CERA note: See section 13 testimony below highlighted in red

STATEMENT OF THOMAS B. HEFFELFINGER

UNITED STATES ATTORNEY FOR THE DISTRICT OF MINNESOTA

BEFORE THE

UNITED STATES SENATE COMMITTEE ON INDIAN AFFAIRS

 The Tribal Government Amendments to

the Homeland Security Act of 2002

July 30, 2003

        
Mr. Chairman, Mr. Vice-Chairman and members of the Committee, my name is Thomas B. Heffelfinger. I am the United States Attorney for the District of Minnesota. I am also the Chairman of the Attorney General Advisory Committee’s Native American Issues Subcommittee. The membership of the Native American Issues Subcommittee (NAIS) consists of U.S. Attorneys from across the United States who have significant amounts of Indian country in their districts. The purpose of this body is to develop policies for consideration and approval by the Attorney General pertaining to the establishment and development of effective law enforcement in Indian country. In May of last year, with the Attorney General’s agreement, the Native American Issues Subcommittee decided that its top priority in Indian country law enforcement would be addressing terrorism. The NAIS feels that it is important that the United States include Indian country when considering how to protect our nation’s borders and critical infrastructure. 

The Department of Homeland Security Provisions

Since September 11, 2001, homeland security has become an area of primary concern for all Americans, including the first Americans who have populated these lands since time immemorial. In October 2002, the National Native American Law Enforcement Association (NNALEA) held a Tribal Lands Homeland Security Summit in Reno, Nevada. I had the privilege of being there to address the Summit and to hear Native American law enforcement officials from throughout the U.S. discuss their thoughts on homeland security in the post 9-11 world. To memorialize the findings and recommendations that resulted from that historic meeting, the NNALEA published a comprehensive Tribal Lands Homeland Security Report. According to this report there are a number of tribes that have land on or near our international borders and shorelines with either Canada or Mexico; these lands comprise a significant amount of our nation’s border[1]. In addition, there are countless potential terrorist targets within Indian country that represent part of our nation’s critical infrastructure. Such critical infrastructure in Indian country includes: dams, oil & gas fields, oil & gas pipelines, railroads, interstate highways, communication facilities, tourist attractions, mines, hydroelectric power generation and power transmission facilities.[2] Due to international borders and critical infrastructure present in Indian country, it is imperative to our national homeland security strategy to include tribes in the planning and provision of services relative to homeland security.

The Homeland Security Act of 2002 defines tribes as “local governments” along with cities and counties organized under state law. U.S. Supreme Court precedent treats tribes as separate sovereign governments. Administration policy affords tribes sovereign status, in accordance with this precedent[3]. This unique status has been described by the Supreme Court as “domestic dependent nation” status[4]. Tribal governments use their inherent governing authority to provide for public safety in Indian country. On a wide variety of public safety and criminal issues the federal government consistently works directly with the tribes on a government-to-government basis. On November 12, 2001, President George W. Bush stated, “My administration will continue to work with tribal governments on a sovereign-to-sovereign basis. . .”[5] Working directly with the tribes to assist them in obtaining necessary public safety resources and training and to conduct strategic planning for homeland security concerns is not only consistent with Supreme Court precedent and the direction of all recent Presidents, but also enhances the effectiveness of our homeland security preparations in these unique tribal communities. In January 2002, the Department of Justice coordinated the “U.S. Border Patrol-Native American Border Security Conference.” Attorney General Ashcroft, in addressing the conference attendees, recognized that, “[m]ore than 25 Indian tribes govern lands that are either adjacent to borders or directly accessible by boat from the border. These tribal lands encompass over 260 miles of international borders . . . This conference offers a unique opportunity to marry local, tribal expertise with federal expertise to enhance the security of our nation’s borders.”[6] My understanding is that there are efforts to have another conference regarding these issues within the next few months.

As the Department of Justice continues our efforts to reach out to tribes on these issues, I applaud the general goals of S-578 to maximize opportunities for the federal government to work with tribal governments in carrying out the activities needed to protect our nation’s homeland. Likewise, the Department of Justice looks forward to working with the Committee to address technical issues raised by the bill.

Section 13 - The Oliphant-Fix

Section 13 of S-578 is a legislative overturn of the Supreme Court’s decision in Oliphant v. Suquamish Tribe. Oliphant held that tribal courts do not have criminal jurisdiction over non-Indians. In the view of many, the Oliphant decision has created a gap in Indian country law enforcement and negatively impacts tribes' abilities to respond effectively to terrorist incidents and other crimes which may be committed by non-Indians in Indian country. However, overruling Oliphant in a broad manner could result in complicated legal and practical law enforcement issues such as due process concerns, double jeopardy, and appeal rights. Enacting Section 13, prior to working through these complicated matters, is premature and we do not believe that S-578 provides the best avenue for doing so.

Since 1885, when Congress passed the Major Crimes Act[7], United States Attorneys have had primary responsibility for the prosecution of serious violent crime in Indian country. The Major Crimes Act, coupled with Indian Country Crimes Act[8] (which is also known as the General Crimes Act), gives the United States jurisdiction to prosecute most serious violent offenses which occur in Indian country. Under the Indian Civil Rights Act, tribal courts are limited to misdemeanor punishments.[9] This federal/felony and tribal/misdemeanor dichotomy is important because, generally, state governments have jurisdiction over only those offenses in Indian country in which the victim and the defendant are non-Indian.[10] Law enforcement in Indian country is primarily a federal and tribal function.

In 1978, the United States Supreme Court handed down it’s decision in Oliphant v. Suquamish Tribe.[11] In Oliphant, the Supreme Court held tribal courts could no longer exercise criminal jurisdiction over non-Indians. This decision has had a profound effect on law enforcement in Indian country because it limits the authority of what local tribal law enforcement can do in the event a non-Indian is apprehended for a crime committed in Indian country[12]. While some tribal law enforcement agencies have obtained “cross-commissions” from state, local, or federal authorities to expand their authority to arrest non-Indian criminal suspects under state or federal law, such cooperative arrangements are not made in many jurisdictions[13] due to various factors including local political issues and concerns over liability. As a result, effective law enforcement over non-Indians who commit crimes in Indian country is not consistent from reservation to reservation.

Since September 11th, America as a whole has been more conscious of public safety in our great nation. As I stated earlier, there are international borders and critical infrastructure in Indian country. In an attempt to address mutual issues of security, the U.S. Border Patrol hosted a Native American Border Security Conference at which Attorney General John Ashcroft recognized “local law enforcement agencies play a crucial role in securing our nation's borders, and tribal law enforcement agencies are no exception.”[14] Federal and tribal law enforcement agencies, working together, will continue to play a pivotal role in making our borders safe and secure. Tribal governments have enthusiastically agreed to help ensure the safety of America’s borders to the full extent they are able with current resources and under the current jurisdictional scheme. 

Given the law enforcement constraints imposed by Oliphant v. Suquamish Tribe, the question becomes, “In light of Oliphant, what can Congress to do improve homeland security in Indian country?” Section 13 of S-578 is an attempt to deal with the Oliphant issue head-on. 

In February 2003, the NAIS formed an Oliphant Working Group under the leadership of South Dakota U.S. Attorney James McMahon to review the Oliphant issue and consider options for improving public safety. Some time after March 7th, it was learned The Tribal Government Amendments to the Homeland Security Act of 2002 (S-578) had been introduced and Section 13 of this bill is an Oliphant-fix. In its deliberations, the Oliphant Working Group studied Section 13 extensively. The working group did not develop a position on whether or not they would eventually support an Oliphant-fix proposal; however, the working group did decide Section 13, as currently written, is too broad. [15] The working group identified a number of concerns, including due process issues, that Congress may want to address, which become especially important in the context of tribal jurisdictional expansion such as any Oliphant-fix proposal, including: separation of powers, the provision of indigent defense counsel, jury pools and appellate and habeas corpus relief. 

Separation of Powers. While some tribes have distinct and co-equal legislative, executive, and judicial branches, many tribes do not. Tribal governments take a variety of forms including those organized under the Indian Reorganization Act or the Oklahoma Indian Welfare Act[16], those organized on theocratic governmental concepts,[17] and tribal governments operating without the constraints of a tribal constitution. As a result of this diversity of governmental forms, some tribes in effect do not have independent judicial branches. Lack of an independent judiciary creates opportunities for abuse; at a minimum, the provision of due process, as guaranteed by the Indian Civil Rights Act[18], can vary from tribe to tribe. The question of judicial independence, or a mechanism for ensuring expeditious review in the federal courts, should be considered as part of any proposal to significantly expand tribal court jurisdiction[19].

Indigent Defense Counsel. Under the Indian Civil Rights Act, criminal defendants in tribal court have a right to an attorney - however, this is at their own expense[20]. This is similar to the situation for persons facing minor charges in federal court.[21] However, if a defendant is facing jail time in such a case in federal court, then he is entitled to free assistance of counsel. Under federal law, there is currently no such requirement in tribal court. The need to tie entitlement to free counsel to any expansion of tribal court jurisdiction, as well as the impact on the tribes of such a requirement, should be considered.     

Jury Pools. Criminal defendants in tribal court have a right to a jury trial. However, in some tribal jurisdictions, one must be a tribal member in order to be eligible for jury duty[22]. Other tribes require that jury pools be drawn from a fair cross-section of the community - including non-Indians[23].     

Appellate and Habeas Corpus Relief. Under current law, federal judicial review of tribal court convictions is limited only to habeas corpus review.[24] Any consideration of expanding tribal jurisdiction should include consideration of expanded appellate relief, such as requiring expedited habeas review or allowing a direct appeal to federal court.     

As the working group considered Section 13, specifically, and an Oliphant-fix, generally, it became clear that significantly expanded tribal jurisdiction raised serious issues regarding protections for individual’s due process rights. Consideration must be given to issues such as disparate tribal resources, the impact of mandated legal obligations, and the need for training and for additional experienced tribal law enforcement officers. Neither the working group nor the full NAIS have yet been able to identify an Oliphant-fix that strikes the appropriate balance between the need to expand the various tribes’ role in the homeland security effort and the significant issues and adverse impact caused by such an expansion of jurisdiction.     

Section 13 of S-578 addresses “the authority to enforce and adjudicate violations . . . by any person. . . .” As such, the section expands the jurisdiction of both tribal law enforcement and tribal courts. Furthermore, this expanded jurisdiction shall be “concurrent” with that of the United States. Homeland security concerns are primarily law enforcement concerns, not tribal court concerns. It is the ability of tribal authorities to investigate and arrest suspected terrorists that is at issue, not the ability of tribal courts to prosecute such individuals. (It is highly unlikely that the federal government would defer federal felony prosecution in such cases to tribal court misdemeanor prosecution.) In considering the significant expansion of tribal jurisdiction in Section 13, consideration should be given to whether there are other options that can allow tribal law enforcement to be full partners in providing for a secure homeland while avoiding some of the adverse impact of a significant expansion of tribal jurisdiction. These options include expanded use of “cross-commissions” and of tribal law enforcement’s authority to detain individuals suspected of violating state or federal law.[25] While Section 13 might address some of the limitations in these options, the section also raises other issues not fully addressed in the proposed legislation. Therefore, the expansion of tribal jurisdiction reflected in Section 13 should appropriately be considered a part of a comprehensive review of tribal jurisdiction, such as that suggested by the Department of Justice in July 2002.[26]Conclusion     

The Department of Justice is in a unique position to protect our nation’s homeland security. Homeland Security is an issue of concern for all Americans, Indian and non-Indian. The general goals of the Tribal Government Amendments to the Homeland Security Act of 2002 (S-578) are commendable.  Without offering comment on the specifics of the remainder of the Bill, we note that Section 13, as currently written, is too broad because it would expand tribal criminal jurisdiction over non-Indians without adequately providing for common rights defendants expect in federal or state courts.

[1]National Native American Law Enforcement Association, Tribal Lands Homeland Security Report, (2003) [hereinafter, NNALEA Report], at 6. See also, Attorney General John Ashcroft, Remarks at the U.S. Border Patrol - Native American Border Security Conference (Jan. 17, 2002). Transcript available at: www.usdoj.gov/ag/speeches/2002/011702agpreparedremarks.htm [hereinafter, Attorney General remarks, Jan. 17, 2002.]
[2]NNALEA Report, at 6-7 and 33-34.
[3]Presidential Memorandum, Government-to-Government Relations With Native American Tribal Governments 59 FR 22951 (5-4-1994).
[4]Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831); see also, at 18, (referencing U.S. Constitution Art. I, § 8, clause 3, as creating distinctions among “foreign Nations,” the “several States,” and “the Indian Tribes”).
[5]Presidential Proclamation 7500, 66 FR 57641 (11-15-2001).
[6]Attorney General remarks, Jan. 17, 2002.
[7]Now codified at 18 U.S.C. § 1153.
[8]18 U.S.C. § 1152.
[9]25 U.S.C. § 1302(7).
[10]Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Draper v. United States, 164 U.S. 240 (1896); United States v. McBratney, 104 U.S. 621 (1882).
[11]435 US 191 (1978).
[12]The need to address jurisdictional impediments facing tribal law enforcement has been recognized by both the International Association of Chiefs of Police (see, Improving Safety In Indian Country: Recommendations From the IACP 2001 Summit (2001), at 8-9) and by the National Native American Law Enforcement Association (see, NNALEA Report, at 8 & 19).
[13]NNALEA Report, at 7-8.
[14]Attorney General Ashcroft, remarks, Jan. 17, 2002.
[15]The conclusions of the Oliphant Working Group have not yet been considered by the whole NAIS or the Attorney General’s Advisory Committee, nor have they been considered by the Attorney General.
[16]See, respectively, 25 U.S.C. §§ 461, et seq. and 25 U.S.C. § 503.
[17]Such as many of the Pueblo tribes located in New Mexico.
[18]25 U.S.C. § 1302(8).
[19]Additionally, the Committee might consider providing for review of tribal determinations regarding Indian Civil Rights Act (ICRA) claims in the federal courts of appeal, which would provide both protections for the rights of individuals and uniformity in the interpretation of ICRA claims.
[20]25 U.S.C. § 1302(6).
[21]See, Federal Rule of Criminal Procedure 58(b)(2)(C).
[22]In fact, this appears to one of the points of concern raised by the Supreme Court in the Oliphant case. In that case, the Suquamish Tribe only allowed Suquamish tribal members to serve as jurors. Oliphant, 435 U.S., at 194 and footnote 4. In light of the Court’s concern, any consideration of an Oliphant-fix should include the issue of jury pools.
[23]For example, Navajo Nation law requires that non-Indians be included in jury pools in order to satisfy the concept of providing a jury consisting of a fair cross-section of the community. George v. Navajo Tribe, 2 Navajo Reporter 1 (1979); 7 Navajo Nation Code § 654.
[24]Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); 25 U.S.C. § 1303.
[25]See, Ortiz-Barraza v. United States, 512 F.2d 1176 (9th Cir. 1975).
[26]Statement of United States Attorney Thomas B. Heffelfinger before the United States Senate Committee on Indian Affairs, Hearing on Contemporary Tribal Governments: Challenges in Law Enforcement Related to the Rulings of the United States Supreme Court (July 11, 2002).