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.