U.S.
GOVERNMENT
PRINTING OFFICE
81–151
PDF 2002
S.
HRG.
107–605
IMPACT
OF SUPREME COURT RULINGS ON LAW
HEARING
COMMITTEE
ON INDIAN AFFAIRS
UNITED
STATES SENATE
ONE
HUNDRED SEVENTH CONGRESS
SECOND
SESSION
ON
CONTEMPORARY
TRIBAL GOVERNMENTS: CHALLENGES IN LAW ENFORCEMENT
RELATED
TO THE RULINGS OF THE U.S. SUPREME
JULY
11, 2002
WASHINGTON,
DC
~~~~~~~~~~~~~~~~~~~~~~~~~~
COMMITTEE
ON INDIAN AFFAIRS
DANIEL
K. INOUYE, Hawaii, Chairman
BEN
NIGHTHORSE CAMPBELL, Colorado, Vice
Chairman
KENT
CONRAD, North Dakota
HARRY
REID, Nevada
DANIEL
K. AKAKA, Hawaii
PAUL
WELLSTONE, Minnesota
BYRON
L. DORGAN, North Dakota
TIM
JOHNSON, South Dakota
MARIA
CANTWELL, Washington
FRANK
MURKOWSKI, Alaska
JOHN
McCAIN, Arizona,
PETE
V. DOMENICI, New Mexico
CRAIG
THOMAS, Wyoming
ORRIN
G. HATCH, Utah
JAMES
M. INHOFE, Oklahoma
PATRICIA
M. ZELL,
Majority
Staff Director/Chief Counsel
PAUL
MOOREHEAD,
Minority
Staff Director/Chief Counsel
(II)
(III)
C
O N T E N T S
Page
Statements:
Akaka,
Hon. Daniel K., U.S. Senator from Hawaii .......................................
3
Bengochia,
Monty J., tribal chairman, Bishop Reservation .......................... 22
Campbell,
Hon. Ben Nighthorse, U.S. Senator from Colorado, vice chairman,
Committee
on Indian Affairs ..............................................................
2
Heffelfinger,
Thomas B., U.S. Attorney, city of Minneapolis ........................ 9
Hillaire,
Darrell, chairman, Lummi Indian Business Council ...................... 4
Inouye,
Hon. Daniel K., U.S. Senator from Hawaii, chairman, Committee
on
Indian Affairs
...........................................................................................
1
James,
Gary, chief of police, Lummi Nation
.................................................. 5
Pouley,
Theresa, chief judge, Lummi Tribal Council ....................................
5
Toulou,
Tracy, director, Department of Justice, Office of Tribal Justice ..... 11
APPENDIX
Prepared
statements:
Bengochia,
Monty J.
.........................................................................................
48
Cypress,
Billy, chairman, Miccosukee Tribe of Indians, Florida .................. 54
Heffelfinger,
Thomas B.
...................................................................................
35
Hillaire,
Darrell
................................................................................................
27
Toulou,
Tracy
....................................................................................................
41
Wellington,
Victor, mayor, Metlakatla Indian Community, Annette Islands
Reserve
................................................................................................
58
(1)
IMPACT
OF SUPREME COURT RULINGS ON
LAW
ENFORCEMENT IN INDIAN COUNTRY
THURSDAY,
JULY 11, 2002
U.S.
SENATE,
COMMITTEE
ON INDIAN
AFFAIRS,
Washington,
DC.
The
committee met, pursuant to notice, at 10:00 a.m. in room
485,
Senate Russell Building, Hon. Daniel K. Inouye (chairman of
the
committee) presiding
Present:
Senators Inouye, Akaka, and Campbell.
STATEMENT
OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM
HAWAII,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The
CHAIRMAN.
The committee meets this morning to receive testimony
on
the challenges confronting contemporary tribal governments
as
they provide for the health, safety and welfare of those
who
reside on Indian reservations, both Indians and non-Indians.
Enforcing
the law on Indian reservations has increasingly become
frustrated
by the complex pattern of jurisdictional authorities
that
have been engendered by rulings of the U.S. Supreme Court.
Today,
we will receive testimony on the results of studies conducted
by
Department of Justice, and we will learn about more recently
gathered
reports and statistics which are simply shocking.
For
instance, Justice Department reports indicate that American
Indians
are victims of violent crime at rates more than twice the
national
average, far exceeding any other ethnic group in the country.
Nearly
one out of every four Native Americans between the
ages
of 18 and 24 are victims of a violent crime—the highest per
capita
rate of violence of any racial group considered by age and
representing
10 percent of the violent crimes prosecuted by the
Justice
Department.
Other
alarming information instructs us that over a 5-year period,
American
Indian females were victimized by a spouse or intimate
partner
at rates which greatly exceed the comparable rates
for
any other ethnic group. Now, consider that the U.S. Supreme
Court
has ruled that tribal governments have lost their inherent
authority
to exercise criminal jurisdiction over non-Indians on the
grounds
that it is inconsistent with the domestic dependent status
of
Indian Nations and you can begin to understand the extent and
nature
of the devastating problems we are here to address.
The
incidents of domestic abuse and domestic violence are high,
yet
if the abusing spouse is a non-Indian, tribal law enforcement
officers
are without jurisdiction to intervene. What other law en-
2
forcement
presence is there on the vast majority of Indian reservations?
The
answer is none. Tribal law enforcement officers can call
upon
State or local authorities, but more often than not those enforcement
authorities
are reluctant to come on the reservation because
the
rulings of the Supreme Court have also rendered their
jurisdiction
unclear.
Federal
law enforcement officers have criminal jurisdiction over
felonies
and other acts enumerated in the Major Crimes Act, but
sadly
we know that the Federal law enforcement effort is underfunded,
understated,
and simply not able to respond in a timely
fashion
when crimes are in the process of being committed.
Add
to that the increased burdens placed on all of law enforcement
—Federal,
State, local, and tribal—in responding to the new
climate
of terrorism, additional responsibilities associated with
homeland
security and border security, and one could say that we
may
well have a crisis in law enforcement in Indian country.
It
is not widely know, but many Bureau of Indian Affairs police
have
been drafted to serve as air marshals, and there are no replacements
provided
for those officers who are no longer providing
protection
in tribal communities. Some have suggested that the
Justices
of the Supreme Court knew what impact their rulings are
having
on the ability of tribal governments to provide for the
health,
safety and welfare of all their citizens because if they did,
they
would not have invalidated the intergovernmental agreements
that
many State and tribal governments have entered into in order
to
provide a seamless and comprehensive law enforcement framework,
as
the court did in the Nevada
v. Hicks
decision
handed
down
last year.
This
is just one of many dynamics that we are contending with
when
the legal experts tell us that the Supreme Court’s rulings are
having
devastating impacts in Indian country. No where else in
America
does law enforcement jurisdiction depend on a determination
of
the race or ethnicity of the victim and the perpetrator of a
crime.
That in and of itself should signal to one and all that we
need
to bring some sense, some order and some clarity back to law
enforcement
in Indian country.
Mr.
Vice Chairman.
STATEMENT
OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR
FROM
COLORADO, VICE CHAIRMAN, COMMITTEE ON
INDIAN
AFFAIRS
Senator
CAMPBELL.
Thank you, Mr. Chairman.
This
is the second hearing we have held where we are analyzing
the
impacts of recent Supreme Court decisions on Indian tribes and
residents,
both Indian and non-Indian, as you have mentioned.
Dealing
as it does with matters relating to law enforcement, today’s
hearing
will hopefully shine some light on a very practical
problem.
I do not want to knock the Supreme Court, but I have to
tell
you in many cases they live a very insulated lifestyle in an insulated
atmosphere,
and they are simply not out in the field
enough
to see how their decisions impact people at the local level.
As
the Justice Department continues to report to us, on many
reservations
crime is on the rise, as you mentioned, increasingly
particularly
violent crime, and that leads to both Indians and non-
3
Indians
being victimized. High crime on Indian lands also creates
the
obvious disincentive for different businesses that might come
on
the reservations to invest or innovate or create jobs and income
for
depressed economies, in many cases. And the complicated system
of
jurisdictions—on some reservations there are nine jurisdictions,
so
there is no question that it complicates prosecutions. And
although
some innovations like cross-deputization has helped,
there
are still huge loopholes in the system of trying to bring people
to
justice as the perpetrators of crime.
Certainly,
I think one of the most immediate concerns to me and
to
the Nation since 9–11 is homeland security and the need to collectively
protect
our borders and our citizens from people who
mean
to do us harm. Just as tribal law enforcement offices are
often
the first, and sometimes the only responders to crimes and
other
problems on Indian lands, in many areas of our Nation they
are
the first in the line of defense against those who would harm
us.
In some places on Indian reservations, there is a lag-time, a
delay-time
of when you actually call sometimes of one-half hour to
an
1 hour of response time. That is not uncommon on reservations,
unlike
most urban areas where law enforcement has a response
time
of 5 or 6 minutes.
Certainly,
tribes are on the front lines in our borders. The
Tohono
O’odham, the St. Regis Mohawks in Upper New York, the
Blackfeet
of Montana, the tribes along the California-Mexico border,
and
the tribes in the Seattle-Puget Sound area, to name a few.
Against
this backdrop, the Court has ruled that tribes do not have
jurisdiction
over non-Indians who commit crimes on Indian lands.
I
do not know where that leaves the enterprising terrorist, very
frankly,
if they infiltrate, come across the border on Indian lands
from
other countries. Since they are not Indian, that raises the
question,
do Indian law enforcement people have any control over
potential
terrorists? It really raises some obvious problems for
tribes
that are trying to arrest and prosecute offenders on their
lands.
I believe this is not just a tribal problem.
So
certainly this is a time of war. We are in this together, and
I
think the faster we recognize that, the quicker we will try to work
on
a seamless web of Federal, State and tribal law enforcement.
Thank
you, Mr. Chairman.
The
CHAIRMAN.
Senator Akaka.
STATEMENT
OF HON. DANIEL K. AKAKA, U.S. SENATOR FROM
HAWAII
Senator
AKAKA.
Thank you very much, Mr. Chairman.
I
share the concerns of my colleagues this morning regarding the
impact
of recent U.S. Supreme Court hearings and rulings on tribal
sovereignty,
specifically as they relate to law enforcement in Indian
country
and adjudication of cases in tribal courts. Tribal governments
face
unique challenges in law enforcement due to a number
of
issues, including inadequate funding and resources. I am disturbed
by
the statistics which reflect that the highest per capita
rates
of violence are experienced by residents on Indian reservations.
I
am even more concerned by reports that in some cases responding
to
situations in Indian country is considered too low a pri-
4
ority
to warrant a response by local, State or Federal law enforcement.
All
of this adversely impacts the health, safety, and the wellbeing
of
American citizens who deserve to live freely and safe from
harm.
We are faced with a difficult task of rectifying this situation.
In
doing so, we must ensure that tribal governments are afforded
the
right, their sovereign right, to be a part of the solution, to clarify
criminal
jurisdiction within government-to-government framework.
We
must be careful to preserve the fundamental authority of
tribal
governments. I am pleased to learn of efforts within Indian
country
to unify to protect these rights and I hope you continue to
do
that.
I
therefore, Mr. Chairman, look forward to hearing from our distinguished
witnesses
this morning, and I look forward to working
with
all of you to preserve the inherent sovereignty of tribal governments
and
to address the law enforcement needs in Indian
country.
Thank
you very much, Mr. Chairman.
The
CHAIRMAN.
I thank you very much, Senator.
Our
first witness is the Chairman of the Lummi Indian Business
Council
of Bellingham, Washington, Darrell Hillaire. Chairman
Hillaire
will be accompanied by Judge Theresa Pauley, Chief Judge
of
the Lummi Nation, and Gary James, Chief of Police, Lummi Nation.
Mr.
Chairman, welcome sir.
STATEMENT
OF DARRELL HILLAIRE, CHAIRMAN, LUMMI
INDIAN
BUSINESS COUNCIL
Mr.
HILLAIRE.
[Statement in native dialect.]
Good
morning. With me I have the esteemed Chief Judge of the
Lummi
Court System, Theresa Pauley, and our Chief of Police
Gary
James.
We
are really thankful for being given this opportunity to come
and
speak with you today. We felt at home at Lummi among our
people
that there seems to be this confusion in this relationship between
the
U.S. Government and the Lummi Nation. We felt the
best
way to clear up some of that confusion is to come here and
speak
with you one-on-one, eye-to-eye, and reiterate our understanding
that
we would be recognized as a government and respected
as
a people.
We
had this opportunity a couple of weeks ago to meet with one
of
our Elders. He is 83 years old, World War II veteran, who as
a
young boy wanted to become the chief of police on our reservation
when
nobody wanted to come to our reservation. So when he came
back
from the war, our Elders got together and they voted him in,
and
he was our chief of police for over 20 years. He was given a
badge
and a pistol and some handcuffs. And they were from treatysigning
in
1855, and he was passing it on to me to keep, to make
sure
that I remember that we have always provided law and order
on
our reservation, and in those days for only our people because
we
were the only ones that lived there.
Today,
under self-governance, self-determination, we have a law
and
order office of over 20 sworn officers. We have a court system
that
is autonomous from the Business Council. We have a relation-
5
ship
with the county, with inter-local agreements with the Sheriff’s
Department
and the welfare offices. We have a full faith and credit
with
the State court system and our court system.
Though
these things are important to us, that we extend ourselves
to
other local governments and work hard with them to understand
one
another, it is here that we seem to recognize a lot of
confusion.
I would like to have Chief Judge Pauley say a few
words,
and Chief of Police Gary, if they would.
STATEMENT
OF THERESA POULEY, CHIEF JUDGE, LUMMI
TRIBAL
COUNCIL
Ms.
POULEY.
Good morning, Senators. I am Theresa Pouley. I am
the
Chief Judge of the Lummi Nation.
I
am here to talk to you a little bit today about contemporary
tribal
court and tribal judicial systems. Your honors, tribal judicial
systems
are poised to join the mosaic of State, local and Federal
court
systems to help provide solutions to all of the problems that
Indian
country experiences today, and that all of you have pointed
out
today. It is these problems that are facing our reservation that
make
it so important that Congress act.
Tribal
courts, tribal nations are looking for respect and recognition
of
their governments. As part of that, we pledge to be responsible
to
provide justice for all the people of the reservation.
Chief.
STATEMENT
OF GARY JAMES, CHIEF OF POLICE, LUMMI
NATION
Mr.
JAMES.
Thank you.
Good
morning. My name is Gary James. I am the Chief of Police,
Lummi
Nation.
We
want to continue to lead and monitor a fair, just and safe law
enforcement
system on our reservation. We meet regularly with the
Federal
Bureau of Investigation [FBI] and other law enforcement
agencies
in our area. Because of this communication, we have an
overwhelming
response from tribal and non-tribal citizens wanting
us
to continue to do the work that we do within the boundaries of
our
reservation.
Thank
you.
Mr.
HILLAIRE.
The number one priority at Lummi is healthy spirits
—healthy
spirits for our entire community, especially our children.
What
we mean by that is that there seems to be an epidemic
of
substance abuse on our reservation. We know that. We have
hired
an extra drug detective. We have set up a drug court. We are
going
to build a treatment center. We have doubled our youth activities
—all
of this to set a clear path of opportunity for our children,
to
make sure that the homes they live in are safe and they
are
healthy.
As
was pointed out in opening remarks, it is of great concern to
us
because we have heard stories of our children where they are
born
to a tribal member and a non-tribal member. Perhaps the
tribal
member is gone and the non-tribal member is in care of the
abuse
of the child. And that is not acceptable to us, to stand there
when
substance abuse is going on and our children have to be
abandoned
for perhaps 3 days, and we do not have, as interpreted
6
by
this Supreme Court, the authority to go in and take care of
those
kids. We cannot afford that jurisdictional confusion, and that
happens
on our reservation.
So
we are going to extend ourselves to work real close with the
local
governments to make sure we understand one another going
forward,
but we need your help. We appreciate your help as we
continue
to work on recognition of each other as government and
respect
its people.
So
I thank you for this opportunity and really welcome some
questions
perhaps or some comments on where we are at, and
where
we need to go.
So
‘‘heishka’’ to each and every one of you.
[Prepared
statement of Mr. Hillaire appears in appendix.]
The
CHAIRMAN.
I thank you very much, Mr. Chairman. As noted
by
you, in order to better understand the problem, we have a few
questions.
We
have been advised that the Lummi Nation and the State of
Washington
has entered into an agreement where the Lummi Nation
will
be assuming primary responsibility for areas that were
previously
assumed by the State pursuant to Public Law 280. Will
you
describe the responsibilities that you have assumed?
Ms.
POULEY.
There are a variety of responsibilities that Lummi
has
assumed and will assume in the very near future. In particular,
and
it is hard to list because there are so many that have happened
recently,
Lummi provides virtually all the law enforcement
on
our reservation. Almost all of our officers are the ones who respond
to
crime. We are working very closely and carefully with the
State
to map out ways to enforce child support so that children of
the
reservation can be supported. We are working with Washington
State
and the Washington State Supreme Court to establish agreements
so
that we give full faith and credit to tribal court orders.
We
are working in virtually every area for natural resources to
have
an ability and to work with the State of Washington so that
we
can provide protection to those resources that are on the reservation.
So
in virtually every area where the tribe lost jurisdiction under
Public
Law 280, the State of Washington and Lummi are willing
to
work and negotiate to give that jurisdiction and that authority
back
to the tribe.
The
CHAIRMAN.
May I ask the Chief of Police a few questions?
In
the year 2001, last year, how many incidents would you say that
your
police department responded to?
Mr.
JAMES.
In 2001, we responded to just a little over 4,700 incidents
for
service.
The
CHAIRMAN.
And of these incidents, how many involved non-
Indians?
Mr.
JAMES.
My best guess would be between probably 30 percent
to
35 percent of them.
The
CHAIRMAN.
Would your nation face any civil liability if a
non-Indian
is injured while being detained or arrested by the
Lummi
Nation?
Ms.
POULEY.
That would actually be an issue or question for the
court
system. We have as part of our jurisdiction the ability to provide
due
process to all members of the reservation. If a police offi-
7
cer
in fact was found to have violated some responsibility to a citizen,
the
tribal court has both the responsibility and the authority
to
be able to resolve those disputes between non-Indians and tribal
police.
The
CHAIRMAN.
The Vice Chairman spoke of terrorism, and your
reservation
includes coastline, I believe, of about 12 miles. Do you
have
any sort of security along that stretch?
Mr.
JAMES.
The security that we would be able to—the minimum
security
that we do have is our natural resource enforcement officers
who
do patrol the waters of Puget Sound and around our
areas,
and we do cover a majority of a day, as far as security, on
the
water.
The
CHAIRMAN.
Do you have any sort of assistance or advice from
the
Federal Government?
Mr.
JAMES.
Like I said, we meet with the FBI probably at least
once
or twice a week, and when issues do come up like that, we
do
get advice from them and work closely with them to resolve
issues
that do come up like that.
The
CHAIRMAN.
We have been advised that there are tribes who
have
entered into agreements with their respective States just like
you
have, but ever since the Supreme Court decision in Nevada v.
Hicks
was
decided that they need not honor these agreements. Is
that
widespread in the United States?
Mr.
HILLAIRE.
Yes; we have not heard entirely, but it is our intention
to
go back to these local agencies and sit down with them
and
really just clarify what we are trying to do here, outside of
what
is the best way to afford safety for all citizens within the
boundaries
of our reservation, to make sure that every citizen, Indian
and
non-Indian can feel that way. That is our intent going forward.
We
have not gotten anything adverse back from the county
government,
city governments surrounding our reservation, or the
State
at this time.
The
CHAIRMAN.
So the State of Washington is willing to honor
the
agreement they have entered into with you, notwithstanding
the
Nevada
decision?
Ms.
POULEY.
At this point in time, the way we have worked out
full
faith and credit with both the Washington State Supreme
Court
and the local Whatcom County Court systems, we still are
engaged
in an ongoing dialog for how to best solve problems in Indian
country.
The county courts are sort of in the position that
local
solutions to local problems are better, and that tribal courts
are
better situated to deal with issues that arise in Indian country.
The
problem is, as you have so aptly stated in your opening remarks,
is
that now the Supreme Court says they do not have to do
that.
While
Lummi is very, very fortunate to have good working relationships,
lots
of other tribes across the United States are not that
fortunate.
I have heard different individuals and attorneys speak
at
different gatherings of lawyers in the State of Washington where
they
believe that the Lummi Nation and all tribal courts may have
no
jurisdiction over non-Indians on the reservation—what a terrible,
terrible
message to send at a time when State and local governments
really
want to work with tribes to become part of the solution
to
the problems.
8
The
CHAIRMAN.
Thank you very much.
Mr.
Vice Chairman.
Senator
CAMPBELL.
Thank you.
You
are right. That is a bad message to send because basically
it
tells the potential bad guys it is open season, you can do what
you
want—a clearly bad message.
You
mentioned, Gary, that the natural resources enforcement officers
are
the ones that really patrol your 12 miles of coastline. Do
they
have arrest authority and are they armed?
Mr.
JAMES.
Yes; they do. They have all the authority and have
the
same training as our regular law enforcement officers and all
the
officers in the State of Washington have. They have the same
training.
Senator
CAMPBELL.
They do have.
Mr.
Hillaire, in your opening statement you said you anticipated
and
expected to be included in the buildup of homeland defense.
Have
you been, with any State or Federal or local officials?
Mr.
HILLAIRE.
We did get invited to a meeting with Attorney
General
Ashcroft earlier in the year, but there has not been any
contact
since. We feel that is important that we do that. The protection
services
that we provide now are pertaining to natural resources,
but
being 15 minutes away from the border, I think we
need
to be included.
Senator
CAMPBELL.
So you have not gotten any direction at all,
as
many local communities have across America, about emergency
preparation
or anything of that nature that could be related to
homeland
defense?
Mr.
HILLAIRE.
Just that initial meeting with the Attorney General.
Senator
CAMPBELL.
And, last question, your treaty of 1855, when
your
ancestors entered that treaty, was the withdrawal of any of
the
tribe’s rights to govern or police your own lands included in
that?
Mr.
HILLAIRE.
No; it was not.
Senator
CAMPBELL.
Thank you, Mr. Chairman.
The
CHAIRMAN.
Thank you.
Senator
Akaka.
Senator
AKAKA.
Thank you very much, Mr. Chairman.
Your
testimony requests congressional action, in consultation
with
the tribal governments. Your request is to address the erosion
of
tribal sovereignty. Have you developed a specific legislative recommendation
and
are those ready for the committee’s consideration?
Mr.
HILLAIRE.
We have been working real close with the Tribal
Sovereignty
Initiative team under NCAI. We have been submitting
our
position on this legislation through that body, but if requested
by
you, Senator, we would gladly do that for the committee.
Senator
AKAKA.
What has happened, what has been the impact
of
the Hicks
decision
in terms of real-life situations for law enforcement
in
the Lummi Nation?
Mr.
JAMES.
As far as State officers coming onto the reservation
and
enforcement—is that what you are asking? We have a very,
very
good relationship with Whatcom County which is the county
that
our reservation sits in. They respect our court system and
9
come
in and ask for our court’s blessing before they come onto our
reservation
and serve their orders. They have been really good
about
doing that, so that has had very little impact on us—just because
of
the good relationship we do have with Whatcom County.
Ms.
POULEY.
It does, Senator, if I could respond to that question,
it
has a huge impact, real-life impact in tribal court. I cannot tell
you
how heavy my heart is when I have an Indian person who is
married
to a non-Indian person, come into my court with a black
eye
and with her tooth knocked out, just to find out that that non-
Indian
is not a resident of the reservation, so the court does not
have
any jurisdiction over them. It is extremely difficult for tribal
courts
to be able to protect not only their own people, but all residents
of
the reservation. Imagine if coming to Washington, DC if
you
were going through a 25-mile per hour school zone and every
time
a Washington, DC officer stopped you, that you said, ‘‘Oh, no,
I
am a citizen of the State of Washington, so I do not have to slow
down.’’
In Indian country, you do not have to slow down. So those
are
sort of the real life problems that I see as a tribal court judge
every
day.
Senator
AKAKA.
Thank you for your responses.
Thank
you, Mr. Chairman.
The
CHAIRMAN.
But when you do have someone speeding in
Lummi
Nation, you can stop him, can’t you?
Mr.
JAMES.
We do have an agreement with Whatcom County
Sheriff’s
Office. We do have civil traffic jurisdiction over non-tribal
members,
and that process is that we are able to stop and detain
and
write out a citation and forward it on to the Sheriff’s Office
where
they take action on the citation written by our officers.
The
CHAIRMAN.
And does the Sheriff’s Office follow through and
provide
justice as it should be done?
Mr.
JAMES.
As far as the civil traffic, I think to the best they can,
yes
they do.
The
CHAIRMAN.
Would that procedure apply in all of the cases,
including
felonies?
Mr.
JAMES.
No; that only applies to civil traffic infractions. Anything
criminal,
we have to actually stop and detain the person and
hold
them for a Whatcom County deputy to come and respond.
The
CHAIRMAN.
But you do have the right to detain?
Mr.
JAMES.
Yes; we do.
The
CHAIRMAN.
I thank you all very much.
Ms.
POULEY.
Thank you.
The
CHAIRMAN.
And I can assure you that we are prepared to
work
with the National Congress of American Indians to come
forth
with something that should be a response to the Supreme
Court.
Our
next witness is the U.S. Attorney for the city of Minneapolis,
Thomas
B. Heffelfinger, and the director of the U.S. Department of
Justice,
Office of Tribal Justice, Tracy Toulou.
Mr.
Heffelfinger.
STATEMENT
OF THOMAS B. HEFFELFINGER, U.S. ATTORNEY,
CITY
OF MINNEAPOLIS
Mr.
HEFFELFINGER.
Mr. Chairman, Mr. Vice Chairman, members
and
staff of the committee, my name is Tom Heffelfinger. I am the
10
U.S.
Attorney for the District of Minnesota, and chairman of the
Attorney
General’s Advisory Committee, Subcommittee on Native
American
Issues.
The
purpose of our subcommittee is to develop policies pertaining
to
effective law enforcement in Indian country, and among the top
priorities
that we have identified are terrorism and violent crime
in
Indian country.
The
Federal Government bears a unique and crucial responsibility
for
addressing the problem of violent crime in this Nation’s Indian
communities.
Since 1885, the U.S. attorneys, in collaboration
with
the various tribal governments have had primary responsibility
for
the prosecution of serious violent crime in Indian country,
and
that problem is a very significant one.
As
you noted, Mr. Chairman, in your opening remarks, Native
Americans
are victimized at a rate of 2.5 times the national average
in
this country. In some areas of Indian country, that victimization
is
even higher. For example, in my own State of Minnesota,
the
residents of the Red Lake Indian Nation are currently suffering
a
rash of violent homicides unprecedented in that community’s history.
In
the past 7 months, there have been 5 homicides in a community
of
5,000 people. If one applied that rate to the city of Minneapolis,
our
State’s largest city, Minneapolis would have had 382
homicides
in 7 months. In fact, there have been 21.
The
U.S. Attorney, the FBI, and the Government of Red Lake are
working
aggressively to solve this problem, but it is indicative of
the
fact that in some parts of Indian country violent crime is at an
unprecedented
high.
In
our attempts to respond to violent crime, prosecutors and investigators
face
a confusing and frequently uncertain set of laws
and
judicial decisions regarding jurisdiction. First, there is confusion
regarding
who has personal jurisdiction over the subject. If
one
looks, for example, at a comparison of the Major Crimes Act
and
the General Crimes Act, under the Major Crimes Act, the
United
States has jurisdiction to prosecute certain serious offenses.
However,
that jurisdiction only extends to prosecution of Indians.
Under
the General Crimes Act, the United States has jurisdiction
to
prosecute all Federal offenses. However, that does not apply to
Indian
on Indian crimes.
In
addition, there are a variety of statutes and decisions, some
of
which the chairman and vice chairman have already cited, that
address
situations such as who has jurisdiction when both the suspect
and
the victim are non-Indian; whether or not tribal courts
have
jurisdiction over non-member Indians or non–Indians; whether
a
person is an Indian for purposes of determination of jurisdiction;
and
whether or not jurisdiction is delegated to the State
under
laws such as Public Law 280.
If
this seems confusing, let me assure you from a prosecutor’s
perspective,
it is. Even once you get past the question of personal
jurisdiction,
then one has to address whether or not the crime occurred
in
Indian country, although that term is defined by statute,
I
need to assure you that in a particular or individualized case, the
resolution
of that can and does tie up litigation for months and
sometimes
years.
11
What
all this means is that whenever a crime is committed in
Indian
country, in order to determine jurisdiction prosecutors must
assess
and investigators must investigate facts that would allow us
to
determine who has jurisdiction. This involves four factors:
Whether
the offense occurred within Indian country; whether the
suspect
is an Indian or a non-Indian; whether the victim is an Indian
or
a non-Indian; and what is the nature of the offense.
Depending
on the answers to these questions, an offense can end
up
being prosecuted in tribal court, Federal Court, State Court or
not
at all. And when you have that kind of diversion and disparity,
then
you can end up with the kind of disparity in sentencing,
which
is one of the subject of the sentencing commission right now.
In
addition, only once these questions are answered can prosecutors
and
investigators turn to the important question of sufficiency
of
evidence and guilt versus innocence. This confusion generally
does
not exist in the State system, and this confusion must be remedied.
Confusion
over jurisdiction has another detrimental impact
which
was alluded to by the vice chairman, and that is homeland
security.
Now more than ever we are reliant upon cooperation between
tribal,
State and Federal authorities. Indian country is involved
in
the war on terrorism. More than 25 tribes govern land
that
is adjacent to borders, either directly or across the water. A
conference
was held by the border patrol earlier this year at which
General
Ashcroft ‘‘recognized that local law enforcement agencies
play
a crucial role in securing our Nation’s borders, and tribal law
enforcement
agencies are no exception.’’ Tribal governments have
enthusiastically
assumed this responsibility and have expressed
their
desire to work with the United States to provide for that security,
but
cooperation between local, Federal, and tribal agents is
what
is necessary in order to assure that protection.
Unfortunately,
as the committee has already cited, there have
been
decisions that have undermined that cooperation in the recent
past.
The Hicks
case,
which the committee has already cited, has
given
law enforcement an opportunity at the local level, at least,
to
determine that they do not need that cooperation. So after years
of
coalition-building between State and tribal law enforcement officers,
this
interpretation has allowed for conflict between the agencies.
Now
more than ever, members of the committee, we need the jurisdictional
clarity
in order to allow us to do our multiple functions
within
the Department of Justice.
Thank
you for the opportunity to address the committee.
[Prepared
statement of Mr. Heffelfinger appears in appendix.]
The
CHAIRMAN.
I thank you very much.
May
I now recognize Mr. Toulou.
STATEMENT
OF TRACY TOULOU, DIRECTOR, DEPARTMENT OF
JUSTICE,
OFFICE OF TRIBAL JUSTICE
Mr.
TOULOU.
Thank you.
Mr.
Chairman, Mr. Vice Chairman, my name is Tracy Toulou
and
I am the director of the Office of Tribal Justice in the Department
of
Justice. Thank you for the opportunity to appear before
you
here today.
12
The
Office of Tribal Justice spends a significant amount of time
studying
and addressing issues related to tribal law enforcement.
My
office serves to coordinate and focus the Department’s policies
and
positions on American Indian and Alaska Native issues, and
maintain
liaison with federally recognized Indian tribes, particularly
in
the area of law enforcement.
In
addition, we work closely with the U.S. Attorneys’ offices that
prosecute
violent crime in Indian country. We also regularly communicate
with
tribal police departments, the FBI, the BIA, and
other
Federal law enforcement agencies operating in and around
Indian
country. Most recently, we have been working with the U.S.
Border
Patrol on Native American border security issues. In my experience
as
an assistant U.S. attorney in the State of Montana, I
prosecuted
major crimes acts violations on a number of reservations,
as
well as assisted the Northern Cheyenne Tribe in the development
of
a comprehensive law enforcement program.
Today,
I would like to focus on three issues—first, the problem
of
violent crime in Indian country; second, the challenges facing
tribal
law enforcement; and third, issues that may result from Nevada
v.
Hicks.
First,
the Department of Justice Bureau of Justice Statistics reports
entitled
American Indians and Crime and Violent Victimization
and
Race reveal that American Indians experience higher
rates
of violent crime than any other group. In November of last
year,
Attorney General Ashcroft remarked that these reports show
American
Indians are victims of violent crime at rates more than
twice
the national average, far exceeding any other ethnic group.
Nearly
one out of every four Native Americans between the ages
of
18 and 24 is a victim of violent crime—the highest per capita
rate
of violence of any racial group considered by age. This accounts
for
nearly 10 percent of the violent crimes prosecuted by the
Department
of Justice. Indians fall victim to violent crime at about
two-times
the rates of African Americans, 21/2
times
the rates sustained
by
Caucasians, and 41/2
times
that experienced by Asian
Americans.
Of
particular concern is the problem of domestic violence and
crimes
against Indian women, which tragically exist to a high degree
in
Indian country. A recent National Institute of Justice survey
revealed
that one in three Native women reports being raped
in
her lifetime. That is one in three. American Indian females were
victimized
by an intimate partner at rates higher than any other
group.
That is 23 per 1,000 American Indian females as compared
to
11 per 1,000 African American females, 8 per 1,000 white females,
and
2 per 1,000 Asian American females—a substantial difference.
Now,
I want to turn to Indian country law enforcement. As you
know,
tribal governments have limited law enforcement resources
for
addressing the high rates of crime in many reservation communities.
Law
enforcement in Indian country is generally either provided
by
local, tribal law enforcement, or BIA. The typical department
serves
an area the size of the State of Delaware, but with a
population
of only 10,000. It is often patrolled by no more than
three
police officers at one time, and sometimes as few as one officer.
13
In
1997, the Department reported that Indian country was
served
by only one-half as many police officers per capita as similarly
situated
rural communities. This provided the needed impetus
for
a significant increase in Department of Justice and BIA funding
for
tribal law enforcement. Since 1999, the Tribal Resources Grant
Program
within the Community Oriented Policing Services, COPS,
program
has provided targeted resources for tribal departments to
hire
officers or acquire critical equipment. Last summer, the Attorney
General
and the COPS office announced grants totaling $33.7
million
which were awarded to 105 police departments in 23
States.
The
efforts of the Department of Justice and tribal police departments
are
beginning to show results. Between 1998 and 2001, the
number
of inmates in custody at tribal facilities grew by 29 percent.
The
increase in tribal jail population would appear to be
closely
related to the law enforcement resources made available to
tribes
through the COPS program.
Finally,
I know the committee is interested in the impact of the
Supreme
Court decision in Nevada
v. Hicks
on
Indian country law
enforcement.
As with any single decision which moves the state of
the
law in a new direction, the Hicks
decision
cannot and does not
cover
every factual scenario that may be encountered by law enforcement.
Until
there are additional decisions or statutory clarification,
there
will be varying interpretations of the scope of this
decision.
In
the meantime, I am concerned that this ambiguity may become
a
source of tension between State and tribal law enforcement
in
some areas. Briefly, in some parts of the country, we have seen
State
law enforcement officers interpreting this case as a basis to
assert
jurisdiction over Indians who are on reservation lands. In at
least
one case, this has resulted in a confrontation between tribal
and
State law enforcement officers on Indian lands. These types of
situations
have the potential to become highly charged and obviously
should
be avoided. Our office works closely with the Department’s
Community
Relations Service to mediate these conflicts.
Further,
we advocate and assist in the development of cross-deputization
agreements
and other types of cooperative agreements to
foster
better relations between tribal and State law enforcement
communities.
In
short, today’s tribal governments face serious challenges in
the
area of law enforcement. The Department of Justice Office of
Tribal
Justice is working closely with tribal governments to assist
in
addressing high violent crime rates, limited law enforcement resources,
and
the unique challenges of Indian country jurisdiction.
Thank
you for the opportunity to appear today. I would be happy
to
answer any questions you may have.
[Prepared
statement of Mr. Toulou appears in appendix.]
The
CHAIRMAN.
Mr. Toulou, would you describe the present situation
as
a result of the Supreme Court decision as a crisis or an
emergency?
Mr.
TOULOU.
In Nevada
v. Hicks?
I
do not know if at this point
in
time if I would say a crisis occurred. I think the potential for
very
serious ramifications exists.
14
The
CHAIRMAN.
But you would agree that something has to be
done?
Mr.
TOULOU.
I would say that we need some further interpretation
or
we are going to have some bad situations potentially occurring,
yes,
sir.
The
CHAIRMAN.
Mr. U.S. Attorney, the Lummi Nation has advised
us
that the local FBI agents recently informed their tribal
law
enforcement officers that resources that were previously targeted
to
address organized crime on reservations are now being
transferred
to address national security matters. How much of the
FBI’s
resources that were devoted to addressing issues in Indian
country
prior to September 11 are now being reallocated to address
national
security interests?
Mr.
HEFFELFINGER.
Mr. Chairman, members of the committee,
our
committee has met with representatives of the FBI and have
been
assured by individuals as high as Director Mueller himself
that
he is maintaining his commitment to Indian country and that
staffing
levels of agents directed towards violent crime in Indian
country
will remain static. I commend Director Mueller for that
recognition
at a time when his resources are being stretched very
thin.
However,
he also has advised us that there is significant discretion
given
to each special agent in charge to make permanent or
temporary
shifts within that special agent in charge’s office to address
local
concerns. Issues of organized crime in Indian country
may
well, for example, I do not know the Washington situation, but
may
well be considered resources that are different from those that
would
be applied to violent crime. However, just looking at the
numbers
does not adequately address the problem of staffing of
FBI
agents, in particular BIA agents as well, in Indian country.
One
needs to also consider the impact of the nature of the work
and
the frequently remote locations upon those agents. Quite candidly,
members
of the committee, there is a significant risk of burnout
for
those agents. If I could use my own reservation at Red Lake
as
an example, we have in our office determined that Red Lake
represents
approximately 25 percent of the total cases we receive
from
the FBI, and yet that work is done on an annual basis by
three
agents. Those three agents are dealing with murder, sexual
assault,
and some of the most heart-wrenching cases a law enforcement
officer
can face.
In
addition, those agents have to travel five hours each way to
get
to court. We are quite frankly facing a serious problem with
burn-out.
I know in talking with Mr. Ecoffee from BIA that BIA
faces
the same challenges with agent burn-out. So when we consider
staffing,
we need to also consider what the impact of the nature
of
the work is and the need to be able to move those people
around
to protect, frankly, the mental health of those agents and
their
ability to do their job. But I do commend the FBI and I do
commend
BIA for maintaining their commitment to Indian country
in
this time where resources are diverted to other things.
The
CHAIRMAN.
From your response, staffing is inadequate. Has
your
agency made an attempt to increase the funding?
Mr.
HEFFELFINGER.
Frankly, unfortunately, Senator, the funding
issues
are not really within my purview. Our committee has fo-
15
cused
on staffing, which is why we started out first of all to make
sure
we worked with the FBI to ensure that at least current levels
would
remain the same. I do know that the SACs around the country
within
the Bureau, I know that BIA and I know that the director
are
mindful of whether or not increases in staffing and funding
will
be necessary, and they may well be. Increases may be necessary
in
order to ensure that even if we keep the same levels of
agents,
that we are able to move those agents through there so
that
they are effectively being utilized, and so that they can be
kept
on the ground doing investigations instead of driving back and
forth
to court.
The
CHAIRMAN.
You identified four factors that a prosecutor
must
resolve to determine jurisdiction, and that reaching this determination
of
criminal jurisdiction is a complex analysis of sometimes
amorphous
factors. Do those same four factors need to be resolved
by
law enforcement officers before they respond to a call for
assistance?
Mr.
HEFFELFINGER.
Mr. Chairman, members of the committee, in
our
experience an officer will respond to a crime as he or she
should,
to deal with the immediate public safety issue. However, almost
immediately
issues of jurisdiction become relevant. Instead of
doing
a follow-up investigation focus that would focus on issues like
sufficiency
of the evidence or guilt versus innocence, an agent will
find
himself focused on questions of whether or not the suspect is
a
member of the particular band or is an Indian; was the location
of
the crime within the confines of the reservation. These are not
issues
that a local law enforcement officer would face in responding
to
a murder in Minneapolis. So they become a distraction, if not at
the
initial response, prior to the issuance of an indictment or an
information,
and it becomes an incredible distraction and delay factor.
The
CHAIRMAN.
In your experience in Minneapolis, do tribal,
State,
local and Federal law enforcement officers have the requisite
knowledge
and expertise to make these types of determinations?
Mr.
HEFFELFINGER.
Mr. Chairman, members of the committee,
within
the FBI, yes, clearly the Minneapolis field office has the
most
agents of any field office assigned to Indian country, as that
field
office also covers the Dakotas. Minneapolis Police Department
definitely
not—they rarely deal with Indian communities. They
deal
frequently with urban Indian communities, but not with reservations.
The
local police offices that surround Indian country generally
do
not possess that requisite information.
Minnesota
is an unusual jurisdiction. We have 11 tribal communities,
9
of which are under Public Law 280, 2 of which are Federal.
So
in some jurisdictions, the local police simply do not care
because
they do no need to care. In the Federal jurisdiction areas,
the
local law enforcement agencies do not care because it is not
their
responsibility. As we attempt to develop the cooperation necessary
to
deal with increases in crime, we need to have that cooperation.
So
we are teaching local police about jurisdictional
issues
from the ground-floor up. So cooperation is essential at this
time.
It is why the Hicks
case,
for example, is so problematic.
16
The
CHAIRMAN.
Both of you have suggested that there is confusion
that
should be clarified. Do you have any suggestions as to
how
this confusion can be clarified?
Mr.
HEFFELFINGER.
I will go first if you want, Tracy, and then—
Mr.
Chairman, members of the committee, my comments are that
the
confusion needs to be addressed, and I would suggest, and my
committee
is willing to support your committee in any way we can,
that
your committee undertake a comprehensive review of issues of
jurisdiction,
as clarification would be extremely important.
Of
course, we will assist this committee if all you want to do is
look
at the Hicks
case,
but my concern is that just looking at the
Hicks
case
will provide a solution or a fix to one part of the challenge,
and
not to the comprehensive challenge. There are no easy
solutions
to this issue because it requires a balancing of the interests
of
law enforcement, be that State or Federal, and tribal sovereignty,
and
State sovereignty. These are difficult issues. But
what
we need is a review of this issue from a comprehensive perspective,
and
not just an isolated Hicks
fix.
The
CHAIRMAN.
I look forward to working with you and your organization.
Do
you have anything prepared at this moment that
you
can share with us that we can look at?
Mr.
HEFFELFINGER.
We have not, your honor—I’m sorry—it is
my
court background—Mr. Chairman, no, we have only as you
know
been in place for about 9 months now, but we are prepared
to
address this issue. Clearly, jurisdictional issues are one of our
five
priorities.
The
CHAIRMAN.
Mr. Toulou.
Mr.
TOULOU.
As Mr. Heffelfinger said, it is a very complex issue.
We
have looked at it within the Department, but I do not think we
have
reached any agreement as to where things should go. I think
what
is important preliminarily as we hear from tribal leaders and
tribal
law enforcement, and understand their perception and where
they
would like to see to go with this. Obviously, the committee is
in
a better position to do that than the Department. We do look forward
to
any comments we get from tribal leaders. We would be
happy
to help in any way we can and answer any written questions
on
this issue, but we are still in the formulation basis. It is a very
complex
and comprehensive issue, but there needs to be clarification,
without
a doubt.
The
CHAIRMAN.
On the matter that was brought up by the vice
chairman,
as a result of Supreme Court decisions, Indian law enforcement
officials
cannot exercise criminal jurisdiction over non–
Indians.
Now, the Department of Justice wants Indian law enforcement
people
to get involved in anti-terrorist activities, and most of
the
terrorists, I presume, are going to be non-Indians. What can be
done
to have the Indians play an effective role under those rules?
Mr.
HEFFELFINGER.
Mr. Chairman, members of the committee,
this
is an area where joint powers arrangements, cross-deputization
and
general cooperation are the only solution. One has to respect
tribal
sovereignty, at the same time there needs to be collaboration
between
the Border Patrol, the local sheriff’s offices, and
tribal
law enforcement. My expectation is, because I know that the
tribal
leadership nationwide is committed to this problem, as are
members
of the Department of Justice and other agencies, as are
17
the
sheriffs, to the extent that we have impediments to cooperation,
and
that is the fundamental concern as I see it, to the Hicks case—
as
long as we have impediments to that, we will have a difficult
time
achieving effective cooperation.
I
cite my own State as an example. I have a tribe, the Grand
Portage
Band of Ojibwa, which borders the Canadian border. They
are
a Public Law 280. That requires cooperation between the State
and
the tribe. I also have the Red Lake Band of Ojibwa, which borders
on
Canada. That is a Federal reservation. That requires collaboration
between
the Border Patrol and the tribal police.
These
are the kinds of diversity of issues that require that we
cannot—there
is no one single solution, but we have to develop a
pattern
of cooperation across Indian country and across the United
States.
The law must foster that.
The
CHAIRMAN.
I gather from your response you think the impediments
should
be taken away.
Mr.
HEFFELFINGER.
Mr. Chairman, members of the committee, as
the
committee considers solutions to this jurisdictional issue, I am
confident
that the solutions will address some of those impediments.
The
CHAIRMAN.
I have a few more questions, but Mr. Vice Chairman?
Senator
CAMPBELL.
Thank you, Mr. Chairman.
Let
me start, Mr. Heffelfinger, maybe by asking you somewhat
of
a loaded question, because I have a pretty strong opinion on it.
I
live in Colorado, but if I go to California, I cannot vote in California.
I
do not pay taxes in California, but I am still in California
therefore
I am subject to California laws. If I go to a different city,
I
am subject to local ordinances. If I go to a foreign country, same
thing.
If I go to France I am not French, don’t pay taxes, don’t do
anything
there except visit. If I break the law, I am going to be
subject
to French justice.
So
it seems to me it is really out of kilter that we should not expect
the
same kind of framework if non-Indians come onto the reservation.
Tribes
are pretty much semi-autonomous, as States are
and
as local jurisdictions are, and everybody knows you cannot go
to
a different city or a different State and get away with breaking
the
law. Basically what we have is a system in which the word is
out
that people can get off the hook, so to speak, if they are not
Indian
and they do something on Indian land.
Are
there any other jurisdictions that you know in the United
States
where the same kind of logic applies? Most jurisdictions are
based
on geography. They do not care what color you are. You come
in
that jurisdiction and you break the law, that is it. The only one
I
know of is Indian reservations, and that is based on racial background
more
than geographic area. Is there anything other than
that,
like military bases—are they similar?
Mr.
HEFFELFINGER.
Mr. Vice Chairman, Mr. Chairman, off the
top
of my head, no. I cannot think of one. Even on military bases
and
the like, the statutes and the law are quite clear as to where
our
jurisdiction lies, and it is based on a geographic assessment of
the
boundaries and the confines of a military reserve.
Mr.
Vice Chairman, your question sort of underlies, and some of
the
parts of your question, underlies some of the challenges faced
18
in
Indian country, some of the inconsistencies and confusion associated
with
establishing jurisdiction in Indian country. In part the
reason
that I urge the committee to seek a solution to this confusion
is
that the confusion is not doing a service to anybody. It is
not
doing a service clearly to the tribes, as there is violent crime,
and
confusion creates a difficulty in solving that problem. It is also
not
doing any favors to the non-Indians who may wish to visit Indian
country,
as they have the same interest in safety; 10 days ago
I
was in the Navajo Nation as a visitor, and I had the same expectations
of
safety and security as a visitor to that community as did
the
people who live there. So I think the resolution of the confusion
is
in the Nation’s best interest.
Senator
CAMPBELL.
If an Indian person from one reservation is
visiting
another reservation, he can be arrested by the tribal police,
I
guess, for committing a crime. Is that correct?
Mr.
HEFFELFINGER.
That is my understanding.
Senator
CAMPBELL.
Where is the line? For instance, there are
some
Indian people who are not a federally recognized or State recognized
tribe,
or they were terminated in the 1950’s and they have
not
been reinstated, or something of that nature. Therefore, they
do
not have a census number, or they do not have some kind of
identifying
factor. How is that filtered through?
Mr.
HEFFELFINGER.
Mr. Vice Chairman, Mr. Chairman, as I indicated
in
my earlier remarks, one of the issues we have to address
is
whether or not an individual is considered an Indian for purposes
of
jurisdiction. That requires us to assess issues such as
whether
or not the tribe that they are affiliated with is a recognized
tribe.
These are unique issues we do not face in any other
situation.
Senator
CAMPBELL.
Another question—in most jurisdictions, law
enforcement
officers, even when they are off duty, they carry an ID,
carry
a gun, still retain some police authority. How are tribal police
treated?
Are they the same? I remember one reservation years and
years
ago—it has been about 20 years ago, it may have changed
since
then, or 25 years ago—but I was told by one former tribal policeman,
he
quit because he only had law enforcement authority
when
he was on duty. He would arrest someone, another tribal
member,
but when the guy bailed out or got out, he would wait for
him
when he got off duty, wait for the tribal policeman when he
got
off duty, and then assault him when he was off duty.
Mr.
HEFFELFINGER.
Mr. Vice Chairman, Mr. Chairman, boy, you
have
raised a great question. I wish I had a simple answer for you.
Clearly,
if you are a post-certified law enforcement officer under
State
jurisdiction and you are off duty and you come across a
crime,
you have law enforcement authority. A tribal law enforcement
officer
on tribal land probably has the same right in tribal
land,
but I will tell you, I would not have the comfort that that law
tribal
law enforcement officer, if he or she leaves the reservation
and
goes into the neighboring community, non-Indian community,
would
have that same protection. That would be one of the issues
one
would try to address in a joint powers arrangement.
Senator
CAMPBELL.
Yes; speaking of homeland security, we have
touched
on that a couple of times, is there any plan to incorporate
tribes
into the border security and the so-called ‘‘seamless border’’?
19
I
understand in the case of some tribes like the Tohono O’odham,
that
they are undermanned because—you know, I used to be a police
training
officer years ago in a police academy, so I know a little
bit
about it, a little bit about law enforcement, a little bit about
drug
movement. I have always been convinced that drugs move to
the
source of least resistance. If you have an increase of law enforcement,
increase
of surveillance in one area, they are going to
find
another place where there is less surveillance. I mean, it is
commonsense.
There
seems to be a movement now, since we have more increased
surveillance
along our borders, and not so much on Indian
reservations,
that people who would elicit drug trafficking have
moved
more toward coming across Indian reservations where here
is
less surveillance. Do you have any comments about that? I understand
that
it is really taxing some tribes, so they are as a result
unable
to police some of the things they normally would do because
they
are trying to spend more time on the borders.
Mr.
HEFFELFINGER.
Mr. Vice Chairman, Mr. Chairman, I know
that
first of all that experience varies around the country, but I
know
communities like the Tohono O’odham of which you have
cited
are facing that very problem. In connection with the seamless
border
issue, both the subcommittee I chair, but I think even ahead
of
me, because he has gotten an advance lead on this issue, is Mr.
Toulou,
the Department of Justice identified this issue very early
after
the 11th as one that needed addressing. It is one of our committee’s
priorities,
but it is also I know a priority of the larger Department
of
Justice and of the Office of Tribal Justice. Maybe Mr.
Toulou
could address that.
Mr.
TOULOU.
Yes; the Department is mindful of these issues and
we
consider tribes as we formulate policy. We try to make sure in
the
short term as policy is being developed that tribes are included
in
any discussions we have, and as a first matter make sure that
they
are involved in any communications we have between law enforcement
and...
Senator
CAMPBELL.
Well, you are having some discussion with
them,
but what direction are you giving them in regards to somebody
that
they may arrest—potential terrorists, maybe not—who
are
not Indian?
Mr.
TOULOU.
It depends on the law enforcement jurisdiction on
the
given reservation. What we have asked is that the Border Patrol
regional
office communicate with their local tribes and develop
a
protocol for use in that area. I believe that has happened in most
situation.
A number of the tribes do have jurisdiction. In some of
the
areas we have gone in working with the BIA to ensure that the
officers
on duty are cross-deputized under BIA jurisdiction. Of
course,
that is on an office-by-officer basis and it is not a blanket
arrangement.
We try to patch the holes in security as we come
across
them.
Senator
CAMPBELL.
I see.
Mr.
HEFFELFINGER.
Mr. Vice Chairman, may I address that question
as
well?
Senator
CAMPBELL.
Yes; please.
Mr.
HEFFELFINGER.
The U.S. attorneys uniformly have been directed
by
the attorney general to engage in training of local law en-
20
forcement
officers on issues of terrorism. In those of us who have
Indian
country that abuts the border, we have included tribal law
enforcement
in those trainings, and have also included the local
sheriffs
that may have responsibility in the Public Law 280, for example,
areas
in that training. But there still is much work that
needs
to be done, especially where joint powers arrangements or
cross-
deputization between the Border Patrol and tribal police
needs
to be completed.
Senator
CAMPBELL.
Thank you, Mr. Chairman, no further questions.
Thank
you.
Mr.
HEFFELFINGER.
Thank you.
The
CHAIRMAN.
Many State law enforcement agencies have concluded
as
a result of Supreme Court decisions that they no longer
need
to cooperate with tribal authorities when serving search warrants
or
arrest warrants in Indian country regarding crimes that
took
place off-reservation. What States have taken this position?
Mr.
HEFFELFINGER.
I will let Mr. Toulou respond to that as well
in
a moment, but let me give you, from my committee’s perspective,
where
we are seeing more of that. I think to some degree the Hicks
decision
has allowed that issue to become relevant in every State
where
there is some other irritant in the relationship between local
law
enforcement and the tribe. Let me use my State as an example,
then
I will get to the answer to your question more directly.
In
Minnesota there is a longstanding history between local law
enforcement
and tribal law enforcement and as a result we have
longstanding
cross-deputization and that type of thing. However,
we
have one reservation, as an example, where there is a dispute
going
on between the sheriff and the tribal government. The sheriff
has
canceled the joint powers arrangement and refuses to renegotiate.
That
is a symptom of a larger problem. My experience has
been
that the issues that you asked of Mr. Chairman are of greatest
prevalence
in those parts of the country where there is some
other
irritant in the relationship between the tribe and the local
community.
I
do not think it is accidental that it is in California where we
are
seeing a lot of these issues arise. One must recognize that it
is
in California where tribal gaming is gaining a foothold for the
first
time. That does change the fundamental relationship between
tribes
and surrounding communities.
In
areas like Minnesota where tribal gaming has been established
and
is an accepted part of our State structure, these irritants
do
not exist and the relationships between the tribes and the
surrounding
governments has not been significantly affected, other
than
the one experience I mentioned.
The
CHAIRMAN.
So there is no cut and dried answer.
Mr.
HEFFELFINGER.
I do not think there is a cut and dried answer.
I
think one has to look at the underlying relationship between
the
tribes and the State.
Mr.
TOULOU.
I am not aware of any specific States that have
taken
that position. I think it is, as Mr. Heffelfinger said, it is in
individual
communities with individual law enforcement, usually at
the
county level, that we have heard about a conflict. If you look
at
those places that I am aware of, and it is mostly from press ac-
21
counts
that we are aware of these situations, they are places that
have
had problems in the past.
The
CHAIRMAN.
At this hearing, the members of the panels have
cited
the horrendous statistics on spousal abuse and such. Do you
think
Congress should delegate criminal jurisdictional authority
over
non-Indians to tribal governments so that they can address
these
problems?
Mr.
HEFFELFINGER.
Mr. Chairman and members of the committee,
I
think that is clearly an issue that this committee must address.
Tribal
governments have become much more engaged in the
fabric
of the States in which they are located, and tribal communities
have
done so. This means there is greater prevalent of non-
Indians
or non-tribal members living within tribal communities. It
is
impossible to address from any kind of comprehensive way, and
I
use the area of spousal abuse as an example, the need to stop
that
in order to break the generational cycle of violence. If we are
going
to address in a comprehensive way questions of violence in
Indian
country, we must not be hindered by our inability to prosecute
one
class of individual versus another. I would urge the committee
to
address this issue as part of a comprehensive solution,
and
we look forward to working with you on that.
The
CHAIRMAN.
My final question—as Chairman of this committee
and
as a member of this committee over many years—24, I believe
—I
have been honored by several nations with Indian names
and
honorary citizenship. Nations have the right to bestow citizenship
on
anyone they so desire, and even today certain nations have
blood
quantum requirements. What if a nation decided to make me
a
citizen? Am I looked upon as an Indian under your law?
Mr.
HEFFELFINGER.
Mr. Chairman, clearly if you were to come
under
the scrutiny of the Department of Justice and the issue was
‘‘are
you an Indian,’’ I would have to address that issue. I do not
know
that that is enough—the honorary membership.
The
CHAIRMAN.
No; I am talking about real citizenship.
Mr.
HEFFELFINGER.
I do not know the answer to that question,
Mr.
Chairman. It is an intriguing one.
The
CHAIRMAN.
So I may not have the protection of citizenship.
Mr.
HEFFELFINGER.
I simply do not know, and I would be happy
to
provide an answer to you, Mr. Chairman, in a written submission,
to
the extent that I can.
The
CHAIRMAN.
Certain tribes have suggested that I become a
citizen.
That would be interesting, wouldn’t it? [Laughter.]
Mr.
HEFFELFINGER.
It would be very interesting.
Senator
CAMPBELL.
If I might ask, has that ever happened to
your
knowledge, or been tested in court? It has probably happened.
Mr.
HEFFELFINGER.
Mr. Vice Chairman, Mr. Chairman, I know
there
are many tribes who have bestowed a membership either
honorary
or otherwise on people for a number of reasons. I do not
know
that it has been tested. I am not familiar with the case law,
but
I would be happy to research it, if you would like.
Senator
CAMPBELL.
If you would, yes, I would be interested in
knowing
that, too, because some tribes—well, even some tribes enrolled
by
blood quantum and some by lineal descendence, and so
as
an example in the Cherokees, you could be 1/160th by blood and
still
be enrolled as a member of that tribe as a blue-eyed blond or
22
a
redhead with freckles. It would be an interesting discussion
about
whose jurisdiction that redhead with freckles comes under if
a
law was broken, as a member. I mean, well—whether it is really
based
just on having a census number.
I
know people that were from Osage tribes as an example who
have
inherited head rights that have not—were not born there,
their
parents were not born there—it just came down through head
rights.
They could not even find where the Osage live on the map
because
they live in California, as their fathers and grandfathers
and
so on had. And yet they still have head rights and an enrollment
number.
So if they did stumble across the reservation where
their
ancestors came from, whether they also would be subject to
tribal
law because they have a census number, when they have
never,
and their parents and maybe their grandparents have never
had
any connection with the tribe. There are really huge areas of
gray
in this whole dialog, isn’t there?
Mr.
HEFFELFINGER.
Mr. Vice Chairman, as I believe this committee
is
aware, there is increasing attention being given to enrollment,
for
many, many reasons, including access to gaming dollars
and
the like. Tribes give great, great importance to that issue. I do
believe
that issues of enrollment and how that affects jurisdiction
will
only increase as we aggressively respond to the violent crime
problem.
I
am going to ask Mr. Toulou, who I think can remedy some of
my
ignorance with a better understanding of some of the jurisdiction
issues
and may be able to give some light to your question
about
membership.
Mr.
TOULOU.
I would like to respond more fully after I have had
a
chance to look at it, but I know of situations such, and I am sure
you
are aware, too, of the Seminole free men who are tribal members,
but
a number of those individuals do not have, or at least initially
when
the rolls were put up, were alleged not to have Native
American
blood, but were nonetheless seen as members of the
tribe.
Most situations that I am familiar with dealing with, there
is
some blood quantum involved, and that is usually a requirement
of
membership. We would be happy to look further into the situation.
Senator
CAMPBELL.
Well, I am going to recommend to any tribe
that
gives Senator Inouye full adoption and tribal rights, that he
also
get dispensation with that membership. [Laughter.]
Senator
CAMPBELL.
Thank you.
The
CHAIRMAN.
I thank you very much, sir.
We
do have questions. May we submit them to you?
Mr.
HEFFELFINGER.
Absolutely, Mr. Chairman. Thank you.
The
CHAIRMAN.
Thank you very much.
And
our final witness is the tribal chairman of the Bishop Reservation
of
Bishop, CA, Monty J. Bengochia. Welcome, sir.
Mr.
BENGOCHIA.
Thank you.
The
CHAIRMAN.
Please proceed.
STATEMENT
OF MONTY J. BENGOCHIA, TRIBAL CHAIRMAN,
BISHOP
RESERVATION
Mr.
BENGOCHIA.
Thank you for having me testify. For the record,
I
am a Northern Paiute, also known as the Potonowit Band of Pai-
23
ute-Hoopa,
Paiute-Hoopa-Numa from the Owens Valley, Eastern
Central
California, a small reservation of Penn-Daw on the map,
probably
about a 600-plus voting membership with a 1,600-enrollment,
headcount.
We
got from probably 2 million acres of ancestral homeland, we
have
been cut down to 875 acres through historical genocide and
trauma.
That is probably the primary reason why we are kind of
helpless
in the area of law enforcement, whereas in ancestral times
and
prehistoric times before our European relatives came over into
our
country, we took care of our own law enforcement, because we
were
sober people, honorable people. My ancestors, they worked
hard.
They knew how to work with nature, live with nature. It is
from
atrocities of history that have put us into this situation where
we
have got to be harassed and sometimes beating our women,
touched
by law officers, and not having the ability to make a
change
is kind of very disheartening.
So
I am glad I have got the opportunity to talk about some of
that
historical background that has put my people, my nation in
this
predicament, and hopefully find a solution to remedy this condition,
not
only for my tribe, but us Paiutes, we cover about Arizona,
Northern
Arizona, Utah, Southern Idaho, Southern Oregon,
maybe
one-half the State of Nevada, Eastern California, and we
have
our Mono Nation relatives on the west side of the Sierra Nevada
Mountains.
[Prepared
statement of Mr. Bengochia appears in appendix.]
The
CHAIRMAN.
You are here primarily because of a situation
that
occurred in March of 2000?
Mr.
BENGOCHIA.
Yes, when the Inyo County District Attorney
and
Sheriff came into our casino to obtain employee records that
belonged
to the tribe and proceeded with, I would say at gunpoint,
to
obtain those records and cut into our filing cabinets and took
records
not only of the three employees that they had a search warrant,
but
I think about 80 more that they took. From that result,
we
filed a lawsuit in the Federal Court, and lost at the District
level,
but appealed it and won at the Ninth Appellate.
The
CHAIRMAN.
Before the county sheriff and the county officials
entered
the casino—cut the bolt and everything else—did they
serve
you with their warrant? Did they give you a paper?
Mr.
BENGOCHIA.
No—you mean a warrant to ask to get permission?
The
CHAIRMAN.
To search.
Mr.
BENGOCHIA.
To search? I do not recollect that. I just remember
that
we were to get—I do not remember if it was paperwork,
but
I knew that they wanted to come in, and we told them if we
get
permission from the employees that it would be open. That is
our
policy that we operate on.
The
CHAIRMAN.
Did the county officials damage your casino?
Mr.
BENGOCHIA.
No; not probably other than—I would say no.
The
CHAIRMAN.
Have the county officials taken other actions that
infringed
upon your sovereignty?
Mr.
BENGOCHIA.
Besides the action that they took on that day?
The
CHAIRMAN.
Or any other time?
Mr.
BENGOCHIA.
I guess in the sense that for the purpose of this
hearing
that they have—because of Public Law 280, it has been an
24
invasive
environment as a result of the county and State law preserves
our—you
know, physically present. To me, that is an invasion
of
our sovereignty.
The
CHAIRMAN.
You have indicated in your testimony that members
of
your tribe do not do much drinking, and so you have problems
with
non-Indians who drink and drive and engage in drug
abuse.
Have your members been injured as a result?
Mr.
BENGOCHIA.
Have we been injured from the—you said that
our
testimony is indicative that we do not party?
The
CHAIRMAN.
No, no—you frown upon it.
Mr.
BENGOCHIA.
Have we been injured from that lifestyle, that
drug
abuse—yes, sir.
The
CHAIRMAN.
Do you have any established procedures to handle
complaints
of police misconduct?
Mr.
BENGOCHIA.
No; we did—I would not say it is established.
It
has been adopted through tribal ordinance, but we do—we have
taken
complaints from members who have been, who have waged
a
complaint and we have compiled it, and we did submit that to
the
State Attorney General Bill Lockyer over 1 year ago, maybe
11/2,
and also to the sheriff’s department, to the county sheriff. We
have
not received any kind of response from the county, and we did
understand
that they were to do an internal investigation and
come
up with findings of those allegations, and either deny them
or
discipline the officers or something, but to my knowledge nothing
has
been done.
The
CHAIRMAN.
In your prior communication with the committee,
you
mentioned that there is a very sacred site at Casa Diablo—
some
rock sites—and they have been vandalized. Have you had
Federal
law enforcement agencies investigating this sacred site
vandalism?
Mr.
BENGOCHIA.
I believe that particular tract of land is a reservation
that
was established in 1912 by President Taft and then
revoked
in 1932 by another President, by President Hoover. That
land
is currently under the jurisdiction or control of the Bureau of
Land
Management. I do believe that they have looked into the matter
and
are probably doing what they can with their limited financial
resources
and personnel.
The
CHAIRMAN.
Thank you very much, Chief.
Mr.
Vice Chairman.
Senator
CAMPBELL.
Mr. Chairman, you are from Bishop, is that
right?
Mr.
BENGOCHIA.
Yes; sir.
Senator
CAMPBELL.
When your police get a call—your police department
receives
an emergency call—do they ask the person calling
if
they are Indian or non-Indian?
Mr.
BENGOCHIA.
No, sir; I do not think so. They might——
Senator
CAMPBELL.
They just go ahead and respond?
Mr.
BENGOCHIA.
I would say yes.
Senator
CAMPBELL.
If they did respond and the people they respond
to
are non–Indian, do they then have an agreement with the
local
deputy sheriff through some cross-deputization or something
to
address the caller’s concerns?
Mr.
BENGOCHIA.
No; on racial—no, sir.
25
Senator
CAMPBELL.
What is the nearest town to the reservation
that
is not within the boundaries of the reservation?
Mr.
BENGOCHIA.
Bishop, California is off the reservation. It is not
on
the reservation. We are probably a couple of miles from the
town,
from the main street.
Senator
CAMPBELL.
There are literally thousands of non-Indians
that
visit Indian reservations every year, and a lot of reservations
in
fact have a pretty sizable population of non-Indians. I happen
to
live at Southern Ute, which is a checkerboarded reservation out
of
the original something like 600,000 acres that they got in the
olden
days, there were two times the Federal Government opened
that
reservation to homesteading because the Utes would not comply
with
some of the dictates of the Federal Government. So after
that
was open to homesteading, almost one-half of it was lost to
private
ownership. And so it is checkerboarded. You cannot tell
who
lives where unless you go into tribal headquarters and look at
a
map to see what land is owned by the tribe and what is not
owned
by the tribe. Is your reservation that way, too—
checkerboarded?
Mr.
BENGOCHIA.
No, sir; we are one——
Senator
CAMPBELL.
You are solid—you own the whole thing,
pretty
much, yes?
Do
you happen to know the percent of people that are on the reservation
living
there that are non-tribal members?
Mr.
BENGOCHIA.
I would guess 15 or 20 percent.
Senator
CAMPBELL.
And does the tribe provide any services at all
to
them?
Mr.
BENGOCHIA.
Sanitation services—that is about it.
Senator
CAMPBELL.
I think that I have no further questions, Mr.
Chairman.
Thank you.
The
CHAIRMAN.
Mr. Chairman, I thank you very much for your
assistance
today. I would like to thank all of the witnesses who
participated
in this hearing. We will most certainly study the testimony
and
we hope to come up with something.
With
that, the hearing is adjourned.
[Whereupon,
at 12 noon, the committee was adjourned, to reconvene
at the call of the Chair.]
Link to Testimony and Attachments (PDF File)