaska Native Tribal 
governments for the provision of governmental services in those 
communities'' be supported in legislation and through appropriations. 
We further ask that S. 2920 include specific findings by the Law and 
Order Commission that demonstrates the vast uniqueness of our 
communities as well as the dire circumstances we find ourselves in. We 
ask for specific findings within the Bill unique to Alaska's public 
safety crisis.
Indian Country in Alaska
    Sprinkled throughout the TLOA Reauthorization, is the reference to 
``Indian Country.'' As mentioned with the Native Village of Venetie 
case, there is virtually no ``Indian Country'' in Alaska to be afforded 
the advantages intended within this bill. We need a legislative fix to 
this issue.

         ``Alaska's approach to providing criminal justice services is 
        unfair. Alaska Natives, especially those living in rural areas 
        of the State, have not had access to the level and quality of 
        public safety services available to other State residents or 
        that they should rightly expect as U.S. citizens. Given the 
        higher rates of crime that prevail in Alaska Native 
        communities, the inequities are even greater in relative terms. 
        The State of Alaska's overarching lack of respect for Tribal 
        authority further magnifies fairness concerns.''

         But yet without a meaningful and identifiable land base, 
        jurisdictional boundaries will prevent a meaningful solution to 
        solving the public safety crisis in our villages.

    The TLOA commission's first recommendation is:

    2.1: Congress should overturn the U.S. Supreme Court's decision in 
Alaska v. Native Village of Venetie Tribal Government, by amending 
ANCSA to provide that former reservation lands acquired in fee by 
Alaska Native villages and other lands transferred in fee to Native 
villages pursuant to ANCSA are Indian country.
    We need to begin a dialogue that gets at the heart of community 
safety issues and concerns. We ask that a commission or task force be 
created to develop a solution to the jurisdictional issues found in 
Alaska.
Data Sharing With Indian Tribes
    We need a legislative fix that addresses the concerns of the 
Criminal Justice Information System (CJIS) about tribal access to 
federal databases for governmental purposes. Currently access is 
piecemeal, with federal statutes providing some access to tribes and 
then deferring to state law to define and provide access. Such 
checkerboard access places some of our most vulnerable citizens in 
jeopardy.
    28 USC 534(d) authorizes release of criminal history information to 
tribal law enforcement agencies, but doesn't allow release of criminal 
information to other tribal agencies for important purposes, Emergency 
Placement of Children, or ``Purpose Code X,'' employees that work with 
elders and vulnerable adults, etc.
    CJIS interprets the appropriations rider language from 92-544 (and 
in the notes of 28 USC 534) as a permanent statute that prevents 
sharing this information with tribal governments. In their view, 
criminal history for licensing of foster parents can only be shared 
``if authorized by State statute and approved by the Attorney General, 
to officials of State and local governments for purposes of employment 
and licensing,''
    We need to amend federal law to authorize the sharing of this 
information with tribal governments for any legitimate purpose.
    One solution is to renumber 534(d) and add a new subsection: ``If 
authorized by tribal law and approved by the Attorney General, the 
Attorney General shall also permit access to officials of tribal 
governments for non-criminal justice, non-law enforcement employment, 
licensing purposes or any other legitimate government purpose 
identified in tribal legislation.''
    We ask that Civil authority be included to so that once and for all 
the piecemeal inefficient barriers to full legitimate access is 
resolved.
Senate Bill 2785
    While we appreciate that the Senate recognizes the gaps in the 
Special Domestic Violence Court Jurisdiction (SDVCJ) of VAWA 2013. in 
that crimes against children and drug crimes attendant to the SDVCJ 
crimes remained unpunishable, until the issues of ``Indian Country'' in 
Alaska are addressed, we are largely left without inclusion in this 
important legislation that recognizes the inherent authority of a tribe 
to prosecute violent crimes against women. Again, we ask that a 
Commission or Task Force be created to provide a meaningful solution. 
This situation is especially dire with the economic strain the state of 
Alaska is currently in. As Senator Murkowski noted during the hearing, 
we need to look at ``new jurisdictional definitions'' or some other 
remedy to include Alaska villages. The state lacks resources to address 
the concerns of the village. The federal government needs to step in 
through the trust relationship to address these catastrophic issues 
that leave our communities unsafe. Again as Senator Murkowski noted, 
it's time to explore different avenues to address the public safety 
issues and empower tribes to protect their communities.
Summary
    Alaska tribal governments are unique among indigenous American 
tribes in their lack of access to the same type of government revenues 
available to nearly every other sovereign entity in the country. We ask 
that the Senate Select Committee on Indian Affairs take this 
disadvantage into account to get Alaskan Tribes on an equal playing 
field, and to make a truly meaningful investment in tribal justice by 
including the jurisdictional challenges that have plagued meaningful 
justice to Alaska Native communities.
                                 ______
                                 
Prepared Statement of Jerry Gardner, Executive Director, Tribal Law and 
                            Policy Institute
    I write on behalf of the Tribal Law and Policy Institute to support 
the two Senate bills, S. 2785, The Tribal Youth and Community 
Protection Act; and S. 2920, The Tribal Law and Order Reauthorization 
Act of 2016.
S. 2785, The Tribal Youth and Community Protection Act
    The extension of tribal criminal jurisdiction to prosecute all 
persons for crimes committed in Indian country is a much needed fix to 
the jurisdictional maze, and was called for by the Indian Law and Order 
Commission. \1\ S. 2785 is a welcome step in the right direction. Since 
tribal criminal jurisdiction was abruptly curtailed in 1978 in the U.S. 
v. Oliphant decision, tribes have been without the means to hold non-
Indians accountable for their criminal behavior on Indian lands. VAWA 
2013 was the first partial-Oliphant fix, finally acknowledges the 
devastating realities of violence being committed against Native women 
by non-Indians. S. 2785 is the natural extension, acknowledging tribal 
sovereignty, the horrific nature of crime in Indian country and its 
under-prosecution, and the plain-sense approach of enabling local 
criminal justice systems to respond to their communities.
---------------------------------------------------------------------------
    \1\ INDIAN LAW AND ORDER COMMISSION, A ROADMAP FOR MAKING NATIVE 
AMERICA SAFER: REPORT TO THE PRESIDENT & CONGRESS OF THE UNITED STATES, 
RECOMMENDATION 1.1 (2013).
---------------------------------------------------------------------------
    S. 2785 most notable affirms tribal criminal jurisdiction to 
include crimes committed against Native children. As the Attorney 
General's Advisory Committee on American Indian and Alaska Native (AI/
AN) Children Exposed to Violence noted, ``it is troubling that tribes 
have no criminal jurisdiction over non-Indians who commit heinous 
crimes of sexual and physical abuse of [AI/AN] children in Indian 
country.'' \2\ After enacting the special domestic violence criminal 
jurisdiction (SDVCJ) of VAWA 2013, the pilot project tribes experienced 
first-hand the cruel absurdity of prosecuting offenders for their 
crimes against their domestic partners, but not for the crimes 
committed against children. \3\ Like Native women, Native children are 
deserving of protection and the reliability that their offenders will 
be held accountable.
---------------------------------------------------------------------------
    \2\ ATTORNEY GENERAL'S ADVISORY COMMITTEE ON AMERICAN INDIAN AND 
ALASKA NATIVE CHILDREN EXPOSED TO VIOLENCE, U.S. DEP'T OF JUSTICE, 
REPORT OF THE ADVISORY COMMITTEE ON AMERICAN INDIAN AND ALASKA NATIVE 
CHILDREN EXPOSED TO VIOLENCE: ENDING VIOLENCE SO CHILDREN CAN THRIVE 38 
(November 2014).
    \3\ National Congress of American Indians, ``Special Domestic 
Violence Criminal Jurisdiction Pilot Project Report,'' 28 (Oct. 29, 
2015).
---------------------------------------------------------------------------
    S. 2785 additional reaffirms tribal criminal jurisdiction over drug 
offenses and over crimes that may occur within the context of the 
criminal justice process. VAWA 2013 has been a unique lesson in limited 
jurisdiction, such that lesser included crimes and attendant crimes are 
not included. Jurisdiction over such attendant crimes, including 
resisting arrest, assaulting an officer, witness tampering, and 
obstruction of justice are necessary components of the criminal justice 
and will greatly empower tribes to effectively hold offenders 
accountable.
    However, through our lessons learned since VAWA 2013, there are 
other significant gaps in jurisdiction for which S. 2785 is primed to 
fill. Most significantly, tribes still lack jurisdiction over all 
persons for the crime of sexual assault. SDVCJ was originally conceived 
to include sexual assault. The disturbing Congressional findings within 
the Tribal Law and Order Act of 2010, including that 34 percent of AI/
AN women will be raped in their lifetimes and 39 percent of AI/AN women 
will be subject to domestic violence, \4\ stem from the Amnesty 
International report, Maze of Injustice. \5\ In analyzing the 
devastating nature of sexual violence committed against AI/AN women, 
the report specifically identified sexual assault, including its 
finding that 86 percent of reported cases of rape or sexual assault 
against AI/AN women were perpetrated by non-Native men. \6\ The report 
called for a full Oliphant fix. \7\ SDVCJ has proven to be an effective 
tool against offenders. It is critical, however, that tribes are 
empowered to respond to all sexual violence, and not just violence 
perpetrated by offenders in a domestic or dating relationship with 
their victim. Reaffirming jurisdiction over sexual assault will provide 
a much needed tool, and end a bizarrely cruel distinction between 
offenders that sexually assault their victims.
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    \4\ Tribal Law and Order Act of 2010, H. R. 725, Sec. 202(5)(B)-
(C).
    \5\ Amnesty International USA, Maze of Injustice: The Failure to 
Protect Indigenous Women From Sexual Violence in the USA (2007).
    \6\ Id. at 4.
    \7\ Id. at 90.
---------------------------------------------------------------------------
S. 2920, The Tribal Law and Order Reauthorization Act of 2016
    The Tribal Law and Order Act (TLOA) of 2010 was a paramount, 
comprehensive law designed to improve numerous facets of the public 
safety system in Indian country, including by expanding sentencing 
authority for tribal justice systems, clarifying jurisdiction in P.L. 
280 states, and requiring enhanced information sharing across 
jurisdictions. The Tribal Law and Policy Institute thanks Senator 
Barrasso for his leadership in introducing this reauthorization, and 
strongly support its passage. The National Congress of American Indians 
has developed extensive comments regarding the TLOA reauthorization, 
including recommendations for amendments and expansions based on 
experience with tribes. We strongly support their comments, including 
their recommendations, and urge Congress to implement their suggested 
changes.
    Thank you for your consideration of TLPI's views.
                                 ______
                                 
 Prepared Statement of Hon. Melvin R. Sheldon, Jr., Chairman, Tulalip 
                          Tribes of Washington



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