[Congressional Record (Bound Edition), Volume 156 (2010), Part 8]
[Senate]
[Pages 11610-11613]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    TRIBAL LAW AND ORDER ACT OF 2010

  Mr. DORGAN. Mr. President, on occasion there are some things that 
happen in this Chamber that get precious little attention but represent 
very good news. Last evening, with virtually no attention, a piece of 
legislation was passed by the Senate unanimously, a piece of 
legislation, called the Tribal Law and Order Act, affecting Indian 
tribes across this country. It was bipartisan. My colleagues and I, as 
chairman of the Indian Affairs Committee, working with Republicans and 
Democrats, Senator Barrasso, and Senator Jon Kyl especially was helpful 
in recent days, and on our side, Senator Tester and Senator Udall and 
so many others--have gotten a piece of legislation through the Senate, 
which we hope will get through the House and be signed by the 
President, dealing with law and order on Indian reservations.
  Lewis and Clark spent the winter in North Dakota on their expedition 
in 1805. When they came through North

[[Page 11611]]

Dakota, there were Indian villages and settlements in North Dakota that 
had been there a long time. They were farming on the banks of the 
Missouri River. That is true all across the country. When new people 
exploring our country came upon Indian tribes, they had been there for 
a long while. They were the first Americans, and we displaced them, and 
we have sad chapters in American history that are described as ``Trail 
of Tears,'' the ``Massacre at Wounded Knee,'' and I could go on for a 
great length of time.
  Native Americans were, in many cases, rounded up, placed on 
reservations, and then the Federal Government, for taking their 
property away from them, said: We will sign agreements with you. We 
will make deals with you. We will have treaties. We will accept a trust 
responsibility. We will educate you. We promised that since we have 
taken your land away, we will provide for your children's education, we 
will provide for your health care, and we will provide for your law 
enforcement.
  It is what the Federal Government signed to do in treaties and the 
Government has systematically avoided the responsibility of meeting 
those conditions ever since.
  I have talked at length on this floor about Indian health care and 
Indian education and Indian housing. In many areas on Indian 
reservations, it mirrors what we consider Third World-country 
conditions: people living in overcrowded housing, if they have housing 
at all; sending kids to schools whose desks are 1 inch apart, with 30 
kids to a classroom, in a dilapidated building; people going hungry; 
people having very serious health care problems and not able to get 
adequate health.
  We passed in this Chamber the Indian Health Care Improvement Act as a 
part of the health care reform bill. I am enormously proud of having 
done that. It is the first time in 17 years this Congress did something 
on the Indian Health Care Improvement Act. We worked and worked and 
worked. I am proud it is done.
  This is another significant piece of work. We have had I believe 14 
hearings on this subject in the Indian Affairs Committee. Twenty-two 
Senate colleagues cosponsored my legislation, Republicans and 
Democrats.
  If anyone doubts the need for this legislation, let me demonstrate 
just in this week with three headlines, one in Indian Country Today. 
``Rape on the Rez'' is the title.

       The mother tries to be strong, looking at the photos of her 
     dead daughter's beaten and bruised face. She tries not to 
     cry, but eventually the images prove too much. ``That's what 
     they did to her,'' the mother says.
       Marquita Marie Walking Eagle died November 1, 2009, the 
     victim of a violent sexual assault. The 19-year-old Rosebud 
     Sioux woman's alleged killer: a 17-year-old classmate from 
     St. Francis High School in South Dakota.

  Just one headline, but, we also have studies. One in 3 American 
Indian and Alaska Native women will be raped and sexually assaulted in 
her lifetime--1 in 3; not 1 in 10, 1 in 3. Think of that. Think of the 
violence on too many of these Indian reservations.
  Another headline from this week: ``Addicted On The Rez,'' about drug 
abuse and crimes that are infiltrating the reservation. Another 
headline this week: ``Indian reservations on both U.S. borders are 
becoming drug pipelines,'' conduits for Mexican drug cartels and others 
to move drugs into this country and particularly addict young Indian 
children on those drugs and have them become carriers. Those are three 
articles from this week sitting on top of a mountaintop of other 
articles.
  In my home state of North Dakota right now, on the Standing Rock 
Indian Reservation that actually is on the border of North and South 
Dakota--it is an area the size of the State of Connecticut. They had 
nine law enforcement officers for 24 hours a day, 7 days a week 
coverage. Well, that means that very often there would be no more than 
one law enforcement officer patrolling an area the size of the State of 
Connecticut. So a women being raped, sexually assaulted, a burglary or 
a robbery in progress, a violent crime, a gun crime, and a plea and a 
call, a frantic call, might mean that 3 or 4 hours later--maybe not 
until the next day would someone in a police car show up to investigate 
that crime. That is what they have been facing.
  On the Standing Rock Indian Reservation, the year before last, the 
rate of violent crime wasn't double what most Americans experience; it 
wasn't triple; it wasn't quadruple; it was eight times the national 
average--eight times the rate of violent crime on the Standing Rock 
Reservation. There has been some improvement. In 2009 it was simply 
five times worse than what most Americans experience.
  The question is, What can we do about those things? One Bureau of 
Indian Affairs officer on the Standing Rock Reservation--again, as I 
indicated, an area the size of the State of Connecticut, with nine law 
enforcement officers--what he said was: ``I felt like I was standing in 
the middle of a river trying to hold back a flood.'' He said they were 
forced to ``triage'' rape cases. He said: We only took a rape case if 
there was a confession; if not, didn't happen. This is not a Third 
World country. This is in America on Indian reservations.
  Last summer, the Department of Justice issued a report to our 
committee. I am quoting now:

       Native gangs are now involved in more violent offenses like 
     sexual assault, gang rapes, home invasions, drive-by 
     shootings, beatings, and elder abuse on Indian reservations.

  This is on the Pine Ridge Reservation, a photograph that was brought 
to a hearing I held on increased gang activity on reservations. This is 
another photo from the same hearing. These are very serious problems.
  We have a war on terror and a war on drugs, and all too often across 
this country, Indian reservations are left to their own, told ``you do 
it,'' despite the fact that this country promised to provide law 
enforcement assistance. This entire system isn't working. It is the 
courts, the jails, law enforcement--it doesn't work.
  That is why, with 22 colleagues, we introduced this legislation and 
now last night, thankfully, have passed it through the Senate. This 
does a number of very important things. It forces the BIA to consult 
with tribal leaders on joint law enforcement.
  It says to the U.S. attorneys--by the way, U.S. attorneys are the 
ones who are relied upon to prosecute felonies on Indian reservations, 
and all too often it is part of the back room of the U.S. Attorney's 
Office: You know what, we don't have time; we are not going to do it. 
The declination rate--that means declining to prosecute--the 
declination rate for murders is 50 percent, according to Department of 
Justice information we received in the committee. The declination rate, 
that is, declining to prosecute, for rape and sexual assault is 70 
percent. So 70 percent of the time, they don't prosecute because they 
are working on something else. It is on an Indian reservation. Hard to 
investigate, they say. Well, this legislation will change that.
  This legislation will add the necessary tools to enable tribal 
governments to better fight crime locally. It will give police improved 
access to national criminal databases. Judges on reservations will have 
added authority to sentence violent offenders in tribal courts. Can you 
imagine that judges in tribal courts, under current law, can sentence 
to no more than 1 year for an Indian offender? No more than 1 year. 
Rape, murder, armed robbery--1 year. That is absurd.
  The fact is, we have put together a bill that finally offers the 
tools to strengthen this justice system, that also works to cross-
deputize Indian police in the Federal criminal system so that Indian 
reservations and those who patrol on the reservations can work hand-in-
hand with those in the adjacent counties, the county sheriffs, police 
chiefs, and others.
  This bill will reauthorize and improve existing programs designed to 
strengthen the tribal justice systems, prevent alcohol and substance 
abuse, which is the No. 1 cause of violence on reservations, and 
improve opportunities for youth on the reservations.
  I am very pleased and proud that we have been able to get this done. 
We have worked long and hard. If this Congress completes its work 
having done the Indian Health Care Improvement

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Act and now the Tribal Law and Order Act, if in one Congress we will 
have made that kind of stride to address the issue of health care and 
crime and justice on Indian reservations, we will have done something 
very significant.
  I ask people who think, well, this is just something that is out of 
sight, out of mind: Go to an Indian reservation and take a look at the 
condition of the housing. Go visit with the kids in school. I have done 
that. Go sit around, if you can, with 10 or 12 kids and ask them about 
their lives. Where do they get hope and inspiration and belief that 
they can be part of something bigger than themselves, that they can get 
educated, that they have an opportunity to do whatever they want to do? 
Where do they get that? The fact is, we have created circumstances, 
abysmal circumstances and broken promises, and it has lasted for a 
couple of centuries.
  You know, we have been trying now for almost 6 months to get the 
Cobell settlement through the Senate. The Cobell settlement is a group 
of plaintiffs who are Indians whose property and land and resources 
from that land have largely been stolen from them for a couple of 
hundred years. The Interior Department has been managing the trust of 
these Indians for well over 100, 150 years.
  The other day on the floor of the Senate, I showed a picture of a 
woman who had six oil wells on her land, and she lived in a little 
bungalow and never had anything all of her life. Well, why didn't 
someone who had six oil wells on her land have anything? Because the 
U.S. Department of the Interior was managing it, and she never got the 
money. That has been going on for 150 years. And now there is a court 
action that has gone on for 14 years and finally an agreement to settle 
the court action, and the judge gave us 30 days in Congress to settle 
this after it had been agreed to by the Interior Secretary, by the 
plaintiffs. Finally some justice after 100, 150 years, and the judge 
has had to extend that deadline now three or four times and we have 
still not gotten it done. It is in this underlying bill, the one that 
is being objected to by the minority.
  The reason I mentioned that is there are so many injustices in this 
country to the people who were here first. The first Americans deserve 
better. The first Americans deserve to have this government keep its 
promise at long, long last. And this is but one: the providing of law 
enforcement. How many Americans would like to live in an area where the 
rate of violent crime is 5 times, 8 times, or 10 times the national 
average? Well, there are a whole lot of young men and women, young boys 
and girls, and elders living exactly in those circumstances in this 
country. And that violence exists every day.
  We need to do something about it.
  One final point. I have talked to the BIA at great length. There are 
some things happening right now experimentally to try to move some 
additional resources into tribal lands to promote greater law and 
order. It is true on the Standing Rock Reservation and others as well. 
But the Tribal Law and Order Act, which I have reason to believe will 
now be passed by the House as well, is a big step forward. We not only 
negotiated that in the Senate, but we worked very hard with Members of 
the House as we put this legislation together with their ideas as well. 
If we do this, we will be able to say this country, at long last, on 
this issue at least, kept its promise and began the long effort to make 
sure we are meeting our trust responsibilities to those who were the 
first Americans.
  I thank many of my colleagues who helped us achieve this goal, and 
end as I began, by saying there is plenty of reason to be concerned 
about the lack of getting things done in this Chamber, but this is a 
good piece of legislation. Good news doesn't sell quite as well as bad 
news these days in our system. I hope all of us will be able to take 
some satisfaction in doing something that represents the public good 
for people living in this country who certainly deserve it.
  I yield the floor.


                         Criminal Jurisdiction

  Mr. DORGAN. Mr. President, I rise to speak on S. 797, the Tribal Law 
and Order Act of 2010. I offered the text of this bill to H.R. 725, the 
Indian Arts and Crafts Act Amendments, and last night, the Senate 
passed this bill as amended by unanimous consent.
  As chairman of the Committee on Indian Affairs, I have presided over 
14 hearings relating to public safety on our Nation's tribal lands over 
the past three years. These hearings revealed a longstanding crisis of 
violence in many parts of Indian country. Indian reservations on 
average suffer rates of violence more than 2.5 times the national rate. 
In my home State of North Dakota, the Standing Rock Sioux Reservation 
suffered 8.6 times the national rate of violence in 2008. In early 
2008, there were 9 police officers patrolling this 2.3 million acre 
Reservation, which meant at times there was no 24-hour police response 
service. As a result, victims of violence reported waiting hours and 
sometimes days before receiving a response to their distress calls. 
With this level of response, crime scenes can become compromised, and 
justice is not served to the victims, their families, or the community.
  Our hearings found that violence against Indian women has reached 
epidemic levels. The Justice Department and the Centers for Disease 
Control and Prevention report that more than 1 in 3 American Indian and 
Alaska Native women will be raped in their lifetime and more than 2 in 
5 will be subject to domestic or partner violence.
  The broken and divided system of justice in place on Indian lands 
that was devised by dozens of Federal laws and Federal court decisions 
enacted and handed down over the past 150 years is not well-suited to 
address the violence in Indian country. Because of these laws and 
decisions, responsibility to investigate and prosecute crime on the 
reservation is divided among the Federal, tribal, and in some 
locations, state governments.
  Based on this authority, these governments should be diligent in 
preventing and prosecuting these crimes. Thus, one of the primary 
purposes of the bill is to ensure that the United States upholds its 
treaty promises and legal obligation to investigate and prosecute 
violent crimes on Indian lands. Our Nation made treaty promises, and 
enacted laws--specifically the General and Major Crimes Acts--that 
provided for Federal criminal jurisdiction over Indian lands. At the 
same time, the United States limited tribal government authority to 
punish offenders in tribal courts to no more than 1 year for any one 
offense.
  The Tribal Law and Order Act of 2010 takes steps to hold the United 
States to these solemn promises, and will address the restriction on 
tribal court penal authority over defendants in tribal court where 
certain protections are met.
  Mr. KYL. I thank my colleague from North Dakota for his work on this 
important bill. We held a field hearing in my State of Arizona on an 
early version of this bill. There we heard from tribal leaders about 
violence in their communities. In 2009, the Bureau of Indian Affairs 
reported that in my home State of Arizona the San Carlos Apache Tribe 
endured a violent crime rate that is more than six times the national 
average and the White Mountain Apache Tribe suffered a violent crime 
rate more than four times the national average. On the southern border, 
the Tohono O'odham Nation needs assistance in addressing the onslaught 
of Mexican drug and human traffickers that exploit the sprawling 
reservation, which is the size of the State of Connecticut.
  I would like to address changes made to section 201 of the Tribal Law 
and Order Act that concern Public Law No. 83-280, commonly known as 
Public Law. 280. This law was enacted on August 15, 1953. Public Law 
280 removed the Federal Government's special Indian country law 
enforcement jurisdiction over almost all Indian lands in the States of 
Alaska, upon statehood, California, Minnesota, Nebraska, Oregon, and 
Wisconsin, and permitted these States to exercise criminal jurisdiction 
over those lands. The act specifically provides that these states 
``shall have jurisdiction over offenses committed by or against Indians 
in the areas of Indian country . . . to the same extent

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that such State . . . has jurisdiction over offenses committed 
elsewhere within the State . . . and the criminal laws of such State . 
. . shall have the same force and effect within such Indian country as 
they have elsewhere within the State.''
  Public Law 280 has been a mixed bag for both tribes and States. The 
States that are subject to Public Law 280 possess authority and 
responsibility to investigate and prosecute crimes committed on 
reservations, but, because of subsequent court decisions that sharply 
limited the extent of Public Law 280's grant of civil jurisdiction to 
affected states, these states have almost no ability to raise revenue 
on Public Law 280 lands. And to the extent that tribal governments 
retained concurrent jurisdiction over crimes committed by Indians on 
these lands, such authority is currently limited, as my colleague from 
North Dakota states, to no more than 1 year for any one offense. Thus, 
residents of reservations subject to Public Law 280 have to rely 
principally on sometimes underfunded local and state law enforcement 
authorities to prosecute reservation crimes.
  Section 201 of the Tribal Law and Order Act of 2010 allows the 
Federal Government to reassume criminal jurisdiction on Public Law 280 
lands when the affected Indian tribe requests the U.S. Attorney General 
do so. If the Attorney General concurs, the United States will reassume 
jurisdiction to prosecute violations of the General and Major Crimes 
Acts, sections 1152 and 1153 of title 18, that occur on the requesting 
tribe's reservation.
  The bill makes clear that, once the United States reassumes 
jurisdiction pursuant to this provision, criminal authority on the 
affected reservation will be concurrent among the Federal and State 
governments and, ``where applicable,'' tribal governments.
  Mr. President, I would like to ask the sponsor of the bill to make 
clear that nothing in the Tribal Law and Order Act retracts 
jurisdiction from the State governments, and nothing in the act will 
grant criminal jurisdiction in Indian country to an Indian tribe that 
does not currently have criminal jurisdiction over such land.
  Mr. DORGAN. That is correct. The phrase that jurisdiction ``shall be 
concurrent among the Federal Government, State governments, and, where 
applicable, tribal governments'' is intended to clarify that the 
various State governments that are currently subject to Public Law 280 
will maintain such criminal authority and responsibility. In addition, 
this provision intends to make clear that tribal governments subject to 
Public Law 280 maintain concurrent criminal authority over offenses by 
Indians in Indian country where the tribe currently has such authority. 
Nothing in this provision will change the current lay of criminal 
jurisdiction for state or tribal governments. It simply seeks to return 
criminal authority and responsibility to investigate and prosecute 
major crimes in Indian country to the United States where certain 
conditions are met.
  Mr. KYL. Mr. President, I concur with the interpretation of this 
provision expressed by my colleague from North Dakota.

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