[Senate Hearing 118-406]
[From the U.S. Government Publishing Office]
S. Hrg. 118-406
S. 465 AND S. 2695
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
MAY 1, 2024
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
__________
U.S. GOVERNMENT PUBLISHING OFFICE
56-749 PDF WASHINGTON : 2024
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COMMITTEE ON INDIAN AFFAIRS
BRIAN SCHATZ, Hawaii, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington JOHN HOEVEN, North Dakota
JON TESTER, Montana STEVE DAINES, Montana
CATHERINE CORTEZ MASTO, Nevada MARKWAYNE MULLIN, Oklahoma
TINA SMITH, Minnesota MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico
Jennifer Romero, Majority Staff Director and Chief Counsel
Amber Ebarb, Minority Staff Director
C O N T E N T S
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Page
Hearing held on May 1, 2024...................................... 1
Statement of Senator Cantwell.................................... 2
Prepared statement........................................... 2
Statement of Senator Cortez Masto................................ 3
Statement of Senator Lujan....................................... 14
Statement of Senator Mullin...................................... 3
Statement of Senator Schatz...................................... 1
Witnesses
Macarro, Hon. Mark, President, National Congress of American
Indians........................................................ 6
Prepared statement........................................... 8
Newland, Hon. Bryan, Assistant Secretary, Indian Affairs, U.S.
Department of the Interior..................................... 4
Prepared statement........................................... 5
Sutter, Chris, Chief of Police, Tulalip Tribes................... 11
Prepared statement........................................... 12
Appendix
Port Gamble S'Klallam Tribe, prepared statement.................. 24
Response to written questions submitted by Hon. Lisa Murkowski to
Hon. Bryan Newland............................................. 27
Star Comes Out, Hon. Frank, President, Oglala Sioux Tribe,
prepared statement............................................. 21
Western Governors' Association Policy Resolution 2023-09--Missing
and Murdered Indigenous Persons................................ 26
S. 465 AND S. 2695
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WEDNESDAY, MAY 1, 2024
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:57 p.m. in room
628, Dirksen Senate Office Building, Hon. Brian Schatz,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
The Chairman. Good afternoon. Today's legislative hearing
focuses on two important public safety bills, S. 465, Building
Agency Data Gaps and Ensuring Safety, BADGES, for Native
Communities Act, introduced by Senator Cortez Masto and Senator
Hoeven, and S. 2695, Parity for Tribal Law Enforcement Act,
introduced by Senators Cantwell and Mullin.
Each bill addresses key areas of need, addressing the
missing and murdered indigenous people crisis, and improving
tribal law enforcement officer recruitment and retention in
Indian Country. We heard just how critical these needs are at
our public safety listening session last month. Over 600 people
listened in, and commenters overwhelmingly listed MMIP and law
enforcement officer recruitment and retention challenges as
among their top priorities.
S. 465 will help to address this crisis in a number of
ways, primarily by increasing tribal access to the National
Missing and Unidentified Persons System and improving systems
for collecting and sharing criminal justice data in Indian
Country.
This legislation would also help to address Indian
Country's unmet need for tribal law enforcement offices by
authorizing the BIA to conduct its own background checks and
provide culturally appropriate mental health services to
address officer burnout.
S. 2695 would address the challenges of tribal law
enforcement officer recruitment and retention by authorizing
officers acting under Tribe's 638 contract or compact to
enforce Federal law within the tribe's jurisdiction and make
them eligible for Federal benefits, including death and injury,
retirement, and pension benefits.
I would like to extend my welcome to the testifiers today.
Are there any opening statements from members of the Committee?
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Mr. Chairman, if I could just submit
something for the record. I do want to express my thanks for
Tulalip Police Chief Chris Sutter for being here. He has served
the Tulalips since 2019, so 26 years. We are going to hear a
lot about the challenges on the I-5 corridor.
I will submit the rest of my statement for the record. But
clearly, Indian Country needs more help in law enforcement.
Thank you. And I thank my colleague from Oklahoma for working
with me on this very important legislation.
[The prepared statement of Senator Cantwell follows:]
Prepared Statement of Hon. Maria Cantwell, U.S. Senator from Washington
Thank you Chair Schatz and Vice Chair Murkowski for holding this
important hearing.
I want to thank the witnesses for being here today, especially
Tulalip Police Chief Chris Sutter.
Chief Sutter has served as the Tulalip Tribes Chief of Police since
2018 after serving as the Assistant Chief of Police for the City of
Vancouver, Washington for 26 years.
Serving the Tulalip Tribe, which is located just north of Seattle
along the I-5 corridor, Chief Sutter has extensive experience leading
complex law enforcement operations and programs that address some of
the toughest issues tribal communities face today.
Including the Murdered and Missing Indigenous Women and People
epidemic and the Fentanyl crisis.
One of the biggest challenges he encounters is having enough Tribal
law enforcement officers, investigators, and personnel to keep tribal
and non-tribal members on the Tulalip reservation safe.
In recent years, the Tulalip Tribes have lost 50 percent of their
law enforcement workforce.
Chief Sutter will tell you the reason why he cannot retain law
enforcement personnel is because he cannot offer benefits comparable to
local, state, and federal law enforcement agencies.
Even when the Tribe can offer competitive salaries and recruits a
new trainee, often that recruit will receive law enforcement training
at significant cost to the Tribe and then take that training to a
neighboring law enforcement agency that can provide them long-term
benefits.
What Chief Sutter is experiencing in his role as Police Chief of
the Tulalip Tribes is being experienced by tribes all around the
country--impacting their ability to respond to and prevent domestic
violence, MMIWP cases, and drug related incidents.
The Colville Tribe, located in rural Northeast Washington state,
has an average of only three tribal police officers on duty to patrol
2,300 square miles.
In one instance, a Colville Tribal patrol officer received a call
on a domestic violence incident more than two and half hours away.
He was the only officer on duty. And by the time he arrived, the
house was dark and no one answered the door. They never heard from the
victim after follow-up attempts.
Tribes--large and small, urban and rural--in my state are on the
frontlines battling the devastating fentanyl crisis.
According to the Centers for Disease Control and Prevention, Native
Americans and Alaska Natives in Washington state die of opioid
overdoses at five times our state average.
Many of these tribes also do not have the law enforcement capacity
needed to both respond to emergency situations and tackle intricate
crime webs that are supplying the fentanyl to Tribal members.
With BIA public safety programs funded hundreds of millions of
dollars below what tribes need, tribal leaders need other ways to
bolster their public safety programs and get more law enforcement
personnel serving their communities.
This is why Senator Mullin and I introduced S, 2695, the Parity for
Tribal Law Enforcement Act.
This bill will help tribes recruit and retain law enforcement
officers by allowing tribes that contract or compact for law
enforcement services to offer Federal death and injury, retirement and
pension benefits.
This means that tribes can compete with local, state and federal
law enforcement agencies and keep law enforcement recruits to serve
their communities and make meaningful impacts on some of the incredible
public safety challenges Indian Country faces today.
Thank you, Chief Sutter, for traveling to Washington, D.C. to
testify on how the Parity for Tribal Law Enforcement Act is critical to
improving public safety.
And thank you President Macarro and Assistant Secretary Newland for
your support of this important legislation.
The Chairman. Senator Mullin?
STATEMENT OF HON. MARKWAYNE MULLIN,
U.S. SENATOR FROM OKLAHOMA
Senator Mullin. I would like to thank my colleague as well.
Working together is something that brings us all together with
Indian Country.
Indian Country has its own challenges, and obviously
sovereignty is a big issue. There is such a tremendous amount
of crime that is taking place right now. We are asking our
tribal law enforcement to do the Federal Government's job.
If we are going to do that, and we are going to cross-
deputize them or whatever we are going to do with them, then we
should at least give them the opportunity to have the same
benefits. If they are going to do the job, they should have the
same benefits.
That is what we are talking about here with the Parity Act.
So I don't think it is controversial. While we are waiting on
the Administration to, as I would say, get their act together,
as we are asking the tribal law enforcement to do their job,
let's just say, hey, listen, if you are going to do the job,
let's get the same benefits as a Federal officer.
So I don't know if we are going to get, we shouldn't get
any pushback on this. We look forward to hearing from our
witnesses on this, obviously. But I think this is a commonsense
piece of legislation that has brought Republicans and Democrats
alike together.
So with that, I yield back.
The Chairman. Thank you, Senator Mullin.
Senator Cortez Masto.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you, Mr. Chair. I also want to
thank you and the Ranking Member for holding this hearing on
our bills today. One of them is the BADGES for Native American
Communities Act that Senator Hoeven and I have introduced. It
is one we have seen before.
This is important for so many within our Native American
communities when it comes to supporting our law enforcement
officers there who are severely hindered in their ability to
address the crisis of not just MMIW, but drug trafficking,
other violent crimes that are devastating our tribes.
This legislation, this bipartisan legislation, would
support BIA law enforcement recruitment and retention, while
also improving our response to the missing persons cases and
increasing resources for tribal law enforcement. I can't stress
enough; we have heard so often how BIA is understaffed and
under resourced. We need to provide these essential resources.
So I look forward to the hearing on the BADGES Act as well.
Thank you, Mr. Chairman.
The Chairman. Thank you very much.
Any other opening remarks? If not, we will welcome our
witnesses.
First, we have the Honorable Bryan Newland, who spends a
lot of time with us, and we appreciate it. He is the Assistant
Secretary for Indian Affairs at the Department of Interior. We
are also pleased to welcome the Honorable Mark Macarro,
President of the National Congress of American Indians. We
really appreciate your work for your own tribe and for Indian
Country overall. And Mr. Chris Sutter, welcome, Chief of Police
of Tulalip Tribal Police Department in Tulalip, Washington.
I want to remind our witnesses that your full written
testimony will be made part of the official hearing record,
which is our polite way of saying, please speak for five
minutes or less.
Assistant Secretary Newland, please proceed with your
testimony.
STATEMENT OF HON. BRYAN NEWLAND, ASSISTANT
SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR
Mr. Newland. Thank you, Mr. Chairman. I got the memo on the
time, too.
Good afternoon, Chairman and Vice Chair Murkowski, members
of the Committee. I want to thank you for the opportunity to
present the Department of Interior's views on this legislation
today, S. 465, and S. 2695. The Department supports S. 2695,
and we support the goals of S. 465, the Bridging Agency Data
Gaps and Ensuring Safety for Native Communities Act. We have to
defer to the Department of Justice on provisions in that bill
pertaining to its programs.
S. 465 and S. 2695 align with important Administration
priorities to improve public safety and justice in Indian
Country. The United States has a trust relationship and a trust
responsibility to each of the 574 federally recognized tribes,
and this relationship charges the United States with the
highest obligation to protect the physical safety and wellbeing
of Indian tribes as well as Indian and Alaska Native people.
The Bureau of Indian Affairs plays a crucial role in
meeting this obligation. We support increased investment in
tribal justice systems, and especially for tribal law
enforcement officers.
S. 465 amends the annual reporting requirement in the
Indian Law Enforcement Reform Act to include the staffing needs
for criminal investigators, medical examiners, coroners, and
forensic investigators. It also requires adding the
infrastructure and capital needs for tribal police and court
facilities, such as evidence storage and processing, to the
required data for the annual report.
There is a funding and staffing gap that must be addressed
to guarantee that tribal justice systems can fully serve their
communities. Adding data on the need for criminal
investigators, medical examiners, coroners and forensic
investigators will demonstrate how important these positions
are to tribes.
S. 465 would also establish a five-year demonstration
program that allows the BIA Office of Justice Services to speed
up background investigations and security clearance processes
for law enforcement officers. Currently, our Office of Justice
Services assists tribes in conducting background investigations
for tribal law enforcement positions. We welcome the
demonstration program, and strongly support this provision.
Section 204 of that bill establishes counseling resources
to maintain the mental health and wellness of BIA and tribal
law enforcement officers. Tribal law enforcement officers often
respond to dangerous situations that can cause traumatic
stress. These much-needed resources would help ensure access to
important mental health resources for job-related stress.
S. 2695 amends the Indian Law Enforcement Reform Act to
allow tribal law enforcement officers acting under the tribe's
contract or compact to enforce Federal law within their
reservation and jurisdiction. To exercise this authority,
tribal officers must complete training and background
requirements that are equivalent to employees of BIA law
enforcement.
This bill also makes those tribal law enforcement officers
eligible for Federal law enforcement benefits, including
retirement, pension, death and injury benefits. The Department
believes that extending these Federal benefits to tribal law
enforcement officers will help tribes recruit and retain
officers which will lead to improved public safety.
Secretary Haaland has made improving public safety in
Indian Country and addressing the missing and murdered
indigenous peoples crisis a top priority for the Department.
The Department supports the goals of these bills, and we look
forward to working with the Committee and Congress to continue
to address public safety needs in Indian Country.
I want to thank you again, Mr. Chairman and members of the
Committee, for the opportunity to appear today. I look forward
to answering any questions you may have.
[The prepared statement of Mr. Newland follows:]
Prepared Statement of Hon. Bryan Newland, Assistant Secretary, Indian
Affairs, U.S. Department of the Interior
Good afternoon, Chairman Schatz, Vice Chairman Murkowski, and
members of the Committee. My name is Bryan Newland, and I am the
Assistant Secretary for Indian Affairs at the Department of the
Interior (Department). Thank you for the opportunity to present
testimony on S. 465 and S. 2695.
S. 465, Bridging Agency Data Gaps and Ensuring Safety (BADGES) for
Native Communities Act
Section 102 would amend the annual reporting requirements
concerning unmet BIA and Tribal staffing needs under the Indian Law
Enforcement Reform Act, as amended by the Tribal Law and Order Act (25
U.S.C. 2802(c)(16)(C)), to include criminal investigators, medical
examiners, coroners, and forensic investigators. Section 102 would also
add infrastructure and capital needs for Tribal police and court
facilities, including evidence storage and processing, to the required
data for the annual report.
Section 201 would establish a five-year demonstration program that
allows the Secretary, in coordination with the Director of BIA, to
conduct or adjudicate personnel background investigations and security
clearances for BIA law enforcement officers (LEOs). The BIA OJS
currently assists Indian Tribes in conducting background investigations
for Tribal LEOs and welcomes the demonstration program as it would
assist BIA in eliminating one of the biggest obstacles to recruitment--
the lengthy background investigation process--and result in the
expedited hiring of qualified LEOs. The Department strongly supports
this provision.
Section 204, titled ``BIA and Tribal Law Enforcement Officer
Counseling Resources Interdepartmental Coordination,'' would require
the Secretary of Health and Human Services, the Attorney General, and
the Director of BIA OJS to ensure that Federal training materials and
mental health wellness programs are available for Indian Country LEOs.
These much-needed resources would help ensure that BIA and Tribal LEOs
have access to the mental health resources they need when they
experience occupational stress.
The Department supports the goals of S. 465 as they align with
important Administration priorities of improving public safety and
justice in Indian Country. The Department defers to the Department of
Justice on provisions pertaining to its programs.
S. 2695, Parity for Tribal Law Enforcement Act
S. 2695 would amend the Indian Law Enforcement Reform Act to
provide that Tribal LEOs acting under a Tribe's contract or compact
under the Indian Self Determination and Education Assistance Act would
have the authority to enforce Federal law within the Tribe's
jurisdiction provided they complete training and background
requirements that are equivalent to the requirements that apply to
employees of the BIA OJS. Additionally, under the bill, the Tribe would
have to have adopted policies and procedures that meet or exceed those
of the BIA OJS for the same compacted or contracted program, service,
function, or activity.
Importantly, the bill would also provide that Tribal LEOs acting
under a contract or compact are eligible for benefits applicable to
Federal LEOs, including Federal death and injury, retirement, and
pension benefits. Tribes often struggle to recruit and retain LEOs
across Indian Country, particularly in remote areas. The provision of
Federal benefits to Tribal LEOs will help immensely with Tribes'
ability to recruit and retain LEOs and provide for the overall safety
of their communities.
Under the leadership of Secretary Haaland, improving public safety
in Indian Country and addressing the Missing and Murdered Indigenous
Peoples crisis is a top priority for the Department. The Department
supports S. 2695 as a means to strengthen public safety and justice in
Indian Country.
Conclusion
Chairman Schatz, Vice Chairman Murkowski, and members of the
Committee, thank you for the opportunity to provide the Department's
views.
The Chairman. Thank you very much.
Mr. Macarro, please proceed.
STATEMENT OF HON. MARK MACARRO, PRESIDENT, NATIONAL CONGRESS OF
AMERICAN INDIANS
Mr. Macarro. [Greeting in Native tongue.] Good afternoon,
Chair Schatz, Vice Chair Murkowski, and all the members of the
Senate Committee on Indian Affairs. I am honored to be here
today.
My name is Mark Macarro. I am the Chairman of the Pechanga
Band of Indians in California, and I also have the honor of
serving as President of the National Congress of American
Indians.
On behalf of NCAI, I want to thank you for this opportunity
to provide testimony on Senate Bill 465, the BADGES for Native
Communities Act, and Senate Bill 2695, the Parity for Tribal
Law Enforcement Act, two bills that address important public
safety concerns in our communities.
As I testify before you today, during the National Murdered
and Missing Indigenous Women and Relatives Week of Action, I
can think of no better action on behalf of our murdered and
missing relatives than to support the passage of these two
bills.
There are crisis-level unmet funding and resource needs
across Indian Country in law enforcement, tribal courts, victim
services, and health care, including access to behavioral
health services, just to name a few. These exist in part
because tribal nation governments are the only sovereigns in
this Country that cannot fully prosecute and imprison all the
criminals jeopardizing safety in our own territories.
In addition, there is a massive shortage of resources for
public safety in Native communities. In February of this year,
the BIA Office of Justice Programs released a report that noted
public safety in Indian Country was only being funded at 13
percent of the quantifiable need. The combined results of
constraints on our sovereignty, coupled with massive needs in
funding and resources has produced communities which are
disproportionately affected by violence.
The American Indian and Alaska Native rates of murder,
rape, and violent crime are all higher than the national
averages for other groups. Innovate solutions are needed to
address these ongoing public safety issues. I believe that the
two pieces of legislation that are the focus of this hearing
have a real chance to positively impact tribal nations.
The Parity for Tribal Law Enforcement Act offers an
opportunity to help bridge the law enforcement gap in tribal
communities. If passed, the law would impact tribal nations
that have contracts or compacts pursuant to the Indian Self-
Determination and Education Assistance Act, allowing for tribal
control of any or all law enforcement functions.
For tribal nations with contracts or compacts, tribal
police who meet certain qualifications would be able to enforce
Federal law within the tribal nation's jurisdiction. Such a
possibility could significantly increase the effectiveness of
law enforcement and safety in our communities.
Also of critical importance, the statute would deem a
tribal law enforcement officer as a Federal law enforcement
officer for the purposes of certain Federal laws, including for
injury and death, retirement and pension benefits if they are
acting under such an authorized compact or contract.
Now, turning our attention to S. 465, the BADGES for Native
Communities Act, it takes several much-needed actions to
improve data collection and dissemination regarding public
safety in Native communities. According to the National Crime
Information Center, in 2016 there were 5,712 reports of missing
American Indian and Alaska Native women and girls, but only 116
cases were logged within the National Missing and Unidentified
Persons System.
Under S. 465, a tribal facilitator would be appointed to
coordinate missing and unidentified persons cases with tribal
nations and provide training and technical assistance to tribal
nations, tribal organizations, victim service advocates,
coroners, and tribal justice officials on how to report and
utilize the system.
Until the National Missing and Unidentified Persons System
adequately accounts for American Indian and Alaska Native
victims, we will never know the scope of the problem or how to
fix it.
In sum, I want to again express NCAI's support for passage
of both S. 465 and S. 2695. If passed, these two bills will be
an important step in addressing systemic inequalities that
permeate public safety throughout our communities. They will
help immeasurably with the United States Government's trust and
treaty obligations to tribal nations in the United States.
I want to thank everybody on this Committee for the
invitation to speak here today. I look forward to answering any
questions you may have.
[Phrase in Native tongue.]
[The prepared statement of Mr. Macarro follows:]
Prepared Statement of Hon. Mark Macarro, President, National Congress
of American Indians
I. Introduction
Good afternoon, Chair Schatz, Vice Chair Murkowski, and to all the
members of the Senate Committee on Indian Affairs.
It is an honor to be with you today. My name is Mark Macarro. I am
the Chairman of the Pechanga Band of Indians and also have the honor to
serve as the President of the National Congress of American Indians.
NCAI, as you may be aware, was founded 80 years ago and is the oldest,
largest and most representative American Indian and Alaska Native
organization serving the broad interests of tribal governments and
their citizens. On behalf of NCAI, I want to thank you for this
opportunity to provide testimony on two bills that address important
public safety concerns in our communities.
For the reasons I will discuss during my allotted time today, NCAI
is in support of Senate Bill 465, the BADGES for Native Communities
Act, and NCAI is also in support of Senate Bill 2695, the Parity for
Tribal Law Enforcement Act. Because both pieces of legislation address
significant public safety issues in a manner that empowers Tribal
Nations to work with the federal government to improve public safety
outcomes, NCAI urges Congress to pass each bill and for the President
to sign them into law.
II. Background
In the first major speech I gave as NCAI's President this past
February, I highlighted how we must give serious attention to the
public safety needs of our communities. There are unmet needs across
Indian Country in law enforcement, tribal courts, victim services, and
healthcare--including access to behavioral health services--just to
name a few. While there are many reasons for the current state of
public safety in tribal communities, we must acknowledge that the lack
of respect and parity given to tribal sovereignty is a starting point.
At the core of being sovereign is the ability of the sovereign to
enact, enforce, and interpret its own laws and be governed by them. And
while the United States publicly states a continued recognition of
tribal sovereignty, the fact remains that we, as Tribal Nation
governments, are the only sovereigns in this country that cannot fully
prosecute and imprison all of the criminals jeopardizing safety in our
own territories.
In addition, we also know that there is a massive shortage of
resources for Native communities when it comes to public safety. In
February of this year, the Bureau of Indian Affairs Office of Justice
Programs released its ``Report to the Congress on Spending, Staffing,
and Estimated Funding Costs for Public Safety and Justice Programs in
Indian Country''. Looking at Fiscal Year (FY) 2021, data was analyzed
with respect to law enforcement (including P.L. 280 States), detention/
correction programs, and tribal courts. Based on the data collected,
the Office of Justice Programs noted that while approximately $446
million was spent on public safety in Indian Country, there was still
an estimated unmet need of approximately $3 billion. To put this
another way, the Bureau of Indian Affairs' public safety and justice
funding for Indian country was less than 13 percent of the total actual
need. \1\
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\1\ Bureau of Indian Affairs, Office of Justice Services. Report to
the Congress on Spending, Staffing, and Estimated Funding Costs for
Public Safety and Justice Programs in Indian Country, 2021.
(Washington, DC, 2024). https://www.bia.gov/sites/default/files/
media_document/2021_tloa_report_final_508_compliant.pdf
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The combined results of constraints on our sovereignty coupled with
massive needs in funding and resources, has produced communities which
are disproportionately affected by violence. The American Indian and
Alaska Native (AI/AN) rates of murder, rape, and violent crime are all
higher than the national averages, and AI/AN women are the most
frequent victims. For example, a 2016 National Institute of Justice
study found that 84 percent of American Indian and Alaska Native women
have experienced violence in their lifetime, and over half have
experienced sexual violence. \2\ Similarly, Native Americans experience
much higher rates of substance abuse compared to other racial and
ethnic groups, and with the ongoing fentanyl and opioid crisis, our
tribal governments are struggling to protect our own people.
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\2\ US Department of Justice, National Institute of Justice.
Violence Against American Indian and Alaska Native Women and Men: 2010
Findings from the National Intimate Partner and Sexual Violence Survey,
by A.B. Rosay. (Washington, DC, 2016) https://www.ncjrs.gov/pdffiles1/
nij/249736.pdf
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Unfortunately, there is no shortage of anecdotes or statistics
backing up the claim that public safety in Indian Country needs
immediate meaningful attention. Over the past decade alone, NCAI has
developed more than two dozen consensus-based resolutions focusing on
public safety issues including violence against women, missing and
murdered Indigenous people, law enforcement, and criminal jurisdiction,
among others. \3\
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\3\ ``Resolutions Related to VAWA/MMIW,'' The National Congress of
American Indians, accessed April 15, 2024. https://www.ncai.org/
section/vawa/advocacy/resolutions-related-to-vawa-mmiw
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In response to the collective voices of tribal leaders and
advocates for Indian Country, a real dialogue is emerging about what
innovative solutions exist to these ongoing public safety issues.
Today, I am pleased to say that the two pieces of legislation that are
the focus of this hearing have a real chance to positively impact
Tribal Nations and to make them safer places for everyone.
III. NCAI Supports S. 2695--Parity for Tribal Law Enforcement Act
The Parity for Tribal Law Enforcement Act is an innovative solution
to the ongoing law enforcement needs of Indian Country. As this
Committee is aware, the ability of tribal law enforcement officers to
arrest and enforce non-tribal laws and/or to enforce certain types of
criminal laws against non-Native persons is limited. The consequences
of the criminal jurisdictional maze that exists in Indian Country is
well-documented and often results in criminals escaping arrest,
detention, and prosecution.
The Parity for Tribal Law Enforcement Act offers an opportunity to
help fill a portion of the law enforcement gap in tribal communities.
If passed, the law would impact Tribal Nations that have contracts or
compacts pursuant to the Indian Self-Determination and Education
Assistance Act allowing for tribal control of any or all law
enforcement functions. For Tribal Nations with such contracts or
compacts, tribal police--who meet certain qualifications--would be able
to enforce federal law within the Tribal Nation's jurisdiction. Such a
possibility has the potential to significantly impact the effectiveness
of law enforcement and the safety of our communities.
Also of critical importance, the statute would deem a tribal law
enforcement officer who is acting under an authorized contract or
compact as a federal law enforcement officer for the purposes of
certain federal laws, including for injury and death, retirement, and
pension benefits.
In 2022, NCAI passed a resolution entitled Supporting Federal
Pension and Retirement Benefits to Tribal Law Enforcement Officers,
which noted that even ``Tribal Nations that are able to pay competitive
tribal law enforcement officer salaries still often struggle with
recruitment and retention because tribal law enforcement officers do
not have access to federal pension and retirement benefits and, in most
cases, state pension and retirement benefits.'' \4\ And while more will
be needed in the long-term to ensure that well-qualified officers are
policing our communities, this provision is a meaningful step forward.
---------------------------------------------------------------------------
\4\ NCAI Resolution #ANC-22-032, Supporting Federal Pension and
Retirement Benefits to Tribal Law Enforcement Officers (available at
https://ncai.assetbank-server.com/assetbank-ncai/action/
viewAsset?id=1965).
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Finally, it is worth noting that the S. 2695 has clear criteria
that must be met in order for an officer to be provided authority to
enforce federal laws. Specifically, the legislation puts into place
training requirements, the need for a background check, and
certification criteria that will be developed by the Secretary of the
Interior. The requirement that the certification criteria be developed
after government-to-government consultation with Tribal Nations and
input from tribal law enforcement agencies ensures that meaningful
safeguards will be developed that can be effectively implemented
throughout Indian Country.
While no single piece of legislation will change public safety in
our communities overnight, the Parity for Tribal Law Enforcement Act
has the potential to produce real improvements. As such, NCAI supports
the goals and policies of the Parity for Tribal Law Enforcement Act and
urges this Committee and the Congress to pass it into law.
IV. NCAI Supports S. 465--BADGES for Native Communities Act
Turning our attention to S. 465, the BADGES for Native Communities
Act takes several much-needed actions to improve data collection and
dissemination regarding public safety in Native communities.
According to the National Crime Information Center, in 2016 there
were 5,712 reports of missing AI/AN women and girls, but only 116 cases
were logged within the National Missing and Unidentified Persons
System. \5\ Under S. 465, a tribal facilitator would be appointed to
coordinate missing and unidentified persons cases with Tribal Nations,
and provide training and technical assistance to Tribal Nations, tribal
organizations, victim services advocates, coroners, and tribal justice
officials on how to report and utilize this system. Until the National
Missing and Unidentified Persons System adequately accounts for
American Indian and Alaska Native victims, we will never know the scope
of the problem or how to fix it.
---------------------------------------------------------------------------
\5\ ``Missing and Murdered Indigenous People Crisis,'' US
Department of the Interior, accessed April 15,2024. https://
www.bia.gov/service/mmu/missing-and-murdered-indigenous-people-crisis
---------------------------------------------------------------------------
The tribal facilitator would also help with unidentified and
unclaimed remains cases of interest to Tribal Nations, to help identify
deceased and return them to their tribal homelands so they may be
buried with their ancestors. In many reported incidents, the pain of
losing a loved one was exacerbated by improper or culturally
insensitive treatment of the case or remains. For example, in the case
of Kaysera Stops Pretty Places, the family did not consent to the
coroner's decision to cremate her body. \6\ While preventing the
occurrence of MMIW should be the primary goal, further steps must be
taken to ensure that when crimes occur, both families and the victim
are supported in a culturally appropriate way. The tribal facilitator
provided for in the BADGES Act would likely help reduce culturally
insensitive incidents like the one I've just mentioned.
---------------------------------------------------------------------------
\6\ Segura, C. MMIP-Kaysera Stops Pretty Places. (2023, September
1). Cahuilla Consortium. https://www.cahuillaconsortium.org/blog/mmip-
kaysera-stops-pretty-places
---------------------------------------------------------------------------
This legislation, if passed, would result in the collection of more
data that could be used to determine future funding and areas for
future legislative improvement. By tracking how many Department of
Justice employees work on issues related to Indian Country, how many
hours are worked, and the unmet needs in staffing, repair of
correctional facilities, infrastructure and capital, and technology,
elected leaders--both of Tribal Nations and in Congress--will better
understand what policy actions can be taken in the future to further
improve public safety in Native communities.
In consultations, NCAI resolutions, and the recently released Not
Invisible Act Commission Report, tribal leaders and stakeholders have
repeatedly raised concerns about the difficulty to recruit, train, and
retain tribal law enforcement. \7\ One of the most formidable
challenges in keeping tribal communities safe is building adequate law
enforcement systems. Without these systems, Tribal Nations cannot fully
exercise the Special Tribal Criminal Jurisdiction (STCJ) provisions of
the Violence Against Women Act (VAWA). One of the barriers to the
development of effective law enforcement agencies is the lack of
support for the mental and emotional health of officers. The BADGES Act
would help to address this problem by providing culturally appropriate
mental health and wellness training to BIA and tribal law enforcement
officers, thus leading to greater officer retention.
---------------------------------------------------------------------------
\7\ US Department of the Interior, Not Invisible Act Commission.
Not One More: Findings & Recommendations of the Not Invisible Act
Commission. (Washington, DC, 2023) https://www.justice.gov/d9/2023-11/
34%20NIAC%20Final%20Report_version%2011.1.23_FINAL.pdf
---------------------------------------------------------------------------
In sum, NCAI supports the goals and policies of the BADGES for
Native Communities Act and urges this Committee and the Congress to
pass it into law.
V. Conclusion
I want to thank everyone on this Committee, again, for today's
hearing. And I want to thank you for the invitation to speak here
today. On behalf of NCAI, I want to again express our support for the
passage of both S. 465 and S. 2695. If passed, these two bills will be
an important step in addressing systemic inequalities that permeate
public safety throughout our communities, and they will help fulfill
the United States' government's trust and treaty obligations to Tribal
Nations. Thank you.
Senator Cortez Masto. [Presiding.] Thank you.
As you can see, we are in the middle of votes, so Senators
will be coming and going.
Chief Sutter, please.
STATEMENT OF CHRIS SUTTER, CHIEF OF POLICE, TULALIP TRIBES
Mr. Sutter. Good afternoon, Chairman Schatz, Vice Chair
Murkowski, and members of the Committee. My name is Chris
Sutter, and I am the Chief of Police for the Tulalip Tribes.
I am pleased to testify today on behalf of the Affiliated
Tribes of Northwest Indians in support of S. 2695, the Parity
for Tribal Law Enforcement Act. The Parity Act would allow
tribal officers to participate in the Federal retirement and
benefits programs that Federal officers currently enjoy. This
would provide a significant and immediate positive recruitment
and retention impact on ATNI member tribes and Indian tribes
nationally.
For years, tribes have recruited and trained new officers
only to see them leave for law enforcement positions with State
and county and municipal police departments that offer more
attractive benefits. Indian tribes face unique challenges
providing law enforcement services to their tribal communities
compared to non-Indian law enforcement departments.
In recent years, Tulalip has lost 50 percent of our officer
workforce due to recruitment by other local law enforcement
agencies, putting extreme strain on our operations. When I ask
my fellow officers why they are leaving, 90 percent of the time
the answer is, for a retirement and pension plan.
This is not a unique pattern to Tulalip. I serve on the
International Association of Chiefs of Police, Indian Country
Section Committee. At a recent meeting, the committee
identified recruitment, hiring, and retention of officers as
one of our biggest challenges that impacts the tribes' ability
to address our law enforcement needs.
There are many negative consequences when we lose officers
to other jurisdictions. One of the consequences is financial.
When tribes hire new officers, they will complete the BIA
Indian Police Academy, and possibly other State law enforcement
academies, at a significant cost. Best practices usually
require approximately one year on the job before they are able
to respond to routine calls on their own.
The Tulalip Tribal Police Department invests more than
$130,000 for training and salaries for new hires in their first
year. When they leave, we have to pay these costs again, and it
takes months to find a qualified candidate, as we have to
compete with local jurisdictions for the same candidates.
Other consequences are the failure to maintain community
relations. There is often a deep level of mistrust between law
enforcement and tribal members who live on Indian reservations.
In the past, calling a non-tribal police department for
emergency assistance often led to revictimization if there was
any response at all.
We simply cannot be effective in carrying out our duties
when we don't know the community and the community doesn't know
us.
Also, when officers leave their jobs for neighboring
jurisdictions, it negatively impacts the tribe's ability to
provide specialty policing services and carry out complex
investigations. The fentanyl epidemic has become one of the
most critical issues in tribal communities, and investigating
and preparing cases that the U.S. Attorney's office will
prosecute requires experienced personnel.
MMIP and Violence Against Women Act cases also require
experienced officers and detectives who have established trust
and rapport with the tribal communities that they serve. Again,
officer turnover impairs a tribe's ability to address these and
other crimes that require experienced personnel.
We need this legislation passed to increase our ability to
retain trained and skilled police officers which will help us
provide public safety for both tribal and non-tribal persons in
our community. Tribal police officers are putting their lives
on the line every day to protect their tribal communities.
These duties often include apprehending armed drug
traffickers and other violent criminals and performing the
public safety work of the Federal Government. Tribal officers
currently perform these duties without the same benefits that
Federal officers received. The Parity Act would change this and
put tribal officers on the same benefit level as Federal
officers.
ATNI urges the Committee to take whatever steps are
necessary to ensure its enactment into law as soon as possible.
We look forward to continuing to work with the Committee on
this important national issue.
I would be happy to answer any questions the Committee may
have.
[The prepared statement of Mr. Sutter follows:]
Prepared Statement of Chris Sutter, Chief of Police, Tulalip Tribes
Good afternoon, Chairman Schatz, Vice-Chair Murkowski, and members
of the Committee. My name is Chris Sutter, and I am the Chief of Police
for the Tulalip Tribes. I am pleased to testify today on behalf of the
Affiliated Tribes of Northwest Indians (ATNI) in support of S. 2695,
the ``Parity for Tribal Law Enforcement Act'' (the ``Parity Act'').
This bill will provide Indian tribes with a critical tool to address
recruitment and retention challenges for law enforcement officers, and
ATNI urges the Committee to pass it quickly.
Founded in 1953, ATNI is a non-profit organization that represents
57 tribal governments from Washington, Oregon, Idaho, southeast Alaska,
northern California, and western Montana.
The Tulalip Tribes is a member of ATNI and is located on a 22,000-
acre Reservation bordering the Interstate 5 corridor, 35 miles north of
Seattle. Forty percent of the Tulalip reservation is in non-Indian fee
status due to the history of allotments, and more than 10,000 non-
Indian residents live on the reservation.
ATNI member tribes were directly involved in developing the bill
with Congressman Dan Newhouse (R-WA), who introduced the House version
of the bill together with Congressman Derek Kilmer (D-WA). In February
2022, ATNI passed the first tribal organization resolution supporting
the bill, which the National Congress of American Indians adopted at
its 2022 mid-year convention. ATNI is grateful to Senators Maria
Cantwell and Markwayne Mullin for introducing the legislation in the
Senate and for the Committee for holding this hearing.
ATNI strongly supports the Parity Act because it would allow tribal
law enforcement officers to participate in the federal retirement and
benefits programs that federal law enforcement officers currently
enjoy. This would provide a significant positive recruitment and
retention impact for ATNI member tribes and Indian tribes nationally,
that for years have recruited and trained officers at significant
expense only to see them leave for law enforcement positions with state
and county police departments that offer more attractive benefits.
Recruitment and Retention Challenges and Consequences
Indian tribes face unique challenges providing law enforcement
services to their tribal communities. Some tribes, like the Tulalip
Tribes, provide law enforcement services for thousands of visitors,
both Indian and non-Indian, that enter their tribal lands each day.
Other ATNI member tribes are in rural areas, like the Colville Tribes,
which has an average of only three tribal police officers on duty to
patrol the nearly 2,300 square mile Colville Reservation in eastern
Washington.
What nearly all ATNI tribes share in common, however, is the
difficulty in recruiting and retaining law enforcement officers. While
some ATNI member tribes, like the Tulalip and Chehalis Tribes, can
offer salaries that are commensurate with our neighboring
jurisdictions, we simply cannot compete with the benefits that those
jurisdictions offer. Because federal appropriations for tribal law
enforcement programs address only a fraction of the actual need, other
tribes struggle to provide competitive wages and must use whatever
tribal dollars they can afford to compete to retain the tribal officers
that they have.
Because of this, there is an ongoing pattern in Indian country
where tribes recruit and train officers only to see them leave for jobs
with neighboring jurisdictions that offer more attractive benefits. In
recent years, the Tulalip Tribes has lost 50 percent of its officer
workforce due to recruitment by other local law enforcement agencies,
putting extreme strain on its operations. This pattern is not unique to
Tulalip, and results in ongoing negative consequences for all tribal
law enforcement agencies.
One of the consequences is financial. When tribes hire new
officers, the officers must complete the Bureau of Indian Affairs'
(BIA) law enforcement academy, or state law enforcement academies, at a
significant financial cost. For tribes in Washington state that may
also enforce state laws, the officer must also complete an additional
state equivalency academy. To complete the academies and obtain the
requisite training to adhere to best practices, new hires usually
require approximately one year on the job before they are able to
respond to routine calls on their own. The Tulalip Tribal Police
Department invests more than $130,000 for training and salaries for new
hires in their first year. Most tribes can quantify these costs and
they may be higher or lower depending on the geographic location of the
tribe. When these officers leave, tribes must pay these costs again
should they be able to find suitable replacements.
Another consequence of tribal officers leaving for neighboring
jurisdictions is failure to maintain continuity and community
relations. For tribes, it is critical that officers know the community
and that the community knows them. There is often a deep level of
mistrust between tribal members who live near non-Indian jurisdictions
where, in the past, calling a non-tribal police department for
emergency assistance often led to revictimization, if there was a
response at all. Most tribes would agree that tribal officers are most
effective in carrying out their duties when they are known to, and
familiar with, the people that they serve. It can take years to build
the type of trust necessary to overcome past law enforcement trauma.
This obviously cannot occur if there is a high rate of turnover for
tribal officers.
Finally, when officers leave for jobs in neighboring jurisdictions,
it negatively impacts tribes' ability to provide specialty policing
services and carry out complex investigations, which in most cases are
based on intimate knowledge on the officers' part of the community and
its residents. The fentanyl epidemic has become one of the most
critical issues in tribal communities and investigating and preparing
cases that U.S. Attorneys' offices will prosecute requires experienced
personnel. Missing and Murdered Indigenous People and Violence Against
Women Act cases similarly require experienced officers and detectives
who have established trust and rapport with the tribal communities that
they serve. Again, officer turnover significantly impairs tribes'
abilities to address these and other crimes that require experienced
personnel.
The Parity Act Would Provide a Critical Tool to Retain Officers
As introduced, most of the text of the Parity Act was derived from
section 104 of the ``Tribal Law and Order Reauthorization and
Amendments Act,'' which this Committee favorably reported in both the
115th and 116th Congresses.
Most, if not all, Indian tribes in the Pacific Northwest have
contracted the law enforcement function from the BIA under the Indian
Self-Determination and Education Assistance Act (ISDEAA). BIA data
indicates that there are 234 tribal law enforcement programs nationally
and that more than 90 percent of those programs have been contracted by
the respective tribes under ISDEAA.
When tribes contact or compact law enforcement under ISDEAA, the
law enforcement officers are tribal, not federal, employees. In
contrast, for those relatively small number of tribes for which the BIA
provides direct law enforcement services, those officers are federal
employees and receive federal pension and retirement benefits by
default. In contrast, tribal law enforcement officers in most states
enforce the same laws and have the same duties as federal officers but
do not receive federal benefits.
As introduced, the Parity Act would allow tribal law enforcement
officers employed by tribal governments under ISDEAA instruments to be
treated as federal law enforcement officers under certain provisions of
the U.S. Code, including federal law enforcement officer benefits
programs in chapters 81 and 84 of title 5. It would also allow tribal
officers to be considered federal law enforcement officers for purposes
of enforcing federal criminal laws without being required to obtain
Special Law Enforcement Commissions provided they meet certain
training, background investigation, and other requirements, and are
certified to enforce federal laws by the BIA.
The Parity Act is intended as an opt-in for Indian tribes. Tribal
officers have varied backgrounds and years of service, often in other
state or local jurisdictions or with the federal government. A small
number of states have, under state law, allowed tribal officers to
participate in state law enforcement retirement systems. Arizona is one
such state. An officer that has several years of service as a law
enforcement officer in a non-Indian jurisdiction in one of these states
before working as a tribal officer in the same state may wish to keep
participating in the state retirement program.
By providing tribal officers with access to federal law enforcement
benefits, the Parity Act would also open the door for tribes to attract
law enforcement officers that may be employed by the federal government
but may wish to work for an Indian tribe while continuing to accrue
federal benefits. It would also make working for Indian tribes an
option for those federal law enforcement officers that have reached the
federal mandatory retirement age of 57 but desire to continue working
as a law enforcement officer for a few more years. In both cases, the
federal law enforcement officers could work for tribal police
departments without losing their retirement benefits or having to start
anew in a different retirement program. This would equally apply to
individuals who are leaving the U.S. military, which several ATNI
member tribes have employed as tribal officers upon those individuals
leaving active duty.
As the Committee considers the Parity Act, ATNI strongly urges the
Committee to incorporate the amendments to the bill that the House
Natural Resources Committee adopted when it approved the House version
of the bill (H.R. 4524) on March 12, 2024. ATNI member tribes developed
those amendments in consultation with tribal stakeholders and the
Administration.
In addition to technical and clarifying changes, those amendments
also allow tribal officers whose salaries are funded in whole or in
part by the Community Oriented Policing Services (COPS) grant and other
Department of Justice grant programs to be eligible to accrue federal
law enforcement benefits. This is important because it would allow
tribes in Alaska and other Public Law 280 states where there is a very
limited BIA law enforcement program presence to benefit from the Parity
Act's provisions.
ATNI strongly supports the Parity Act and urges the Committee to
take all necessary steps to ensure its enactment into law as soon as
possible. We look forward to continuing to work with the Committee on
this important national issue.
Thank you for inviting ATNI to provide testimony on the Parity for
Tribal Law Enforcement Act.
Senator Cortez Masto. Thank you, and thank you to the panel
of witnesses today.
We will begin now with questions from the Senate Committee
members. Senator Lujan?
STATEMENT OF HON. BEN RAY LUJAN,
U.S. SENATOR FROM NEW MEXICO
Senator Lujan. Thank you, Madam Chair. I appreciate that.
Chief Sutter, in your written testimony you highlighted an
ongoing problem in Indian Country where tribes will train and
recruit officers who work for the tribe for a short period of
time, only to leave for other jurisdictions with better
benefits. One of the effects of such high turnover is failure
to maintain continuity in community relations. In turn,
officers are unable to carry out complex investigations, such
as drug trafficking or cases of missing and murdered indigenous
persons.
Chief Sutter, can you elaborate on how high turnover rates
hamstring the ability of tribal law enforcement to effectively
crack down on fentanyl trafficking?
Mr. Sutter. The fentanyl epidemic has hit Indian Country
very hard, at least five times greater than the percentage of
the non-tribal community. We have lost many, many tribal
members to this epidemic.
To combat these illegal organized criminal organizations
importing fentanyl onto the reservations, it is staffing heavy.
We have had to form our own drug task force. We have to have
trained, experienced officers with the department to be able to
fill those specialty positions to really address the fentanyl
epidemic.
I believe that the Parity Act will greatly help with our
retention which will also then help stabilize our workforce and
provide experienced, trained officers to then provide that
specialty, high level detective work that is required.
Senator Lujan. I appreciate that, sir.
President Macarro, back in March I led a letter to the
Department of Justice on the high rates of tribal prosecutorial
declinations. According to the Justice Department's own
findings, Native American women are two to three times more
likely than women of any other race to experience violence,
stalking, or sexual assault. Yet the Department declines to
prosecute about half of those cases.
One provision of the BADGES Act would increase tribal
access to the National Missing and Unidentified Persons System
by requiring tribal facilitators to conduct ongoing tribal
outreach and serve as a point of contact for tribes and law
enforcement agencies. Tribal facilitators would also be
required to conduct training and information gathering to
improve the resolution of missing persons cases in order to
collaborate more.
President Macarro, can you tell me more about the benefits
of having a tribal collaboration initiative working with family
members and tribes?
Mr. Macarro. Thank you for the question. As I mentioned
briefly in my previous remarks, data from 2016 showed that only
about 2 percent of reporting American Indian and Alaska Native
women and girls were actually logged within NAMUS, the National
Missing and Unidentified Persons System.
So under the proposed BADGES bill, a tribal facilitator
would be appointed to coordinate missing and unidentified
persons cases with tribal nations, and provide training and
technical assistance to tribal nations, tribal organizations,
victim service advocates, coroners and tribal justice officials
on how to report and utilize the system.
The additional capacity provided by the tribal facilitator
will first and foremost help to adequately account for the
actual number of American Indian and Alaska Native victims,
which then can help inform future policy decisions about where
to allocate resources to try and protect our communities
better.
Now, the tribal facilitator position, through its
coordinating duties, can also assist in the sharing of
information between tribal nations, the Federal Government, and
other relevant agencies, services, and their data bases. The
importance of having dedicated staff to assist in such
coordination efforts has the potential to greatly impact our
collective long-term effectiveness in dealing with the MMIP
crisis.
I also want to note that the tribal facilitator will also
help with unidentified and unclaimed remains cases of interest
to tribal nations, to help identified deceased and return them
to their tribal homelands so they may be buried with their
ancestors. In many reported incidents, the pain of losing a
loved one was exacerbated by improper or culturally insensitive
treatment of the case or remains.
While preventing the occurrence of MMIP should be the
primary goal, further steps must be taken to ensure that when
crimes occur, both families and the victims are supported in a
culturally appropriate way. The tribal facilitator provided for
in the BADGES Act would likely help reduce culturally
insensitive incidents like the one I have just mentioned.
Thank you.
Senator Lujan. I very much appreciate that, President
Macarro.
Assistant Secretary Newland, that takes me to my next
question. In November, the Not Invisible Act Commission
published recommendations on how to increase intergovernmental
coordination to address the missing and murdered indigenous
persons crisis.
The commission found that there is limited data being
shared between the Department of Justice, the Department of
Interior, and other Federal agencies like DHS and the FBI. This
can lead to demographic miscalculations, inconsistent practices
in collecting tribal affiliation, and general underreporting of
the crime.
In March, I asked the Department of Justice what their
policy is for coordinating and information sharing with the
Bureau of Indian Affairs. I am still waiting for that response.
I hope they are tuning in today.
I would like to ask you a similar question. My question,
Assistant Secretary Newland, is how would you characterize
coordination and communication between the DOJ and DOI on the
missing and murdered indigenous person crisis? Where is there
room for improvement?
Mr. Newland. Thank you, Senator. There is always room to do
better. Clearly, the numbers show that.
What I can say is that we have taken some concrete steps to
make sure that we are coordinating. One of the things we have
done is execute an interagency agreement between the FBI and
the Bureau of Indian Affairs for the first time in more than 30
years. That agreement lays out some of the details about how
FBI and BIA law enforcement will coordinate on cases, including
some issues relating to data reporting.
Up at my level and with our team and departmental
leadership from the Department of Justice, we have regular
meetings on MMIP/MMIW issues and the work that we are doing. We
coordinated the response, the Not Invisible Act Commission,
together, hand in hand.
There are a lot of challenges on the ground when it comes
to reporting data. A lot of the things that you hear, Senator,
are challenges that people just aren't always, they are not
always intuitive about who is Native and who isn't. Some people
don't know to remember to ask that question. That also leads to
some data issues.
There are things that we are trying to do to make sure we
are coordinating better with the Department of Justice on this.
We formalized our relationship, or renewed that formalization.
We are talking at leadership levels and making this a priority.
I do think this legislation will help.
Senator Lujan. There was a train derailment in New Mexico
recently, a few days ago. If I could ask one question of Chief
Sutter. Over the weekend, a freight train carrying propane
derailed and caught fire and exploded near Gallup, New Mexico,
partly on the Navajo Nation. Nearby residents were forced to
evacuate their homes.
Now, Gallup is right on the edge of the Navajo Nation in
New Mexico, and this was on the Mexico-Arizona border. So the
Navajo Nation in New Mexico and in Arizona.
Some nearby did not receive any sort of emergency alert on
their phones. We have been trying to get this straightened out
for missing and murdered within the Department of Justice,
within the FCC, legislation has been passed, has been sent to
the President. But now we have another derailment carrying
propane, an explosion, things were caught on fire. There were
efforts to evacuate.
Yes or no, on a macro level, are there adequate resources
for tribal communities to communicate and issue emergency
alerts during a crisis?
Mr. Sutter. No, we have a lot of room for improvement.
Senator Lujan. I appreciate that very much, and look
forward to working with the Committee leadership to get this
addressed. Thank you.
Senator Cortez Masto. Senator, thank you. You highlighted
some important issues that we still need to focus on.
Obviously, there are gaps in data gathering and information
sharing. I appreciate your comments.
I also appreciate, Assistant Secretary Newland, because I
am going to focus on you right now, as you well know, the Not
Invisible Act, there was a report that came from it that
Senator Lujan talked about. And there were recommendations in
that report. Some of them administratively can be implemented.
But some of them are requiring Congressional action. I actually
have legislation that I am looking at right now implementing
some of those recommendations.
The BADGES Act will address some of that data gathering,
isn't that correct?
Mr. Newland. I believe so, Senator, yes.
Senator Cortez Masto. And let me ask you this. A subject
that we talk about, the BADGES Act, and you touched on this a
little bit, the extended waiting period that BIA law
enforcement officers face during their background checks
oftentimes deters applicants from even going through the
process. I hear this constantly in the State of Nevada as well.
The BADGES Act would create that five-year demonstration
program that would allow BIA to adjudicate their own background
checks for officer candidates.
Assistant Secretary, do you support this program? Can you
speak to how this will help improve that officer recruitment?
Mr. Newland. Absolutely. I support this pilot project,
Senator. It is always difficult when you are trying to carry
out your mission when you are dependent on somebody else to
complete your mission. That is where we are when it comes to
background checks, because we have not been able to do that
ourselves.
Allowing us to have ownership of this process and making
sure that the buck stops with us I think will also, and the
fact that Indian Affairs' mission is narrower than some of the
other folks who do these background checks will allow us to be
more efficient and speedier with it.
Senator Cortez Masto. Would this somehow lower that
threshold for somebody to overcome a background check or
security background and clearance just because BIA is providing
this background?
Mr. Newland. No.
Senator Cortez Masto. Let me ask you this. The BADGES Act
would seek to evaluate Federal law enforcement practices for
handling and processing evidence in cases in Indian Country.
This is one of the issues that comes up over and over again
when we try to dig into why so many violent crimes against
Native people aren't prosecuted.
Can you talk about the long-term impact in a tribal
community when serious crime goes unprosecuted?
Mr. Newland. Senator, I see I have two and a half minutes.
I could probably speak at great length about this. In a lot of
communities that I have visited in this job, and colleagues I
have spoken to when I served in tribal leadership, one of the
things that I hear a lot of is that people seem to know that
there is no accountability if they come into tribal communities
and commit bad acts.
So people who are intent on carrying out violence or sexual
abuse or domestic violence know that their odds of getting away
with it are higher in Indian Country. When we don't prosecute
these cases and we don't make them a priority, it sends that
signal to people who are intent on doing harm. But Senator, it
also sends a signal to people who live in those communities and
people across Indian Country that, your safety and your well-
being and your lives matter less.
I don't think that that is consistent with our trust
obligation to Indian people, when we are not prosecuting cases
in Indian Country that we prosecute elsewhere. It says a lot.
And that is something we are all committed, I think, to
improving.
Senator Cortez Masto. Then finally, we all know this, and
there was mention of this, but I hear this constantly, BIA law
enforcement staffing shortage. It is there. There is a
challenge there. It is caused by a number of issues, we know,
from a lack of Federal support to the unique challenges facing
officers in rural communities.
Again, the BADGES Act would help hopefully address that
shortage. But with a BIA shortage, let me ask, Chief Sutter,
you have seen this in communities. Not every Native American
community has an opportunity to hire their own law enforcement
task force. Some have to rely on BIA as the only source of law
enforcement. If they are understaffed and they have a large
geographic area to cover, it is pretty much guaranteed they are
not going to be able to cover all of the crime that happens.
I am curious how you have addressed some of the communities
in your State that don't actually have law enforcement in your
work with BIA.
Mr. Sutter. In the Pacific Northwest, we only have one BIA
agent assigned to a drug task force. We have 29 federally
recognized tribes in the State. We have neighboring tribes
close to Tulalip that have had so many drug overdose deaths and
cartels bringing drugs onto their reservation that we offer
mutual aid support between the tribes.
But the staffing and the critical shortage of officers
makes it very, very difficult. It is a very real problem, the
officer staffing issue, both at the BIA and for those that
contract or compact, to provide our own tribal law enforcement
services.
Senator Cortez Masto. Thank you. I appreciate the
testimonies today. Thank you, Mr. Chairman.
The Chairman. [Presiding.] Thank you.
I just have a couple of questions for Secretary Newland.
Tell me how a tribal facilitator will help BIA officers to
solve MMIP cases.
Mr. Newland. Thank you, Mr. Chairman. The first thing is,
as has been much discussed at this hearing, is it will make
sure we are getting accurate data. It helps you connect cases
that might be connected. More information is always helpful to
investigators.
It will also, I think, better connect Indian Country with
the Department of Justice and with us on these cases. We have
been working with the Department of Justice on NAMUS related
issues in two instances. But I think filling those data gaps
will help our investigators serve Indian Country.
The Chairman. You just answered my second question very
efficiently. So thank you very much.
These are really good bills. They are bipartisan bills.
They are logical bills. A lot of times when a bill is not
controversial that almost means it is small, it is almost a
signifier that it is not a big deal. But this is the sweet spot
in legislating. This is both a big deal, and will make a real
impact, but it is also not a subject of terrible controversy.
So I am very hopeful we will be able to mark these up, and
enact them into law. Thank you very much.
If there are no more questions for our witnesses, members
may also submit follow-up written questions for the record. The
hearing record will be open for two weeks and I want to thank
all the witnesses for their time and their testimony.
This hearing is adjourned.
[Whereupon, at 3:33 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Frank Star Comes Out, President, Oglala
Sioux Tribe
My name is Frank Start Comes Out, and I am the President of the
Oglala Sioux Tribe. I also serve as the President of the Great Plains
Tribal Chairmen's Association, which is composed of 16 tribes in the
Great Plain Region.
I would like to begin by thanking the members of this Committee,
especially the bills' sponsors before you, for your interest in tribal
law enforcement. Indian Country is facing a law enforcement crisis,
which is leaving communities devastated and community members injured
and, in some cases, dead. Until now, the lack of adequate law
enforcement in Indian Country has gotten far too little attention. In
fact, I fear that it will take a mass casualty event to draw the
attention Indian Country needs to address this issue.
S. 465, BADGES for Native Communities Act
While creating better coordination and a better national database
of ``Missing and Murdered and Unidentified Persons'' and an improved
Congressional reporting system will be helpful, it will not, in my
opinion, address the real problem we are facing across Indian Country
today. When a person goes missing, the on-site officer must act
immediately to determine where the person was, who they were with, and
the circumstances surrounding their last witnessed event. None of these
things can be done effectively by someone that tribal community members
do not feel comfortable talking to or from FBI or BIA agents who are
away from the community.
This is why the Oglala Sioux Tribe has proposed to contract its
percentage of the Missing and Murdered funding currently provided by
Congress. A tribal proposal which, to date, the BIA has openly denied,
arguing instead for its current unproductive national program. Last
year, we had over 350 cases of missing persons, and the BIA's MMI
program was not helpful in any of them.
Most of our Missing and Murdered cases either occur on the
Reservation or involve someone from the Reservation. Creating a data
and reporting system that comes after the incident is a good step, but
by the time the data is inputted, the missing person is likely
unrecoverable. We want to locate them unharmed and alive, and this
system will not get that job done.
Unmet needs reporting requirements. I would be less than candid if
I failed to note that, in my opinion, we do not need more reports.
Instead, we need this Congress to take seriously the unmet needs
reports it already receives. When the Tribal Law and Order Act of 2010
was passed, it called for an annual unmet needs report, we already
prepare and send those reports to Congress. Congress has simply not
acted on those reports. Those unmet needs are taken out of the current
OJS Law Enforcement Handbook and standard police practices in rural
towns across the United States, which we agree with. Thus, we see no
reason to change them or study them again.
Background check requirements. Please be aware that Oglala and I
believe all other Tribes with ``638'' contracts have long been
providing their own tribal background checks and adjudications
according to federal standards, but that is not the problem. What is
delaying these background checks is a lack of funding/staffing at
tribal courts, which need to provide background check information on
whether the applicant has lived or traveled regularly within their
jurisdiction in the last five years. So, better automation and staffing
at tribal courts will do a lot more than other federal systems.
Special Law Enforcement Commission. An additional problem with
applicants who have already had their background checked according to
federal standards, graduated from a federal or state police academy,
and taken the BIA's law enforcement course still have to prepare yet
another unnecessary set of paperwork to qualify for an OJS SLEC
certification. All that second certification does is re-check the
information already in the federal database. This is a total waste of
precious time and resources. Congress can easily fix this problem by
simply ordering that an individual who meets the requirements above is
automatically classified as an SLEC officer. After all, these federal
requirements are already in place under existing law.
Salary and Fringe benefits. One of the things that is not well
understood is that the least expensive part of a tribal law enforcement
budget is the salaries and fringe. The big costs are replacement
equipment, travel, gasoline, training, and travel, none of which the
tribes have any control over. Third-party vendors and the national
marketplace set these costs, especially under the existing federal
procurement rules we must abide by. Every year, these costs go up, but
our federal appropriations simply do not keep up with this inflation.
Think back to what you could have bought, a new car or a gallon of
gas ten years ago compared to today. The cost of a police car is now
over $65,000, and you cannot police a Reservation our size, 3.1 million
acres, and about the size of Connecticut without reliable
transportation. Again, these unmet needs are not luxury items; we
already have police cars with well over 150,000 miles on their
odometers, and our equipment lists are incorporated as mandatory items
in our 638 contracts. This inflation, coupled with our practical need
for these items, is causing a large part of the current law enforcement
crisis in Indian County. My officers are already making far less than a
federal employee in an equivalent position, and performing yet another
study of what is needed seems like a way for the OJS to spend more
money on itself rather than the problem.
Unfunded Mandate. To refresh your memory on something important,
let us look back to the late 1990s when Congress ordered the creation
of the BIA Office of Justice Services in the original Indian Law
Enforcement Act. Creating BIA-OJS without additional appropriations
allocated to carry out these new tasks created an unfunded mandate.
There was no needs assessment or special appropriation. Thus, in the
absence of a specific appropriation, all the BIA could do at the time
was move over the money it was already providing to the Tribes under
the then Tribal Priority Allocation.
Most tribes were, at that time, receiving up to 80 percent or more
of their law enforcement funding from the DOJ under a separate
appropriation, and you can begin to see the problem. Then, when those
DOJ grants expired, the BIA, which had promised to absorb those DOJ
costs in its budget, never did so. Thus, the base funding for this
program and tribal courts and corrections was never based upon a
reasonable estimate of what was needed; instead, it was based on an
unfunded mandate imposed at a time when the federal budget was under
stress. That was over 15 years ago, and that base budget has never been
fixed. However, we have had 15 years of unfunded inflation.
Alternative Police Training. The State of South Dakota and most
other states are willing to accept tribal police candidates at their
academies if they have room. All they ask is for the federal government
to chip in on their out-of-pocket costs. Unfortunately, the BIA does
not allow tribes to allocate any federal funds to a state for its
training program. This is a ridiculous and costly limitation, given
that the state training programs are usually much closer and more
tailored to the local law than any national training program. Remember,
criminal jurisdiction in Indian Country is often site-specific. The
current training method is not cost-effective and not a timely solution
to our current training problem, which stems largely from an overworked
and underfunded federal academy.
S. 2695, Parity for Tribal Law Enforcement Act
While we agree that making it abundantly clear that assaulting,
resisting, impeding, or threatening the life of a tribal officer is a
federal offense, we are very concerned that this particular provision
does not undermine those cases currently pending in federal court. We
are also very concerned about how the federal contribution to the
various benefit packages that S. 2695 will be paid and whether or not
it will be charged back to a BIA OJS account. We are equally concerned
about how these federal matches will be calculated and when these
contributions will arrive in our tribal coffers. We cannot afford to
borrow any more funds to cover these additional costs while waiting to
be reimbursed. We know this is not the sponsors' intent, but please
allow me to explain.
When OMB gives the Secretary of the Interior, or the BIA, a target
budget number for any given fiscal year, certain costs are taken off
the top. Those costs include all federal contributions to tribal water
settlements, all tribal Contract Support Costs and Direct Contract
Support Costs, and all 105(l) leases entered into by the United States.
The federal match on these benefits under S. 2695 is, or at least
should be a direct contract support cost. However, as you can see from
this system, we are currently paying for all CSCs, which lowers the
amount the BIA can spend on the programs it provides.
Now, here is the rest of the problem. P.L. 93-638 already says that
the BIA is to fund all ``reasonable'' Direct Contract Support Costs,
but the BIA has implemented regulations that state that a ``reasonable
cost'' is assumed to be 18 percent of salaries. Therein lies the
problem. We are already at 18 percent, just paying the mandatory
federal contribution to our federal and state taxes and workmen's
compensation, with no pension program and no major federal contribution
to our health, dental, eye, and life insurance. Each of these has to be
paid at least quarterly.
So, if our Direct Contract Support budget is charged back for the
federal matches on these new S. 2695 benefits, we will be well over 18
percent, detailed in current P.L. 93-638 and its implementation
regulations. And yes, even if you fix this 18 percent problem, unless
those Direct Contract Support and other above-listed costs are treated
as mandatory spending under the Federal Budget Process, what we are
doing is increasing the cost of an already underfunded BIA which is
something we cannot afford to do.
You can fix this problem, but giving the BIA-CSC program new
mandatory money for retirement, health insurance, etc., and letting the
Tribes set up their own programs. This will make reporting easier,
budgeting easier, and keeping one program from providing different
benefits from those provided by other P.L. 93-638 contracts, making
tribal record keeping and reporting much simpler and much less
expensive.
The second problem is one of timing. Benefits must be paid to third
parties at least quarterly, but the BIA reimbursements have never met
this deadline. This is not altogether BIA's fault. When Congress passes
and the President signs an annual appropriation, one or two federal
employees in each BIA region need to (1) Figure out how many program
dollars go to each Direct Service Program, (2) Figure out how many
year-long program dollars go to each P.L. 93-638 contract, and what
that new year-long contract amount is; (3) Figure out how new contract
amount changes the estimated indirect cost amount owed by the federal
government; and then an only then (4) Figure out how much Direct
Contract Support money each ``638'' program gets.
The end result is that we at Oglala have been getting out Direct
Contract Support Payments for one or two months after the fiscal year
is over. So, adding to these costs means that we have to increase the
amount that we have to borrow from the bank or from our tribal law
enforcement program until the costs are reimbursed. These bank loan
origination fees and the interest on those bank loans are what is
killing us. First, this Committee needs the BIA to eliminate the 18
percent estimate for Direct Contract Support under ``638'' in its
regulations and then amend ``638'' to make these costs into ``mandatory
federal spending under your congressional budget acts. In short, you
need to ensure that these costs are not taken out of our already
severely funded law enforcement budgets and that they will be paid in a
timely manner. Unless all of these steps are taken, adding these costs
as new unfunded mandates will leave us worse off than we are now.
Unnecessary Amendments. Finally, both S. 465 and S. 2695 call for
new and unnecessary BIA/OJS policies and regulations. Both the BIA's
background check and adjudication requirements were already updated
when the Tribal Law and Order Act of 2010 was passed, and we see no
reason to spend federal time and money updating them again. We
respectfully ask this Committee to leave those things alone and instead
focus on correcting our current budget problems. The BIA's last Tribal
Law Enforcement Act Report indicated that the BIA Indian Law
Enforcement Program is funded at around 15 percent of actual need,
defined as the unmet need to bring Indian law enforcement to parity
with the average non-Indian law enforcement program in the U.S. in
comparably sized areas. That is 15 percent of the actual need. We all
know that all Indian programs are underfunded, but most are at least
funded around 50 percent of the need, not 15 percent. Especially for
what everyone agrees is an essential governmental function.
At Pine Ridge and most of the large, heavily populated Reservations
across the county, we are in a non P.L. 83-280 state. That means that
our non-Indian State and local governments have no criminal
jurisdiction over a crime committed by an Indian or a crime with an
Indian victim. That is existing federal law. For Oglala, the FBI, DEA,
AFT, and BIA are all over 90 miles away, and none of them are first
responders, so Indian people are being hurt and killed on federally-
owned land. We have taken over 150 weapons out of our BIA-funded
schools since I took office. Luckily, we have not had a mass shooting
at one of those same schools, but we have had stabbings.
In other words, this is very real for us, and we need your help.
Today, our 911 system logs around 136,000 calls for police assistance
per year, and we have only 6-8 officers per shift to answer those
calls. Gun violence is at an unprecedented level, and fentanyl, heroin,
and other comparable drugs are prevalent. You have already seen the
Reservation/Cartel news on the national news, and all I can do is make
it clear that this reporting is not exaggerated.
Guns and fentanyl are not manufactured on Pine Ridge; they are all
coming from the outside. Criminals are not naive; they will continue to
gravitate to our Reservations because we have no federal law
enforcement presence, even though this is federal land. So, with
136,000 calls and eight officers per shift, I ask you, am I wrong in
telling a young lady not to get a protective order telling an elder not
to drive at night or not telling a local non-Indian official that it is
perfectly safe to send their basketball team to Pine Ridge.
Our problems are real and immediate. Please do not wait until
Indian Country has a mass casualty event before you act; act now.
______
Prepared Statement of the Port Gamble S'Klallam Tribe
Dear Chairman Schatz, Vice-Chair Murkowski and Members of the
Committee:
The Port Gamble S'Klallam Tribe (the Tribe) submits this testimony
as part of the Senate Committee on Indian Affairs' (SCIA) hearing
record on the Parity for Tribal Law Enforcement Act (Parity Act). \1\
The Tribe has reviewed the legislation and fully supports it as we
understand it. We submit these additional comments to clarify our
understanding of the legislation and to describe the impact that it
would have on our law enforcement and the public safety of our
Reservation as well as on the surrounding non-Indian communities.
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\1\ S. 2695--118th Congress (2023-2024).
---------------------------------------------------------------------------
Background on the Port Gamble S'Klallam Tribe
The Port Gamble S'Klallam Tribe is a sovereign nation comprised of
over 1,342 citizens located on the northern tip of the Kitsap Peninsula
in Northwest Washington State. In our language, ``S'Klallam'' means
``the Strong People,'' and despite having been displaced from our
ancestral homelands and faced with challenges that threatened our way
of life, the Tribe has survived, and thrived, because of the strength,
determination, and wisdom of our ancestors.
Our ancestors negotiated the 1855 Treaty of Point No Point, which,
among other things, reserved hunting, fishing, and gathering rights for
our Tribe. Our people rely on the exercise of those Treaty rights to
this day, for subsistence, commerce, and the continuation of our
traditions and culture. In the Point No Point Treaty, the United States
agreed to respect the sovereignty of our Tribe and to protect and
provide for our well-being. The United States has both treaty and trust
obligations to protect our lands and resources and provide for the
health and well-being of our citizens.
The Port Gamble S'Klallam Tribe is a sovereign nation that predates
the United States, and as such, we retain inherent rights to govern our
own lands and people. \2\ Tribal sovereignty is enshrined in the U.S.
Constitution \3\ and in case law governing the United States' earliest
relationships with Tribal Nations. \4\ It remains a fundamental
characteristic of Tribal societies, essential to the continued
protection of our peoples and cultures, and the bedrock of our
relationship with the federal government. Respect for Tribal
sovereignty, like respect for the rule of law itself, requires more
than mere acknowledgement. It requires federal agencies to act in
accordance with our right to make decisions affecting the lands,
resources, and peoples we are responsible for governing. This includes
our responsibility to govern with respect to public safety and our law
enforcement officers.
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\2\ See, e.g., Cohen's Handbook ofFederal Indian Law 4.01 [I]
(2012).
\3\ U.S. Const., art. I, 8, cl. 3.
\4\ E.g., Worcester v. Georgia, 31 U.S. 515,559 (1832).
---------------------------------------------------------------------------
Port Gamble S'Klallam Tribe Law Enforcement
The Port Gamble S'Klallam Tribe Police Department (Police
Department) maintains order, investigates crime, enforces all
applicable laws, and assists community members on the Reservation,
while respecting the culture, jurisdiction, and sovereignty of the
Tribe and its people. We have 20 commissioned officers within our
Police Department. On average, these officers respond to over 900
incidents each month over a large footprint of six counties (which
comprises the area where Tribal members exercise their Treaty-reserved
rights at ``usual and accustomed'' sites), which approximately
represents the entire Olympic Peninsula.
The calls that the officers respond to range from enforcing the
Tribe's treaty rights, such as the enforcement of catch limits which is
a federal function, to more immediate threats to public safety.
Approximately 75 percent of the contact that the Police Department has
is with non-Indians.
Within the past six months, the Police Department has responded to
four calls involving non-Indians who posed an immediate physical threat
to the Tribe, its members, and to non-Indian patrons and employees of
Tribal businesses. In two of those instances, the non-Indians were
found passed out in vehicles outside the Tribe's casino with drug
needles in their arms and guns on the passenger seat. In both of those
instances, the person was a felon restricted from carrying a firearm.
In another instance, the non-Indian was found carrying 150 fentanyl
pills, with a street value of roughly $20,000. In the last instance,
the non-Indian was cut-off by the casino for being inebriated and
subsequently produced a firearm and pointed it at a casino employee. In
all instances, the Tribal officers were the first responders and were
able to prevent serious harm from occurring before handing the
perpetrators over to State law enforcement.
The Tribe's Police Department, however, faces ongoing staffing
problems which can make it difficult to police its vast service area
and to provide the kind of immediate response on Tribal properties.
These staffing problems are largely the result of the Tribe not being
able to match the salaries and fringe employment benefits provided by
State and Municipal police departments. Significantly, last year, for
example, our Police Department lost one-third of its overall force to
State, County, or local law enforcement because the Tribe was unable to
match the salaries, signing bonuses, and healthcare benefits for
dependents of the officers. While the Tribe has since created a
schedule for providing healthcare benefits to the dependents of
officers--and has recovered from last year's departures--its benefits
still do not match those of the State and Municipal governments and
competition remains a challenge.
Even after an officer completes training at an academy, it still
takes one year and approximately $250,000 to outfit and train that new
officer to become able to respond to routine calls and handle real life
situations at a level our communities expect. Importantly, that amount
does not include the opportunity cost of the field training officer's
time nor the other officers' overtime for training the new officer. If,
after that year, the new officer leaves for a State or Municipal
government because we were unable to match the fringe benefits or
salaries, then the Tribe has lost that time and money and must start
the process over again.
The turnover of officers also makes it difficult to build community
rapport and to train officers for complex investigations where we
require experienced personnel. These two difficulties manifest
especially in Missing and Murdered Indigenous Peoples cases where an
investigation requires experienced detectives that our community
members trust.
Comments in Support of the Parity Act
The physical safety and wellbeing of our Reservation and people is
of paramount importance. We support the Parity Act, provided that our
understanding of it is accurate. Specifically, we understand that the
benefits our eligible officers could receive under the Parity Act are
benefits that they would receive as officers carrying out their normal
duties under an Indian Self-Determination and Education Assistance Act
contract or compact, and not benefits that accrue only while they are
carrying out specific Federal law enforcement functions.
Provided our understanding of the Parity Act is correct, we support
it. We support it because we need assistance in recruiting and
retaining our law enforcement officers. The benefits that our Tribe can
provide our law enforcement officers do not compete with State and
Municipal governments. As a result, not only are we less competitive
for the best candidates, but we have a higher turnover rate for our
officers, which increases costs and impacts our ability to police our
Reservation.
Further, the Parity Act aligns with the treaty and trust
obligations of the United States as our officers are already carrying
out many Federal functions on our Reservation through monitoring and
enforcing our Treaty rights and they ought to be compensated as such.
We understand that the situation of every Tribe is different and
therefore we urge robust regional consultation in the implementation of
the Parity Act so that every Tribe can maximize the benefits it
provides to improve the physical safety and wellbeing of each
Reservation.
Conclusion
We appreciate the opportunity to submit testimony on this important
subject and we thank Chairman Schatz and this Committee for its
essential work. We also extend our gratitude to Senator Cantwell, our
Senator, for introducing and advocating for this important legislation.
Please do not hesitate to contact us if you would like further comments
on the Parity Act.
______
Western Governors' Association Policy Resolution 2023-09--Missing and
Murdered Indigenous Persons
A. BACKGROUND
American Indian and Alaska Native people, particularly women, are
disproportionately likely to experience violence, murder, or to go
missing. This disproportionate risk is encapsulated as the Missing and
Murdered Indigenous Persons (MMIP) crisis. The MMIP crisis is fueled by
complex and historic underlying factors impacting indigenous
communities, including: insufficient law enforcement resources,
funding, and cultural understanding among non-tribal law enforcement
agencies; lack of non-tribal and tribal collaboration; a shortage of
personnel on historic tribal lands; substance abuse issues; historic
lack of trust of non-tribal entities; and deficient housing and
infrastructure. Additionally, tribal nations receive a variety of
funding that can vary by state and status, including Pub. L. 280
tribes, treaty tribes, and tribes that have administrative control
through Pub. L. 93-638. The Governors and states represented herein do
not intend for language used to be legally binding or to be viewed as a
reflection or concession of any Governor or state's position related to
the reservation status of any specific tribe.
B. GOVERNORS' POLICY STATEMENT
Addressing Law Enforcement Shortages
1. Having sufficient law enforcement personnel is important to
ensure timely response and adequate resources for MMIP cases. Western
Governors urge the Bureau of Indian Affairs (BIA) to increase the
number of tribal officers on lands under tribal and federal
jurisdiction and increase the pace of hiring officers.
2. Tribal officers employed by BIA or tribes use the 638 process to
self-administer federal funds to support their tribal police forces.
Western Governors recommend that BIA ensure that 638 tribes receive
funding equivalent to the BIA tribal police pay scale to allow 638
tribes to support officers at an equivalent level to BIA-administered
tribal police forces.
3. Tribal courts and justice systems provide critical
infrastructure to process and prosecute MMIP cases. Western Governors
recommend appropriate, ample funding for tribal courts and justice
systems.
4. While MMIP cases occur across both urban and rural Native
populations, Western Governors recognize that there are specific
limitations for law enforcement in rural communities. Western Governors
encourage creative solutions to support the recruitment and retention
of tribal officers, particularly housing programs to ensure that tribal
officers can remain within their communities.
5. Currently, tribal officers can receive training from the BIA's
Indian Policy Academy in New Mexico and the Indian Policy Academy
Advanced Training Center in North Dakota, both of which can be a
significant distance for recruits to travel for basic training. Western
Governors urge BIA to expand beyond the single tribal officer training
program and create regionalized law enforcement training programs that
reduce the burden of training for officers.
6. Western Governors recognize diverse agreement opportunities
exist, such as cross deputization, joint powers agreements, and mutal
aid agreements, to assist with the speed of law enforcement response
and suit the variety of systems and scenarios across the West, and
support efforts to share best practices.
7. The AMBER Alert system is the only nationwide alert system for
those who are missing or abducted. Across the West, states have also
implemented state-specific MMIP alert systems. Western Governors
support efforts to create MMIP alert systems and increase inclusion of
state level systems into federal alert systems.
Support Systems
8. BIA victim services advocates provide direct services to victims
and crucial assistance for victims navigating complex bureaucratic
systems. Western Governors request federal funding for victim services
advocates.
9. Ensuring federal staff receive cultural sensitivity training
provides staff with the ability to effectively work with survivors.
Western Governors urge federal agencies to implement culturally
sensitive training and response courses for new employees working on
all aspects of MMIP.
10. Western Governors call for greater transparency on how federal
funding is allocated among tribes with 638 status and BIA administered
services. Specifically, Western Governors implore the federal
government to coordinate and collaborate with survivor support services
at the state and tribal level so that survivors and their communities
receive the maximum amount of resources.
11. To ensure wrap around services, Western Governors urge Congress
to increase funding for mental and behavioral health services for
survivors and their communities.
Collaboration
12. MMIP cases span across many jurisdictions, which can complicate
response times. Western Governors urge federal partners to streamline
emergency response communications across related federal agencies,
including BIA and the Federal Bureau of Investigation.
13. The consistent collection of data across jurisdictions and each
level of government is necessary to understand the scope and scale of
MMIP cases. Western Governors support sharing best practices for data
sharing agreements to allow for a more comprehensive view of the
crisis.
14. Several western states have created their own MMIP offices to
act as liaisons between tribal, state, and federal partners. Western
Governors support federal efforts to develop and strengthen MMIP state-
level offices and other state-level MMIP initiatives.
15. During any lapse in funding, Western Governors recommend that
the federal government work collaboratively with states and tribes to
ensure continuity of essential services with discretionary funding.
C. GOVERNORS' MANAGEMENT DIRECTIVE
1. The Governors direct WGA staff to work with Congressional
committees of jurisdiction, the Executive Branch, and other entities,
where appropriate, to achieve the objectives of this resolution.
2. Furthermore, the Governors direct WGA staff to consult with the
Staff Advisory Council regarding its efforts to realize the objectives
of this resolution and to keep the Governors apprised of its progress
in this regard.
This resolution will expire in June 2026. Western Governors enact
new policy resolutions and amend existing resolutions on a semiannual
basis. Please consult http://www.westgov.org/resolutions for the most
current copy of a resolution and a list of all current WGA policy
resolutions.
______
Response to Written Questions Submitted by Hon. Lisa Murkowski to
Hon. Bryan Newland
Question 1. BIA has increased law enforcement pay levels to match
with other Federal law enforcement, and as I understand it, BIA also
provides the same federal benefits to its officers as are provided to
other federal law enforcement at the Department of the Interior. If the
Department has taken these steps for their own law enforcement officers
at BIA, why is it necessary for S. 2695 to ``deem'' tribal officers
federal law enforcement officers when they are acting under a contract
or compact for federal law enforcement functions pursuant to the Indian
Self-Determination and Education Assistance Act (ISDEAA)? In other
words, why can't tribes just extend the same federal benefits BIA
provides to its Tribal law enforcement officers?
Answer. Tribal law enforcement officers acting under a self-
determination or self-governance contract are not eligible for federal
benefits such as injury and death, retirement, and pension benefits.
Consequently, Tribes provide benefits to tribal law enforcement
officers through their own insurance plans or their officers are
encouraged to use Indian Health Service benefits, if eligible. Some
Tribes also have 401K programs as a part of their benefit package, but
those do not come close to a federal law enforcement retirement under
FERS. A small number of states allow Tribal law enforcement officers to
utilize state retirement systems. Former state law enforcement officers
who now work for Tribal law enforcement may also continue participating
in the state retirement system. Furthermore, many law enforcement
officers throughout their career will work for the Bureau oflndian
Affairs' (BIA) law enforcement and Tribal law enforcement departments,
and in some cases, a particular Tribe may assume control of a
BIAoperated program, or the BIA may assume control of a Tribally-
operated program. Affording law enforcement officers one seamless
retirement system would enhance recruitment and retention of Indian
country law enforcement officers nationwide.
Question 2. S. 2695, as introduced, provides that tribal officers
shall have the authority to enforce federal law within an area under
the jurisdiction of an Indian Tribe under certain circumstances,
``notwithstanding any other provision of federal law.'' What specific
federal laws prevent the BIA from treating Tribal law enforcement
officers the same as federal law enforcement officers for purposes of
federal torts, retirement and pension benefits when those Tribal law
enforcement officers are acting pursuant to a contract or compact under
ISDEAA? Please provide the citations for those specific provisions of
federal law.
Answer. When Tribal law enforcement officers are operating under a
self-determination contract or self-governance compact and are within
the scope of their employment, they are deemed federal employees for
Federal Torts Claims Act purposes:
With respect to claims resulting from the performance of
functions during fiscal year 1991 and thereafter . . . under a
contract, grant agreement, or any other agreement or compact
authorized by the Indian Self-Determination and Education
Assistance Act of 1975 . . . an Indian tribe, tribal
organization or Indian contractor is deemed hereafter to be
part of the Bureau oflndian Affairs in the Department of the
Interior . . . while carrying out any such contract or
agreement and its employees are deemed employees of the Bureau
. . . while acting within the scope of their employment in
carrying out the contract or agreement: Provided, That after
September 30, 1990, any civil action or proceeding involving
such claims brought hereafter against any tribe, tribal
organization, Indian contractor or tribal employee covered by
this provision shall be deemed an action against the United
States and will be defended by the Attorney General and be
afforded the full protection and coverage of the Federal Tort
Claims Act.
See Pub. L. 101-512, Title III, 314, Nov. 5, 1990, 104 Stat.
1959, as amended Pub. L. 103-138, Title III, 308, Nov. 11,
1993, 107 Stat. 1416.
The waiver of sovereign immunity set forth in the Federal Tort
Claims Act, 28 U .S.C. 1346 (b ), is subject to thirteen statutory
exceptions enumerated in 28 U.S.C. 2680. One of these exceptions, 28
U.S.C. 2680(h), retains the sovereign immunity of the United States
with respect to claims arising out of intentional torts committed by
governmental employees. Under section 2680(h), the United States
retains its sovereign immunity with respect to ``[a]ny claim arising
out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights.'' The exception is,
however, subject to the following exception-to-the-exception:
Provided, that, with regard to acts or omissions of
investigative or law enforcement officers of the United States
Government, the provisions of this chapter and section 1346(b)
. . . shall apply to any claim arising . . . out of assault,
battery, false imprisonment, false arrest, abuse of process, or
malicious prosecution. For the purpose of this subsection,
'investigative or law enforcement officer' means any officer of
the United States who is empowered by law to execute searches,
to seize evidence, or to make arrests for violations of Federal
law.
See 28 U.S.C. 2680(h).
As quoted above, section 2680(h) specifically defines an
``investigative or law enforcement officer'' as ``any officer of the
United States who is empowered by law to execute searches, to seize
evidence, or to make arrests for violations of Federal law.'' Id. In
turn, courts that have addressed whether Tribal officers operating
pursuant to a 638 Contract meet the definition of federal investigative
or law enforcement officer for purposes of Section 2680(h) have held
that Tribal officers must have been issued a Special Law Enforcement
Commission (SLEC) by the Bureau oflndian Affairs, Office of Justice
Services. See e.g., Boney v. Valline, 597 F. Supp. 2d 1167 (D. Nev.
2009); Gatling v. United States, No. CV-15-08070-PCT-SMM, 2016 WL
147920, at *3 (D. Ariz. Jan. 13, 2016); Black v. United States, No.
C13-5415RBL, 2013 WL 5214189, at *2-3 (W.D. Wash. Sept. 17, 2013);
Etsitty-Thompson v. United States, No. 13cv00159, 2013 WL 4052621, at
*3-4 (D. Utah Aug. 12, 2013); Henderson v. United States, 2012 WL
4498871 (D.N.M. Sept. 19, 2012); Buxton v. United States, No. CIV. 09-
5057, 2011 WL 4528337, at *10 (D.S.D. Apr. 1, 2011), report and
recommendation adopted, No. CIV. 09-5057-JLV, 2011 WL 4528329 (D.S.D.
Sept. 28, 2011); Bob v. United States, No. CIV. 07-5068RHB, 2008 WL
818499, at *2 (D.S.D. Mar. 26, 2008); Locke v. United States, 215 F.
Supp. 2d 1033 (D.S.D. 2002), aff'd. 63 F. App'x 971 (8th Cir. 2003).
Section 5323 of the Indian Self Determination and Education
Assistance Act (ISDEAA) also distinguishes between Tribal and federal
employees. Tribal law enforcement officers are not listed as eligible
employees.
Question 3. S. 2695 is focused on assisting Tribes with parity with
respect to federal law enforcement officer benefits to aid in
recruitment and retention of tribal law enforcement officers when
Tribes contract or compact those functions under ISDEAA. Of the $256.4
million in BIA law enforcement appropriations expended in FY 2021,
$99.7 million is for direct service programs and $156.7 million is for
tribally contracted or compacted programs. That means more than 60
percent of the total amount appropriated for BIA law enforcement is
contracted or compacted to Tribes. For tribally contracted and
compacted law enforcement, are the costs for retirement, pension, death
and injury already included in the Secretarial amount of a 638 contract
or compact with a Tribe? If no, why not?
Answer. The costs for those fringe benefits can be supported with
PSJ budget line funding included in the Secretarial amount. Whether
funds are used for that purpose is up to the Tribe. It is important to
note that many Tribes use other sources of revenue to augment Federal
funding for law enforcement. The 2021 Tribal Law and Order Act report
indicates the current level of funding is $3.1 billion below the
calculated need.
As a result, Tribes may have to spend their own funds to make up
this shortfall. Second, the Department does not dictate to Tribes how
they should allocate their compacted or contracted law enforcement
program funding as long as it is consistent with the purpose of the
contracted program. The BIA provides a total amount of funding to
Tribes, and under the flexibility of the Indian Self Determination and
Education Assistance Act, they can use it for retirement, salary costs,
equipment, fringe benefits or other purposes as best meets their needs.
Question 3a. What amount is currently spent on these costs out of
the $156.7 million in FY 2021 that funded tribally contracted or
compacted law enforcement?
Answer. The BIA does not have data on funds used for these costs
from Tribally contracted and compacted law enforcement.
Question 3b. Will allowing access to these federal benefits
actually provide an increase in resources overall to Tribal law
enforcement? Why or Why not?
Answer. Providing access to these federal benefits will help Tribes
with the recruitment and retention of law enforcement officers.
Currently, Tribal law enforcement officers do not have access to
federal pension and retirement benefits and in many cases, state
benefits. S. 2695 is a meaningful step forward to get more law
enforcement officers in Native communities. S. 2695 will allow Tribal
members and other members of the community to provide law enforcement
services and work and live where they want, without having to leave the
Tribal program for better benefits.
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