[Senate Report 106-219] [From the U.S. Government Publishing Office] Calendar No. 409 106th Congress Report SENATE 1st Session 106-219 ====================================================================== PROVIDING TECHNICAL AND LEGAL ASSISTANCE TO TRIBAL JUSTICE SYSTEMS AND MEMBERS OF INDIAN TRIBES, AND FOR OTHER PURPOSES _______ November 8, 1999.--Ordered to be printed _______ Mr. Campbell, from the Committee on Indian Affairs, submitted the following R E P O R T [To accompany S. 1508] The Committee on Indian Affairs, to which was referred the bill (S. 1508) to provide technical and legal assistance to tribal justice systems and members of Indian tribes, and for other purposes, having considered the same, reports favorably thereon with an amendment in the nature of a substitute and recommends that the bill (as amended) do pass. The substitute amendment is as follows: Strike all after the enacting clause and insert the following: SECTION 1. SHORT TITLE. This Act may be cited as the ``Indian Tribal Justice Technical and Legal Assistance Act of 1999''. SEC. 2. FINDINGS. The Congress finds and declares that-- (1) there is a government-to-government relationship between the United States and Indian tribes; (2) Indian tribes are sovereign entities and are responsible for exercising governmental authority over Indian lands; (3) the rate of violent crime committed in Indian country is approximately twice the rate of violent crime committed in the United States as a whole; (4) in any community, a high rate of violent crime is a major obstacle to investment, job creation and economic growth; (5) tribal justice systems are an essential part of tribal governments and serve as important forums for ensuring the health and safety and the political integrity of tribal governments; (6) Congress and the Federal courts have repeatedly recognized tribal justice systems as the most appropriate forums for the adjudication of disputes affecting personal and property rights on Native lands; (7) enhancing tribal court systems and improving access to those systems serves the dual Federal goals of tribal political self-determination and economic self-sufficiency; (8) there is both inadequate funding and an inadequate coordinating mechanism to meet the technical and legal assistance needs of tribal justice systems and this lack of adequate technical and legal assistance funding impairs their operation; (9) tribal court membership organizations have served a critical role in providing training and technical assistance for development and enhancement of tribal justice systems; (10) Indian legal services programs, as funded partially through the Legal Services Corporation, have an established record of providing cost effective legal assistance to Indian people in tribal court forums, and also contribute significantly to the development of tribal courts and tribal jurisprudence; and (11) the provision of adequate technical assistance to tribal courts and legal assistance to both individuals and tribal courts is an essential element in the development of strong tribal court systems. SEC. 3. PURPOSES. The purposes of this Act are as follows: (1) to carry out the responsibility of the United States to Indian tribes and members of Indian tribes by ensuring access to quality technical and legal assistance. (2) To strengthen and improve the capacity of tribal court systems that address civil and criminal causes of action under the jurisdiction of Indian tribes. (3) To strengthen tribal governments and the economies of Indian tribes through the enhancement and, where appropriate, development of tribal court systems for the administration of justice in Indian country by providing technical and legal assistance services. (4) To encourage collaborative efforts between national or regional membership organizations and associations whose membership consists of judicial system personnel within tribal justice systems; non-profit entities which provide legal assistance services for Indian tribes, members of Indian tribes, and/or tribal justice systems. (5) To assist in the development of tribal judicial systems by supplementing prior Congressional efforts such as the Indian Tribal Justice Act (Public Law 103-176). SEC. 4. DEFINITIONS. For purposes of this Act: (1) Attorney general.--The term ``Attorney General'' means the Attorney General of the United States. (2) Indian lands.--The term ``Indian lands'' shall include lands within the definition of ``Indian country'', as defined in 18 U.S.C. 1151; or ``Indian reservations'', as defined in section 3(d) of the Indian Financing Act of 1974, 25 U.S.C. 1452(d), or section 4(10) of the Indian Child Welfare Act, 25 U.S.C. 1903(10). For purposes of the preceding sentence, such section 3(d) of the Indian Financing Act shall be applied by treating the term ``former Indian reservations in Oklahoma'' as including only lands which are within the jurisdictional area of an Oklahoma Indian Tribe (as determined by the Secretary of Interior) and are recognized by such Secretary as eligible for trust land status under 25 CFR part 151 (as in effect on the date of enactment of this sentence). (3) Indian tribe.--The term ``Indian tribe'' means any Indian tribe, band, nation, pueblo, or other organized group or community, including any Alaska Native entity, which administers justice or plans to administer justice under its inherent authority or the authority of the United States and which is recognized as eligible for the special programs and services provided by the United States to Indian tribes because of their status as Indians. (4) Judicial personnel.--The term ``judicial personnel'' means any judge, magistrate, court counselor, court clerk, court administrator, bailiff, probation officer, officer of the court, dispute resolution facilitator, or other official, employee, or volunteer within the tribal judicial system. (5) Non-profit entities.--The term ``non-profit entity'' or ``non-profit entities'' has the meaning given that term in section 501(c)(3) of the Internal Revenue Code. (6) Office of tribal justice.--The term ``Office of Tribal Justice'' means the Office of Tribal Justice in the United States Department of Justice. (7) Tribal justice system.--The term ``tribal court'', ``tribal court system'', or ``tribal justice system'' means the entire judicial branch, and employees thereof, of an Indian tribe, including, but not limited to, traditional methods and fora for dispute resolution, trial courts, appellate courts, including inter-tribal appellate courts, alternative dispute resolution systems, and circuit rider systems, established by inherent tribunal authority whether or not they constitute a court of record. TITLE I--TRAINING AND TECHNICAL ASSISTANCE, CIVIL AND CRIMINAL LEGAL ASSISTANCE GRANTS SEC. 101. TRIBAL JUSTICE TRAINING AND TECHNICAL ASSISTANCE GRANTS. Subject to the availability of appropriations, the Attorney General, in consultation with the Office of Tribal Justice, shall award grants to national or regional membership organizations and associations whose membership consists of judicial system personnel within tribal justice systems which submit an application to the Attorney General in such form and manner as the Attorney General may prescribe to provide training and technical assistance for the development, enrichment, enhancement of tribal justice systems, or other purposes consistent with this Act. SEC. 102. TRIBAL CIVIL LEGAL ASSISTANCE GRANTS. Subject to the availability of appropriations, the Attorney General, in consultation with the Office of Tribal Justice, shall award grants to non-profit entities, as defined under section 501(c)(3) of the Internal Revenue Code, which provide legal assistance services for Indian tribes, members of Indian tribes, or tribal justice systems pursuant to federal poverty guidelines that submit an application to the Attorney General in such form and manner as the Attorney General may prescribe for the provision of civil legal assistance to members of Indian tribes and tribal justice systems, and/or other purposes consistent with this Act. SEC. 103. TRIBAL CRIMINAL ASSISTANCE GRANTS. Subject to the availability of appropriations, the Attorney General, in consultation with the Office of Tribal Justice, shall award grants to non-profit entities, as defined by section 501(c)(3) of the Internal Revenue Code, which provide legal assistance services for Indian tribes, members of Indian tribes, or tribal justice systems pursuant to federal poverty guidelines that submit an application to the Attorney General in such form and manner as the Attorney General may prescribe for the provision of criminal legal assistance to members of Indian tribes and tribal justice systems, and/or other purposes consistent with this Act. Funding under this title may apply to programs, procedures, or proceedings involving adult criminal actions, juvenile delinquency actions, and/or guardian-ad-litem appointments arising out of criminal or delinquency acts. SEC. 104. NO OFFSET. No Federal agency shall offset funds made available pursuant to this Act for Indian tribal court membership organizations or Indian legal services organizations against other funds otherwise available for use in connection with technical or legal assistance to tribal justice systems or members of Indian tribes. SEC. 105. TRIBAL AUTHORITY. Nothing in this Act shall be construed to-- (1) encroach upon or diminish in any way the inherent sovereign authority of each tribal government to determine the role of the tribal justice system within the tribal government or to enact and enforce tribal laws; (2) diminish in any way the authority of tribal governments to appoint personnel; (3) impair the rights of each tribal government to determine the nature of its own legal system or the appointment of authority within the tribal government; (4) alter in any way any tribal traditional dispute resolution fora; (5) imply that any tribal justice system is an instrumentality of the United States; or (6) diminish the trust responsibility of the United States to Indian tribal governments and tribal justice systems of such governments. SEC. 106. AUTHORIZATION OF APPROPRIATIONS. For purposes of carrying out the activities under this title, there are authorized to be appropriated such sums as are necessary for fiscal years 2000 through 2004. TITLE II--INDIAN TRIBAL COURTS SEC. 201. GRANTS. (a) In General.--The Attorney General may award grants and provide technical assistance to Indian tribes to enable such tribes to carry out programs to support-- (1) the development, enhancement, and continuing operation of tribal justice systems; and (2) the development and implementation of-- (A) tribal codes and sentencing guidelines; (B) inter-tribal courts and appellate systems; (C) tribal probation services, diversion programs, and alternative sentencing provisions; (D) tribal juvenile services and multi-disciplinary protocols for child physical and sexual abuse; and (E) traditional tribal judicial practices, traditional tribal justice systems, and traditional methods of dispute resolution. (b) Consultation.--In carrying out this section, the Attorney General may consult with the Office of Tribal Justice and any other appropriate tribal or Federal officials. (c) Regulations.--The Attorney General may promulgate such regulations and guidelines as may be necessary to carry out this title. (d) Authorization of Appropriations.--For purposes of carrying out the activities under this section, there are authorized to be appropriated such sums as are necessary for fiscal years 2000 through 2004. SEC. 202. TRIBAL JUSTICE SYSTEMS. Section 201 of the Indian Tribal Justice Act (25 U.S.C. 3621) is amended-- (1) in subsection (a), by striking ``1994, 1995, 1996, 1997, 1998, 1999, and 2000'' and inserting ``2000 through 2007''; (2) in subsection (b), by striking ``1994, 1995, 1996, 1997, 1998, 1999, and 2000'' and inserting ``2000 through 2007''; (3) in subsection (c), by striking ``1994, 1995, 1996, 1997, 1998, 1999, and 2000'' and inserting ``2000 through 2007''; and (4) in subsection (d), by striking ``1994, 1995, 1996, 1997, 1998, 1999, and 2000'' and inserting ``2000 through 2007''. Purpose The purpose of S. 1508, the Indian Tribal Justice Technical and Legal Assistance Act of 1999, is to authorize the Department of Justice to use appropriated funds to: (1) award grants to national and regional organizations whose members are tribal justice system personnel to provide training and technical assistance for the development of tribal systems, and (2) award grants to non-profit legal services providers to provide civil and criminal legal assistance to tribal members or judicial systems. Background Most Native Americans continue to live in abject poverty and as with similarly situated groups, crime rates are high and access to civil legal assistance is poor. Along with other factors, stable tribal governments and healthy tribal economic depend on strong and well-ordered tribal courts and judicial systems. For many Indian communities, Indian Legal Services (ILS) providers fill the void by providing basic civil legal assistance to qualifying individuals. In addition to this assistance, ILS entities assist tribal governments in developing their justice systems by providing a variety of services including training court personnel, and strengthening the capacity of tribal courts to handle both civil and criminal matters. Together with tribal governments, ILS organizations work to establish and maintain confidence in tribal justice systems. Adequate funding has long been recognized as one of the key ingredients for the development of effective Indian tribal justice systems. In 1941 John Collier, then-Commissioner of Indian Affairs, stated that ``[t]he lack of adequate appropriations for the support of the courts and for the maintenance of an adequate police force have handicapped the administration of justice.'' In its final report issued in 1977, the American Indian Policy Review Commission noted the importance of tribal justice systems and urged that Congress provide sufficient funding for the establishment and development of justice systems. In 1991, the United States Commission on Civil Rights issued its report \1\ on the implementation of the Indian Civil Rights Act of 1968, 25 U.S.C. 1301 et seq., nothing the need for adequate funding for tribal justice systems. In 1993, the Indian Tribal Justice Act, 25 U.S.C. 3506 et seq., was enacted to provide support for Indian tribal courts and for other purposes, but funding appropriated under the Act has not been sufficient to meet the needs across Indian country. --------------------------------------------------------------------------- \1\ The Indian Civil Rights Act--A Report of the United States Commission on Civil Rights, June, 1991. --------------------------------------------------------------------------- a. crime and law Enforcement For years the Committee on Indian Affairs has focused its attention on tribal courts, juvenile justice, gang activity, and law enforcement on Indian lands.\2\ In 1997, the U.S. Department of Justice published a report showing that while crime rates generally have fallen throughout the nation, federal and tribal law enforcement agencies reported that crime in Indian communities is rising.\3\ In October, 1997, the Executive Committee for Indian Country Law Enforcement Improvements issued its Final Report to the Attorney General and the Secretary of the Interior.\4\ --------------------------------------------------------------------------- \2\ See for example the following Committee hearing records Tribal Courts Act of 1991 and Report of the U.S. Commission on Civil Rights Entitled ``Indian Civil Rights Act'', S. Hrng. 102-496; Indian Tribal Justice Act, S. Hrng. 103-76; Tribal Justice Act, S. Hrng. 104-332; Juvenile Justice in Indian Country, S. Hrng. 105-140; Criminal Gangs in Indian Country, S. Hrng. 105-341; and Department of Justice/Department of the Interior Tribal Justice Initiatives, S. Hrng. 105-705. \3\ See also American Indians and Crime, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, February, 1999, NCJ 173386. \4\ See Report of the Executive Committee For Indian Country Law Enforcement Improvements--Final Report to the Attorney General and the Secretary of the Interior, October 31, 1997. --------------------------------------------------------------------------- In response to these reports, the Administration proposed its ``Law Enforcement Initiative for Indian Country'' stressed the need for more law enforcement and justice resources. In 1997 through the current fiscal year, Congress responded by increasing funding to provide for additional FBI agents, tribal law enforcement officers, juvenile detention centers and tribal courts. The funding request for the Initiative for FY2000 is $124 million, with the bulk of funds slated for Department of Justice (DoJ) law enforcement purposes, $5 million for DoJ's tribal courts initiative and $10 million for the Bureau of Indian Affairs (BIA) for tribal courts. b. civil legal matters Every year, Indian tribal courts and courts personnel handle large caseloads: the Navajo Nation court system processed over 25,000 cases; the Gila River Indian Community (AZ) handled more than 3,000; the Colville Tribal Court (WA) dealt with nearly 2,000 cases; and the Ft. Peck Tribe (MT) processed over 3,100 cases in 1997. Though the 1993 Indian Tribal Justice Act authorized nearly $50 million dollars to support tribal justice systems, adequate funding under the Act has not been requested or appropriated. Stepping into this breach, civil legal assistance to individuals and other forms of legal aid are often provided by non-profit ILS organizations, which receive their funding from the federal Legal Services Corporation (LSC).\5\ --------------------------------------------------------------------------- \5\ See Legal Needs and Services in Indian Country--1998 Report to the Legal Services Corporation. --------------------------------------------------------------------------- c. united states ``rule of law assistance'' to foreign nations Since 1945, the United States has spent billions of dollars in overseas assistance to boost foreign economics and cultivate democracy around the world. These funds have included assistance for physical infrastructure, education, health care and private sector development. The U.S. has also recognized the importance of well- functioning justice systems. A major component of the U.S. foreign development strategy is ``Rule of Law Assistance'' provided to assist in the development of foreign judicial and justice systems. The General Accounting Office (GAO) reports that from 1993 to 1998, Congress appropriated $970 million for foreign ``rule of law programs'', with $75 million slated for foreign courts. Funding made available under this program is for legal, judicial, and law enforcement purposes in both the civil and criminal contexts.\6\ --------------------------------------------------------------------------- \6\ See Rule of Law Funding Worldwide: FY 1993-1998, GAO/NSIAD-99- 158, June 1999. --------------------------------------------------------------------------- D. S. 1508 and building strong tribal justice systems The Indian Tribal Justice Technical and Legal Assistance Act of 1999 is intended to complement existing efforts to support tribal courts, such as the 1993 Indian Tribal Justice Act which is ``housed'' in the Department of Interior. The bill is not intended to supplant the 1993 Act or other authority such as the Snyder Act of 1921, 25 U.S.C. Sec. 13. S. 1508 authorizes the Department of Justice to award grants to legal services and non-profit organizations to help build the capacity of tribal courts and justice systems, and provides a 4-year authorization of appropriations with grant amounts subject to the availability of annual appropriations. S. 1508 authorizes the Attorney General, in consultation with the Office of Tribal Justice (OTJ) in the Department of Justice, to provide funding for 3 categories of activities: 1. Training and Technical Assistance: Section 101 authorizes grants to national or regional organizations whose members are tribal justice system personnel to provide training and technical assistance for the development, enrichment and enhancement of tribal justice systems; 2. Civil Legal Assistance: Section 102 authorizes grants to non-profit legal services providers to provide civil legal services to tribal members or tribal justice systems; and 3. Criminal Legal Assistance: Section 103 authorizes grants to non-profit tribal legal services provider to provide criminal legal assistance to tribal members of tribal justice systems. Amendment in the Nature of a Substitute to S. 1508 The amendment in the nature of a substitute to S. 1508 makes two changes to the bill as introduced. The first amendment, deals with funding for activities related to the administration of tribal justice and tribal courts by Department of Justice (DoJ) pursuant to the Joint Department of Interior-Department of Justice Law Enforcement Initiative begun in 1997. As part of the FY 2000 Commerce, Justice and State (CJS) Appropriations bill, the House subcommittee refused to provide funding for these activities because, in the opinion of the House subcommittee, they lacked authorization. The amendment to S. 1508 is proposed to eliminate any confusion over the authorization for the DoJ to fund and carry out these programs and activities. The second amendment authorizes appropriations under the 1993 Indian Tribal Justice Act, from FY2001 through FY2007. The current authorization for appropriations under the 1993 Act will expire with the end of fiscal year 2000. Legislative History S. 1508, the Indian Tribal Justice System Legal and Technical Assistance Act of 1999, was introduced on August 5, 1999 by Senator Campbell, and was referred to the Committee on Indian Affairs where a hearing was held on September 29, 1999. Committee Recommendation and Tabulation of Vote On October 12, 1999 the Committee on Indian Affairs, in an open business session, adopted an amendment in the nature of a substitute to S. 1508 by a unanimous vote of the members present and ordered the bill, as amended, reported favorably to the Senate. Section-by-Section Analysis Section 1. Short title This section provides that the Act may be cited as the ``Indian Tribal Justice Technical and Legal Assistance Act of 1999.'' Section 2. Findings This section contains eleven findings and declaration, including: a recognition of the government-to-government relationship between the United States and Indian tribes; that Indian tribes are responsible for exercising governmental authority over Indian lands; that the rate of violent crime in Indian country is twice the national rate and poses an obstacle to investment, job creation and economic growth; that tribal justice systems are essential for ensuring the health, safety and political integrity of tribal governments and have been repeatedly recognized by the federal government as the most appropriate forums for the resolution of disputes over personal and property rights on Indian lands; enhancing tribal justice systems and improving access to them advances the federal policies of self-determination and economic self-sufficiency; tribal court personnel membership organizations have served a critical role in providing necessary training and technical assistance for tribal justice systems; and Indian legal services programs have provided cost effective legal assistance to Indian people and contribute to the development of tribal justice systems and tribal jurisprudence. Section 3. Purposes This section sets forth five purposes for the Act, including: to carry out the responsibility of the United States to Indian tribes and members of Indian tribes to ensure access to quality technical and legal assistance; to strengthen and improve the capacity of tribal justice systems; to strengthen tribal governments and tribal economies; to encourage collaborative efforts between organizations of tribal justice system personnel and non-profit entities which provide legal assistance for Indian tribes, their members and tribal justice systems; and, to assist in the development of tribal justice systems by complementing prior Congressional efforts such as the Indian Tribal Justice Act. Section 4. Definitions This section sets forth definitions for the following terms: Attorney General, Indian Lands (including Indian reservations and former Indian reservations in Oklahoma), Indian tribe, judicial personnel, non-profit entities, Office of Tribal Justice and Tribal Justice System. TITLE I--TRAINING AND TECHNICAL ASSISTANCE, CIVIL AND CRIMINAL LEGAL ASSISTANCE PROGRAMS Section 101 Tribal Justice Training and Technical Assistance Grants. This section provides authorization for the Attorney General to make grant awards to national or regional judicial system personnel membership organizations and associations to provide training and technical assistance for the development, enhancement and enrichment of tribal justice systems, subject to the availability of appropriations and in consultation with the Office of Tribal Justice. Section 102. Tribal civil legal assistance grants This section provides authorization for the Attorney General to make grant awards to non-profit entities which provide civil legal assistance services for Indian tribes, members of Indian tribes or tribal justice systems, subject to the availability of appropriations and in consultation with the Office of Tribal Justice. Section 103. Tribal criminal assistance grants This section provides authorization for the Attorney General to make grant awards to non-profit entities which provide criminal legal assistance services for Indian tribes, members of Indian tribes or tribal justice systems, subject to the availability of appropriations and in consultation with the Office of Tribal Justice. Section 104. No offset This section prohibits any federal agency from using funds provided to Indian tribal justice system organizations or Indian legal services organizations pursuant to this Act as an offset to funds otherwise available for use in connection with technical or legal assistance to tribal justice systems or members of Indian tribes. Section 105. Tribal authority This section provides that nothing in this Act shall be construed to: diminish the inherent sovereign authority of an Indian tribe to determine the role of its tribal justice system in its tribal government, the authority the tribal government to appoint personnel or the apportionment of authority within the tribal government; alter traditional tribal dispute resolution fora; or, imply that a tribal justice system is an instrumentality of the United States or diminish the trust responsibility of the United States. Section 106. Authorization of appropriations This section authorizes the appropriation of such sums as may be necessary for fiscal years 2000 through 2004. TITLE II--INDIAN TRIBAL COURTS Section 201. Grants This section provides that the Attorney General may award grants and provide technical assistance to Indian tribes for the development, enhancement and continuing operation of tribal justice systems including: code development; the development of inter-tribal courts and appellate systems; probation services, sentencing and alternative sentencing and diversion programs; juvenile justice services and multi-disciplinary protocols for child physical and sexual abuse; and, traditional tribal justice practices and dispute resolution methods. The Attorney General may consult with the Office of Tribal Justice or other appropriate federal officials and promulgate regulations to carry out this Title of the Act. Such sums as may be necessary are authorized to be appropriated for fiscal years 2000 through 2004. Section 202. Tribal justice systems This section amends 25 U.S.C. Sec. 3621 (P.L. 103-176, Section 201) to extend the authorization for appropriations from fiscal year 2000 to fiscal year 2000 through 2007 for the Office of Tribal Justice Support and the annual update of the survey of tribal justice systems, base support funding for tribal justice systems, the administrative expenses for Tribal Judicial Conferences. Congressional Budget Office Estimate The cost estimate for S. 1508 as calculated by the Congressional Budget Office is set forth below: U.S. Congress, Congressional Budget Office, Washington, DC, October 25, 1999. Hon. Ben Nighthorse Campbell, Chairman, Committee on Indian Affairs, U.S. Senate, Washington, DC. Dear Mr. Chairman: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1508, the Indian Tribal Justice Technical and Legal Assistance Act of 1999. If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Megan Carroll. Sincerely, Barry B. Anderson (For Dan L. Crippen, Director). Enclosure. S. 1508--Indian Tribal Justice Technical and Legal Assistance Act of 1999 Summary: S. 1508 would authorize funding for programs that support tribal justice systems. The bill would authorize the appropriation of $464 million over the 2000-2007 period, including $58 million already authorized for 2000, for the Secretary of the Interior to carry out certain provisions of the Indian Tribal Justice Act. S. 1508 also would authorize the Attorney General to make grants to organizations to develop and strengthen tribal justice systems. CBO estimates this effort would cost about $5 million annually, assuming appropriation of that amount. In 1999, neither the Department of the Interior (DOI) nor the Department of Justice (DOJ) received any appropriations to implement programs that would be authorized by S. 1508. Based on information from DOI and DOJ, CBO estimates that implementing S. 1508 would cost $232 million over the 2000-2004 period, assuming appropriation of the authorized amounts. The bill would not affect direct spending or receipts; therefore, pay-as-you-go procedures would not apply. S. 1508 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) and would impose no costs on state, local, or tribal governments. Estimated cost to the Federal Government: For purposes of this estimate, CBO assumes that S. 1508 will be enacted early in fiscal year 2000 and that the authorized amounts will be provided for each year. Estimates of outlays are based on historical spending patterns for similar programs. The estimated budgetary impact of S. 1508 is shown in the following table. The costs of this legislation fall within budget functions 450 (community and regional development) and 750 (administration of justice). ---------------------------------------------------------------------------------------------------------------- By fiscal years, in millions of dollars-- -------------------------------------------- 2000 2001 2002 2003 2004 ---------------------------------------------------------------------------------------------------------------- SPENDING SUBJECT TO APPROPRIATION Spending on Tribal Justice Systems Under Current Law: Authorization Level \1\........................................ 58 0 0 0 0 Estimated Outlays.............................................. 41 13 2 0 0 Proposed Changes: Estimated Authorization Level.................................. 5 63 63 63 63 Estimated Outlays.............................................. 5 46 59 61 61 Spending on Tribal Justice Systems Under S. 1508: Estimated Authorization Level.................................. 63 63 63 63 63 Estimated Outlays.............................................. 46 59 61 61 61 ---------------------------------------------------------------------------------------------------------------- \1\ The 2000 level is the amount authorized under current law. Thus far, no appropriations have been provided for 2000. Basis of estimate: S. 1508 would authorize the appropriation of $58 million a year for fiscal years 2000 through 2007 for the Secretary of the Interior to establish and operate the Office of Tribal Justice Support. Under current law, $58 million is already authorized in 2000 for this work, but no funds have been appropriated thus far. The purpose of the office would be to develop, operate, and enhance tribal justice systems and traditional judicial practices of tribal governments. Based on information from DOI, CBO estimates that implementing this provision would cost $207 million over the 2000-2004 period, assuming annual appropriation of the authorized amount. S. 1508 also would authorize the Attorney General to make grants to organizations representing personnel of tribal judicial systems and to nonprofit organizations providing legal services to tribes. The Attorney General would provide grants and technical assistance to tribes to assist them in developing and operating tribal justice systems and related programs. Based on information from DOJ, CBO estimates that implementing these provisions would require an annual appropriation of $5 million, and would result in spending of $25 million over the 2000-2004 period. Pay-as-you-go considerations: None. Intergovernmental and private-sector impact: S. 1508 contains no intergovernmental or private-sector mandates as defined in UMRA and would impose no costs on state, local, or tribal governments. Estimate prepared by: Megan Carroll. Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. Regulatory Impact Statement Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires that each report accompanying a bill to evaluate the regulatory paperwork impact that would be incurred in implementing the legislation. The Committee has concluded that enactment of S. 1508 will create only de minimis regulatory or paper work burdens. Executive Communications At the hearing on S. 1508 on September 29, 1999, the President of the Legal Services Corporation, John McKay and Mark Van Norman, Director of the Office of Tribal Justice in the Department of Justice, appeared and testified before the Committee in support of S. 1508. In addition Kevin Gover, Assistant Secretary for Indian Affairs in the Department of the Interior submitted a written statement for the record of the hearing, also in support of S. 1508. The statements of President McKay, Director Van Norman and Assistant Secretary Gover follow: Statement of John McKay, President, Legal Services Corporation Good morning, Chairman Campbell and distinguished members of the Senate Indian Affairs Committee. Thank you very much for the opportunity to testify on S. 1508, the Indian Tribal Justice System Technical and Legal Assistance Act of 1999. The Legal Services Corporation (``LSC'' or ``the Corporation'') appreciates your invitation to offer our comments on this legislation. Because this opportunity to appear before the Senate Indian Affairs Committee is a unique opportunity for the Corporation, let me provide the Committee with some background on LSC. The Legal Services Corporation is a private, non-profit corporation established by Congress in 1974 to seek to ensure equal access to justice under the law for all Americans. Our mission is to promote access to our system of justice to improve opportunities for low-income people throughout the United States by providing high quality civil legal representation to those who would otherwise be unable to afford it. The Corporation provides grants to local legal services programs to address critical legal problems for eligible clients and their families in every state and county in the United States. LSC is headed by an 11-member Board of Directors appointed by the President and confirmed by the Senate. By law, the Board is bipartisan: no more than six members may be of the same political party. Local programs are governed by their own Boards of Directors, which set priorities and determine the types of cases that will be handled by the program, subject to restrictions set by Congress. A majority of each local Board is appointed by local bar associations. One-third of each local Board is composed of client representatives appointed by client groups. Programs may supplement their LSC grants with additional funds from state and local governments, IOLTA (Interest on Lawyer Trust Accounts) programs, other federal agencies, bar associations, United Way and other charitable organizations, foundations and corporations, and individual donors. They further leverage federal funds by involving private attorneys in the delivery of legal services for the poor, mostly through volunteer pro bono work. LSC-funded programs do not handle criminal cases, nor do they accept fee- generating cases that private attorneys are willing to accept on a contingency basis. I should note that, pursuant to congressional direction in 1996, LSC funded programs are prohibited from engaging in class actions, challenges to welfare reform, collection of court- awarded attorneys' fees, many types of lobbying, litigation on behalf of prisoners, and representation of undocumented and other categories of aliens. The Legal Services Corporation strongly supports S. 1508, legislation recently introduced by Chairman Campbell. This bill would authorize the Attorney General to award grants to national or regional tribal justice system organizations or non-profit entities that provide legal assistance services for tribes and tribal members for the purpose of improving tribal judicial systems through training, technical assistance, and civil legal and criminal assistance. LSC appreciates that the thirty Indian Legal Services (ILS) programs that receive LSC funding are specifically included as eligible entities to whom the Attorney General may award grants for civil legal and criminal assistance programs under Sections 102 and 103 of the bill. Since 1968, ILS programs have been performing essential capacity building services to many tribal courts across the country, and have provided representation of Indian individuals in those courts. ILS programs have assisted tribes in such activities as the development of tribal courts, development of written tribal codes, and training of tribal judges and lay advocates, as well as provided legal representations to individual Native people and, in some cases, where permitted under the LSC Act and governing regulations, to tribal governments themselves. An important theme of the Senate Indian Affairs Committee this year has been the facilitation and enhancement of strong tribal government, reservation infrastructure and economic opportunities for American Indians, Alaska Natives and Native Hawaiians. Just as the staggering poverty and unemployment statistics of many tribal reservations are an anomaly to the glowing reports of the economic health of America, so too the lack of equal access to the courts for many poor, small, rural and/or tribal communities undermines the overall level of confidence in our justice system. Without the full participation of the individuals in these communities and all others who must rely on our justice system to access the rights guaranteed to them through the Constitution, our nation's promise of ``equal justice under law'' is illusory. Whether greater confidence in tribal courts is achieved through the provision of training or through technical or civil legal assistance, the broad goal of ensuring equal access to justice through equipping tribal justice system personnel with additional skills and tools will benefit individuals, local businesses, contractors of various services, school districts, and local governments--in short, these steps will benefit entire communities, Native and non-Native. The legislation's goal is also consistent with the intent of the Committee in a number of bills it has considered this year to maximize resources and to encourage partnerships. LSC recognizes that its funding alone is not sufficient to meet the vast unmet legal needs of low-income people in this nation, particularly in the Native American community. Any additional sources of funding can only benefit the ability of ILS programs to serve eligible Indian tribes and individuals who cannot afford legal assistance. LSC views the additional direct tie between LSC Indian Legal Services programs and the Department of Justice that would be authorized under this Act as an exciting opportunity to strengthen legal assistance to Native Americans. On behalf of LSC, thank you for this opportunity to comment on S. 1508. The Corporation supports this initiative, and urges the Committee to take favorable action on the bill in the near future. ------ Statement of Mark C. Van Norman, Director, Office of Tribal Justice Good morning, Mr. Chairman and Members of the Committee. I am Mark Van Norman, Director, Office of Tribal Justice, Department of Justice. Thank you for inviting me to testify on S. 1508, the Indian Tribal Justice Technical and Legal Assistance Act of 1999. In our view, S. 1508 would complement the joint Justice- Interior Indian Law Enforcement Improvement Initiative. The bill would promote the development of sound tribal justice systems by increasing resources for training and technical assistance. In addition, the bill would provide adjunct civil legal assistance to impoverished tribal members which would be significant in relation to civil rights, child custody matters, housing, social services, and other areas. Tribal members are often underserved in these areas. The bill would enhance criminal legal assistance to indigent Indian defendants and impoverished families and young people in the tribal justice systems, which, in addition to being desperately needed now, seems only fair in view of the increases in funding for tribal law enforcement. In our view, improving assistance to Indian communities in these areas would improve the administration of justice in tribal courts and enhance our overall efforts to improve tribal law enforcement and justice systems. I. Government-to-government relations Let me begin by emphasizing the fundamental principles that guide the work of the Department of Justice with Indian tribes, before discussing the problems of violent crime among American Indians, and our current efforts to assist tribal courts and justice systems. Congress and the Executive Branch acknowledge the importance of working with Indian tribes within the framework of government-to-government relations when tribal self- government, tribal land and resources, treaty rights, or other tribal rights are concerned. Federal Government-to-government relations with tribal governments are rooted in historical treaty relations and the ongoing trust responsibility of the United States. President Clinton recently affirmed that: Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection. In treaties, our Nation has guaranteed the right of Indian tribes to self- government. As domestic dependent nations, Indian tribes exercise inherent sovereign powers over their members and territory.\1\ --------------------------------------------------------------------------- \1\ Executive Order 13084, Consultation and Coordination with Indian Tribal Governments (1998); 63 Fed. Reg. 27655 (1998). Similarly, Congress has declared that the Federal trust responsibility ``includes the protection of the sovereignty of each tribal government.'' \2\ --------------------------------------------------------------------------- \2\ 25 U.S.C. sec. 3601. --------------------------------------------------------------------------- II. Violent crime and law enforcement in Indian country In addition to the Federal Government's trust relationship with Indian tribes, the United States' basic responsibility to preserve public safety for residents of Indian communities derives from federal statutes, such as the Indian Major Crimes Act and the General Crimes Act,\3\ that provide for federal jurisdiction over felony crimes, such as murder, rape, robbery, and serious assaults by or against Indians in Indian country. The U.S. Attorneys prosecute such felony crimes in most of Indian country. Tribal police and law enforcement agencies serve as first responders to Indian country crimes and assist the FBI and the BIA in responding to and investigating felony crimes. Tribal courts and prosecutors try and punish misdemeanor Indian crimes. Thus, an effective tribal criminal justice system is an essential adjunct to effective Federal law enforcement in Indian country.\4\ --------------------------------------------------------------------------- \3\ 18 U.S.C. secs. 1152 and 1153. \4\ Under Public Law No. 83-280, the Congress delegated to some states criminal jurisdiction overs Indians in Indian country, and in those states, Indian tribes retain inherent authority over misdemeanor crimes by Indian offenders and often serve as the first responders to Indian country crime. --------------------------------------------------------------------------- While crime rates have fallen throughout the Nation, federal and tribal law enforcement agencies report that violent crime in Indian country is rising. The Bureau of Justice Statistics (B.J.S.) explained in its report, American Indians and Crime (1999), that American Indians have the highest violent crime victimization rates of any group in the Nation. From 1992-1996, the violent victimization rate for American Indians (124 violent crimes per 1,000) was more than twice the rate for the Nation as a whole (50 per 1,000).\5\ Violence against American Indian women is severe.\6\ American Indians suffer 7 rapes or sexual assaults per 1,000 compared to 3 per 1,000 among Blacks, 2 per 1,000 among whites, and 1 per 1,000 among Asians. Child abuse and neglect are also serious problems among American Indians. The National Child Abuse and Neglect Data System of the Department of Health and Human Services reports that the rate of substantiated child abuse and neglect among American Indian children was the highest of any group in 1995 (the most recent year for which statistics were available).\7\ --------------------------------------------------------------------------- \5\ Alcohol use is strongly associated with crime among American Indians. In 55% of violent crimes against American Indians, the victims report that the offender was under the influence of alcohol, drugs, or both. In addition, the 1996 arrest rate for alcohol related offenses (driving under the influence, liquor violations, etc.) among American Indians and Alaska Natives was more than double that of the general population. \6\ The BJS report details violence among victims age 12 and over. In addition, BJS statistics are derived from American Indian households throughout the Nation, in reservation and off-reservation settings. Reports from the FBI, BIA, and tribal law enforcement agencies indicate that the violent crime problems on many of the large western Indian reservations may be worse than these overall national rates. \7\ Rates were calculated on the number of children age 14 or younger because they account for at least 80% of the victims of child abuse and neglect. --------------------------------------------------------------------------- Violent crime by juvenile offenders and Indian youth gangs is on the rise in many Indian communities. The number of Indian youth in Bureau of Prisons (BOP) custody has increased by 50% since 1994. Demographics contribute to the growing problem of juvenile delinquency and violence in Indian country. throughout the Nation, the median age of American Indians is 24.2 years compared with 32.9 years of other Americans. On many Indian reservations, roughly half of the population is under 18 years of age. In 1997, recognizing the severity of violent crime problems in Indian country, the President directed the Attorney General and the Secretary of the Interior to develop a plan to improve public safety and criminal justice in Indian communities. The DOJ/DOI Executive Committee on Indian Country Law Enforcement Improvements found that tribal police and criminal justice systems face severe shortages among police, criminal investigators, detention, and court staff and resources. Tribal law enforcement agencies also lack basic communications and information equipment and technology. The Navajo Nation, the largest land based Indian tribe with 17 million acres of land, has 0.9 police officers per 1,000 compared with 2.3 officer per 1,000 in off-reservation communities. the Attorney General and the Secretary approved the Executive Committee's findings and recommendation to increase law enforcement assistance to tribal governments. In response, the Administration established the Indian Law Enforcement Improvement Initiative. In Fiscal Year 1999, Congress appropriated $89 million for the Justice Department for grants to Indian tribes for tribal law enforcement officers, equipment, detention centers, juvenile justice programs, and tribal courts, and for more FBI agents in Indian country. For Fiscal Year 2000, the Administration has requested $124 million for the Justice Department for the Indian Law Enforcement Improvement Initiative, including $5 million for tribal courts. III. Tribal courts, criminal and civil justice Under the longstanding Federal policy promoting self- government for Indian tribes, the United States has consistently promoted the development of tribal courts. Under the Indian Reorganization Act of 1934, for example, Congress encouraged Indian tribes to develop and ratify written constitutions and in assisting Indian tribes under the Act, the Secretary of the Interior encouraged tribal governments to develop tribal courts.\8\ Similarly, the Indian Civil Rights Act affirms tribal court jurisdiction over crimes by Indians in tribal territory.\9\ Tribal courts also have recognized authority over civil matters, such as dometic relations,\10\ probate,\11\ torts,\12\ housing,\13\ debt, collection,\14\ environmental regulation,\15\ business activities on Indian lands,\16\ management of Indian lands and natural resources,\17\ and other matters. Congress has declared that tribal courts are ``appropriate forums for the adjudication of disputes affecting personal and property rights'' and ``for ensuring public health and safety and the political integrity of tribal governments.'' \18\ --------------------------------------------------------------------------- \8\ 25 U.S.C. sec. 476. For example, the Constitution of the Hopi Tribe provides that the Hopi Tribal Council shall have the power to: ``set up courts for the settlement of claims and disputes, and for the trial and punishment of Indians within the jurisdiction charged with offenses against [tribal] ordinances.'' Hopi Tribe Const. Art. VI, sec. 1(g). Before the Indian Reorganization Act a few Indian tribes had established tribal courts based on the Anglo-American model, see Talton v. Mayes, 163 U.S. 376 (1896) (determinations as to the meaning of Cherokee law on grand jury proceedings ``were matters solely within the jurisdiction of the courts of that nation''), while other Indian tribes had Courts of Indian Offenses operated by the Department of the Interior, 25 C.F.R. part 11, or traditional dispute resolution systems. K. Llewelyn & E. Hoebel, The Cheyenne Way (1987) at 111-113 (describing traditional Cheyenne law). \9\ 25 U.S.C. sec. 1301 (`` `powers of self-government' means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial [including] the inherent power of Indian tribes to * * * exercise criminal jurisdiction over all Indians''). \10\ Fisher v. District Court, 424 U.S. 382 (1976); United States v. Quiver, 241 U.S. 602, 603 (1916); cf. John v. Baker, 982 P.2d 738 (Ak 1999) (Although Alaska Native Claims Settlement Act lands are not ``Indian country'' for 18 U.S.C. sec. 1151 purposes, Alaska Native villages are federally recognized Indian tribes with concurrent jurisdiction over tribal members). \11\ 25 U.S.C sec. 2205. \12\ Gesinger v. Gesinger, 531 N.W.2d 17(SD 1995). \13\ Northwest Production Credit Association v. Smith, 784 F.2d 323 (1986). \14\ Williams v. Lee, 358 U.S. 217 (1959). \15\ Montana v. EPA, 137 F.3d 1135 (9th Cir.) cert. denied, 119 S. Ct. 275 (1998). \16\ Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); Kerr- McGee v. Navajo Tribe, 471 U.S. 195 (1985). \17\ New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). \18\ 25 U.S.C. sec. 3601. --------------------------------------------------------------------------- Recognizing the evolving role of tribal courts within our Federalist system, the Honorable Sandra Day O'Connor, Associate Justice of the United States Supreme Court, has written: Today, in the United States we have three types of sovereign entities--the Federal government, the States, and the Indian tribes. Each of the three sovereigns has its own judicial system, and each plays an important role in the administration of justice in this country. * * * The role of tribal courts continues to expand, and these courts have an increasingly important role to play in the administration of the laws of our nation.\19\ --------------------------------------------------------------------------- \19\ Hon. Sandra Day O'Connor, Associate Justice, U.S. Supreme Court, ``Lessons from the Third Sovereign: Indian Tribal Courts,'' The Tribal Court Record (1996) at 12, 14. Under the Indian Self-Determination Policy, tribal court systems have been rapidly expanding to serve their communities. In 1978, there were ``71 tribal courts, 32 CFR courts, and 16 traditional courts.'' \20\ Today, there are over 250 tribal courts, including intertribal court systems like the Nevada Intertribal Court of Appeals, which serves 24 Indian tribes. Tribal court dockets are increasing dramatically. In 1996, the Honorable William C. Canby, Jr., Senior Circuit Judge, United States Court of Appeals wrote that: --------------------------------------------------------------------------- \20\ U.S. Civil Rights Commission, The Indian Civil Rights Act (1991) at 29. The tribal courts are doing a huge business, and we in the federal and state judiciary could not do without them. The courts of the Navajo Nation this year will decide about 25,000 civil and criminal cases, and this figure does not include traffic offenses, juvenile matters, alternative traditional court proceedings, or appeals. The smaller Gila River Indian Community Court decided 3,200 cases last year. A disappearance of the tribal court system would be a major disaster, not just for the tribes and their courts, but for our whole national system of civil and criminal justice.\21\ --------------------------------------------------------------------------- \21\ Hon. W.C. Canby, Jr., ``Tribal Courts, Viewed From A Federal Judge's Perspective,'' The tribal Court Record (1996 at 16-17. In our policy on government-to-government relations with Indian tribes, the Justice Department has pledged to ``support and assist Indian tribes in the development of their law enforcement systems, tribal courts, and traditional justice systems.'' See 61 Fed. Reg. 29424 (1996). In 1995, the Justice Department helped to coordinate an academic conference and an articles symposium on tribal courts, and the Attorney General explained: While the federal government has a significant responsibility for law enforcement in much of Indian country, tribal justice systems are ultimately the most appropriate institutions for maintaining order in tribal communities. They are local institutions, closest to the people they serve. With adequate resources and training, they are most capable of crime prevention and peace keeping. * * * Tribal courts are essential mechanisms for resolving civil disputes that arise on the reservation or otherwise affect the interests of the tribe or its members. * * * The integrity of and respect for tribal courts are critical for encouraging economic development and investment on the reservation by Indians and non-Indians alike. Tribal courts are also important vehicles for helping to resolve family problems. They can bring families together and hold parents and children accountable to themselves, each other, and the community.\22\ --------------------------------------------------------------------------- \22\ Hon. J. Reno, Attorney General of the United States, ``A federal commitment to tribal justice systems,'' 79 Judicature 113, 114 (1995). The Justice Department supports the BIA's efforts to provide assistance to tribal courts, and with our departmental mission of strengthening and assisting state, local, and tribal law enforcement and justice systems, we have begun complementary efforts to support and assist tribal courts and justice systems throughout the Nation. The Justice Department is working to promote cooperation between the Federal, tribal, and state court systems. For example, the Justice Department has sponsored Federal-Tribal judicial training on child sexual abuse cases, and the Office for Victims of Crime (OVC) is working with the University of North Dakota to fund scholarships for tribal judges to attend OVC training workshops on other issues related to crime victims. The National Judicial College, which provides training courses for Federal and state judges, is developing a special curriculum for tribal court judges under a Justice Department grant. Similarly, recognizing the significance of traditional tribal justice systems, the Office of Juvenile Justice and Delinquency Prevention will sponsor a workshop on traditional tribal justice at the Mississippi Band of Choctaw's tribal headquarters in November 1999. The Justice Department has also included a number of tribal courts in grant programs generally available to state, local, and tribal justice systems, like the Drug Courts Program (DCP). For example, the Hualapai Tribal Court of Arizona used a DCP grant to establish a ``Wellness Court'' to assist tribal members who are chronically involved in the criminal justice system due to non-violent alcohol-related offenses. Several Alaska Native villages, which suffer from high levels of alcohol abuse, have initiated similar DCP efforts. For Fiscal Year 1999, the Drug Courts Program has made 7 planning grants and 2 implementation grants to Indian tribes, totaling $506,448 out of its $40 million national program.\23\ --------------------------------------------------------------------------- \23\ In Fiscal Year 1998, DCP awarded Indian tribes 13 planning grants and 8 implementation grants totaling $2,321,000 out of a $30 million national program, and in Fiscal year 1997, DCP awarded Indian tribes 13 planning grants and 9 implementation grants totaling $1,000,000 out of a $30 million national program. --------------------------------------------------------------------------- In addition, when planning the Indian Law Enforcement Improvement Initiative, tribal courts were facing rapidly increasing caseloads and we recognized that the influx of funding for tribal police officers would inevitably increase tribal court caseloads further. So, the Justice Department included a tribal court program as an essential part of the overall initiative to fight violent crime and promote public safety. For Fiscal Year 1999, Congress appropriated $5 million under the Justice Department Tribal Court program ``to assist tribal governments in the development, enhancement, and continuing operations of tribal justice systems.'' Demonstrating the high level of need for this program, 181 Indian tribes submitted applications for funding under this program. From among these applications, on behalf of the Office of Justice Programs, the Bureau of Justice Assistance (BJA) is awarding 15 large tribal court enhancement grants ranging up to $100,000, 15 small tribal court enhancement grants ranging up to $50,000, and a number of tribal court planning grants of up to $30,000. In addition, BJA will award substantial tribal court technical assistance grants and one or more tribal court technical assistance providers. As noted above, for Fiscal Year 2000, the Justice Department has requested $5,000,000 for the Tribal Court Program. We recognize that ``tribal courts play a vital role in tribal self-government,'' \24\ and we view the Department's Tribal Court program as a very significant component of the overall joint Justice-Interior initiative to improve tribal law enforcement and justice systems to address violent crime in Indian communities. --------------------------------------------------------------------------- \24\ Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987). --------------------------------------------------------------------------- The Bureau of Indian Affairs provides baseline funding for tribal courts through the Indian Self-Determination Act. In FY 1999, the BIA had just over $11 million for tribal courts through this program and the Administration has requested nearly $14 million for FY 2000.\25\ --------------------------------------------------------------------------- \25\ Due to program cuts and reprogramming, BIA funding for Tribal Courts has declined from just over $15 million in FY 1995 to just over $11 million in FY 1999. --------------------------------------------------------------------------- IV. S. 1508, the Indian Tribal Justice Technical and Legal Assistance Act of 1999 As noted above, in our view, S. 1508, the Indian Tribal Justice Technical and Legal Assistance Act of 1999, would complement the joint Justice-Interior Indian Law Enforcement Improvement Initiative, and we have several specific comments in relation to the provisions of the bill. In regard to the findings, we suggest that finding (3) be redrafted as follows: ``the rate of violent crime victimizations committed againist American Indians is more than twice the national rate of violent crime victimizations.'' This will ensure that the finding better reflects the results of the BJS Report on American Indians and Crime (1999). In regard to tribal self-sufficiency, we recognize that many Indian tribes suffer high unemployment rates and economic deprivation and sound tribal court systems are an essential part of the tribal governmental infrastructure necessary to attract business to Indian communities. Addressing the White House Conference on Building Economic Self-Determination in Indian Communities on August 5, 1998, the Attorney General said: ``[I]t is important * * * to focus attention on tribal courts and * * * to give them the resources necessary to do the job.'' In regard to Section 101, Tribal Justice Training and Technical Assistance Grants, we recommend that Indian tribes be among the membership of national or regional membership organizations and associations receiving grants hereunder. For example, the National Congress of American Indians (NCAI) is a national membership organiation consisting of Indian tribes, and NCAI may well be an appropriate technical assistance provider for tribal justice training. In regard to Section 102, we recommend inserting Indian tribes as eligible grantees because some Indian tribes are developing legal advocacy offices for tribal members in the area of violence against women and other areas. Consistent with the principle of government-to-government relations, Indian tribes should also be included to provide governmental and community services to Indian communities under their jurisdiction. In addition, to avoid duplication in the provision of services to Indian communities, we recommend that non-profit entities be required to submit a statement of support from the tribal government with jurisdication over the Indian community or communities to be served, or a statement demonstrating that there is no duplication of or conflict with existing tribal government services in the area. In regard to Section 103, similar changes should be made to promote consistency with the principle of government-to- government relations and to avoid duplication of services. Moreover, where there is funding for the public defense of indigent defendants in the Federal courts under the Criminal Justice Act, tribal courts are not receiving funding under that Act. Accordingly, it would be appropriate to ensure that funding under this section is primarily directed to enhancing the public defense of indigent defendants in tribal courts. We are available to work with the Committee's staff on these issues, if that would be of assistance. V. Conclusion In conclusion, American Indian communities face serious problems of rising violent crime, including violence against women, gang activity, juvenile deliniquency, and child abuse. Federal and tribal law enforcment officials in the field report that poverty and alcohol abuse are substantial contributing factors to these problems. Justice and Interior have undertaken the Indian Law Enforcmenet Improvement Initiative to address these crime problems. S. 1508 would complement our overall inititative. Tribal courts are also an important part of the tribal governmental infrastructure necessary to build economic self- sufficiency in Indian communities. This bill would enhance the development of strong tribal courts, and thereby, promote the long-term goal of economic self-sufficiency for Indian communities. Office of the Attorney General, Washington, DC. Department of Justice Policy on Indian Sovereignty and Government-to- Government Relations With Indian Tribes Purpose: to reaffirm the Department's recognition of the sovereign status of federally recognized Indian tribes as domestic dependent nations and to reaffirm adherence to the principles of government-to-government relations; to inform Department personnel, other federal agencies, federally recognized Indian tribes, and the public of the Department's working relationships with federally recognized Indian tribes; and to guide the Department in its work in the field of Indian affairs. i. introduction From its earliest days, the United States has recognized the sovereign status of Indian tribes as ``domestic dependent nations.'' Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). Our Constitution recognizes Indian sovereignty by classing Indian treaties among the ``supreme Law of the land,'' and establishes Indian affairs as a unique area of federal concern. In early Indian treaties, the United States pledged to ``protect'' Indian tribes, thereby establishing one of the bases for the federal trust responsibility in our government- to-government relations with Indian tribes. These principles continue to guide our national policy towards Indian tribes. A. The executive memorandum on government-to-government relations between the United States and Indian tribes On April 29, 1994, at a historic meeting with the heads of tribal governments, President Clinton reaffirmed the United States' ``unique legal relationship with Native American tribal governments'' and issued a directive to all executive departments and agencies of the Federal government that: As executive departments and agencies undertake activities affecting Native American tribal rights or trust resources, such activities should be implemented in a knowledgeable, sensitive manner respectful of tribal sovereignty. President Clinton's directive requires that in all activities relating to or affecting the government or treaty rights of Indian tribes, the executive branch shall: (1) operate within a government-to-government relationship with federally recognized Indian tribes; (2) consult, to the greatest extent practicable and permitted by law, with Indian tribal governments before taking actions that affect federally recognized Indian tribes; (3) assess the impact of agency activities on tribal trust resources and assure that tribal interests are considered before the activities are undertaken; (4) remove procedural impediments to working directly with tribal governments on activities that affect trust property or governmental rights of the tribes; and (5) work cooperatively with other agencies to accomplish these goals established by the President. The Department of Justice is reviewing programs and procedures to ensure that we adhere to principles of respect for Indian tribal governments and honor our Nation's trust responsibility to Indian tribes. Within the Department, the Office of Tribal Justice has been formed to coordinate policy towards Indian tribes both within the Department and with other agencies of the Federal Government, and to assist Indian tribes as domestic dependent nations within the federal system. B. Federal Indian self-determination policy President Clinton's executive memorandum builds on the firmly established federal policy of self-determination for Indian tribes. Working together with Congress, previous Presidents affirmed the fundamental policy of federal respect for tribal self-government. President Johnson recognized ``the right of the first Americans * * * to freedom of choice and self-determination.'' President Nixon strongly encouraged ``self-determination'' among the Indian people. President Reagan pledged ``to pursue the policy of self-government basis'' for dealing with Indian tribes. President Bush recognized that the Federal Government's ``efforts to increase tribal self-governance have brought a renewed sense of pride and empowerment to this country's native peoples.'' ii. principles of indian sovereignty and the trust responsibility Though generalizations are difficult, a few basic principles provide important guidance in the field of Indian affairs: (1) the Constitution vests Congress with plenary power over Indian affairs; (2) Indian tribes retain important sovereign powers over ``their members and their territory,'' subject to the plenary power of Congress; and (3) the United States has a trust responsibility to Indian tribes, which guides and limits the Federal Government in dealings with Indian tribes. Thus, federal and tribal law generally have primacy over Indian affairs in Indian country, except where congress has provided otherwise. iii. department of justice recognition of indian sovereignty and the federal trust responsibility The Department resolves that the following principles will guide its interactions with the Indian tribes. A. The sovereignty of Indian tribes The Department recognizes that Indian tribes as domestic dependent nations retain sovereign powers, except as divested by the Untied States, and further recognizes that the United States has the authority to restore federal recognition of Indian sovereignty in order to strengthen tribal self- governance. The Department shall be guided by principles of respect for Indian tribes and their sovereign authority and the United States' trust responsibility in the many ways in which the Department takes action on matters affecting Indian tribes. For example, the Department reviews proposed legislation, administers funds that are available to tribes to build their capacity to address crime and crime-related problems in Indian country, and in conjunction with the Bureau of Indian Affairs and tribal police, provides essential law enforcement in Indian country. The Department represents the United States, in coordination with other federal agencies, the litigation brought for the benefit of Indian tribes and individuals, as well as in litigation by Indian tribes or individuals against the United States or its agencies. In litigation as in other matters, the Department may take actions and positions affecting Indian tribes with which one or more tribes may disagree. In all situations, the Department will carry out its responsibilities consistent with the law and this policy statement. B. Government-to-government relationships with Indian tribes In accord with the status of Indian tribes as domestic dependent nations, the Department is committed to operating on the basis of government-to-government relations with Indian tribes. Consistent with federal law and other Departmental duties, the Department will consult with tribal leaders in its decisions that relate to or affect the sovereignty, rights, resources or lands of Indian tribes. Each component will conduct such consolation in light of its mission. In addition, the Department has initiated national and regional listening conferences and has created the Office of Tribal Justice to improve communications with Indian tribes. In the Offices of the United States Attorneys with substantial areas of Indian country within their purview, the Department encourages designation of Assistant U.S. Attorneys to serve as tribal liaisons. In order to fulfill its mission, the Department of Justice endeavors to forge strong partnerships between the Indian tribal governments and the Department. These partnerships will enable the Department to better serve the needs of Indian tribes, Indian people, and the public at large. C. Self-determination and self-governance The Department is committed to strengthening and assisting Indian tribal governments in their development and to promoting Indian self-governance. Consistent with federal law and Departmental responsibilities, the Department will consult with tribal governments concerning law enforcement priorities in Indian country, support duly recognized tribal governments, defend the lawful exercise of tribal governmental powers in coordination with the Department of the Interior and other federal agencies, investigate government corruption when necessary, and support and assist Indian tribes in the development of their law enforcement systems, tribal courts, and traditional justice systems. D. Trust responsibility The Department acknowledges the federal trust responsibility arising from Indian treaties, statutes, executive orders, and the historical relations between the United States and Indian tribes. In a broad sense, the trust responsibility relates to the Untied States' unique legal and political relationship with Indian tribes. Congress, with plenary power over Indian affairs, plays a primary role in defining the trust responsibility, and Congress recently declared that the trust responsibility ``includes the protection of the sovereignty of each tribal government.'' 25 U.S.C. Sec. 3601. The term ``trust responsibility'' is also used in a narrower sense to define the precise legal duties of the United States in managing property and resources of Indian tribes and, at times, of individual Indians. The trust responsibility, in both senses, will guide the Department in litigation, enforcement, policymaking and proposals for legislation affecting Indian country, when appropriate to the circumstances. As used in its narrower sense, the federal trust responsibility may be justifiable in some circumstances, while in its broader sense the definition and implementation of the trust responsibility is committed to Congress and the Executive Branch. E. Protection of civil rights Federal law prohibits discrimination based on race or nation origin by the federal, state and local governments, or individuals against American Indians in such areas as voting, education, housing, credit, public accommodations and facilities, employment, and in certain federally funded programs and facilities. Various federal criminal civil rights statutes also preserve personal liberties and safety. The existence of the federal trust responsibility towards Indian tribes does not diminish the obligation of state and local governments to respect the civil rights of Indian people. Through the Indian Civil Rights Act, Congress selectively has derived essential civil rights protections from the Bill of Rights and applied them to Indian tribes. 25 U.S.C. Sec. 1301. The Indian Civil Rights Act is to be interpreted with the respect for Indian sovereignty. The primary responsibility for enforcement of the Act is invested in the tribal courts and other tribal fora. In the criminal law context, federal courts have authority to decide habeas corpus petitions after tribal remedies are exhausted. The Department of Justice is fully committed to safeguarding the constitutional and statutory rights of American Indians, as well as all other Americans. F. Protection of tribal religion and culture The mandate to protect religious liberty is deeply rooted in this Nation's constitutional heritage. The Department seeks to ensure that American Indians are protected in the observance of their faiths. Decisions regarding the activities of the Department that have the potential to substantially interfere with the exercise of Indian religious will be guided by the First Amendment of the United States Constitution, as well as by statutes which protect the exercise of religion such as the Religious Freedom Restoration Act, the American Indian Religious Freedom Act, the Native American Graves Protection and Repatriation Act, and the National Historic Preservation Act. The Department also recognizes the significant federal interest in aiding tribes in the preservation of their tribal customs and traditions. In performing its duties in Indian country, the Department will respect and seek to preserve tribal cultures. iv. directive to all components of the department of justice The principles set out here must be interpreted by each component of the Department of Justice in light of its respective mission. Therefore, each component head shall make all reasonable efforts to ensure that the component's activities are consistent with the above sovereignty and trust principles. The component heads shall circulate this policy to all attorneys in the Department to inform them of their responsibilities. Where the activities and internal procedures of the components can be reformed to ensure greater consistency with this Policy, the components head shall undertake to do so. If tensions arise between these principles and other principles which guide the component in carrying out its mission, components will develop, as necessary, a mechanism for resolving such tensions to ensure that tribal interests are given due consideration. Finally, component heads will appoint a contact person to work with the Office of Tribal Justice in addressing Indian issues within the component. v. disclaimer This policy is intended only to improve the internal management of the Department and is not intended to create any right enforceable in any cause of action by any party against the United States, its agencies, officers, or any person. Janet Reno, Attorney General. ------ Statement of Kevin Gover, Assistant Secretary for Indian Affairs Mr. Chairman and members of the Committee, I am pleased to submit the following statement for the record concerning S. 1508, the Indian Tribal Justice Technical and Legal Assistance Act of 1999. The Department of the Interior supports S. 1508. I have outlined a few issues for your consideration within my statement. introduction Tribal justice systems are an essential component of tribal governments. They provide the means to enforce public safety laws in Indian Country, provide for the welfare and safety of Indian children and other tribal community members; and safeguard the political integrity of tribal governments. The tribal justice systems also ensure that economic development and self-determination efforts of a particular tribe are viable and trustworthy. In today's modern society with the need to promote tribal self-sufficiency while preserving cultural values, the tribal justice systems help bridge the gap between what are sometimes seen as competing interests and provide the balance that is part of the historical and traditional concepts of a tribal lifestyle through peacemaking efforts and alternative dispute resolution notions. However, the resources to assist tribes in the development of these concepts is solely lacking. Currently, there are over 250 tribal courts throughout Indian Country. The Bureau of Indian Affairs (BIA) has received inquiries from other tribes and tribal consortiums who want to establish new court systems or improve existing justice systems. Although the BIA provides base funding to all of these tribal justice systems, it is clear that tribal justice systems still need to reach the degree of competence and sophistication necessary to handle the types of cases currently being brought in Indian Country. current criminal environment in indian country Violent crime is increasing in Indian Country at an alarming rate. In February of this year the Department of Justice, Bureau of Justice Statistics released the results of a survey of crime in Indian Country and found that American Indians are victimized by violent crime at a rate of more than twice the general population in America. Violence against Indian women is especially appalling where seven out of every 1,000 American Indian women are raped or sexually assaulted each year. This number is over three times the sexual assaults suffered by white women in this country and two times the number suffered by black women. This statistic is even more appalling when you consider that the 2.3 million American Indian population of the United States represents just under one percent of the total population of this country. The BIA Annual Law Enforcement Report also indicates an increase in forcible rape cases from 1997 to 1998 of 19 percent and an overall increase of violent crime in Indian Country of 56 percent. Although the Major Crimes Act mandates that most violent crimes are characterized as felonies and are to be handled in federal court by the United States Attorneys Office; tribal communities must still be on the forefront of addressing causes and explore solutions for this type of behavior. The prevalent of violent crime presents obstacles to job creation, investment and economic growth in tribal communities and the stated purpose of the Act to strengthen and improve the capacity of tribal court systems that address civil and criminal causes of action under the jurisdiction of Indians will certainly assist tribal communities through their justice systems to take affirmative steps to deter this type of activity from occurring in their communities. Alcohol and substance abuse related criminal activity is also up in Indian Country and has been the bane of Indian existence since its introduction into tribal communities. According to the Bureau of Justice Statistics, 55 percent of the violent crimes committed against American Indians were committed by an offender who was under the influence of alcohol, drugs or both. The report includes data on an increase in DWI cases of 56.8 percent from 1997 to 1998 in Indian Country, with 10,180 DWI offenses in 1997 and 15,967 DWI cases in 1998. Tribal justice systems are the natural conduit for monitoring this type of activity within the communities and for the coordination of efforts among the various community service providers who professionally address this type of behavior. Juvenile crime and delinquency is on the rise as well as child abuse and neglect cases in Indian Country. The National Child Abuse and Neglect Data System of the Department of Health and Human Services reports that between the years 1992 to 1995, American Indian children were subjected to abuse and neglect an average of 3 times that among Asians. These two ethnic groups experienced increases in child abuse and neglect cases for children under the age of 15. Gang related activities on Indian reservations are on the increase and reports from the FBI, BIA and tribal law enforcement agencies indicate that overall violent crime on many Indian reservations are worse than the national average. analysis of s. 1508 Section 2: Findings. We are in complete agreement with the Congressional findings. These findings have been relevant and applicable since the development of tribal justice systems. Tribes have used BIA base funding for all tribal governments, special funds for tribal court projects, and funds from other federal agencies that offer tribal justice funding on a competitive grant basis to fund their Tribal courts over the years. Section 101: Tribal Justice Training and Technical Assistance Grants. The BIA supports the award of grants described in this section to national or regional membership organizations whose membership consists of judicial system personnel. These organizations will most likely consist of tribal court judges and other tribal justice personnel who will have knowledge of the current issues facing tribal systems and will be in an excellent position to develop the type of specialized training and technical assistance that will enrich, improve and enhance tribal justice systems. Section 102: Tribal Civil Legal Assistance Grant, and Section 103: Tribal Criminal Assistance Grants. These two sections will help to promote the concept of equal and fair justice in Indian Country by promoting grant awards to non- profit organizations that provide legal services to Indian tribes, members of tribes tribal justice systems as provided in Sections 102 and 103 of the bill. The notion of basing accessibility on these services pursuant to federal poverty guidelines will address the need for competent representation for people who cannot otherwise afford legal representation. Section 104: No Offset and Section 105: Tribal Authority. The BIA is in full support of these sections. Section 105, in particular, tracks the mission statement of the Department and the BIA's obligations to Indian Tribes. It also clearly recognizes the unique status of Indian tribal governments and the desire of the Federal Government to support ongoing tribal efforts to improve their existing tribal justice systems. recommendations Last year, the Department of Justice, as part of the President's Initiative on Law Enforcement in Indian Country, offered two types of grant awards to tribal courts. These awards totaled $5 million. These awards were designed to address the areas of development and enhancement of Tribal Courts; providing technical assistance for tribal courts and the development of a national tribal court resource center. Any non-profit organization, unit of government, tribal government, court, tribal judicial system or academic institution could apply for these awards. The awards are based on grant periods from 18 to 24 months and range from a minimum of $50,000 for continuing operation and enhancement grants to a maximum of $500,000 for the creation of a national tribal court resource center. Tribes are eager to be funded through these grants. With the anticipated increase in criminal caseloads in tribal courts resulting from the President's Initiative on Law Enforcement in Indian Country, the proposed legislation will help Tribes in meeting the increased caseloads to develop and fund programs designed to address the causes of criminal behavior and develop solutions to prevent such activity from occurring in Indian communities. We recommended the inclusion of Tribal Justice systems as eligible applicants for receipt of awards to non-profit organizations. Tribal Justice system should be on the forefront of the list of eligible grantees since they are not only confronting the issues facing their communities, but are struggling to develop solutions to address these issues. conclusion The BIA has been working in a cooperative effort with DOJ since the President's Initiative on Law Enforcement in Indian Country to assist tribes in obtaining law enforcement equipment and personnel. The BIA has also provided technical assistance to tribal justice systems through DOJ's Office of Tribal Justice by providing tribal court program reviews and follow up where necessary as well as providing assistance in the development of criteria for the grant award process for both the tribal court and juvenile initiatives sponsored through DOJ. The BIA will continue to provide this type of technical assistance to DOJ and welcomes the additional challenge of working with other federal agencies or non-governmental offices in their efforts to assist tribal justice systems. Thank you, Mr. Chairman, for the opportunity to provide this statement on S. 1508. I look forward to working with you and the Committee on further discussions concerning this important piece of legislation for Indian Tribal Justice systems. Changes in Existing Law In compliance with subsection 12 of rule XXVI of the Standing Rules of the Senate, changes to existing law made by the bill are required to be set out in the accompanying Committee report. The Committee finds that enactment of S. 1508 will result in the following changes in existing law. The matter to be deleted is indicated in brackets  and bold face type. The matter to be inserted is indicated in italic. 25 U.S.C. Sec. 3621. Tribal Justice Systems (a) Office.--There is authorized to be appropriated to carry out the provisions of Section 3611 and Section 3612 of this Chapter, $7,000,000 in each of the fiscal years [1994, 1996, 1997, 1998, 1999 and] 2000, 2001, 2002, 2003, 2004, 2005, 2006 and 2007. None of the funds provided under this subsection may be used for the administrative expenses of the Office. (b) Base Support Funding for Tribal Justice Systems.--There is authorized to be appropriated to carry out the provisions of Section 3613 of this Chapter, $50,000,000 in each of the fiscal years [1994, 1996, 1997, 1998, 1999 and] 2000, 2001, 2002, 2003, 2004, 2005, 2006 and 2007. (c) Administrative Expenses for Office.--There is authorized to be appropriated, for the administrative expenses of the Office, $500,000 in each of the fiscal years [1994, 1996, 1997, 1998, 1999 and] 2000, 2001, 2002, 2003, 2004, 2005, 2006 and 2007. (d) Administrative Expenses for Tribal Judicial Conferences.--There is authorized to be appropriated, for the administrative expenses of tribal judicial conferences, $500,000 in each of the fiscal years [1994, 1996, 1997, 1998, 1999 and] 2000, 2001, 2002, 2003, 2004, 2005, 2006 and 2007.