S. Hrg. 110–432 

DISCUSSION DRAFT LEGISLATION TO ADDRESS 

LAW AND ORDER IN INDIAN COUNTRY 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JUNE 19, 2008 

Printed for the use of the Committee on Indian Affairs 

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S. HRG. 110–432 

DISCUSSION DRAFT LEGISLATION TO ADDRESS 

LAW AND ORDER IN INDIAN COUNTRY 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JUNE 19, 2008 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

BYRON L. DORGAN, North Dakota, Chairman 

LISA MURKOWSKI, Alaska, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

DANIEL K. AKAKA, Hawaii 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

JOHN MCCAIN, Arizona 

TOM COBURN, M.D., Oklahoma 

JOHN BARRASSO, Wyoming 

PETE V. DOMENICI, New Mexico 

GORDON H. SMITH, Oregon 

RICHARD BURR, North Carolina 

ALLISON C. BINNEY, Majority Staff Director and Chief Counsel 

DAVID A. MULLON JR., Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on June 19, 2008 ............................................................................... 1 

Statement of Senator Akaka ................................................................................... 4 

Statement of Senator Barrasso ............................................................................... 3 

Statement of Senator Burr ..................................................................................... 7 

Statement of Senator Cantwell .............................................................................. 5 

Statement of Senator Dorgan ................................................................................. 1 

Statement of Senator Johnson ................................................................................ 7 

Prepared statement .......................................................................................... 7 

Statement of Senator Murkowski ........................................................................... 6 

Statement of Senator Tester ................................................................................... 4 

Statement of Senator Thune ................................................................................... 8 

WITNESSES

Garcia, Hon. Joe A., President, National Congress of American Indians ........... 17 

Prepared statement .......................................................................................... 19 

His Horse Is Thunder, Hon. Ron, Chairman, Standing Rock Sioux Tribe ......... 11 

Prepared statement .......................................................................................... 13 

Lamar, Walter E., President/CEO, Lamar Associates .......................................... 37 

Prepared statement .......................................................................................... 39 

Ragsdale, W. Patrick, Director, Office of Justice Services, U.S. Department 

of the Interior ....................................................................................................... 42 

Prepared statement .......................................................................................... 44 

Stoner, Kelly Gaines, Director, Native American Legal Resource Center and 

Clinical Programs, Oklahoma City University School of Law ......................... 32 

Prepared statement .......................................................................................... 34 

Shappert, Hon. Gretchen C. F., U.S. Attorney, Western District of North 

Carolina, U.S. Department of Justice ................................................................ 26 

Prepared statement .......................................................................................... 28 

APPENDIX

Coochise, Hon. Elbridge, Independent Court Review Team, prepared statement ...................................................................................................................... 64 

Discussion draft of proposed legislation with cover letter .................................... 81 

Draft Final Report—Master Plan for Justice Services in Indian Country Year 

2007 to 2017 with cover letter ............................................................................ 114 

Jourdain, Jr., Hon. Floyd, Chairman, Red Lake Band of Chippewa Indians, 

prepared statement .............................................................................................. 63 

Richardson Sr., James S., President, Federal Bar Association, prepared statement ...................................................................................................................... 67 

Response to written questions submitted to Hon. Joe A. Garcia by: 

Hon. Byron L. Dorgan ...................................................................................... 78 

Hon. Lisa Murkowski ....................................................................................... 79 

Written questions submitted by Hon. Pete V. Domenici to W. Patrick 

Ragsdale ................................................................................................................ 77 

Written questions submitted by Hon. Byron L. Dorgan to: 

Hon. Ron His Horse Is Thunder ...................................................................... 73 

Walter E. Lamar ............................................................................................... 74 

W. Patrick Ragsdale ......................................................................................... 76 

Hon. Gretchen C. F. Shappert ......................................................................... 75 

Kelly Gaines Stoner ......................................................................................... 74 

Written questions submitted by Hon. Lisa Murkowski to: 

Hon. Ron His Horse Is Thunder ...................................................................... 73 

Walter E. Lamar ............................................................................................... 74 

Page

IV 

Written questions submitted by Hon. Lisa Murkowski to—Continued 

W. Patrick Ragsdale ......................................................................................... 76 

Hon. Gretchen C. F. Shappert ......................................................................... 75 

Kelly Gaines Stoner ......................................................................................... 74 

Written Questions Submitted by Hon. John Thune to W. Patrick Ragsdale 77 

(1) 

DISCUSSION DRAFT LEGISLATION TO 

ADDRESS LAW AND ORDER IN INDIAN 

COUNTRY 

Thursday, June 19, 2008 

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:30 a.m. in room 

562, Dirksen Senate Office Building, Hon. Byron L. Dorgan, Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. BYRON L. DORGAN, 

U.S. SENATOR FROM NORTH DAKOTA 

The CHAIRMAN. Today the Committee is going to be holding a 

hearing to examine a draft bill to address law and order in Indian 

Country. Let me emphasize again this is draft legislation. I have 

put out draft legislation with co-sponsors, because I think it is important for us to be able to review something, evaluate and then 

respond to something that has some certainty to it with respect to 

the provisions we have written. 

I understand there is controversy with many portions of legislation dealing with law enforcement on Indian reservations. We are 

willing to consider adjustments and changes. 

But I do want to say this: I don’t think it is an appropriate response for the Congress to do nothing about a very serious problem. As you know, this Committee this year has passed out an Indian Health Care Improvement Act. That has now passed the full 

Senate. We have passed out a piece of legislation dealing with Indian housing, reauthorization of the Indian housing laws. That has 

now not only passed out of this Committee but through the full 

Senate as well. 

Another area where I believe there is a crisis is in the area of 

law enforcement. Four prior Committee hearings that we have held 

have established longstanding and life-threatening public safety 

crises that exist on some Indian reservations. Just a few of the 

findings include sexual and domestic violence have reached epidemic proportions; victims have to wait in many cases hours and 

weeks for a response to law enforcement calls, because tribal police 

are understaffed; the tribal jails system is a disaster; tribal courts 

are, in some cases, forced to set offenders who are clearly guilty 

free. The lack of consequences has created some notion of lawlessness in many communities. 

2 

There is enough blame to go around, but the United States Government, in my judgment, must take credit for much of this problem. Federal laws and court decisions established a system of justice that forces tribes to rely on the United States to investigate 

and prosecute violent reservation crimes. 

We took a two step approach. First, the U.S. limited what tribes 

can do to fight crime in their own communities. So tribal police 

have limited access to information and limited arrest powers. Tribal courts can sentence offenders to no more than one year in jail. 

So today we have tribal courts who sentence rapists and child molesters to one year in jail. That is not justice. 

Second, the United States said, we will do the job. More than 100 

years ago, Congress established felony jurisdiction in the Department of Justice for crimes on reservations. With this authority, 

however, comes legal and binding obligations, in my judgment, to 

provide for public safety on reservation lands. Regrettably, I don’t 

believe our Federal Government has met that obligation. 

The United States has conflicting law enforcement priorities to 

fight terrorism, protect the homeland and secure the border. Fighting crime in Indian Country does not top the priority list or even 

show up on the priority list in most cases. 

A November 2007 investigation of crime on Indian reservations 

was published in the Denver Post. It quoted a U.S. attorney who 

said the following: ‘‘I know that the performance of my office will 

be compared to other U.S. attorneys around the Country. My gun 

cases have to compete with other U.S. attorneys. My white collar 

crime cases have to compete. One criterion that is never on that 

list is Indian Country cases.’’ That is from a U.S. attorney. 

Now, there is some excellent work being done by some at the 

Justice Department. I don’t want to take away from that work. I 

am not suggesting there isn’t anybody out there who cares. I also 

understand that the Department of Justice has strong feelings 

about some of the provisions in the draft legislation that we are 

holding a hearing on today. 

But I am not confident that our legal obligations to tribal communities are being met. In fact, I am confident of exactly the opposite conclusion: we are not meeting our obligations. This draft bill 

would ensure that Indian Country gets moved up on the priority 

list for this Country. When a community relies completely on a 

Federal agency to investigate and prosecute violent crimes and 

felonies, that reliance cannot go unheeded. 

For the past year, this Committee has worked on this issue and 

in November, I released a concept paper. I asked staff, both Republican and Democratic staff on our Committee, to work together, to 

consult with tribes and other interested parties. One example of 

that was Senator Kyl and I held a hearing in Arizona. The staff 

director on the minority side and the majority side joined me. That 

was simply an example of the kinds of hearings and listening sessions we have held around the Country, bipartisan, cooperative, 

trying to figure out how can we work together to solve this problem. 

The draft bill, which is a product of these consultations and is 

a bipartisan bill, contains these initial steps. It would put tools to 

fight crime in the hands of tribal justice officials, tools they don’t 

3 

now have. It would enhance coordination and consultation between 

Federal and tribal justice officials. And it would provide greater cooperation as well at the local level, between tribes and local communities, which I think is essential. 

The bottom line is, we have to act to change this system to make 

it work for the citizens of Indian Country instead of providing opportunities for criminals and drug cartels to find ways of avoiding 

prosecution. 

So I look forward to the testimony today that we will have from 

a number of witnesses about the draft legislation. I appreciate the 

bipartisan support from my colleagues, who have co-sponsored this 

legislation. And again, while we are waiting for the Vice Chair, I 

want to recognize others for any opening comments. 

STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Thank you very much, Mr. Chairman. I appreciate what you are doing with this hearing today. I think it is 

very timely that we discuss law enforcement in this Committee. 

In Wyoming, we are dealing with a recent tragedy on the Wind 

River Reservation, three young teenage girls were found dead on 

Wednesday, June 4th, just earlier this month. Their deaths shine 

light on the troubled situation for Indian youth in Wyoming. This 

is a tragedy for the Northern Arapaho Tribe, the Wind River community, and for the entire State of Wyoming. It brings into focus 

the desperate need to fight the root causes of law-breaking on Indian reservations. Crime is a cycle that can only be broken with 

consistent effort among our young people on the reservation. 

Mr. Chairman, Federal law enforcement is not meeting the need 

on the Wind River Reservation currently. This reservation covers 

2.2 million acres. Well, that is larger than either the entire State 

of Delaware or of Rhode Island. Yet BIA law enforcement struggles 

to keep more than two or three officers on patrol at any given time. 

So if you can imagine the State of Rhode Island or the State of 

Delaware with only two officers on patrol at any given time, absolutely insufficient. 

I commend the hard work that the officers who are on patrol are 

doing. But the desperately need more help. There is a problem with 

recruitment, a problem with retention. In addition, we need better 

community outreach and youth programs. The officers on the reservation have to tangle with drugs, with illegal weapons and gangs 

on the reservation every day. 

I would just like to reflect, Mr. Chairman, I have practiced medicine for 25 years as an orthopedic surgeon in central Wyoming. 

Early in the practice, I was called to take care of a young man from 

the reservation who was sent to the hospital in Casper. I was taking care of him for a broken bone, but it was a result of trauma 

by some other young men from the reservation on him. 

The thing I will never forget is the smell in the room, because 

one of those criminals taking advantage of this young man chose 

to, with a cigarette, burn his initials into the abdomen of the other 

man. It kind of made a number of dots connecting together to make 

up the letters of his initials, of the criminal, of the person who was 

doing this. It was his initials, not the ones of the injured man. 

4 

It is a smell that will stay with me forever, the smell of burned 

flesh, one person doing this to another, which really to me highlighted and has continued to highlight the major issues that you 

are trying to deal with her. I commend you for your efforts and I 

want to help in every way that I can and work with you, Mr. 

Chairman. So thank you very much. 

The CHAIRMAN. Senator Barrasso, thank you very much. 

Let me call on Senator Tester. 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. Thank you, Mr. Chairman. I too want to echo 

the comments of Senator Barrasso in thanking you for bringing forward this draft legislation. I do think it is very timely. To be honest with you, it should probably have been addressed a while back. 

The Department of Justice, I don’t think, has done what is necessary. 

This isn’t the time to point fingers, it is the time to talk about 

proper staffing, proper infrastructure, proper jurisdiction. And it is 

a time to work together with the Department of Justice. Hopefully 

they understand there is a problem here, and hopefully through 

bills like this one, if we can get it through the process, we can solve 

the problems that revolve around crime in Indian Country. Because 

quite honestly, at this point in time, it is a tragedy. 

There’s barely a week that goes by that there is not a problem. 

I think a lot of it has to do with staffing and consequences, once 

a person is picked up, how they are handled and the ability of the 

courts to handle people and have a place to put them once they are 

found guilty. 

So thank you, Mr. Chairman. I appreciate it. 

STATEMENT OF HON. DANIEL K. AKAKA, 

U.S. SENATOR FROM HAWAII 

The CHAIRMAN. Senator Akaka? 

Senator AKAKA. Thank you very much, Mr. Chairman. I want to 

add my welcome to the tribal leaders as well as the national Indian 

Country leaders who are here in the room today, and to urge you, 

as the Chairman has, to continue to be part of the effort to help 

Indian Country. 

One that is pending, and we urge you to also lobby on the other 

side of the Hill on the Indian Health bill. We really need to pass 

that. Now here, again, I want to commend the leadership of our 

Chairman Dorgan for what he has done in drafting this Indian 

Country bill on law and order, which is really needed. So the Committee intends to hear as much as we can from you and to finally 

make a decision. 

Again, I want to urge this Committee and the leadership of our 

Chairman to move this as quickly as we can. Thank you very 

much, Mr. Chairman. 

The CHAIRMAN. Senator Akaka, thank you very much. 

Senator Cantwell? 

5 

STATEMENT OF HON. MARIA CANTWELL, 

U.S. SENATOR FROM WASHINGTON 

Senator CANTWELL. Thank you, Mr. Chairman, and thank you 

for having this hearing today on draft legislation on law enforcement in Indian Country, and also for scheduling an executive session on several pieces of legislation. 

While we are still waiting for the Vice Chairman, if I could, I 

would like to address one of those pieces of legislation on the executive session, and that is Senate Bill 2494. I thank you for putting 

that consideration of the Spokane Tribe of Indians, the Spokane 

Reservation Grand Coulee Dam Equitable Compensation Act on 

the executive session schedule. For more than half a century, the 

Columbia Basin Project has had an extraordinary contribution to 

our Nation. 

It really has helped pull the economy of Washington State and 

the Country out of our Great Depression. It provided electricity 

that provided aluminum for airplanes, for weapons of our national 

security. The project continues to provide enormous revenues for 

the United States. It was a key component of agriculture in our 

eastern Washington economy, and provides electricity to towns and 

cities all across the Northwest. 

However, these benefits did come at a direct cost to tribal property that became inundated when the U.S. Government built the 

Grand Coulee Dam. Before dam construction, the free-flowing Columbia River supported very robust and plentiful salmon runs and 

provided virtually all the subsistence needs of the Spokane Tribe. 

After the construction, the Columbia and the Spokane River tributaries flooded the tribal communities, schools and roads. To this 

day, the effects of the flooding are still being felt by the Spokane 

Tribe. 

This legislation we are considering today is similar to legislation 

we have approved from this Committee in the 108th and 109th 

Congress. Similar legislation has passed both the House and the 

Senate at various points in time. Some changes have been made to 

satisfy stakeholders who have expressed concerns. But the Spokane 

Tribe has spent the last year making sure that we could move forward on the settlement agreement. I want to thank the Chair and 

the Tribe for working so closely on this. 

The United States does have a trust responsibility to maintain 

and protect the integrity of all tribal lands within its borders. 

When Federal actions physically and economically impact or harm 

tribes, our Nation has a legal and moral responsibility to address 

the compensation and damages. Unfortunately, despite these 

countless efforts, half a century has passed without giving the Spokane the real justice they deserve. 

So I thank you for putting this legislation on executive session 

so we can move forward on this important piece of compensation. 

I thank the Chair. 

The CHAIRMAN. Senator Cantwell, thank you very much. 

I would say to Senator Thune and Senator Johnson, I am going 

to withhold further statements. We were making statements on the 

purpose of the hearing today, but I want to now turn to the business portion of the day and conduct the business portion, then we 

will return to the hearing. 

6 

* The information referred to is printed in the Appendix. 

[Whereupon, the Committee returned to the business meeting.] 

The CHAIRMAN. Let me continue by calling on the other members 

of the Committee, let me clarify again to say that the Bureau of 

Indian Affairs report will be placed in the hearing record, not a 

part of the business meeting. It was my intention that it be part 

of the hearing record on law enforcement, and the entire report will 

be a part of that hearing record as of today. * 

The CHAIRMAN. Let me call on the Vice Chair for an opening 

statement on the law enforcement portion of this hearing today. 

Then I am going to call on Senator Johnson, if he has an opening 

statement. I believe the first witness today will be Senator Thune. 

If Senator Murkowski will withhold for just a moment, let me 

ask the panel to come forward and take seats while we are preparing to complete our opening statements. Chairman Ron His 

Horse Is Thunder, Standing Rock Sioux Tribe; Joe Garcia, President, National Congress of American Indians; the Honorable 

Gretchen Shappert, U.S. Attorney, Western District of North Carolina; Patrick Ragsdale, Director of the Office of Justice Services, 

U.S. Department of the Interior; Professor Kelly Stoner, Director of 

Native American Legal Resource Center and Clinical Programs, 

Oklahoma City University School of Law; and Walt Lamar, President and CEO of Lamar Associates, Washington, D.C. 

Let me thank all of the witnesses. When we complete our statements, we will then proceed. 

Senator Murkowski, thank you. I am sorry for the delay. 

STATEMENT OF HON. LISA MURKOWSKI, 

U.S. SENATOR FROM ALASKA 

Senator MURKOWSKI. Thank you. Mr. Chairman, I truly appreciate your efforts on this very important issue, for holding the hearing this morning on the discussion draft bill, the Tribal Justice Improvements Act of 2008, and a discussion draft that outlines a variety of tools that we may improve Indian justice systems. 

I want to welcome all of the witnesses here this morning. I thank 

you for the time that you are giving to the Committee, not only 

with your appearance this morning but your time in reviewing the 

draft. I know several of you have traveled distances to come here, 

and we appreciate that. 

We have held five hearings during the 110th Congress here in 

this Committee to really shine the light on the issues that impact 

crime and punishment throughout Indian Country. We have attempted in Congress to address many of these issues before, as you 

all know. Back in 1990, Congress passed the Indian Law Enforcement Reform Act to significantly reform the Indian Justice system. 

This Act was intended to clarify law enforcement authority and responsibilities, declination, reporting requirements and to provide 

for a level of Federal accountability. 

But I am disturbed, some 18 years later, that Indian tribal governments are still struggling to maintain law and order in their 

communities. They face spiraling violent crime rates with fewer resources, limited sentencing authority and insufficient detention facilities. In fact, from the information the Committee has received 

7 

in connection with this initiative, it sounds like many of the law 

and order problems that were raised back in 1990 have progressively worsened on many of our reservations. The situation is made 

more difficult by the perception of gangs and other criminal elements that Indian reservations are places of lawlessness or safe havens from criminal justice. 

So Mr. Chairman, I appreciate your efforts in addressing this 

matter and for working closely with the Indian tribal leaders in the 

reform initiative that is the focus of the hearing today. I also appreciate the opportunity to hear from all of the stakeholders in this 

matter throughout the legislative process. 

I look forward to the testimony that we will receive here this 

morning and again appreciate all that you have done to assist the 

Committee. Thank you. 

The CHAIRMAN. Senator Murkowski, thank you. 

Senator Johnson, do you have an opening statement? 

STATEMENT OF HON. TIM JOHNSON, 

U.S. SENATOR FROM SOUTH DAKOTA 

Senator JOHNSON. Thank you, Senator Dorgan, for holding this 

incredibly important hearing. I am glad to see so many South Dakota tribal leaders in the room. 

I welcome John Thune to the hearing and would place my full 

statement in the record. 

The CHAIRMAN. Without objection, so ordered. 

[The prepared statement of Senator Johnson follows:] 

PREPARED STATEMENT OF HON. TIM JOHNSON, U.S. SENATOR FROM SOUTH DAKOTA

Thank you Senator Dorgan for holding this hearing and I am glad to see so many 

South Dakota tribal leaders in the room. Their presence here demonstrates the importance of this issue to the tribes in my state. 

The law enforcement challenges facing Indian Country are overwhelming and 

much of them have to do with inadequate funding. However, there are also considerable challenges facing tribes due to jurisdictional and legal barriers. I think this legislation goes a long way to address those barriers and I intend to join the bill as 

an original cosponsor when it is introduced. 

Additionally, in my role as an appropriator I will continue to push for additional 

resources for tribal law enforcement and crime prevention programs. When given 

the tools to do so, our tribal leaders are both resourceful and creative in protecting 

their own communities. Thank you. 

The CHAIRMAN. Senator Burr, did you have an opening statement? 

STATEMENT OF HON. RICHARD BURR, 

U.S. SENATOR FROM NORTH CAROLINA 

Senator BURR. Mr. Chairman, if I could, very briefly, I want to 

welcome our entire panel, but I want to specifically welcome the 

top Federal prosecutor in the western portion of my State, North 

Carolina, Gretchen Shappert. It is a pleasure to see you, Gretchen, 

more importantly to have you here to discuss your thoughts on this 

important issue and the legislation before us. 

Just so my colleagues are aware, Mr. Chairman, Gretchen is an 

accomplished jurist in North Carolina. She has been a prosecutor 

for 20 years and has been a U.S. attorney for the Western District 

of North Carolina since the year 2004. She is also the Chair of the 

8 

Department of Justice’s Native American Issues Subcommittee. 

She knows the issue very well and recognizes the challenges that 

face tribal communities in my State as well as communities across 

the entire Country. 

To help my colleagues understand her dedication and work ethic, 

Gretchen has as a prosecutor, her staff would tell you that she 

often arrives at the U.S. Attorney’s office in Charlotte, North Carolina at 3:00 a.m. to begin her work day. She also carries a full case 

load, which is rare for a top prosecutor in any given judicial district, and manages the entire office. We are certainly fortunate to 

have Gretchen and the other witnesses here today to educate this 

Committee on the issues and to help us understand the challenges 

that we are faced with as we attempt to resolve these issues. 

Mr. Chairman, I thank you, and I welcome you, Gretchen. 

The CHAIRMAN. Senator Burr, those of us in the north sometimes 

think of southerners as boasting from time to time, particularly 

with respect to Texans. But this 3:00 a.m. start time for work in 

North Carolina, that is pretty unusual. 

[Laughter.] 

The CHAIRMAN. I hope that is a full day. 

Anyway, thank you for introducing the U.S. Attorney from your 

State. We deeply appreciate your doing that. 

Let me begin this morning, Senator Thune is our first witness. 

I am going to ask him to proceed from his perch on the dais at this 

point. 

I should mention, the co-sponsors of the draft bill that we have 

introduced are Senator Johnson, Senator Domenici, Senator Tester, 

Senator Thune, and I believe others are going to be joining us soon. 

So let me thank you, Senator Thune. I will introduce you and then 

we are going to introduce each of the witnesses for statements, following which we will ask questions. 

Senator Thune, you may proceed. 

STATEMENT OF HON. JOHN THUNE, 

U.S. SENATOR FROM SOUTH DAKOTA 

Senator THUNE. Thank you, Mr. Chairman and Senator Murkowski, for allowing me to testify on this important piece of legislation. 

I also want to thank our witnesses for being here today, in particular, Chairman Ron His Horse Is Thunder represents the Standing Rock Sioux Tribe. He has provided extraordinary leadership 

when it comes to improving public safety on his reservation. So 

thank you for being here. 

We also have another of our Chairs here today, Chairman 

Cournoyer of the Yankton Sioux Tribe. It is nice to have you in the 

audience as well. I appreciate very much the leadership that our 

tribal leaders are providing, particularly on this issue. 

Unfortunately for Chairman Ron His Horse Is Thunder’s Tribe, 

which is located in both North and South Dakota, he knows firsthand the struggles that are associated with the lack of public safety. I look forward to hearing his comments on the draft legislation 

that the Committee is discussing today. 

9 

I also want to thank Mr. Ragsdale for being here today and for 

all the work that you have done to support the Standing Rock 

Sioux Tribe with Operation Dakota Peacekeeper. 

And thank you, Mr. Chairman, as well, for moving the legislation 

that was referred to earlier, for both Crow Creek and Lower Brule 

Sioux Tribes, and also Oglalla Sioux Tribe, the two compensation 

bills. 

The bill that is being considered today seeks to bring law and 

order to Indian Country. As most of the individuals in this room 

already know, the absence of basic levels of public safety on many 

of our Nation’s reservations has reached what I think could be considered a crisis point. Just a basic run-down of some of the national 

statistics bear that out. 

Studies show that one in every three Native American women 

will be raped in their lifetime. The Department of Justice has 

found that American Indian women are two and a half times more 

likely to be raped or sexually assaulted than women throughout 

the rest of the Country. The statistics in my home State of South 

Dakota are also unfortunate. We have homicide rates within reservations that are almost ten times higher than those that are 

found in the rest of South Dakota. According to the BIA, the Standing Rock Sioux Tribe has a crime rate that is six times the national 

average, giving it the second highest crime rate of all reservations 

in the Nation. 

Last summer, Mr. Chairman, I had the opportunity to hold a 

tribal roundtable with leaders from all nine of South Dakota’s 

tribes. It was during that meeting it became clear that improving 

public safety is a top priority for all of them. Chairman His Horse 

Is Thunder was very, I believe at that particular meeting, direct in 

the things that needed to be done, one of which was to make sure 

we had more law enforcement presence out there and that there 

was more of an investment here by the Federal Government supporting the BIA and the tribes with their law enforcement efforts. 

Since that time, I have been working with the members of this 

Committee, some of my other Senate colleagues, tribal leaders, 

Federal officials and other stakeholders, to try and find ways to improve public safety on all of our Nation’s reservations. One recent 

example of that is the BIA’s Operation Dakota Peacekeeper, which 

has resulted in a surge of 20 additional officers on the Standing 

Rock Sioux Reservation. These additional officers, along with local 

officials, are reducing the crime that unfortunately exists on some 

parts of the reservation. 

Operation Dakota Peacekeeper proves that in order to fix the 

current crime crisis on our Nation’s reservations, there needs to be 

more police to break the crime cycle. I look forward to continuing 

to work with this Committee, the Appropriations Committee and 

the rest of my Senate colleagues to be able to provide the needed 

officers on a more permanent basis. 

In addition to more officers, there are other changes that need 

to be made. I feel that the draft bill that Senator Dorgan is proposing and which I support seeks to bring about some of these very 

needed, substantive changes. 

I just want to briefly mention specifically, there are a number of 

provisions in this draft bill that I think are going to address the 

10 

crime problem, and I want to speak very briefly to three in particular. Section 103 clarifies and encourages the appointment of 

special assistant U.S. Attorneys to prosecute reservation crimes in 

Federal courts, with the hope that there will be an increase in 

prosecutions, especially targeting lesser offenses. While many areas 

of the Country have tribal liaisons, this section will hopefully formalize the program and allow for more consistency. 

Title III of the bill seeks to empower tribal justice systems in a 

variety of ways. This includes providing greater flexibility in the 

training of law enforcement and corrections officers serving in Indian Country, and by increasing the maximum sentences that tribal courts can give if certain constitutional protections are met. 

Title V seeks to improve both the tracking of crimes committed 

in Indian Country and also the reporting of those crimes. That is 

something that currently, in terms of data, is seriously lacking 

today. 

So I am very interested, Mr. Chairman, in hearing the testimony 

of our witnesses today, learning what provisions in the bill they 

feel are useful, and what changes they think still need to be made. 

I have also solicited similar advice from our tribal leaders, tribal 

officials and other officials in my State of South Dakota. It is my 

hope when all this information has been compiled that this draft 

legislation can be introduced and a solution to the public safety crisis on our Nation’s reservations can be found. 

So again, Mr. Chairman, I want to thank you and I want to 

thank Senator Murkowski for allowing me to be here today. And 

I want to thank Chairman His Horse Is Thunder for his efforts and 

all of our other witnesses for the testimony that you are going to 

provide today. 

Thank you. 

The CHAIRMAN. Senator Thune, thank you very much. 

I signed a letter with my colleague from North Dakota and the 

South Dakota delegation urging the Interior Department to implement the Safe Indian Community Initiative and try to respond to 

the spike in violence at the Standing Rock Reservation. You are 

quite correct about the serious difficulty that exists there. 

I am going to ask each of the witnesses, we have a five-minute 

testimony period, and I know sometimes people think, well, I come 

to Washington and I only get five minutes. Mark Twain was once 

asked to give a speech, and he said, should it be a short speech or 

a long speech, because if it is a long speech, it will take no time 

to prepare, I will just start talking. If it is a short speech, it will 

take a substantial amount of time to prepare well. 

So we are sorry for the time restrictions of five minutes, but in 

order for us to be able to have substantial time for questions, we 

want to get through the witnesses and hear your statements in 

full. 

Let’s start with Chairman Ron His Horse Is Thunder, from the 

Standing Rock Tribe. I am going to ask, if we can, to have the witnesses testify and then have Mr. Ragsdale testify last. I would normally invert that, and you have done that many times, Mr. 

Ragsdale, but I want to hear the other witnesses, then we will hear 

from you, then we will be able to respond to all of the issues that 

are raised. 

11 

Mr. Ragsdale, thank you for being here on behalf of the BIA. 

Chairman Ron His Horse Is Thunder, why don’t you proceed? 

STATEMENT OF HON. RON HIS HORSE IS THUNDER, 

CHAIRMAN, STANDING ROCK SIOUX TRIBE 

Mr. HIS HORSE IS THUNDER. Good morning, Chairman Dorgan. 

Thank you for the opportunity, honorable members of this Committee, I am honored to give some testimony on this draft bill. 

Something has changed in Standing Rock. Not only do we have 

20 more additional law enforcement officers, but something 

changed actually before they got here. Yes, Senator Thune, Standing Rock was number one, we had the highest crime rate of any 

reservation in the Country last year, in January. 

I was told, though, that in January of this year, Standing Rock 

didn’t hold that dubious distinction any longer, that we had 

dropped to number two in terms of the highest crime rate in Indian 

Country. The tribe, unfortunately, who now holds that distinction, 

did in January, is the Blackfeet Tribe in Montana. I say it is not 

because Standing Rock’s crime rate had been reduced any, but 

rather, that Blackfeet Country’s crime rate had spiked itself. 

Standing Rock now, I am told, as of a month ago, had dropped 

from number two on the list to eight or nine on the list. Again, I 

feel sorry for the other tribes who now have surpassed us in terms 

of crime rate, because again, I live on a reservation where that 

crime rate was number one and not that our crime rate has been 

reduced all that much, if any, before this peacekeeping surge, but 

rather again, those tribes’ crime rate has surged for them. 

We do, however, have 20 additional law enforcement officers on 

our reservation right now. And it has made a world of difference 

on our reservation. 

But I really want to comment on important changes that this bill 

makes, that it does do a number of things. It reauthorizes critical 

programs such as Indian Alcohol and Substance Abuse Act, the 

Tribal Jails Program, the Tribal Cops Program and the Tribal 

Youth Program. It does a number of other things which we agree 

with. 

But today I don’t want to focus on the things I agree with, because that is all in my written testimony, but rather on some of 

the things which we think are missing. I am not going to comment 

today on the jurisdiction over non-Indians within reservation in 

terms of an Oliphant fix, because I know that is also in our written 

testimony as well as the NCAI’s written testimony, and I wholeheartedly agree with their written testimony. I want to focus, 

again, on the problems on Standing Rock, problems in terms of 

what is missing from the bill. 

One problem with the bill is the attempt to tackle the lack of 

consistent police presence in South Dakota. Again, we experience 

this first-hand on Standing Rock. Until the BIA sent a law enforcement surge to our reservation two weeks ago, we only had two law 

enforcement officers per shift to patrol a reservation the size of the 

State of Connecticut, 2.3 million acres. 

The bill would impose new consultation requirements and provide important flexibility in officer training. And the flexibility in 

officer training I think is going to make a huge difference in terms 

12 

of recruitment and getting law enforcement officers into the field 

faster. Right now, they all have to go to training in Artesia in New 

Mexico, and it takes quite a lengthy time to get everybody through 

that training facility. The flexibility in officer training is going to 

make a difference, we believe, and so we support that. 

But it does little to address other problems and that is simply, 

how do you get more officers interested in going to Indian Country? 

A problem for us is that we believe officers don’t want to come to 

Standing Rock, that we are one of those rural communities, and if 

you live in the Great Plains, you know what I mean. There is a 

problem with salaries, we think salaries ought to be made more attractive to recruit people. And one of the other problems that we 

have on our reservation is lack of housing. Law enforcement officers are not exempt from that problem. They have at times attempted to live in smaller communities, placing one officer way out 

in a distant community. When he was on patrol, his house got broken into. 

So having more law enforcement officers living side by side in 

our communities will make a difference. We can’t tell them where 

to live, but because we can’t tell them where to live, some of them 

have chosen to live off the reservation, which doesn’t make them 

part of the community. If you are going to have effective law enforcement, they need to be part of our community. People need to 

see them, they need to be thought of as friends. So housing becomes a critical portion we think needs to be addressed in terms 

of attracting law enforcement officers. 

One of the other things we would like to see is the idea of creating a deputy program or apprenticeship program. One way to do 

this would be to allow tribes to designate officers, such as game 

wardens, who would receive additional training and be deputized 

as BIA police officers. Standing Rock offered to do this with our 

game and fish department, and most of our game and fish guys are 

ex-police officers, they have been through the training. 

But the BIA turned us down. They said that there was a problem 

with liability concerns. 

One of the other problems that we see or areas that are lacking 

in the bill is in terms of prosecution. We support many of the 

changes in the bill that are intended to close the gap in prosecution 

with requiring the filing of declination reports and referring cases 

to tribal prosecutors, providing for additional Assistant U.S. Attorneys in Indian Country and making it a Federal offense to violate 

tribal protection orders. 

We ask, though, that you make it mandatory to provide tribal 

prosecutors with the full, the full case file in declined cases for both 

Indian and non-Indian offenders in Indian Country. If U.S. Attorneys decline to prosecute a case, we should be able to take it up, 

the tribal prosecutors should be able to take it up. But we need the 

full case file, not just a report saying, this case was declined. A full 

case report would help our prosecutors. 

We also suggest that tribal prosecutors be designated to enforce 

Federal law, similar to the special law enforcement commissions 

granted to tribal police officers. 

This brings me to a fundamental concern, and that is lack of 

funding. I see your red light on. Are my five minutes already gone? 

13 

The CHAIRMAN. Six and a half minutes, actually. But we are glad 

you are here. Why don’t you summarize at some point, Chairman? 

Mr. HIS HORSE IS THUNDER. There are basically four fundamental pillars of justice in the Indian community, and that is the 

need for more police officers, the court systems need to be shored 

up. If we are going to bring in more offenders into our court systems, we need more dollars for the court systems. 

Detention facilities are an area of utmost concern. I am very glad 

that you made part of the public record the detention facilities report, because it will show that there is a horrendous job in terms 

of detention facilities that this Administration has created across 

Indian Country. So we thank you for making that part of the report. 

The fourth pillar in justice in Indian Country is this: alternative 

treatments for juveniles. You just can’t simply lock them up, otherwise they are going to become more hardened criminals. We need 

to work with IHS, BIA needs to work hand in hand with IHS in 

terms of treatment for juvenile offenders. 

Senator, members of the Committee, thank you for this opportunity to testify before you. 

[The prepared statement of Mr. His Horse Is Thunder follows:] 

PREPARED STATEMENT OF HON. RON HIS HORSE IS THUNDER, CHAIRMAN, STANDING

ROCK SIOUX TRIBE

My name is Ron His Horse Is Thunder. I am the Chairman of the Standing Rock 

Sioux Tribe. I am honored to report on the law enforcement needs of the Tribe and 

to provide the Committee with comments on the draft bill entitled ‘‘the Tribal Justice Improvement Act of 2008.’’ I want to thank this Committee, particularly Senator Dorgan, for your tireless work to secure much-needed resources for Indian 

country, for recognizing the need to reform Indian country law enforcement, and for 

your vision and commitment in creating this draft bill. 

The Standing Rock Sioux Tribe is situated in North and South Dakota. The Reservation comprises 2.3 million acres, of which 1.4 million acres is Tribally owned 

and allotted trust lands. About 10,000 Tribal members and non-members reside on 

the Reservation in eight communities and in smaller towns. The Tribe’s primary industry is cattle ranching and farming. We operate the Standing Rock Farms, two 

Tribal casinos, and a sand and gravel operation which help us supplement services 

and programs for our nearly 14,000 enrolled members. 

It is important to recognize that effective public safety requires improvement and 

investment in all four pillars of the justice system: police, courts, detention and alternative services. All four areas must be addressed at once in order for any single 

improvement to be effective. Today, I will discuss our law enforcement needs and 

how the draft bill might help. I address each area in turn, providing specific comments on the bill. I will focus on specific provisions as well as on what I believe 

is missing from the bill. 

I. Police 

We are a direct service tribe, meaning that law enforcement and detention services are provided directly by the BIA. Until very recently, we had ten BIA police 

officers. This is enough for only two officers per 24-hour shift to patrol a 2.3 million 

acre reservation encompassing four towns, eight separate communities, 2,500 miles 

of roads, and a population of 10,000 residents. A 1997 Justice Department study 

found that Indian country had 1.3 officers for every 1,000 inhabitants, versus 2.9 

officers in non-Indian jurisdictions. With our ten officers, we are 25 percent below 

the average for Indian country and about 66 percent below the average number of 

officers per 1,000 inhabitants in non-Indian jurisdictions. 

As a result of inadequate law enforcement, we have one of the highest reservation 

crime rates. A 2006 ‘‘Gap Analysis’’ commissioned by the BIA to identify and review 

current policing and detention capacity in Indian country found that BIA District 

1, which encompasses an eight-state region including North and South Dakota, had 

108 law enforcement officers (LEOs), but needs over four times that amount (483 

LEOs). In 2007, the BIA estimated that we would need at least 28 officers at StandVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\DOCS\43268.TXT JACK PsN: JACKF
14 

ing Rock to meet minimally safe staffing requirements, yet by spring of this year 

we still had only ten officers, despite our repeated requests to the BIA for more officers and despite Congress’ increased funding to the BIA in FY 2008 to provide more 

officers on high crime reservations. 

Violent crime rates are increasing. In FY 2007, our violent crime rate was 1,138 

per 100,000. We are a rural community, but our crime rate parallels that of a major 

city. Just last month, a young man, a tribal member and the son of the project manager for our juvenile services center, was murdered. Our community was devastated 

by this murder and, even worse, it furthered solidified the impression that the BIA 

would never step up to provide adequate law enforcement services. However, in the 

wake of this young man’s murder, a ‘‘surge’’ of officers arrived at the reservation. 

For two weeks, we have had 20 additional BIA public safety officers providing 24- 

hour enforcement. 

We can already see the results of increased enforcement. Our court dockets are 

full, and our jail so full that we now have arraignments seven days a week. We have 

also seen an increase in referrals to child protective services. While these statistics 

may not seem positive, they mean that some of the problems occurring are being 

addressed, perhaps for the first time in years. Increased police presence on our reservation has, at least in the past two weeks, made an enormous difference in our 

community’s sense of safety. My concern and frustration is knowing that this surge 

is limited in duration. 

When Congress took the Black Hills February 28, 1877, it promised to secure to 

us an orderly government. Ex Parte Crow Dog, 109 U.S. 556, 566, cites Article 8 

of that Act as follows: 

The provisions of the said treaty of 1868, except as herein modified, shall continue in full force, and, with the provisions of this agreement, shall apply to any 

country which may hereafter be occupied by the said Indians as a home; and 

congress shall, by appropriate legislation, secure to them an orderly government; they shall be subject to the laws of the United States, and each individual 

shall be protected in his rights of property, person, and life. 

This provision remains good law and demonstrates the responsibility of the 

United States to make the increased number of law enforcement officers assigned 

to the Standing Rock Reservation permanent positions. 

We support the draft law enforcement bill and we believe the provisions requiring 

increased consultation, data collection, and reporting are important. However, we 

are concerned that these provisions will make little practical difference when it 

comes to the lack of law enforcement officers in Indian country. The BIA and Congress know the statistics regarding the shortfalls in law enforcement and detention 

officers and the required officers and funding that must be provided to redress this 

public safety crisis, and yet we still do not have enough officers. We ask that you 

consider making additional changes to address some of the barriers to recruiting 

and retaining qualified police officers, such as: 

• Raising officer salaries and creating recruitment incentives. 

• Permitting tribes to use NAHASDA money to provide housing for tribal and 

BIA law enforcement officers. 

• Permitting tribes to designate officers who would be eligible to receive additional training and be deputized as BIA police officers. Last year, the Standing 

Rock Sioux Tribe offered to designate Tribal Game Wardens as additional police 

officers in order to address the severe shortage of police officers, but the BIA 

declined our request, citing liability issues. 

• Authorizing an apprenticeship program, in which officers in training could serve 

alongside full police officers before and during their training. 

The draft bill would make important changes, however, to help ensure that existing officers are properly trained and held accountable. In particular, we support: 

• Section 301, which would permit officers to be trained at alternate sites, including state police academies. With our small force, it has been very difficult to 

have officers leave the reservation for six months to train in Artesia. However, 

we ask that this provision be strengthened because we believe the BIA already 

has this authority but chooses to require training in Artesia. We suggest a provision requiring the BIA to authorize specific alternate local training options at 

the Tribe’s request. 

• Section 603, which would require BIA officers to undergo specialized training 

in domestic violence and sexual assault. This training is critical, and without 

it these crimes will continue to go uninvestigated and unprosecuted. 

15 

• Section 301(b), which would make Special Law Enforcement Commissions 

(SLECs) mandatory at a tribe’s request. 

We also ask Congress to recognize the significant law enforcement equipment 

needs in Indian country. We desperately need additional money to pay for new 

equipment, especially police vehicles. Outdated equipment poses a danger to officers 

and to the community. The bill should provide new resources for equipment upgrades. 

II. Prosecution 

Increased arrests are of little use in the long run if the crimes are never investigated or prosecuted. Between 2004 and 2007, United States attorneys declined to 

prosecute 62 percent of reservation criminal cases referred to their offices and there 

has been a 27 percent decrease in Indian country criminal investigations by the FBI 

from 2001–2006, during the period when violent crimes in reservation communities 

are increasing. Last July, National Public Radio reported on the rape of a young 

woman, a 20-year-old tribal member living on the Standing Rock reservation. Her 

alleged attackers were non-Indians. Her rape was never investigated by BIA police, 

the FBI, or the Justice Department. In fact, the IHS hospital did not even have a 

rape kit to preserve evidence correctly. She died a week after the incident, and her 

attackers were never investigated, let alone brought to justice. 

We are especially supportive of the provisions of the draft bill which would increase federal accountability for prosecuting reservation crimes, including: 

• Section 102, which would make declination reports mandatory anytime federal 

officials decline to investigate or prosecute a crime in Indian country and would 

require federal prosecutors to provide details of the case to tribal prosecutors 

so the tribe can pursue the case. We believe it should also be mandatory to provide tribal prosecutors the case files associated with any declined cases, for both 

Indian and non-Indian offenders. 

• Section 103, which would authorize the U.S. Attorney to appoint special prosecutors in Indian country where the crime rate exceeds twice the national average and would require the appointment of Indian country liaisons. 

• Section 601, which would make it a federal crime to violate a tribal protection 

order. 

While these changes will help increase federal accountability for prosecution, Indian country law enforcement will always have to compete with other Department 

of Justice priorities such as border patrol and homeland security. The bill could better ensure consistent enforcement if tribal prosecutors were empowered to bring federal charges in federal courts. Such a program could be similar to the SLEC program for tribal police. 

III. Tribal Court Powers and Resources 

The Tribe strongly supports the provision that would permit tribal courts to impose longer sentences. At Standing Rock, we provide public defender services and 

strive to ensure that due process is provided in all stages of prosecution, and we 

believe expanded sentencing authority is long overdue. The Standing Rock Constitution was changed by referendum on June 11, 2008 to permit sentences of up to one 

year and/or fines of up to $5,000 per violation. 

Expanded sentencing authority for Indian offenders does not go far enough. A significant portion of crimes committed at Standing Rock and on other Reservations 

are committed by non-Indians. This is especially true for drug crimes and for violence against women and sexual assault. The bill proposes to require tribal courts 

to meet certain basic due process requirements in order to impose sentences of more 

than one year on Indian defendants; these same courts should be empowered to sentence non-Indian offenders as well. The Tribe strongly supported the jurisdictional 

pilot project outlined in your 2007 concept paper. This project would have permitted 

certain tribes, after adopting specific due process protections, to exercise criminal 

jurisdiction over non-Indians for domestic violence offenses where the offender was 

in a consensual (married or cohabiting) relationship with an Indian victim. This program would be an important first step toward expanded tribal criminal jurisdiction 

and it would also help stem the rampant violence against Indian women, which has 

been well-documented before this Committee. This is an emergency situation which 

requires a strong response. Standing Rock would be pleased to host such a pilot program. This provision should be restored to the bill. 

Another way to address the problem of non-Indian crime while allaying some of 

the U.S. Supreme Court’s concerns about membership and criminal jurisdiction 

would be to empower tribal courts to exercise delegated federal prosecutorial powVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 S:\DOCS\43268.TXT JACK PsN: JACKF
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ers. Allowing tribal courts to enforce at least federal laws against non-Indian criminals would go far toward closing the significant gap in law enforcement. As it is, 

tribal courts are powerless to respond to criminal activity by non-Indians on reservations, yet the Federal Government consistently fails to perform its duty in this 

respect. Reservation ‘‘lawlessness’’ cannot be addressed without attention to the 

crimes of non-Indians. 

We also support Title III and Title IV of the bill, which would strengthen tribal 

justice systems and provide increased access to federal crime databases. We remain 

concerned, however, that a lack of funding is the root of the difficulties faced by tribal courts. If the changes proposed in the draft bill are not supported by significantly 

increased appropriations for tribal courts, Congress will be setting tribal courts up 

to fail. We need additional personnel in the Tribal Courts to assure timely processing of cases to protect the rights of the victims and the accused in accordance 

with the Standing Rock Bill of Rights set forth in Article XI of the Tribal Constitution, which mirrors the Indian Civil Rights Act. 

We also support the provision that would require the Bureau of Prisons to house 

these felony offenders at the tribe’s option. Given the detention shortages in Indian 

country, this is essential to the success of any expanded sentencing authority. 

IV. Detention 

We support the provisions of the daft bill that would provide additional resources 

for detention construction. However, we are concerned that more needs to be done. 

The need for detention services in Indian country received significant Congressional 

attention in 1997 when President Clinton published his ‘‘Report of the Executive 

Committee for Indian Country Law Enforcement’’ and again in 2004 when the Inspector General under President Bush published ‘‘Neither Safe Nor Secure: An Assessment of Indian Detention Facilities.’’ Each time Congress directed significant 

additional resources to detention but little improved, due to serious problems with 

the BIA’s management of its detention program. One significant problem is that the 

BIA makes unilateral decisions regarding detention policies and how to allocate detention funding without consulting or notifying tribes. Section 101 of the draft bill 

should require that the Bureau consult with tribes on policies and standards, not 

just regulations. 

The Department of Justice has provided several grants in the past decade for 

tribes to construct new detention facilities, some of which have never opened. Standing Rock has one of those facilities. We received a $3.695 million grant to design 

and construct an 18-bed juvenile facility on the reservation. Unfortunately, construction has been stalled for several years because our architects have identified an additional $1.2 million in unmet construction costs. Nearly one-half of our resident 

Tribal members are under the age of 25. There is no effective law enforcement for 

youth offenders at Standing Rock if they are released because there are no facilities 

to house them. We are working to create a place in the community where individual 

and family counseling can reverse destructive behavior. The bill should address how 

existing shortfalls will be handled so that in-progress facilities can be completed 

quickly. 

Another major barrier is the Bureau’s resistance to providing ongoing operations 

and maintenance funding for these facilities once they are completed. We understand that the Department of Justice is seeking assurances that newly-built facilities will have steady operational funding, but the BIA is unwilling to commit to 

funding in advance. We would like to see the bill address this by requiring the BIA 

and the DOJ to coordinate regarding operation of new facilities and requiring BIA 

to operate at least those facilities included in the joint planning process. 

Finally, detention facilities sometimes remain unopened because the Bureau is 

unable to recruit and retain qualified staff. Any improvements in the bill related 

to police officer recruitment, training and retention should also apply to detention 

and corrections staff. Specifically detention staff should also have the option of 

training at alternative local sites. 

V. Other Facility Construction 

While manpower is one piece of the equation, adequate facilities are another important piece. This includes police stations, courtrooms, short and long-term detention facilities, and transitional and treatment facilities. While the draft bill does a 

great deal to increase the resources for construction of detention facilities, we would 

like to see this expanded to include other facilities. For example, we are in the process of conducting a staffing and space needs assessment to assist us in designing 

and building a modern Tribal Justice Center to house Tribal Courts, the BIA police 

department, and an adult detention center. Right now, there is simply no money 

within the BIA or the DOJ for this type of project. Similarly, the DOJ will not conVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 S:\DOCS\43268.TXT JACK PsN: JACKF
17 

struct and the BIA will not operate any alternative facilities, such as treatment centers or drug court programs. Yet these facilities are equally important to Indian 

country justice systems, especially if we are to avoid a cycle of locking up more and 

more of our own people. 

VI. Tribal Eligibility for Justice Grant Programs 

We encourage the Committee to consider adding a provision that would make 

tribes directly eligible for the full range of justice-related grants that are available 

to other governments. Section 302 would make this change for drug enforcement 

grants, and we encourage you to expand this section to include all other justice-related grants. In particular, tribes are not now directly eligible for Byrne Justice Assistance Grants, Byrne Formula Grants, Local Law Enforcement Block Grants, juvenile justice formula grants, and many other targeted grants offered by the Department of Justice. This should be corrected. 

Thank you again for your work on this bill and for inviting me to testify today. 

The Standing Rock Sioux Tribe looks forward to working with Congress to improve 

and pass this legislation. 

The CHAIRMAN. Mr. Chairman, thank you very much for being 

here. We appreciate your testimony. 

Next we will hear from Mr. Joe Garcia, who is the head of the 

National Congress on American Indians and has done a lot of work 

and provided great leadership on these issues. Mr. Garcia, thank 

you for being here. 

STATEMENT OF JOE A. GARCIA, PRESIDENT, NATIONAL 

CONGRESS OF AMERICAN INDIANS 

Mr. GARCIA. Thank you. 

Good morning, everyone. I bring greetings Pueblo Country out in 

New Mexico. 

If I may, Senator, we lost a Cherokee Indian patrolman, highway 

patrolman just last night or yesterday. So I would like to ask people to say in their own prayers, in their own way, prayers for him 

and for his family out in Cherokee Eastern Band. 

Honorable Chairman and members of the Committee, thank you 

for the opportunity to testify today. Almost one year ago, NCAI 

provided testimony that outlined solutions to the public safety crisis in Indian Country. We urged the Committee to write legislation, 

work with the tribes and then pass legislation in this session of 

Congress. 

I want to express my deepest appreciation to Senator Dorgan, 

Vice Chair Murkowski and Senators Kyl, Johnson, Thune, Burr, 

Barrasso, Akaka, Cantwell, and Tester, for taking up this important task. The legislation reflects first-rate work and provides common sense solutions. Indian communities have lived with high 

crime rates for many years. But this reality has finally gained 

broader attention. There is a window of opportunity right now to 

make constructive change. 

I feel a tremendous responsibility to make improvements when 

they are possible. However, this is the time when we must listen 

to tribal leaders and take advantage of the insights they can provide. The draft legislation was circulated only last week, so we will 

need a little bit more time for better response. In particular, we 

have found that the best information often comes from people who 

work in the criminal justice system. 

I am pleased that with the direction of the draft bill, it tackles 

a wide range of issues that have been raised by tribal leaders, including requiring the Department of Justice to track its declinaVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00023 Fmt 6633 Sfmt 6601 S:\DOCS\43268.TXT JACK PsN: JACKF
18 

tions and creating an office of Indian Country crime within the 

criminal division. The Department of Justice has the sole authority 

for investigating and prosecuting violent crimes and other felonies 

committed on Indian reservations. 

Despite these laws, the violent crime rate on Indian reservations 

is two and a half times the national average. Indian women are 

victims of rape and sexual assault at three times the national average. Tribes are faced with an epidemic of drug trafficking. 

For many years, tribal leaders have raised the concern that the 

U.S. Attorneys do not consider Indian Country crimes a priority. 

The recent Denver Post series confirmed these concerns. Between 

1997 and 2006, Federal prosecutors rejected nearly two-thirds of 

the reservation cases brought to them by FBI and Bureau of Indian 

Affairs investigators, more than twice the rejection rate for all 

other Federal crimes. 

We have a revolving cast of characters at DOJ committed to defending the status quo. No one is accountable, and the crime statistics continue to mount. We strongly approve the proposed reforms. 

In particular the declination reports will provide an important tool 

for measuring responsiveness and a specialized prosecuting unit 

will focus expertise and accountability. 

The bill is filled with important provisions. I would like to mention just a few that we particularly appreciate: providing for special 

law enforcement commissions, creating flexibility for training tribal 

police officers, creating incentives for law enforcement cooperation, 

ensuring access to national crime data bases, expanding tribal 

court sentencing authority and creating a juvenile justice program 

to develop alternatives for incarceration. 

I would also like to mention three issues that are not in the legislation. First and foremost, at every meeting, the biggest message 

from tribal leaders is the need for more funding for law enforcement. The Bureau of Indian Affairs has documented a $200 million 

unmet need. We need your help to reach out to the Appropriations 

and Budget Committees. 

In addition, we would like to streamline the funding available 

through the many grant programs at the Department of Justice 

and the Department of Health and Human Services into a single 

funding vehicle. The ad hoc system doesn’t make sense. 

Secondly, we are concerned that the legislation does not include 

a provision for tribal jurisdiction over all domestic violence offenders. Domestic violence rates against Indian women are three times 

the national average. According to DOJ’s statistics, the vast majority of the offenders are non-Indian. Domestic violence cases are 

best handled by local law enforcement. A cycle of domestic violence 

requires intervention at the earliest possible stage, long before it 

escalates to extremely violent assaults. In addition, most families 

will reunite, and there is a much greater emphasis on counseling, 

training and family services. The Federal justice system is not designed to handle domestic violence cases. 

We acknowledge the efforts to seek alternatives. Section 601 of 

the bill is a proposal to create a Federal crime for violating a tribal 

civil protective order. We would ask the Committee to also consider 

the development of a pilot project for domestic violence that would 

create a basis for considering the issue in the future. 

19 

Third, we are concerned that the legislation in its current form 

does not address the unique law enforcement issues in Alaska Native communities. Our primary recommendations are that the Federal Government provide direct funding for rural law enforcement 

in Alaska, strengthen tribal courts and restore local control over alcohol and substance abuse policies. 

In conclusion, I want to thank the Committee for all the work 

that you have done on this legislation. We are strongly in support 

of your efforts and look forward to working with you in the coming 

weeks to prepare the legislation for passage into law. 

Thank you so much for the opportunity. 

[The prepared statement of Mr. Garcia follows:] 

PREPARED STATEMENT OF HON. JOE A. GARCIA, PRESIDENT, NATIONAL CONGRESS OF

AMERICAN INDIANS

Honorable Chairman and members of the Committee, thank you for the opportunity to testify today. Almost one year ago NCAI provided testimony that outlined 

the complex causes and potential solutions to the public safety crisis facing Indian 

communities. We urged the Committee to write legislation, work with the tribes to 

gain their insights and support, and then pass legislation in this session of Congress. We have the draft legislation in hand, and I want to express my deepest appreciation to Chairman Dorgan, Vice Chair Murkowski and Senators Kyl, Johnson, 

Thune and Tester for taking up this important task. The legislation reflects firstrate work and provides common-sense solutions for many problems with the justice 

system in Indian country. 

Indian communities have lived with high crime rates for many years, but this reality has finally gained broader attention. Much of the momentum on this issue was 

sparked by the efforts of the Indian women leaders who have pushed the agenda 

on domestic violence and sexual assault. We have also been aided by countless visits 

by tribal leaders to Washington to raise this issue, federal crime reports that demonstrate the dramatically higher rates of violent crime on Indian reservations, the 

Amnesty International Report ‘‘Maze of Injustice,’’ and many news articles that 

have highlighted the problems—most recently the national series in the Denver Post 

and South Dakota coverage in the Argus Leader. There is a window of opportunity 

right now to make constructive change. I feel a tremendous responsibility as NCAI 

President to push forward on the legislation to make improvements when they are 

possible. 

However, this is the stage in the process where we must listen to tribal leaders 

and other interested parties and take advantage of the insights they can provide. 

The draft legislation was circulated only last week, so we will need time for response. In particular, we have found that the best information often comes from people who work in the criminal justice system—tribal police officers, tribal prosecutors, tribal judges and the like. I would encourage the Committee to make a special 

effort to reach out for their views on how the legislation can be strengthened. 

I am very pleased with the direction of the draft bill. It tackles a wide range of 

issues that have been raised by tribal leaders, including: 

• Requiring the Department of Justice to track its declinations to prosecute Indian cases; 

• Creating an Office of Indian Country Crime within the Criminal Division at 

DOJ; 

• Amending P.L. 280 to permit an Indian tribe to request federal assistance; 

• Creating incentives for state-tribal cooperation; 

• Providing for Special Law Enforcement Commissions; 

• Creating flexibility for training Indian country police officers; 

• Ensuring BIA and tribal police access to the national crime databases; 

• Expanding tribal court sentencing authority; and 

• Creating a Juvenile Justice program to develop alternatives to incarceration. 

There are many excellent provisions in the legislation and NCAI has had a significant opportunity to provide input, so I would like to limit our initial comments to 

raising four issues that are not in the legislation, and then providing additional information on some of the provisions that NCAI has supported. 

20 

1Testimony of Guillermo Rivera before the National Prison Rape Elimination Commission, 

March 26, 2007, available at http://www.nprec.us/proceedingslaustintx.htm. 

Appropriations and Streamlined Funding—First and foremost, at every meeting 

we have held on this topic the biggest message from tribal leaders is the need for 

more funding for law enforcement. The Bureau of Indian Affairs has documented 

a $200 million unmet need to bring reservation policing up to the same levels found 

in other rural communities. According to BIA testimony, tribal detention facilities 

are grossly overcrowded, in deplorable condition, and staffed at only 50 percent. 1

We understand that we need to reach out to the Appropriations and Budget Committees to ensure that adequate funding is provided so that this legislation can be 

effective. In addition, we believe there is a need to streamline the funding available 

through the Department of Justice, Department of Interior, and Department of 

Health and Human Services. Tribal law enforcement funds are divided up between 

the DOI and DOJ. Within the DOJ these funds are further divided into dozens of 

competitive grants for specific purposes. Moreover funding for prevention, rehabilitation, and treatment programs, which are key components of any community’s approach to reducing crime, are located at IHS, SAMHSA, and elsewhere within the 

DHHS. 

This system requires a large grant writing capability and a good bit of creativity 

in order to access the funds. Millions could easily be spent providing the technical 

assistance tribes need just to navigate this overly complex system. Under this ad 

hoc system, tribal law enforcement will receive vehicles, but no maintenance. They 

will get a detention facility, but no staff. They will receive radios, but no central 

dispatch. The system doesn’t make sense. We believe that tribal public safety funding should be streamlined into a single funding vehicle that would be negotiated on 

an annual basis and made more flexible to meet local needs. 

Domestic Violence—Secondly, we are disappointed that the legislation does not include a provision for tribal jurisdiction over all domestic violence offenders. Domestic violence rates against Indian women are three times the national average and, 

according to DOJ statistics, the vast majority of the offenders are non-Indian. As 

we have worked on this legislation, we have attempted to put ideology to the side 

and focus on the necessary solutions to very real law and order problems. We are 

pleased that the legislation contemplates improvement of the federal law enforcement response, but very doubtful that federal prosecutors will aggressively pursue 

domestic violence cases. We know that there are very devoted individuals working 

for the FBI and United States Attorneys, but the federal justice system simply is 

not designed or equipped to handle domestic violence cases. 

Domestic violence cases are best handled by local law enforcement. The cycle of 

domestic violence requires intervention at the earliest possible stage, long before it 

escalates to the very violent assaults that result in federal prosecution. In addition, 

domestic violence offenders require a different response than is found in the federal 

system. Most families will reunite and there is a much greater emphasis on counseling, training, and services related to substance abuse, parenting skills and job 

counseling. None of these services are available in the federal system, which is oriented to punishing very severe offenses. A modest adjustment of existing tribal authority limited only to those who consensually cohabitate with a tribal member on 

tribal land is absolutely necessary to regulate domestic relations within the tribe. 

What is most disappointing is that it appears such legislation cannot be introduced even for purposes of discussion. We understand that the issue is sensitive, 

but we also know that reasonable solutions can be reached if the issues are aired 

for public debate. We acknowledge the efforts to seek alternatives. Section 601 of 

the bill is a proposal to create a federal crime for violating a tribal civil protective 

order. We want to continue to discuss this option, but we are concerned that it relies 

on the willingness of the U.S. Attorneys to prosecute the cases. We would ask the 

Committee to consider the development of a small pilot project for tribal domestic 

violence jurisdiction that would create a firmer basis for considering the issue in the 

future. 

Alaska Native Villages—Third, we are concerned that the legislation in its current 

form does not address the unique law enforcement issues in Alaska Native communities. Alaskan tribal lands are not considered ‘‘Indian country’’ after the Supreme 

Court’s decision in Alaska v. Native Village of Venetie. Tribal communities in Alaska 

experience high rates of domestic violence and sexual assault and significant problems with substance abuse. Most of the native communities are only accessible by 

plane or boat, and are completely dependent on state law enforcement. The Village 

Public Safety Officer program has had its budget slashed by the state, and many 

tribal communities in Alaska are terribly underserved by state police and other 

services. We know that the Committee is aware of these problems and would urge 

21 

2Testimony of John St. Claire, Chief Judge, Shoshone and Arapaho Tribal Court, Wind River 

Indian Reservation, Senate Committee on Indian Affairs, February 27, 2002. 

the Committee to reach out to Alaska tribal leaders to develop ways to improve law 

enforcement in Alaska. Our primary recommendations are that the Federal Government provide direct funding for rural law enforcement in Alaska, to strengthen tribal courts, and that tribal communities in Alaska be given greater control over alcohol and substance abuse policies. 

Misdemeanors and Victimless Crimes Committed by Non-Indians—The general 

lack of tribal or federal jurisdiction for misdemeanors committed by non-Indians creates significant problems for law enforcement. Alcohol and drug related disturbances, traffic violations, domestic violence and gang activity commonly involve both 

Indians and non-Indians. The absence of tribal jurisdiction to deal effectively with 

non-Indians creates a perception that the likelihood of being caught and punished 

is low, and encourages a disregard for tribal law enforcement. This problem is compounded by the status of ‘‘victimless’’ crimes—those committed on the reservation 

by a non-Indian that do not actually involve harm or threat to the person or property of an Indian. Neither the tribe nor the Federal Government has jurisdiction 

over victimless crimes, only the state. As a result, most routine disorderly conduct, 

traffic violations and other moral offenses committed by non-Indians within Indian 

country receive little enforcement attention. These gaps in tribal and federal jurisdiction defeat community-based policing initiatives and create disorder and disregard for law enforcement in Indian country. 2

One solution that has been suggested is to expand tribal and Bureau of Indian 

Affairs authority to cover a broader range of ‘‘non-major’’ crimes as well as misdemeanors and ‘‘victimless’’ crimes committed by non-Indians. This could be done 

in two ways. First, directly authorize tribes to prosecute misdemeanors. Second, the 

Bureau of Indian Affairs could be authorized to develop regulations governing misdemeanors and minor crimes committed by both Indians and non-Indians in a manner similar to the National Park Service. See 16 U.S.C. § 1c and also the current 

regulations governing Indian offenses at 25 C.F.R. Part 11. Legislation and regulations would need to be carefully crafted not to ‘‘federalize’’ misdemeanor crimes that 

are committed to tribal government enforcement. Public Law 638 contracting could 

play a role, as well as an option for express consent to tribal court jurisdiction in 

lieu of federal prosecution. 

Title I—Federal Accountability and Coordination 

Under the Major Crimes Act and other federal laws, the Department of Justice 

has the sole authority for investigation and prosecution of violent crimes and other 

felonies committed on Indian reservations. Despite these laws and the federal trust 

obligation to protect Indian communities, the violent crime rate on Indian reservations is two and a half times the national average, Indian women are victims of rape 

and sexual assault at three times the national average, and tribes are faced with 

an epidemic of drug trafficking. These crime rates have been doubling and tripling 

in Indian country while crime rates have been falling in similarly low-income communities throughout the United States. Something is seriously wrong with the federal law enforcement response. 

For many years, tribal leaders have raised the concern that the U.S. Attorneys 

do not consider Indian country crimes a priority and decline to prosecute an extraordinary percentage of cases. The Denver Post series from November of 2007 confirmed these concerns. 

• Between 1997 and 2006, federal prosecutors rejected nearly two-thirds of the 

reservation cases brought to them by FBI and Bureau of Indian Affairs investigators, more than twice the rejection rate for all federally prosecuted crime. 

• Investigative resources are spread so thin that federal agents are forced to focus 

only on the highest-priority felonies while letting the investigation of some serious crime languish for years. Long delays in investigations without arrest leave 

child sexual assault victims vulnerable and suspects free to commit other 

crimes. 

• Many low-priority felonies never make it to federal prosecutors in the first 

place. Of the nearly 5,900 aggravated assaults reported on reservations in Fiscal Year 2006, only 558 were referred to federal prosecutors, who declined to 

prosecute 320 of them. Of more than 1,000 arson complaints reported last year 

on Indian reservations, 24 were referred to U.S. Attorneys, who declined to 

prosecute 18 of them. 

• Congress has increased the amount of money allocated to the Bureau of Indian 

Affairs for tribal police, but that increase has been largely spent on patrol offiVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 S:\DOCS\43268.TXT JACK PsN: JACKF
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3Mike Riley, ‘‘Principles and Politics Collide: Some U.S. Attorneys who emphasize fighting 

crime on Indian lands have seen themselves fall out of favor in D.C.,’’ DENVER POST, Nov. 14, 

2007. 

cers. Federal investigators and prosecutors have also received sizable boosts in 

their budgets for work in Indian Country, but those increases have failed to 

produce a perceptible rise in the number of investigations or prosecutions from 

reservations. Federal prosecutors and investigators triage scarce resources to 

work on issues that are considered a higher priority. 

• From top to bottom, the Department of Justice’s commitment to crime in Indian 

Country is questionable. Former United States Attorney for the Western District of Michigan Margaret Chiara was quoted saying, ‘‘I’ve had (assistant U.S. 

attorneys) look right at me and say, ‘I did not sign up for this’. . . . They want 

to do big drug cases, white-collar crime and conspiracy.’’ Comments from former 

United States Attorney for Arizona, Paul Charlton indicate that this attitude 

came from the top. Charlton has related a story where a high-level Department 

of Justice official asked him why he was prosecuting a double-murder in Indian 

Country in the first place. 3

Some internal efforts have been made at the Department of Justice to improve 

the focus on Indian country crime, but these efforts have shown little in the way 

of results. Former Attorney General Janet Reno created the Office of Tribal Justice, 

but the status of this office has been diminished in recent years. Former Attorney 

General John Ashcroft supported the district priorities of the U.S. Attorneys, and 

under his leadership the Native American Issues Subcommittee of the Advisory 

Committee to the Attorney General worked to increase prosecutions and address 

problems with violent crime and drug trafficking in Indian country. However, six 

of the members of the Native American Issues Subcommittee were among those who 

were asked to resign in 2006, including both the former Chair and Vice-Chairs 

Thomas Heffelfinger and Margaret Chiara. Monica Goodling, former aide to Attorney General Gonzales, stated in her House Judiciary Committee testimony that 

Thomas Heffelfinger was replaced because he spent ‘‘too much time’’ on the Native 

American Issues Subcommittee. Now we have a new cast of characters at DOJ and 

they seem to be committed to the status quo. According to U.S. Attorney Diane 

Humetewa’s testimony, DOJ does a great job and there are no problems. No one is 

held accountable and the crime statistics continue to mount. 

There is a serious concern that the Department of Justice central office places no 

priority on addressing crime in Indian country, and is subject to no oversight or accountability on its efforts or performance. Indian tribes do not wish to ‘‘federalize’’ 

more crimes and put more Indians in federal prison. However, serious felonies and 

dangerous criminals—whether Indian or non-Indian—are under the sole jurisdiction 

of the Department of Justice and this responsibility must be taken seriously. We 

strongly approve of the proposed reforms at the Department of Justice to ensure 

that Indian country crime is subject to consistent and focused attention. In particular: 

• Section 102 would require the Department to maintain data on declinations of 

referred Indian country cases, and to report annually to Congress. Tribal leaders and Members of Congress have sought this data for decades, but have been 

rebuffed by a Department of Justice that hides behind broad claims of prosecutorial discretion and a steady unwillingness to release any internal data. This 

will provide an important tool for measuring responsiveness to referred cases. 

• Section 104 would create an Office of Indian Country Crime within the Criminal Division of the Department of Justice. We have attached a copy of the organizational chart of the Criminal Division, which has a section and prosecutors 

assigned to every sort of federal crime, except for Indian country crime. We believe this is a reflection of the low priority that Indian Country crime receives 

within the DOJ. Specialized prosecutorial units are very effective in focusing expertise and a response on particular types of crime. We strongly support this 

aspect of the legislation. 

Title II—State Accountability and Coordination 

Although the federal system of justice in Indian country has serious difficulties, 

there is a worse system. Under Public Law 280, state law enforcement has displaced 

federal enforcement and assumed full or partial jurisdiction over crimes committed 

within Indian Country in certain states and on certain reservations. Many tribes 

strongly opposed P.L. 280 because of the law’s failure to recognize tribal sovereignty 

and the lack of consent of the affected tribes. States have focused on the failure of 

23 

4 Carole Goldberg-Ambrose, Planting Tail Feathers: Tribal Survival and Public Law 280 

(UCLA American Indian Law Studies Center, 1997), p. 12. 

the Act to provide federal funding—an unfunded mandate on lands that are not taxable. Even though tribes retain concurrent jurisdiction, the Federal Government has 

viewed P.L. 280 as an excuse to cut off tribal financial and technical assistance for 

law enforcement. The law has contributed to mistrust and hostility between state 

and tribal officials on many reservations. A common tribal perception is that state 

law enforcement refuses or delays when the tribe asks for assistance, but vigorously 

asserts their authority when the tribe does not want them to intervene. Professor 

Carole Goldberg has made a compelling case that the law has worsened the problem 

of lawlessness on reservations: 

Public Law 280 has itself become the source of lawlessness on reservation. Two 

different and distinct varieties of lawlessness are discernible. First, jurisdictional vacuums or gaps have been created, often precipitating the use of selfhelp remedies that border on or erupt into violence. Sometimes these gaps exist 

because no government has authority. Sometimes they arise because the government(s) that may have authority in theory have no institutional support or 

incentive for the exercise of that authority.*** Second, where state law enforcement does intervene, gross abuses of authority are not uncommon. 4

Section 201 proposes a modest reform of P.L. 280. The statute distinguishes between the six ‘‘mandatory’’ P.L. 280 states, and the other states that elected to assert jurisdiction prior to 1968. In the mandatory states, the Federal Government has 

been divested of Indian country jurisdiction. For example, in Minnesota the U.S. Attorney has authority to prosecute major crimes only on the Red Lake Reservation, 

but could not prosecute a major crime on the other reservations within the state. 

This legislation would allow the tribe to request that the U.S. Attorney exercise concurrent jurisdiction over Indian country crimes and major crimes. We support this 

reform because it would increase tribal control and create another means to address 

unmet law enforcement needs. At the same time, we strongly advocate that Congress should amend P.L. 280 to allow tribes to retrocede without state consent. 

Section 202 is also an extremely important part of this legislation. It is widely 

recognized that increased cooperation is vital to improving tribal, state and federal 

law enforcement responsiveness. There is already a significant amount of cooperation between tribes, states, and counties, and there are hundreds of cooperative law 

enforcement agreements. These agreements are grounded in the shared recognition 

that tribes, states and counties can enhance their law enforcement efforts working 

together. Recognition of these benefits is sufficiently widespread that a number of 

states such as Arizona, New Mexico, Nevada, North Carolina and Washington now 

provide for the deputization of tribal officers by statute. See, e.g., Arizona Rev. Stat. 

Ann. § 13–3874 (‘‘While engaged in the conduct of his employment any Indian police 

officer who... meets the qualifications and training standards adopted pursuant 

to section 41–1822 shall possess and exercise all law enforcement powers of peace 

officers in this state). 

Although law enforcement cooperation is common, it is not found everywhere. 

There are still a number of places where cooperation is minimal, and the relationships are sometimes antagonistic. In our experience, these poorer relationships are 

driven by the long histories of disrespect and indifference that have existed for 

many decades in the rural areas around some Indian reservations, and by a lack 

of support for individuals who would choose to forge stronger law enforcement ties. 

The benefits of cooperative agreements are sufficiently strong that the Federal 

Government should encourage and provide incentives for the development of law enforcement cooperation among states, counties and tribes. Section 202 is modeled 

after a successful Wisconsin program that provides specific funding for joint tribalstate law enforcement efforts. Wis. Stat. § 165.90 provides for state grant funds to 

joint county-tribal law enforcement plans. This program has been evaluated as very 

successful in improving reservation law enforcement in Wisconsin. See, David L. 

Lovell, Senior Analyst, Wisconsin Legislative Staff, Wisconsin’s County-Tribal Law 

Enforcement Program, (June 27, 2000). 

NCAI would like to emphasize that cross-deputization agreements are not the 

only forms of cooperation and may not be appropriate in all locations. Another form 

is the mutual aid agreement, where the parties pledge to respond to requests for 

assistance in carrying out their respective law enforcement activities, but have this 

authority only on specific requests. In addition, there are also very important agreements that cover specific issues such as extradition, the execution of search and arrest warrants, and hot pursuit across jurisdictional boundaries. 

24 

In this vein, NCAI also strongly supports Section 302, which would create more 

flexibility in training tribal police officers. Experience has shown that cooperation 

is enhanced when state and tribal police officers have similar training at the same 

facilities. In fact, many of the cooperative agreements require that tribal officers 

train at state police academies. The BIA’s training requirements become a duplicative barrier to recruiting and retaining tribal police officers. Instead, BIA training 

should be designed to supplement locally available police training. 

Title III—Empowering Tribal Justice Systems 

Sections 301 and 302 are extremely important provisions to eliminate barriers to 

law enforcement in Indian country. Special law enforcement commissions have long 

been available to tribal police, but the BIA has withheld the training and granting 

of commissions for bureaucratic reasons. As noted above, Section 302 addresses a 

severe problem that tribes have faced in recruiting and training police officers. The 

BIA trains police on an irregular basis at only one facility in New Mexico. The long 

distances are a barrier to recruitment, and the training is often duplicative of the 

training that tribal officers must receive under state-tribal agreements. The BIA 

should offer the unique ‘‘Indian country’’ components of training as a supplement 

to locally available training that meets National Peace Officer Standards. 

Section 304 is also critically important. Criminal information databases are a fundamental tool of law enforcement. Tribal police are regularly denied access to the 

NCIC, although the Violence Against Women Act of 2005 has specifically authorized 

tribal access. The inability to check for criminal history compromises the safety of 

tribal police officers, and the inability to check for outstanding warrants and to 

enter information about fugitives undermines the entire national law enforcement 

network. 

Section 305 would extend tribal sentencing limitations under the Indian Civil 

Rights Act to provide for appropriate sentences for more serious offenders. In the 

original 1968 law, tribal sentencing authority was limited to 6 months or $500. In 

1986, the authority was expanded to 1 year or $5000. A 2003 report of the Native 

American Advisory Group to the U.S. Sentencing Guidelines Commission points out 

the disparity between tribal sentencing authority and the sentences that are imposed by the Federal Government for crimes committed under the Major Crimes 

Act. Assaults comprise the greatest percentage of crimes prosecuted under the 

Major Crimes Act, and the average federal sentence for Indians prosecuted for assault is three years. Because U.S. Attorneys rarely prosecute any crime in Indian 

country that is not a very significant assault, there is a large gap between the maximum sentencing authority of tribes and the average sentence for the least serious 

crime that is prosecuted by the Federal Government. 

The key to this provision is that it would permit tribes to house prisoners at the 

nearest appropriate federal facility. Most tribes do not have the resources or facilities for longer term incarcerations and need the Federal Government to house violent criminals. We strongly support this aspect of Section 304. Overall, we need to 

have further discussion with tribal leaders before we can completely endorse this 

provision. 

Another aspect of the Indian Civil Rights Act deserves consideration. The Act requires Indian tribes to provide juries to anyone accused of an offense punishable by 

imprisonment. The federal Constitution only recognizes such a right for persons subject to a term of imprisonment for ‘‘serious offenses,’’ which primarily refers to nonpetty offenses, or those offenses which carry a prison term of greater than six 

months. The requirement of a jury trial for petty offenses is an unnecessary burden 

on tribal justice systems. In tribal courts with limited budgets, savvy defendants use 

this provision to gain dismissal of otherwise meritorious prosecutions. 

Title IV—Resources for Tribal Justice Programs 

NCAI has long advocated for increased funding for law enforcement in Indian 

country because of the public safety crisis. Basic law enforcement protection and 

services are severely inadequate for most of Indian country. For example, a recent 

Bureau of Indian Affairs analysis indicates that in BIA Law Enforcement, 1,153 officers are needed but it has only 358. The gap is 795 officers (69 percent unmet need). 

In Tribal Law Enforcement—3,256 officers are needed but tribes have only 2,197. 

The gap is 1,059 officers (33 percent unmet need). Total need is 1,854 law enforcement officers. To put this in perspective, these 2,555 Indian country law enforcement officers make up about 0.004 percent of the total of 675,734 state, city and 

county law enforcement officers in the United States, yet they patrol approximately 

2 percent of the landmass of the United States and 1 percent of the population. 

Increasing law enforcement funding is a top priority. We generally support the efforts to reauthorize the programs in this title, but will need time to review the deVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 S:\DOCS\43268.TXT JACK PsN: JACKF
25 

tails. As mentioned above, there is a need to streamline the funding available 

through the Department of Justice. DOJ law enforcement funds are divided up into 

many competitive grants for specific purposes. Department of Justice funding should 

be streamlined into a single funding vehicle that would be negotiated on an annual 

basis and made more flexible to meet local needs. 

Section 407 is particularly important to support the development of the Juvenile 

Justice programs in Indian Country. There is a growing consensus among both tribal leaders and national justice system analysts that non-violent juvenile offenders 

should rarely be placed in detention. They need to stay in school and get more monitoring and mentorship. Our goal is not to put more Indians in jail and create more 

criminals, but to rehabilitate offenders so they can play a productive role in our 

communities. This will also be much more cost-effective, and the place to start is 

at the juvenile level. Upon our initial review, we may request that this program be 

expanded and created as a specific set-aside for tribal programs. 

Title V—Indian Country Crime Data Collection and Information Sharing 

Crime data is a fundamental tool of law enforcement, but for decades the Bureau 

of Indian Affairs and the Department of Justice have never been able to coordinate 

or accurately report on crime rates and prosecution rates in Indian country, making 

it extremely difficult to review their performance. In addition, it becomes very difficult to discern trends, set enforcement priorities, and formulate budget requests 

without crime data. This title would require all federal law enforcement officers responsible for investigating and enforcing crimes in Indian country to coordinate in 

the development of a uniform system of collecting and reporting data. 

This provision should not allow any wiggle room. Congress should require that the 

Bureau of Indian Affairs and the Department of Justice devise a ‘‘Tribal Category’’ 

and coordinate to produce Indian country crime data and statistics comparable to 

data collected from state law enforcement by the Bureau of Justice Statistics. This 

effort should include state and county crime data from P.L. 280 and similar jurisdictions. 

Title VI—Domestic Violence and Sexual Assault Enforcement and Prevention 

NCAI will withhold comments on this section until we have a further opportunity 

to consult with tribal leaders and the Indian women’s organizations that provide advocacy and services to victims of domestic violence and sexual assault. 

Conclusion 

Law enforcement has been the leading concern of tribal leaders throughout the 

country for at least the last five years that priorities have been measured by the 

BIA Budget Advisory Committee, and probably for much longer. NCAI strongly encourages Congress to take action on all of the fronts that we have identified above. 

Taken together—an improvement in the federal response, an increase in state-tribal 

cooperation, enhancements to tribal authority, and maximizing law enforcement resources—we can dramatically change the environment for criminal activity on Indian reservations. Our goal is to send a new message that the law will be vigorously 

enforced, and thereby create a deterrent to crime on Indian lands. This effort will 

bring great benefits to Indian communities and our neighbors in public safety, but 

also in health, productivity, economic development, and the well-being of our people. 

We thank you in advance, and look forward to working with you to move forward 

on the legislation as quickly as possible. 

26 

The CHAIRMAN. Mr. Garcia, thank you very much. Thank you for 

your leadership, and we appreciate your being here today. 

Next we will hear from Gretchen Shappert, who is the U.S. Attorney and I believe appearing on behalf of the U.S. Justice Department. 

STATEMENT OF HON. GRETCHEN C. F. SHAPPERT, U.S. 

ATTORNEY, WESTERN DISTRICT OF NORTH CAROLINA, U.S. 

DEPARTMENT OF JUSTICE 

Ms. SHAPPERT. I am, thank you. I want to thank you, Mr. Chairman and Madam Vice Chair. I want to also thank the Committee 


619j1.eps
27 

and Senator Burr for his kind remarks. I also wanted to thank 

President Garcia for acknowledging the death of a law enforcement 

officer from the Eastern Band of Cherokee Indians, who was 

gunned down in his service and duty. It reminds all of us of just 

how serious our obligations are to law enforcement. 

So it is a privilege to be with you today. 

I am the U.S. Attorney from the Western District of North Carolina. I am also Chair of the Native American Issues Subcommittee 

of the Department of Justice. I serve on the Attorney General’s advisory Committee in that capacity. 

I have worked hard in my own district and with colleagues 

across the Country to provide effective law enforcement in Indian 

Country. In my district, we have had the opportunity to work with 

the Eastern Band of Cherokee Indians, the largest federally-recognized tribe in the eastern half of the United States, with a membership of over 13,000. We have established a close working relationship in my office with the Eastern Band of Cherokee Indians, 

and together with the FBI, National Park Service, the Bureau of 

Indian Affairs and the Cherokee Indian Police Department, we 

have worked hard in Indian Country to combat particularly violent 

crime. 

My experience as Chair of the Native American Issues Subcommittee has also helped me in my work in my district, and to 

work with my colleagues in our capacity as Federal law enforcement to develop policies in Indian Country. 

In an effort to ensure more effective coordination and communication, especially in the upcoming transition period, the Department’s tribal liaisons, U.S. Attorneys and representatives of the 

Department of Justice met earlier this month in Rapid City, South 

Dakota, with representatives of the nine tribes in South Dakota to 

discuss problems in Indian Country. As you are aware, the tribal 

liaisons, the Assistant U.S. Attorneys who work in Indian Country, 

have the key responsibility to identify and respond to the needs of 

the distinct tribes in their districts. 

In our meeting, we had a chance to engage in a listening session 

and hear from representatives of the tribes in order to improve our 

meeting of our responsibilities in Indian Country. 

While the Department does not comment on proposed legislation, 

I would, however, like to highlight a few areas of concern that we 

have with the proposed draft legislation. The Department is committed to improving Indian Country crime data. However, we oppose the concept of requiring the publication and disclosure of declination reports. While significant Indian Country cases are primarily handled in the Federal courts, caution should be used when 

comparing Indian Country statistics to other Federal statistics. As 

was emphasized by my colleague, United States Attorney Diane 

Humetewa, when she addressed this Committee, declination does 

not necessarily mean that a case will not be prosecuted. Declination may mean that the case is actually reassigned to another jurisdiction or another forum, that there will be additional work-up 

in that prosecution, or that perhaps a crime has not been committed. 

By requiring United States Attorney offices and other investigative agencies to prepare a detailed written report that contains inVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00033 Fmt 6633 Sfmt 6601 S:\DOCS\43268.TXT JACK PsN: JACKF
28 

formation about an investigation that was either declined or terminated, the legislation would create potentially discoverable material outlining weaknesses in a subsequent criminal case. 

The Department also opposes the establishment of an office of Indian crime in the Criminal Division of the Department of Justice. 

While the Department recognizes and appreciates concerns about 

the prosecution of crimes in Indian Country, our concern is that the 

formation of another unit in the Criminal Division will remove critical resources from Indian Country and locate them in Washington, 

D.C., when in fact they are needed to prosecute crimes in Indian 

Country. We are concerned that that will create a significant gap 

in experience in our prosecution of crime in Indian Country. 

We also are concerned about permitting tribal courts to direct offenders into the Bureau of Prisons for serving of their sentences, 

as opposed to in detention facilities run by the BIA. 

For purposes of maintaining family ties and to effect an optimal 

re-entry back into the community after release, the Department of 

Justice believes that the incarceration of tribal court offenders is 

best handled by local jurisdictions and BIA. The Bureau of Prisons 

attempts to designate an inmate to the appropriate security level 

within 500 miles of their home. However, due to over-crowding and 

population pressures, many individuals are located in facilities far 

from where they live. This will reduce their ability to maintain 

close ties with their communities and will limit the number of visits by family and friends when they are housed in a Bureau of Prisons facility. 

Mr. Chairman, Madam Vice Chairman and members of the Committee, while the Department does, as I indicated, not comment on 

legislation, I will be happy at the appropriate time to try to answer 

any of your questions. Thank you very much. 

[The prepared statement of Ms. Shappert follows:] 

PREPARED STATEMENT OF HON. GRETCHEN C. F. SHAPPERT, U.S. ATTORNEY, 

WESTERN DISTRICT OF NORTH CAROLINA, U.S. DEPARTMENT OF JUSTICE

Mr. Chairman, Madame Vice-Chair and members of the Committee: 

My name is Gretchen Shappert. I am the United States Attorney for the Western 

District of North Carolina, and the chair of the Native American Issues Subcommittee of the Attorney General Advisory Council. My fellow U.S. Attorneys and 

the Department of Justice (‘‘the Department’’) as a whole share the Committee’s 

goal of improving law enforcement in Indian Country. We appreciate your highlighting this important issue and I thank you for the opportunity to testify today. 

We look forward to working with the Committee to achieve this goal. 

I have worked hard in my own district and with colleagues across the country to 

provide effective law enforcement in Indian Country. In my district, I have had the 

opportunity to work closely with the Eastern Band of Cherokees, an Indian tribe 

numbering over 13,000. We have established a close working relationship, and I am 

proud of what we have accomplished together. For example, my office has seen a 

number of criminal defendants sentenced in federal court for crimes committed in 

Indian Country, including several serious domestic violence cases. This was the result of the excellent work of federal law enforcement agencies, including the Federal 

Bureau of Investigation (FBI) and the National Park Service, and our partners in 

the Cherokee Indian Police Department. Because of this cooperation, we were able 

to investigate and to successfully prosecute these federal offenses which occurred in 

Indian Country. 

That experience has benefited my service as Chair of the Native American Issues 

Subcommittee (NAIS), the oldest subcommittee of the Attorney General’s Advisory 

Committee (AGAC). The 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 AttorVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 S:\DOCS\43268.TXT JACK PsN: JACKF
29 

ney General pertaining to the establishment and development of effective law enforcement in Indian Country. 

In an effort to ensure more effective coordination and communication, especially 

in the upcoming transition period, the Department’s tribal liaisons and NAIS met 

jointly in Rapid City, South Dakota earlier this month. As the Committee knows, 

tribal liaisons are the Assistant United States Attorneys (‘‘AUSAs’’) who are responsible for coordinating Indian Country relations and prosecutions. The tribal liaisons 

work diligently to identify and respond to the needs of the distinct tribes within 

their districts. Our meeting included a visit to the Pine Ridge reservation where the 

NAIS, tribal liaisons, tribal leaders and law enforcement officers were able to discuss some of the important matters affecting that particular tribe, including the 

need for additional law enforcement resources and the importance of community involvement in solving the difficult social issues that often accompany criminal activity. I also have participated in numerous national and regional tribal conventions, 

training sessions, symposiums and events. At those meetings, I have regularly provided my direct phone number for those who need assistance with an issue affecting 

Indian Country. 

In addition to my own work, let me describe the overall successes of my colleagues 

in the U.S. Attorney community and the Department generally. The Department’s 

dedicated public servants are successfully prosecuting cases in Indian Country. Approximately 25 percent of all violent crimes investigated by U.S. Attorneys nationally occur in Indian Country. In addition, in Fiscal Year (FY) 2006 the Department’s 

efforts in Indian Country have been above average across the board. For example, 

in FY 2006, the Department filed 606 cases against 688 defendants in Indian Country, which is nearly 5 percent higher than the average since 1994 of 580 cases 

against 643 defendants per year. In FY 2006, 82 cases went to trial, 13.8 percent 

more than the average of 72 cases each year since 1994. The conviction rate for Indian Country prosecutions in FY 2006 was 89.4 percent, slightly higher than the 

86.2 percent average since 1994. Eighty percent of those guilty of violent crime in 

Indian Country were sentenced to prison in that year. The number of defendants 

convicted of violent crimes receiving sentences greater than 61 months has also increased from 31 percent on average to 36 percent in FY 2006. 

The FBI also plays a significant role in Indian Country. Even with the heightened 

demands on the FBI from terrorism investigations, Indian Country law enforcement 

remains important to the FBI. The FBI has increased the number of agents working 

Indian Country cases by 7 percent since 2001. 

Most recently, the FBI has initiated a Joint Indian Country Training Initiative 

with the BIA to sponsor and promote training activities pertaining to drug trafficking. In FY 2007, the FBI provided more than 30 training conferences for local, 

tribal, and federal investigators regarding gang assessment, crime scene processing, 

child abuse investigations, forensic interviewing of children, homicide investigations, 

interviewing and interrogation, officer safety and survival, crisis negotiation, and Indian gaming. Furthermore, the FBI’s Office for Victim Assistance dedicates 31 Victim Specialists to Indian country, representing approximately one third of the entire 

FBI Victim Specialist workforce. 

Also, the FBI recently deployed the Law Enforcement National Data Exchange 

initiative (N–DEx) system with participation from tribal governments. N–DEx is a 

criminal justice information sharing system that will provide nationwide 

connectivity to disparate local, state, tribal, and federal systems for the exchange 

of information. The N–DEx system will provide law enforcement agencies with a 

powerful new investigative tool to search, link, analyze and share criminal justice 

information such as, incident/case reports, incarceration data, and parole/probation 

data on a national basis to a degree never before possible. The vision of the Law 

Enforcement N–DEx is to share complete, accurate, timely and useful criminal justice information across jurisdictional boundaries and to provide new investigative 

tools that enhance the Nation’s ability to fight crime and terrorism. The Oneida Nation police department is the first tribal law enforcement agency (LEA) to participate in the N–DEx project. Currently, the Oneida Nation police department contributes data by manually entering incident information in the N–DEx system. The N– 

DEx Program office is developing relationships with other tribal agencies to submit 

data to the N–DEx system. Toward that end, the office has met with various tribal 

LEAs, including Paiute, Mashantucket Pequot, Mohegan, Eastern Band of Cherokee, and Navajo Tribes. The N–DEx Program office is dedicated to creating a relationship with Tribal LEAs to assist in the defense against crime and terrorism. 

My colleagues at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) 

have also been committed to reducing violence in Indian Country. ATF has assisted 

Tribal Governments in combating firearms and gang violence through the Project 

Safe Neighborhoods (PSN) initiative. Through the creation of grassroots partnerVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 S:\DOCS\43268.TXT JACK PsN: JACKF
30 

ships in those tribal communities where gun crime has been identified as a problem, 

ATF vigorously enforces existing firearms laws to prevent the violent criminal misuse of firearms. ATF has entered into Memorandums of Understanding (MOUs) 

with several tribes in order to increase cooperation with local tribal law enforcement 

and address the problem of gun violence in tribal areas. ATF also works closely with 

tribes in providing training and instruction on firearms and gang related issues. 

This training includes information on domestic violence and its impact on firearms 

possession. 

Furthermore, the Drug Enforcement Administration (DEA) actively investigates 

significant Drug Trafficking Organizations (DTO) operating in, and within proximity 

to Indian Country. One of the investigative techniques DEA employs on reservations 

is wire intercepts. A dramatic example of the success resulting from this method occurred on the Wind River Reservation in Wyoming. The Wind River Reservation 

covers an area of over 3,500 square miles, only slightly smaller than the state of 

Connecticut. Wyoming law enforcement did not have the authority to conduct investigations on the reservation and Bureau of Indian Affairs investigators had no jurisdiction beyond the reservation’s boundaries. DEA was able to bridge this gap working with both of these law enforcement organizations, using wire intercepts to investigate methamphetamine trafficking onto the reservation. The investigation uncovered an organization with international ties responsible for trafficking over 100 

pounds of methamphetamine to Indians at Wind River. The case resulted in eight 

indictments and extended to multiple judicial districts. This investigation is just an 

example of the successful cooperation of tribal, state, and federal law enforcement 

to improve safety and security in Indian Country. 

In addition, as part of the effort to strengthen the tribal response to crime in Indian Country, our Office of Justice Programs (OJP) spearheaded Interdepartmental 

Tribal Consultation, Training and Technical Assistance Sessions held in FY 2007 

and FY 2008. OJP’s next session will begin on August 18 in Billings, Montana. Another example is the work of OJP’s National Institute of Justice, which, in response 

to Congressional direction, is developing a program of research on violence against 

American Indian and Alaska Native (AIAN) women. 

Finally, the Deputy Attorney General recently established and convened the Advisory Council on Tribal Justice Issues within the Department to periodically review 

and discuss issues and major actions affecting the Department’s work in Indian 

country. The goal of the Council is to coordinate the actions of the many components 

at the Department involved in the issues and activities impacting Indian country. 

The Council will provide a forum for these components to consider avenues and 

share ideas that would strengthen the Department’s dialogue with tribal governments about law enforcement and policy issues affecting Indian country. 

Now, let me turn to some areas of interest to the Committee. We join the Committee’s efforts to strengthen the important relationship between the United States and 

those living in Indian Country. Federal law enforcement officers share a great responsibility with state and tribal law enforcement officers in responding to crimes 

in Indian Country. The Department shares the Committee’s desire to increase law 

enforcement accountability in Indian Country through improved data collection and 

by leveraging tribal resources. The Department supports the effort to clarify the law 

with respect to tribal Special Assistant U.S. Attorneys. Additionally, we believe that 

it is important to ensure that there is a coordinated Department response to law 

enforcement needs in Indian Country. The Department is also committed to helping 

increase cooperation between tribal, state and local governments through our crossdeputization program and the re-authorization of various grant programs. Finally, 

we also share the Committee’s desire to strengthen the tribal response to crime in 

Indian Country through training, additional resources and improved access to information. 

While the Department does not comment on proposed legislation, I would, however, like to highlight a few general areas of concern for the Department. 

Declination Reports 

The Department is committed to improving Indian Country crime data; however, 

we oppose the concept of requiring the publication and disclosure of declination reports. While significant Indian Country cases are primarily handled in federal 

courts, caution should be used when comparing Indian Country statistics to other 

federal statistics. As was emphasized by my colleague, U.S. Attorney Diane 

Humetewa, previously before this Committee, declination rates do not show the full 

picture of the Department’s actions in a given case. Indeed, ‘‘declination’’ does not 

necessarily mean that the case will not be prosecuted. ‘‘Declination’’ may mean that 

the case will be prosecuted in a different forum, that additional work-up is needed 

or that no crime was committed. By requiring U.S. Attorney’s Offices and other inVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 S:\DOCS\43268.TXT JACK PsN: JACKF
31 

vestigative agencies to prepare a detailed written report that contains information 

about why an investigation was either declined or terminated, the legislation would 

create potentially discoverable material outlining weaknesses in any subsequent 

criminal case. 

Furthermore, there is a significant difference in the type of cases that are often 

found in Indian Country. Indian Country cases often include reactive cases, such as 

assaults, robberies or homicides. In many instances, because of the unique nature 

of Indian Country, victims and witnesses may not be willing or able to come forth 

to testify against a defendant. Also, much time may pass before a victim comes 

forth, making the gathering of evidence more difficult than in a typical case. In contrast to those reactive cases, which often rely on the cooperation of lay witnesses, 

the typical federal case involves a proactive investigation by law enforcement personnel that may take months or years to complete and which will include wiretaps, 

document collection, and extensive grand jury proceedings. The typical federal case 

is therefore far less likely to be declined or fail to meet the very high burdens placed 

on the prosecution in a criminal case. 

Establishment of an Office of Indian Crime in the Criminal Division at the 

Department of Justice 

The Department strongly opposes the concept of establishing an Office of Indian 

Crime in the Criminal Division at the Department of Justice. While the Department 

understands and appreciates the concerns related to the prosecution of crimes in Indian Country, creating an office within the Criminal Division could have the practical effect of inhibiting the Department’s efforts to combat violent crime. Foremost, 

creation of an Indian Crime office in the Criminal Division would take valued criminal justice experts away from the field. Currently, the Department’s most experienced professionals on Indian issues serve in Indian Country, where their expertise 

has the greatest impact. Staffing an office centralized in Washington, D.C. would 

necessarily precipitate transferring many of these experts out of Indian Country, resulting in a significant gap of experience in the field. 

Within the Criminal Division, specific criminal matters are handled by attorneys 

with experience in that subject matter. For example, gaming matters related to Indian Country are handled by our Organized Crime and Racketeering Section 

(OCRS), matters involving child pornography on Indian Country are handled by the 

Child Exploitation and Obscenity Section (CEOS), and matters involving violent 

crime on Indian Country are handed by the Gang Squad (GS). The proposed office 

would risk removing attorneys from their subject matter expertise and have the unintended effect of hampering the Criminal Division’s efforts to support the prosecution of crimes in Indian Country. 

The Office of Tribal Justice and Tribal Liaisons 

The Office of Tribal Justice (OTJ) has been effectively serving Indian Country for 

many years. OTJ was established to provide a single point of contact within the Department of Justice for meeting the broad and complex Department responsibilities 

related to Indian tribes. The Office facilitates coordination between Departmental 

components working on Indian issues, and provides a permanent channel of communication for Indian tribal governments with the Department of Justice. The Department believes that the Attorney General is in the best position to evaluate and adjust the staffing and roles of those offices internally, as needed to maintain the appropriate allocation of resources, so the general proposal to elevate OTJ within the 

Department is unnecessary. 

Along the same lines, the Department strongly opposes the codification of the tribal liaison’s responsibilities. As noted above, the Department fully recognizes the importance of tribal liaisons and currently has 44 tribal liaisons in districts with some 

Indian Country within their jurisdiction. Tribal liaisons have been effectively serving U.S. Attorney’s Offices since that program began in 1995. Each tribal liaison is 

an expert in Indian Country crimes, but each U.S. Attorney’s Office handles varying 

types of crimes and in differing numbers. For example, in districts where white collar crimes such as embezzlement and fraud are more prevalent the tribal liaison 

may focus on the Indian gaming industry. Other districts have more cases and matters dealing with violent crime. This diversity would make the suggested codification of the duties of tribal liaisons difficult and it would greatly reduce the discretion of each U.S. Attorney’s Office to ably serve the Indian community in their district. The Department believes that each individual district is in the best position 

to evaluate the nature and volume of crimes within the district and to appropriately 

allocate resources. It is essential that U.S. Attorneys maintain this discretion in tailoring the role and scope of the tribal liaison program in their districts. 

32 

Expanding Tribal Court Sentencing Authority and BIA Arrest Authority 

The Department strongly opposes the concept of permitting tribal courts to direct 

offenders convicted by tribal courts to serve their sentences in federal prisons. The 

Bureau of Prisons (BOP) is responsible for the incarceration of inmates who have 

been sentenced to imprisonment for federal crimes. Based on continuing federal law 

enforcement efforts and limited resources for construction of new institutions, federal prisons continue to be very crowded. System-wide, BOP is operating at 37 percent above its capacity, and it does not expect crowding to decrease substantially 

in the next few years. Crowding is especially significant at high-security institutions 

(operating at 50 percent above capacity) and medium-security institutions (operating 

at 47 percent above capacity), where the majority of violent offenders are confined. 

For purposes of maintaining family ties and to effect an optimal reentry back into 

the community after release, the Department believes that the incarceration of tribal court offenders is best handled by local jurisdictions and BIA. The BOP attempts 

to designate an inmate to the appropriate security level institution that is within 

500 miles of his or her release residence. Nevertheless, due to the location of BOP 

institutions and population pressures, this is not always possible; and many inmates 

are much further than 500 miles from their homes and families. BOP policy requires that inmates remain at an institution for at least 18 months with clear conduct before consideration of a transfer closer to their release residence. In all likelihood, if transferred to BOP facilities, tribal court offenders with short sentences 

would remain at their designated BOP institution for their entire sentence. Visits 

by family and friends to these tribal offenders would be severely restricted due to 

the great distance between the BOP institution and their home, and these tribal offenders would not be afforded the opportunity to participate in tribal reentry programs currently operating near the reservation out of the tribal jails. 

The proposals to expand tribal court sentencing authority to up to three years of 

imprisonment and to permit BIA law enforcement officers to make arrests for any 

misdemeanor crimes are significant changes in the current legal and law enforcement framework. While recognizing the purpose behind these proposals, as a former 

defense attorney, I am concerned about the impact of these provisions on defendants’ constitutional rights and legal protections. It would be quite unusual, for example, for law enforcement officers to have blanket arrest authority for misdemeanors not committed in the officer’s presence. The Department has had insufficient time to evaluate these proposals, but we will thoroughly and careful examine 

them. 

Conclusion 

Mr. Chairman, Madame Vice Chair, this concludes my statement. While the Department does not comment on proposed legislation, I will be happy to attempt to 

answer any questions you may have. 

The CHAIRMAN. Thank you very much, Ms. Shappert. We appreciate your being here. 

Next we will hear from Kelly Stoner, and Ms. Stoner, thank you 

very much for being with us as well. 

STATEMENT OF KELLY GAINES STONER, DIRECTOR, NATIVE 

AMERICAN LEGAL RESOURCE CENTER AND CLINICAL 

PROGRAMS, OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW 

Ms. STONER. Good morning, Mr. Chairman, Madam Vice Chair 

and members of the Committee. I am Kelly Stoner, and I would 

like to thank the Committee for inviting me to participate in today’s hearing. 

It is an honor to work with you all on this important issue. The 

Committee should be congratulated on their work regarding the 

proposed legislation and for taking the time and making the effort 

to seek meaningful input from tribal nations who, after all, have 

the ultimate interest in this issue. 

As the Director of the Native American Legal Resource Center 

and Clinical Programs at Oklahoma City University School of Law, 

I have gained experience working with tribes in Oklahoma and 

33 

throughout the region on criminal and civil jurisdictional issues in 

Indian Country. Prior to joining the faculty at Oklahoma City University, I served as the tribal prosecutor for the Spirit Lake Nation 

in Fort Totten, North Dakota, for over eight years. In all, I have 

been practicing law in Indian Country for nearly 20 years. I teach 

classes and lecture nationally on these topics. 

Successful implementation of this proposal will depend upon 

three key issues which directly are tied to a showing of respect for 

the sovereign rights of tribal governments. First, a government to 

government approach must be utilized when dealing with Indian 

nations. A government to government approach ensures the proper 

deference for both sovereigns and maintains a focus on the thread 

of commonality that is important to both sovereignties, here, victim 

safety and criminal accountability. 

Second, continued consultation with tribal leaders, tribal officials 

and tribal communities is critical. Engaging in meaningful tribal 

consultation and obtaining tribal input during the process will facilitate the implementation of these proposed measures. 

Third, and not least by any means is funding. Funding should be 

included in each section of the proposal. As this Committee is well 

aware, each tribe is unique with respect to custom and tradition, 

as well as tribal resources that are available. 

The topic I would like to focus on today for my oral presentation 

is Federal accountability. As I stated earlier, I was a prosecutor at 

Spirit Lake for several years. I referred personally some severe 

child abuse and child sexual abuse to the United States Attorney. 

Many times I didn’t know what happened to those referrals. Sometimes, a year or so later, I would get a denial letter. In that year’s 

time, evidence grew cold, witnesses moved out of the jurisdiction 

and there was a high rate of turnover in tribal law enforcement. 

I prosecuted some of these cases in tribal court, but IGRA severely 

limited the sentencing power of the tribal court. 

Federal investigators and prosecutors need to be held accountable through an annual reporting process as set forth in this proposal. If the Department of Justice feels that reporting is too cumbersome or violates certain confidentiality statutes, perhaps a government to government consultation with tribes in the way of a 

scorecard or, if you will, a report card, that allows tribes to give 

meaningful input with respect to the tribes’ opinion as to the effectiveness of the United States Attorneys’ efforts in their areas. In 

my opinion, in Indian Country, there is an extremely high Federal 

declination rate, with no explanation provided to tribes. I never received a file with any information when I received a declination letter. And there is no accountability. 

In the case of Federal declinations involving a Native American 

victim and a non-Indian accused, no other population in the United 

States is told that no criminal justice consequences will be imposed 

on the non-Indian rapist, child molesters and murderers. These 

perpetrators continue to walk free in tribal communities. And these 

non-Indian perpetrators are free to re-offend and actually do re-offend, because they know that nothing will happen to them. 

Tribes have the right to know why or how these declination decisions were made. I agree with the Chairman from Standing Rock, 

34 

the tribes have the right and should receive the entire file when 

a declination is made. 

I just recently facilitated two national roundtables funded by the 

Office of Violence Against Women. The topic that was of focus was 

domestic violence in Indian Country. These roundtables came about 

because Native people have to find some way to hold non-Indian 

abusers accountable for their actions in Indian Country. 

I would like to thank you for inviting me to testify, and I am 

happy to answer any questions the Committee might have. 

[The prepared statement of Ms. Stoner follows:] 

PREPARED STATEMENT OF KELLY GAINES STONER, DIRECTOR, NATIVE AMERICAN

LEGAL RESOURCE CENTER AND CLINICAL PROGRAMS, OKLAHOMA CITY UNIVERSITY

SCHOOL OF LAW

Introduction 

Good morning, Mr. Chairman, Madam Vice Chair, and members of the Committee. I am Kelly Stoner, and I’d like to first thank the Committee for inviting me 

to provide testimony for today’s hearing. It is an honor to work with all of you on 

this important issue. The Committee should be congratulated on its work for the 

proposed legislation and for taking the time and making the effort to seek meaningful input from tribal nations who have the ultimate interest in securing their nations. Conducting listening sessions with tribal leaders, tribal officials, and professionals who work in Indian Country takes a necessary first step towards meaningful 

change and adequate deterrence of crime in Indian Country, and I thank the Committee for its thoughtful work. 

As the Director of the Native American Legal Resource Center and Clinical Programs at Oklahoma City University School of Law, I’ve gained experience working 

with tribes in Oklahoma and throughout the region on criminal and civil jurisdictional issues in Indian Country. Prior to joining the faculty at Oklahoma City University, I served as the tribal prosecutor for the Spirit Lake Dakotah Nation. I have 

been practicing law in Indian Country for nearly 20 years, and have unique academic, clinical and tribal government experience with crimes and Domestic Violence 

issues in Indian Country. Additionally, I am a national lecturer for both the Office 

on Violence Against Women of the United States Department of Justice and the 

American Bar Association’s Commission on Domestic Violence, serving as a speaker 

for training sessions nationwide, and as a member of several national roundtables 

focused on addressing crime and Domestic Violence in Indian Country. 

The Native American Legal Resource Center (NALRC) at the Oklahoma City University School of Law serves as the academic law and policy center for students interested in Indian law and policy. Additionally, the NALRC provides a variety of 

services to tribal governments across the nation, including tribal court planning and 

development assistance, self-governance assistance in developing tribal codes and 

constitutions, and domestic violence services for tribal courts, tribal justice systems 

and tribal judges, as well as individual Native American victims of domestic violence, including representation and victim advocacy services. Our projects are funded by public and private grants. 

The Mission of the Native American Legal Resource Center is: 

The Native American Legal Resource Center provides capacity building services 

to tribal communities and creates opportunities for students, faculty, staff and 

the broader University Community to utilize knowledge and resources to serve 

the needs of Indian Country in a culturally appropriate and efficient manner 

for a maximum positive impact. 

Key Concepts for Success 

Historically, tribes were sovereign nations exercising plenary powers over any individual who came within tribal boundaries. Today, tribes maintain their status as 

sovereign nations, although some formidable limitations have been placed upon the 

exercise of tribal sovereign powers by federal law. While comprehensive tribal sovereign powers to assert criminal and civil jurisdiction over all individuals located 

in Indian Country should once again be recognized by the states and the Federal 

Government, the current status of the law and the government-to-government relationships between the Federal Government, state governments and tribal governments frustrates meeting that ultimate goal. 

35 

The proposed legislation goes far to identify and address many of the overlapping 

issues in the relevant federal case law and federal statutes. By infusing the implementation process with the following principles, the Committee can increase the 

likelihood of the success of the operation of the proposed legislation. 

First, a government-to-government approach should be included in the preamble 

of the proposed statute. As sovereign nations, tribal governments have the ultimate 

interest in executing sovereign responsibilities and ensuring the safety of anyone 

who comes within tribal boundaries. A government-to-government approach ensures 

the proper deference for both sovereigns and maintains focus on the thread of commonality each must address, which is the safety of victims and criminal accountability issues. 

Second, continued consultation with tribal leaders, tribal officials and tribal communities is critical. Engaging in meaningful tribal consultation throughout the process will ensure the success of the operation of the proposed legislation. Gathering 

tribal input strengthens new programs, reduces unneeded bureaucratic barriers in 

the system, and facilitates transition of new ideas in the implementation of new initiatives. 

Third, funding should be included in each section of the proposal. Because of critical under funding of tribal programs, additional federal mandates without funding 

to carry them out present insurmountable burdens on tribes that may suffer from 

chronically limited funding. 

Federal Accountability and Coordination Issues 

Holding federal investigators and federal prosecutors accountable in tribally referred cases is a key concern of tribes across the nation, as the lack of accountability 

of the current system frustrates maintaining law and order. For instance, when I 

was a tribal prosecutor for the Spirit Lake Dakotah Nation in Fort Totten, North 

Dakota, I would make referrals to the federal prosecutor regarding child abuse and 

sexual assault cases. Many times, I would never know what happened to those referrals. I might prosecute the case in tribal court but the sentencing provisions set 

out in the Indian Civil Rights Act, and the lack of adequate tribal detention facilities made the convictions toothless. In some cases, I would receive a declination letter from the federal prosecutor a year or so after the referral, but in the span of 

that one year, evidence grew cold, key witnesses moved outside the tribal jurisdiction and could not be located. Adding to those challenges was the exasperatingly 

high rate of turn-over in tribal law enforcement. In my discussions with others at 

various trainings and conferences throughout the United States, I’ve found that my 

experience mirrors that of tribal prosecutors and law enforcement across the country. This is an area that needs Congress’ attention for a solution. 

Federal investigators and federal prosecutors need to be held accountable through 

an annual reporting process. Tribal leaders and the appropriate federal agencies 

should be given an update on the number of cases referred for investigation and 

prosecution, the number of declinations with details regarding the decision to decline to prosecute the case. Federal prosecutors should make the decision whether 

to prosecute quickly enough so that tribal prosecutors can continue with tribal court 

prosecution. 

The proposal suggests that qualified tribal prosecutors be appointed to act as federal prosecutors for the purpose of prosecuting cases in Indian Country. The qualifications for a tribal prosecutor to engage in federal prosecution should equal but 

not exceed that of other federal prosecutors. This arrangement is currently in practice in some states with much success. For purposes of implementation of this legislation, tribal governments should be consulted, government-to-government, to have 

meaningful input on issues of hiring, salaries, office sharing and other common 

issues of both sovereigns sharing one position. 

The proposed legislation requires each jurisdiction to appoint not less that one Assistant United States Attorney to serve as a tribal liaison between the federal prosecutor’s office and the tribal governments in each district. Should there be resistance by tribes in working with the new appointee, thoughtful implementation and 

ensuring the liaison is educated with respect to the cultures, norms and practices 

of the tribal communities in the district will address those concerns. Tribal communities and tribal leaders should be consulted and kept informed as to the issues 

being addressed by the tribal liaison. 

Tribal Access to National Criminal Information Databases 

Tribes must be able to access and input data into the National Crime Information 

Center (NCIC) and other federal criminal information databases. The denial of access to these databases denies tribes access to critical criminal history on perpetrators. Precluding tribes from access to enter data into these databases sends a mesVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00041 Fmt 6633 Sfmt 6621 S:\DOCS\43268.TXT JACK PsN: JACKF
36 

1 25 U.S.C. Section 1301. 

2www.amnestyusa.org/women/maze/report.pdf last visited January 11, 2008 3www.ojp.osdoj.gov/bjs/intimate/ipv.htm last visited on January 11, 2008. 4www.amnestyusa.org/women/maze/report.pdf last visited January 11, 2008. 5Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 

sage that tribes are somehow not responsible enough or capable of being properly 

trained to enter data into these systems. That message is incredulous and exacerbates the intention of the legislation to provide government-to-government forums 

for the comprehensive efforts of reducing crime in Indian Country. Further, all appropriate grants to provide funding to tribal governments for the building of infrastructure for implementation of these information systems should be authorized by 

the legislation. 

Tribal Court Sentencing Authority 

Tribes have struggled to keep tribal members and citizens safe in the wake of 

alarming crime statistics. This proposal addresses the issue of one federal limitation 

on tribal prosecution, the Indian Civil Rights Act. 1

The Indian Civil Rights Act limits the criminal sentencing power of a tribe to oneyear imprisonment or a fine of up to $5,000 or both. The proposed legislation increases those limitations to up to 3 years of imprisonment or a fine of up to $15,000 

or both. This increase in prosecutorial and sentencing authority is a positive step 

towards arresting crime in Indian Country, but the new requirement for tribal governments to provide criminal defense counsel places additional mandates on tribal 

systems that may not have the resources to comply. The legislation should address 

funding concerns in all new mandates for tribal governments. 

Another approach might be to engage government-to-government with tribes, giving each individual tribe the option of either operating under the current limitations 

of ICRA or under the proposed and expanded levels of ICRA. If a tribe elected to 

utilize the expanded sentencing parameters of the ICRA, funding should be made 

available for those tribes to use in employing public defenders, or tribes should be 

given access to resources funded by the federal agency for meeting the requirement 

of providing defense counsel. 

Indian Country Crime Data—Tracking of Crimes Committed in Indian 

Country—Tribal Data Collection Systems 

Without accurate data regarding criminal activity in Indian Country, it is hard 

to know the depth and scope of the problem in Indian Country. Even with the sobering statistics gathered by the Bureau of Justice and the Amnesty International Report, 2 the severity of the issue may be grossly underestimated. Without accurate 

data, all involved sovereigns may be unable to directly address the particular issues 

faced within each tribe’s borders. Furthermore, federal agencies must have access 

to accurate data in order to provide tribes with necessary services and personnel 

to meet the challenges. The successful implementation of comprehensive tribal data 

gathering will depend in large part on a government-to-government approach to the 

issue, continued consultation with tribal leaders, tribal officials and tribal communities and an adequate source of funding to carry out this task. 

Domestic Violence and Sexual Assault Prosecution and Prevention 

National studies have consistently demonstrated that Native Americans are victimized at a rate 2.5 times higher than any other group. 3 A recent report established that at least 86 percent of the violators in sexual assault cases involving Native American women were non-Indian. 4 Pursuant to United States Supreme Court 

case law, tribes have no criminal jurisdiction over non-Indians. 5

The Committee is proposing to establish a Federal felony for violations of tribal 

protection orders that meet due process standards. Given historical events among 

tribes, states and the Federal Government, and the declination rates of many federal offenses committed in Indian Country, the key to the successful outcome of this 

section of the proposal is tribal communication and federal accountability. 

The Violence Against Women Act sets forth that full faith and credit should be 

given to all protection orders that meet certain requirements. Those requirements 

are: 

1. The order was issued by a court that had subject matter jurisdiction over the 

matter; 

2. The issuing court had personal jurisdiction over the parties pursuant to the 

issuing court’s jurisdiction; and 

37 

6 Violence Against Women Act, 18 U.S.C.A. § § 2261–2266. 

3. The issuing court gave reasonable notice and an opportunity to be heard to 

the person against whom the order is sought. 6

According to the Act, all orders, including tribal court orders that meet these criteria, are entitled to full faith and credit. 

If the current proposal’s intent is to make violation of a protective order a federal 

felony, but only in cases where the accused was provided defense counsel, the legislation should set forth clear language directing states that this measure in no way 

affects Section 106 of the Violence Against Women Act. Should tribes be concerned 

that the states may hesitate or refuse to give full faith and credit to tribal protection 

orders where defense counsel was not provided, then clarifying language will allay 

those concerns. The language should also set forth that tribes maintain tribal sovereign powers to prosecute Indian violators of tribal protection orders that occur in 

Indian Country. Additionally, funding should be tied to the proposed legislation to 

increase the effectiveness of this section. 

Domestic Violence and Sexual Violent Offense Training 

Oklahoma has a jurisdictional patchwork of tribal and non-tribal lands. It is not 

uncommon for a victim to call 911 for assistance only to be told that she lives on 

tribal land and must call the BIA. When the victim calls the BIA law enforcement, 

the victim is told that the act was committed on state land and she must call state 

law enforcement for assistance. Many Oklahoma tribes are moving towards crossdeputization agreements for tribal and local law enforcement to address these 

issues, but the complexities of the jurisdictional queries remain. 

Alaska Natives are subject to confusing jurisdictional issues as well, and because 

of the remote nature of many Alaska Native villages, victims must wait many hours 

or even days before law enforcement arrives to conduct investigations. The result 

is a void that leaves many victims without protection. 

Despite the fact that one out every three American Indian/Alaska Native women 

will be raped in her lifetime, many law enforcement officers working in Indian 

Country lack knowledge on properly gathering and preserving evidence in sexual assault cases, including both investigative techniques and directing the victim to medical or other facilities for proper sexual assault examination. 

Law enforcement officers should be trained to work closely with tribal and/or local 

victim services agencies. Law enforcement officers should receive training to address 

complex jurisdictional issues, cultural norms and practices. Additionally, law enforcement officers must be trained to investigate offenses including sexual assault. 

Comprehensive training will increase conviction rates for domestic violence and sexual assault crime and may lead to prevention of those crimes. Funding for training 

law enforcement officers in Indian Country should be provided in the proposed statute. 

Trainings need to be provided on a regional level to accommodate tribes with limited financial and human resources. Some tribes may need training and technical 

assistance tailored to their specific needs, so a technical assistance provider should 

be made readily available for tribes to contact for assistance. Trainings should be 

designed and delivered by individuals or agencies that have extensive experience 

working in Indian Country. 

Thank you again for the opportunity to testify on this important issue. I am 

happy to answer any questions the Committee may have. 

The CHAIRMAN. Ms. Stoner, thank you very much. I should have, 

as I did at the start of this hearing, indicated that you are the Director of the Native American Legal Resource Center and Clinical 

Programs at the Oklahoma City University School of Law. Thank 

you very much for being with us. 

Mr. Walt Lamar is President and CEO of Lamar Associates in 

Washington, D.C., Mr. Lamar, you may proceed. 

STATEMENT OF WALTER E. LAMAR, PRESIDENT/CEO, LAMAR 

ASSOCIATES 

Mr. LAMAR. Mr. Chairman, Madam Vice Chair, Senator Thune, 

good morning. 

38 

I very much appreciate the opportunity to offer my remarks regarding the draft Indian Law and Order Bill. By way of introduction, I am Walter Lamar, and enrolled member of the Blackfeet 

Nation of Montana and a descendant of the Wichita Tribe of Oklahoma. I am a former FBI special agent and the past deputy director of the Bureau of Indian Affairs Office of Law Enforcement Services. 

At the risk of concentrating on the negative, I would like to set 

the context that puts us in this hearing today. It seems every two 

or three years there is a scathing report decrying the state of Indian Country public safety. Over and over, the symptoms of a broken system are reiterated; yet we remain where we were yesterday. 

In a 1975 BIA law enforcement publication detailing history of 

Indian Country law enforcement can be found the following words: 

‘‘Civilization has loosened, in some places broken the bonds which 

regulate and hold together Indian society and has failed to give 

people law and officers of justice in their place. Women are beaten 

and outraged, men are murdered in cold blood. The Indians are intimidated and preyed upon by the evil disposed; children are molested on their way to school, but there is no redress. It is a disgrace to our land. It should make every man who sits in the national halls of legislation blush. The effect of civil agents, teachers 

and missionaries are like the struggle of drowning men weighted 

with lead, as long as by the absence of law, Indian society is left 

without base.’’ Bishop William Hobart Hare, quoted in an Indian 

Commission report dated 1877. 

In the late 1930s, a BIA official reported to Congress that many 

characteristics of the Indian criminal justice system remained as 

they were at the turn of the century. Jails were so inadequate that 

judges rarely committed anyone. 

Budget cuts for Indian Country law enforcement were so severe 

in the 1940s that by 1950, Senator J. Chandler Gurney, South Dakota, stated ‘‘They cannot have a dance at night because there is 

nobody to control the peace of the community.’’ Indian Commissioner John R. Nicholls told the Senator that the situation in his 

State existed throughout Indian Country. ‘‘This is the lowest point 

in the history of law and order,’’ Nicholls said. 

Amazing how this all sounds so very familiar. Was it indeed the 

lowest point? 

The Senate Committee on Indian Affairs is to be applauded for 

taking this affirmative step forward to ensure protection of Indian 

Country’s citizens, visitors and residents. While this draft bill is a 

positive step, it is but a first step in addressing a very complex 

issue. 

Section 2 of the draft bill entitled Findings; Purposes clearly encapsulates the devastating issues facing Indian Country that have 

been documented in report after report. A former tribal prosecutor 

and judge commented to me that this draft bill potentially represents a dream come true. 

When dealing with a poorly-performing employee, a good manager will prepare a performance improvement report. I very much 

liken this draft bill to a performance improvement report for the 

Department of Justice and the Bureau of Indian Affairs, the Department of Interior. Public safety remains in a state of crisis. Most 

39 

of the tools outlined in the provisions of the draft bill are already 

in the hands of the Government agencies, so we must then ask, 

why are they not being used to their fullest potential? Is it for lack 

of will, understanding of the issues or simply a lack of concern? I 

know there exist examples for all three, but typically it boils down 

to the issue of funding and resources. 

As an example, when I was the deputy director at BIA law enforcement over four years ago, we could count our headquarters 

staff on two hands. Little has changed since then. How can they 

possibly be expected to perform the monumental task at hand with 

less staff than it takes to run a fast food restaurant? Without attendant funding, the provisions of the draft bill will go simply 

unaddressed. 

The draft bill serves to establish the necessary lines of communication and defines areas of required accountability to bring true 

public safety to Indian Country. I will offer a number of comments 

which will be submitted in my written testimony. However, I will 

state with regard to the BIA Office of Justice Services, considering 

the tremendous importance of law enforcement, the draft bill 

should address the need to elevate the Office of Justice Services to 

the Bureau of Justice Services and properly re-delegate the current 

Deputy Director position to a Director position. 

Further, the Indian Law and Order Commission is potentially 

the strongest provision of the draft bill, and offers an opportunity 

to bring together top Indian Country experts to address the complex matters facing our tribal justice programs. However, the provision should encourage the consideration of Indian preference in 

commission selection. 

Section 2, Findings; Purposes, reiterate the United States holds 

distinct legal, treaty and trust obligations to provide for the safety 

of Indian Country. The trust responsibility obligation is negated by 

Federal performance-based funding requirements of GPRA and 

PART. How can trust responsibility be effectively carried out when 

tribes are not provided sufficient funding to perform effectively and 

then are penalized and not provided additional funding? Only 

through needs-based funding initiatives can tribal law enforcement 

ever reach parity with their State and local counterparts. 

Indian Country has the capacity to provide effective law enforcement which is demonstrated by the tribes that have financial resources to fund their public safety programs. So it is not a matter 

of if we can, it is a matter of the Federal Government meeting its 

obligation to provide the required funding and resources. It is my 

hope, my sincere hope that this intended legislation will give us 

that opportunity. 

I wonder, I wonder how many lives were needlessly lost or 

harmed in Indian Country in the time that it takes to hold this 

hearing? Thank you very much. 

[The prepared statement of Mr. Lamar follows:] 

PREPARED STATEMENT OF WALTER E. LAMAR, PRESIDENT/CEO, LAMAR ASSOCIATES

Honorable Chairman and members of the Committee, good morning. I very much 

appreciate this opportunity to offer my remarks regarding the Draft Indian Law and 

Order bill. By way of introduction, I am Walter Lamar, an enrolled member of the 

Blackfeet Nation of Montana and a descendant of the Wichita Tribe of Oklahoma, 

40 

am a former FBI Special Agent and the past Deputy Director of the Bureau of Indian Affairs (BIA) law enforcement program. 

It seems every two or three years there is a scathing report decrying the state 

of Indian country public safety. Over and over the symptoms of a broken system 

are reiterated, yet we remain where we were yesterday. 

In a 1975 BIA law enforcement publication detailing the history of Indian country 

law enforcement are the following words: 

‘‘Civilization has loosened, in some places broken, the bonds which regulate and 

hold together Indian society... and has failed to give people law and officers 

of justice in their place. . . . Women are beaten and outraged; men are murdered in cold blood; the Indians... are intimidated and preyed upon by the 

evil disposed; children are molested on their way to school . . . ; but there is 

no redress . . . . It is a disgrace to our land. It should make every man who 

sits in the national halls of legislation blush.... the effect of civil agents, 

teachers and missionaries are like the struggle of drowning men weighted with 

lead, as long as by the absence of law Indian society is left without base.’’ 

(Bishop William Hobart Hare quoted in an Indian Commission Report dated, 

1877) 

In the late 1930’s a BIA official reported to congress that many characteristics of 

the Indian criminal justice system remained as they were at the turn of the century. 

Jails were so inadequate that judges rarely committed anyone. 

Budget cuts for Indian country law enforcement were so severe in the late 1940s 

that by 1950, Senator J. Chandler Gurney, South Dakota, stated, ‘‘They cannot have 

a dance at night because there is nobody to control the peace of the 

community . . . . Indian Commissioner John R. Nichols told the Senator that the 

situation in his state existed throughout Indian country. ‘‘This is the lowest point 

in the history of law and order,’’ Nichols said. 

Amazing how this sounds so very familiar. Was it, indeed, the lowest point? 

The Senate Committee on Indian Affairs is to be applauded for taking this affirmative step forward to ensure the protection of Indian country citizens, visitors and 

residents. While this draft bill is a commendable and positive step, it is but a first 

step in addressing a very complex issue. Section 2 of the draft bill, entitled, ‘‘Findings; Purposes’’ clearly encapsulates the devastating issues facing Indian country 

that have been documented in report after report. A former tribal prosecutor and 

judge commented to me that this draft bill potentially represents ‘‘a dream come 

true.’’ 

As this honorable committee strives to protect Indian Country lives, we must examine the reasons Indian county public safety remains in a state of crisis. Most of 

the tools outlined in the provisions of the draft bill are already in the hands of the 

government agencies. So we must then ask why they are not being used to their 

fullest potential. Is it for lack of will, understanding of the issues or simply a lack 

of concern? I know there exist examples for all three, but typically it boils down to 

the issue of funding and resources. 

As an example, when I was Deputy Director at BIA law enforcement over four 

years ago, we could count our headquarters staff on two hands. Little has changed 

since then. How can they possibly be expected to perform the monumental task at 

hand with less staff than it takes to run a fast food restaurant? Without attendant 

funding the provisions of the draft bill will go unanswered. 

The draft bill serves to establish the necessary lines of communication and defines 

areas of required accountability to bring true public safety to Indian country. I will 

offer a number of comments which will be submitted in my written testimony; however, I will state with regard to the BIA Office of Justice Services; considering the 

tremendous importance of law enforcement the draft bill should address the need 

to elevate the Office of Justice Services to the Bureau of Justice Services and properly re-delegate the current Deputy Director position to Director. Further, the Indian Law and Order Commission, is potentially the strongest provision of the draft 

bill and offers an opportunity to bring together top Indian Country experts to address the complex matters facing our tribal justice programs; however, the provision 

should encourage the consideration of Indian preference in commission selection. 

Section 2., Findings: Purposes., reiterate that the United States holds distinct 

legal, treaty and trust obligations to provide for the public safety of Indian country. 

The trust responsibility obligation is negated by the Federal performance based 

funding requirements of GPRA and PART. How can trust responsibility be effectively carried out when tribes are not provided sufficient funding to perform effectively and are then penalized for the lack of performance? Only through needs based 

funding initiatives can tribal law enforcement ever reach parity with their state and 

local counterparts. 

41 

Indian country has the capacity to provide effective law enforcement which is 

demonstrated by tribes that have the financial resources to fund their public safety 

programs. So it is not a matter if we can—it is a matter of the Federal government 

meeting its obligation to provide the required funding and resources. It is my hope 

that this intended legislation will give us that opportunity. 

I wonder how many Indian country lives were needlessly lost or harmed just in 

the time it takes to hold this hearing. 

Under Section 2, Findings; Purposes, mention should be made regarding the need 

for prisoner transport services. With the number of jail closures police officers are 

taken out of service for extended periods to transport prisoners hundreds of miles 

to and from jail facilities. 

Under Title I, Section 103, it should be noted that the responsibility for background investigations for Special Prosecutors will rest with the DOJ so as not to 

place undue burden on tribes. 

The requirement for the tribal liaisons to provide training sessions and seminars 

for Special Law Enforcement Commissions is a positive step toward minimizing the 

backlog of officers requiring the requisite training for SLEC certification. 

The elevation of the Office of Tribal Justice to a division and establishment of the 

Office of Indian Country Crime, overseen by a Deputy Assistant Attorney General 

at the DOJ will serve to place the rightful priority on Indian country. The DOJ must 

also move to create specific Indian country prosecutive guidelines that ensure aggressive prosecution, particularly when the crimes relate to drug trafficking. 

Title II, Section 202 (d), suggests that the financial resources of each entity to be 

taken into consideration of the grant process. The idea to incentivize tribal, state 

and local cooperation is diminished by considering the financial resources of each. 

Further, it would be appropriate to include verbiage under Section 202 that encourages Federal law enforcement agencies to participate on the DOJ funded teams. 

Title III, Section 301(a) needs to clarify the type of training. If the intent is to 

provide flexibility for Indian country police officers to chose alternatives to the Indian Police Academy for basic law enforcement training then it must further clarify 

that Tribal officers may opt to attend a state, local or tribal academy; however, BIA 

Police Officers must continue to be trained as Federal officers at the Indian Police 

Academy. It should be stressed that all basic training for Indian Country police officers must meet or exceed the basic training program of the Indian Police Academy. 

The Section refers to a National Peace Officer Standard of Training, there is no such 

standard, as each state has responsibility for developing their individual standards 

of law enforcement training. 

Title III, Section 303., Access to National Criminal Information Databases, must 

take into consideration that to have a terminal for access to National Criminal Information Databases, tribal law enforcement programs must meet a series of stringent measures intended to safe guard such information. Physical security, trained 

operators, operator security clearances, and dedicated secure connections all require 

funding, training and technical assistance. Such funding and training should be 

managed in the form of the DOJ grant process. 

Title III, Section 304., Tribal Court Sentencing Authority contains the provision 

to empower tribes to impose imprisonment beyond the current one year limitation 

is an important tool which will potentially lessen the United States Attorney case 

load while offering sentencing flexibility to tribal court judges. However, there must 

be a provision to ensure we are not simply warehousing our people. Detention facilities used to house Indian Country inmates must be able to provide culturally sensitive services that include at a minimum, educational programming, workforce integration training, substance abuse treatment and mental health care. The provision 

to utilize the Bureau of Prisons (BOP) on its face seems to alleviate long-term prisoner housing issues; however, sending Indian Country prisoners to BOP facilities 

raises concern. Prisoners will likely be separated from their Native communities by 

great distance and could be subjected to a more sophisticated and dangerous inmate 

population. 

Title IV, Section 402., Indian Alcohol and Substance Abuse. Recognizing there are 

unacceptable numbers of Native Americans injured or killed each year from alcohol 

related traffic accidents, this draft bill must call for the National Highway Safety 

Administration and BIA Indian Highway Safety’s involvement in providing funding 

for reporting, training, equipment, enforcement and specific prevention initiatives. 

Title IV, Section 404., Tribal Jails Program. Recent history has proven that new 

detention facilities can be constructed; however the issue then reverts to an inability 

to open the facilities for lack of funding for recruitment, hiring, and training of new 

staff. In fact the former Director of BIA Law Enforcement, Theodore Quasula informed me that a newly constructed juvenile detention facility on the Hualapai reservation sets empty nearly a year after construction. Juvenile crime on the reservaVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 S:\DOCS\43268.TXT JACK PsN: JACKF
42 

tion is rampant to the point that the very juveniles who should be incarcerated in 

the facility are vandalizing it. Provisions must be in place to ensure appropriate 

funding is available to staff planned detention construction. 

Respectfully submitted, 

Walter E. Lamar 

The CHAIRMAN. Mr. Lamar, thank you very much. 

Mr. Ragsdale, I mean no disrespect by having you testify last, 

but I wanted you to have the opportunity to hear the other testimony. You represent the Department of the Interior and the Bureau of Indian Affairs here today. You are the Director of the Office 

of Justice Services at the U.S. Department of the Interior. I felt it 

would be helpful for you to hear the comments of a wide variety 

of other witnesses. 

We appreciate your being here, and we will recognize you for 

your statement. 

STATEMENT OF W. PATRICK RAGSDALE, DIRECTOR, OFFICE 

OF JUSTICE SERVICES, U.S. DEPARTMENT OF THE INTERIOR 

Mr. RAGSDALE. Thank you, Mr. Chairman, thank you, Madam 

Vice Chair, and thank you, Senator Thune, for being here today. 

I will try to be mercifully brief, Mr. Chairman, to allow time for 

as many questions as the Committee has time for. 

I am pleased to represent the Department of Interior here this 

morning. I would like to first point out that Secretary Kempthorne 

has truly been a champion for law enforcement within Indian 

Country. When he first came on board, he had a five minute meeting scheduled for me for briefing. He took an hour and a half. At 

the conclusion of that meeting, he said, ‘‘This should not stand. We 

have got to do something.’’ Out of that commitment, he came forward with the Safe Indian Communities Initiative, which we are 

trying to implement today. Operation Dakota Peacekeeper is an 

outgrowth of the Secretary’s initiative. 

I would also like to say that in terms of our relationships, that 

is, the Department of Interior and tribal law enforcement, in my 

view, our relationships are stronger with the United States Attorneys, the FBI, the other Federal agencies that we work with in collaboration to do casework and provide law and order on reservations. 

You have my written testimony on the scope of law enforcement 

authority and our responsibilities in the Department of Interior, so 

I will leave that for your review in the record. 

In terms of our meetings and discussions with tribal leaders, Secretary Kempthorne in 2006, in collaboration with NCAI, kicked off 

the Safe Indian Communities Initiative, which we are now in the 

process of implementing. We do regular discussions, consultations, 

with a number of my friends here at this table on a regular basis. 

We are usually talking about resources, facilities, points and issues 

of the day on case work and so forth. 

My perspective on all of that, everybody is dedicated to trying to 

get the job done and maximize the limited resources that we have 

to provide for basic law enforcement within Indian Country. My 

testimony reflects our comments on the crime data collection. I will 

just say briefly that our collection of crime data within Interior has 

been severely hindered by the loss of internet resources and accesVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00048 Fmt 6633 Sfmt 6601 S:\DOCS\43268.TXT JACK PsN: JACKF
43 

sibility to all of the array of Federal systems that are available to 

modern police departments throughout the United States of America. 

That hindrance, our inhibition to use internet, has now been lifted, so we look forward to rapidly coming forward to this century 

in terms of information technology. 

Turning to my written testimony concerning special law enforcement commissions, we currently have the authority under the 1990 

Indian Law Enforcement Reform Act to maximize cooperative law 

enforcement throughout the Country. The Bureau of Indian Affairs 

has strongly encouraged tribes to do that. The inhibitions to that 

authority to deputize State and local officers is one that there must 

be consent by the tribal authorities involved, and also that sworn 

tribal and State officers under the agreement have to have the requisite training requirements in order to be deputized with Federal 

law enforcement commissions. 

One thing I wanted to say about our training. There has been 

some concern that Indian law enforcement officers are not properly 

trained in terms of domestic violence and how to handle those 

types of issues and crimes and crimes against children. Previously, 

I invited Committee staff, and I would also invite the Committee 

to do a serious review of our entire law enforcement curriculum, 

particularly the training that we provide Indian law enforcement 

officers. I believe it is second to none. Over 105 hours are provided 

to our basic police officers, both tribal and BIA, in domestic violence, crimes against children, both in written exercise, lectures 

and practical applications at our academy. 

Finally, turning to the issues of tribal sentencing authority, the 

concept in the draft bill, I will just tell you something I am sure 

that you are all keenly aware of, that there is limited detention 

space on or near most Indian communities. There are also limited 

funds to contract for detention bed space in a non-tribal or non-BIA 

facility. Extending sentences for longer than one year, provided 

there are actually facilities available, will result in a big increase 

in costs to both BIA and the tribal governments. 

Secondly, not all tribal courts have an effective appellate process. 

A defined, effective, consistent and transparent appellate process is 

important to ensure civil rights of individuals are protected. 

Third, consistency in standards and staffing among the facilities 

would need to be assured as well as constitutional concerns of due 

process and legal defense. A significant monetary commitment on 

both the Federal Government and the tribal governments would 

also be required to close these gaps. 

In closing, I want to pay tribute to the law enforcement, corrections and court personnel, as well as other public safety personnel, 

who work daily at all levels of the tribal, State and Federal sectors 

of the Government. They do their jobs sometimes at great personal 

sacrifice to the benefit of our Indian communities. 

I noticed this morning the notice about the Eastern Band Cherokee member that was killed serving with the North Carolina 

Highway Patrol. That is the daily type of risk that our police officers throughout this Country face. As we work to develop better 

public policy and implement better methods to address public safety issues, I hope we will keep in mind their daily contributions to 

44 

make our communities safe and secure. They do their best to ensure a measure of peace and tranquility, reacting to emergency circumstances under too often adverse conditions with very limited resources. They also do their duty selflessly, so that our citizens go 

about their daily lives without fear of lawlessness. They are true 

heroes in this society. 

Mr. Chairman, members of the Committee, I thank you for providing the opportunity to testify. This concludes my statement. 

[The prepared statement of Mr. Ragsdale follows:] 

PREPARED STATEMENT OF W. PATRICK RAGSDALE, DIRECTOR, OFFICE OF JUSTICE

SERVICES, U.S. DEPARTMENT OF THE INTERIOR

Mr. Chairman and Members of the Committee, I am pleased to provide testimony 

for the Department of the Interior, regarding concepts aimed toward improving and 

addressing law and order in Indian Country. Respectfully, the Department is unable 

to provide a position or comment specifically on draft legislation that has not been 

introduced at least a week prior to this hearing. 

The Bureau of Indian Affairs (BIA) has a service population of about 1.6 million 

American Indians and Alaska Natives who belong to 562 federally recognized tribes. 

The BIA supports 191 law enforcement programs with 42 BIA-operated programs 

and 149 tribally-operated programs. Approximately 78 percent of the total BIA Office of Justice Services’ (OJS) programs are under contract to Tribes as authorized 

under Public Law 93–638, as amended, or compacted to Tribes as authorized under 

Title IV of the Indian Self Determination and Education Assistance Act, as amended. 

The OJS provides a wide range of justice services to Indian country, including police services, criminal investigation, detention facilities, tribal courts, and officer 

training by the Indian Police Academy. 

Indian country law enforcement provides services to a population that is predominantly under the age of 25 and experiences high unemployment rates, and lacks 

municipal infrastructure. Indian lands range from remote wilderness to urban settings. The close proximity of a number of reservations to the international borders 

of Mexico and Canada make these locations the perfect targets for drug trafficking 

and other smuggling operations. Recent reports and news articles outline the challenges faced by criminal justice systems in Indian country. Crime rates on most reservations are unacceptably high. 

The Indian Law Enforcement Act of 1990 (25 USC 2801) and the regulations contained in Title 25 of the Federal Code of Regulations provide the statutory and regulatory authority for the BIA. Under this statute, the BIA provides basic police and 

corrections services while other federal agencies such as the Department of Justice 

(DOJ), the Federal Bureau of Investigations (FBI), the Drug Enforcement Administration (DEA), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 

also have responsibilities to investigate crimes in Indian country. 

Currently, the OJS consults with Indian tribes on an ongoing basis to address 

concerns in Indian Country. These consultations provide a dialogue between the 

OJS and the Tribes to address staffing concerns or budget matters through the programmatic, appropriations and budget development processes. 

Strengthen Tribal Justice Systems and Recruitment/Retention Efforts 

The Department of the Interior’s BIA provides several programs designed to 

strengthen Tribal justice systems. For example, the BIA operates the Indian Police 

Academy (IPA), which provides basic police training (16 weeks) and a variety of 

other police, jail and radio dispatch courses for tribal and BIA law enforcement and 

corrections officers. The IPA is co-located with the Department of Homeland Security’s Federal Law Enforcement Training Center (FLETC) at Artesia, New Mexico. 

The IPA works with State and tribal police academies to permit training in their 

respective areas. 

The IPA staff provides basic coursework in policing, criminal investigations, and 

detention. In addition, the IPA offers numerous advanced training courses such as 

child abuse investigation procedures, domestic violence training, community policing, drug investigation, use of force, firearms instruction, archaeological resource 

protection, police management and supervision, crime scene processing, detention, 

and dispatcher training. 

Our training partnership has proven to be very cost-effective because we share 

trainers and facilities. The BIA and tribal criminal investigators receive specialized 

45 

advanced training at the main FLETC facility in Glynco, Georgia. Select BIA and 

tribal law enforcement managers also participate in the FBI’s National Academy in 

Quantico, Virginia. Many tribal communities choose to use respective state Peace 

Officer Standards and Training courses to supplement training of their police. 

Upon completion and graduation, the officers have the requisite Federal credentials to be commissioned to serve their communities. The training programs are 

unique to Indian country policing and are similar to other Federal policing and corrections training required by other Federal law enforcement agencies serving the 

Federal Government. 

Additionally, the OJS provides training for tribal court personnel, which is sponsored by the OJS Office of Tribal Justice Support and by the Tribes themselves. It 

is the BIA’s goal to ensure that all training programs offer the best possible training 

to tribal and BIA law enforcement, corrections, and tribal court staff. 

In addition to the BIA’s efforts to strengthen tribal justice systems, the BIA has 

centralized its law enforcement, corrections and tribal courts programs within one 

program management area titled the Office of Justice Services (OJS). This organization allows for a centralized focus of the administration and management of basic 

justice services as well as lending to a cohesive approach to program implementation that allows for unity and cooperation throughout programs. 

In an effort to improve recruitment and hiring within all service areas, the OJS 

is implementing a Recruitment Plan that includes task items for short, intermediate, and long term planning efforts. These efforts include, but are not limited 

to, increasing the personnel staff available to process and track status on OJS personnel actions; working to improve recruitment efforts at colleges and the military 

to obtain better qualified applicants; improving and streamlining the process for 

background checks; and investigating the use of other manpower resources from 

other qualified law enforcement providers. 

Crime Rate Data Collection 

Currently, the BIA’s crime data are collected by the OJS through monthly crime 

reports that are submitted by Indian Country jurisdictions (tribes and BIA law enforcement). The method currently used by OJS is as follows: crime reports that are 

collected are entered into an automated database tool that gathers law enforcement 

statistics at the lowest level. Crime data are entered at the field from the individual 

law enforcement agencies that are implementing policing programs. Tribal policing 

programs without direct access to the BIA’s automated database tool submit hard 

copy information to their respective districts for input into the system. 

Crime data information submitted for entry into the system is verified by the 

agency and then is reviewed a second time at the District Commander level. The 

District Commander must then provide final approval before the crime data are 

used at the Headquarters Office for quarterly performance reporting and the development of other statistical reports that are made available to the Department of 

Justice. Since the Department’s last statement for the record, the BIA’s internet restrictions have been lifted and full internet access should increase the timely collection of crime data. 

In our effort to establish better management information systems for the collection of crime data, the OJS is considering the feasibility of the Incident Management Analysis and Reporting System (IMARS), which is a Department-wide information collection, analysis, and reporting system initiative. The concept behind 

IMARS is to provide a common information sharing capability across all participating functional areas within DOI for capturing and reporting law enforcement, 

emergency management, and security incident information. Once IMARS is available Department-wide, the OJS will determine the feasibility of providing an opportunity for tribal collection of crime data using IMARS. 

Increasing access to national crime databases and collecting and sharing crime 

data between agencies would assist in addressing crime in Indian Country, but such 

authority would require assurances in the protection of confidential information between all the entities authorized to access, input and share information on such 

databases. 

Special Law Enforcement Commission (SLEC) Training and Certification 

In an effort to make special commissions available to tribal, state, and local law 

enforcement, the BIA encourages cross-commissioning so that Federal, tribal, and 

state authorities can make arrests for each jurisdiction. For instance, BIA offers 

qualified tribal and state law enforcement officers Federal Special Law Enforcement 

Commissions (SLEC) so they can enforce federal law. This closes loopholes and allows police to focus on investigating the crime instead of sorting out jurisdictional 

details, which can be done later with the assistance of legal counsel. 

46 

Supplemental training is provided by the BIA and, more recently, through the offices of the United States Attorneys to utilize both tribal and state law enforcement 

officers in Federal and tribal policing as authorized under the Law Enforcement Reform Act. The Office of the Solicitor and the United States Department of Justice 

offices determine extension of Federal Tort Claim coverage as authorized under the 

Reform Act. For the Committee’s information, please find attached Table C, which 

illustrates the SLEC count for all District Locations. 

Increasing flexibility in commissioning state and local law enforcement officers to 

enforce all violations of federal law committed on Indian lands may a have a positive effect in addressing the law enforcement needs in Indian Country, however, 

such increased flexibility, presumably would require increased coordination between 

all entities who provide training to certify Indian Country law enforcement officers 

serving in Indian Country. 

Tribal Sentencing Authority 

Current Federal law provides a ceiling on tribal court penal authority to sentences 

of no longer than one year and up to a $5,000 fine for each offense. Some tribes 

currently sentence tribal offenders concurrently for more than one offense which, in 

the aggregate, can total more than one year. There are at least two major challenges 

faced by BIA and tribal corrections programs with the care of inmates subject to 

long-term sentences for non-Federal felony crimes committed in Indian country: 

1.) There is limited detention space on or near most Indian communities. There 

are also limited funds to contract for detention bed space in a non-tribal or nonBIA facilities. Extending sentences for longer than one year will result in increased costs to both the BIA and tribal governments. 

2.) Not all tribal courts have an effective appellate process. A defined, effective, 

consistent, and transparent appellate process is important to ensure civil rights 

are protected and the tribes are not unduly subjected to habeas corpus claims 

in Federal court. 

Tribal court penal authority to sentence offenders for longer terms and maybe 

choose alternate forms of incarceration may give rise to certain constitutional concerns and also federal policy concerns. Consistency in standards and staffing among 

the facilities would need to be assured in order to alleviate these concerns. Such 

consistency among the choices of incarceration, presumably, would again be a significant monetary commitment on both the federal government and tribal governments. 

Mr. Chairman and members of the Committee, I thank you for providing the Department of Interior’s Bureau of Indian Affairs the opportunity to comment on the 

issues related to Law and Order in Indian Country. We will continue to work closely 

with the Committee and your staff, tribal leaders, and our Federal partners. I will 

be happy to answer any further questions you may have. 

47 


619p1.eps
48 

The CHAIRMAN. Mr. Ragsdale, thank you very much for being 

here and for your testimony. 

You heard the testimony of Ms. Stoner and Mr. Lamar. Their 

testimony said, look, we have such a serious problem here, a crisis 

of sorts. We have people that commit violent crimes, rape, sexual 

assaults and other things that are not even prosecuted, and walk 

around because nothing happened to them. Do you think that is 

the case? Do you dispute their representation of what is happening 

on reservations? 

Mr. RAGSDALE. No, I don’t dispute it. I am also a student of Indian history, particularly in terms of our warrior traditions that go 

back since time immemorial, about protecting our own communities. I would not disagree with the content of their statements. 

I would say that my experience, I spent about seven or eight 

years as a tribal police chief in eastern Oklahoma. The cooperation 

that I received from the U.S. Attorneys, whether I had an Indian 

defendant or a non-Indian defendant, was always outstanding. If I 

had a good, solid criminal case, the United States Attorney prosecuted, took it to grand jury and went through the process, both 

in the northern and the eastern districts of Oklahoma. We do have 

jurisdiction of non-Indian offenders that commit crimes in Indian 

Country. 

So I think what is happening, Mr. Chairman, and I have spent 

a lot of time, I have a lot of experience in Indian affairs, but I 

spent a lot of time in Indian Country as well, is that the rate of 

crime has jumped so much in the last decade or so that many of 

our police officers are like on a conveyor belt, they are responding 

and reacting to the incidents of the day. If that is all you do and 

you do not have the time to sit down and do the hard work of writing the investigation up, providing the criminal information to a 

prosecutor, whether it is a tribal prosecutor, State prosecutor or a 

Federal prosecutor, you don’t get crimes prosecuted. 

The CHAIRMAN. I understand. That in itself undermines the law 

enforcement system. 

Ms. Shappert, we had testimony before Congress by a former 

high ranking Justice official who came to testify. She said U.S. Attorneys were reprimanded because they ‘‘spent an excessive 

amount of time on Native American issues.’’ We had another U.S. 

Attorney state publicly that the Justice Department doesn’t care 

about prosecuting crimes on Indian reservations. 

I want to ask you to respond to that, and as I do, let me say that 

three months ago, we wrote to the Justice Department and said, 

tell us, how many declinations are there, how many cases do you 

decline, under what conditions do you decline them? What I heard 

back from the Justice Department just yesterday after three 

months was, at this time we do not have statistics that we believe 

accurately reflect the rate of declinations in Indian Country. That 

is all they say, we don’t have any statistics. 

And yet what we hear anecdotally from around the Country is 

that declinations occur all the time. Sometimes for no purposes. I 

think Ms. Stoner mentioned, you wait for a year, then you get word 

back after a year, well, we’re not going to pursue the case. At that 

point, the witnesses are gone. 

49 

So tell me about this, because we have had testimony that Justice Department actually reprimands U.S. Attorneys that spend too 

much time on Indian cases. 

Ms. SHAPPERT. First of all, I would like to note that when General Mukasey became the Attorney General, one of the first things 

he did was meet with Native American leaders from Indian Country. He had a meeting in his office with a number of leaders to talk 

about issues in Indian Country. Indian Country was not part of his 

background, but he made it a priority beginning early on in his 

term. 

He also made a trip out to Arizona for the express purpose of 

meeting with tribal leaders and members of the tribal courts in Arizona because he recognized that it needed to be a Department priority. I can only speak from my experience, Senator. I have never 

been reprimanded, discouraged or in any way inhibited in my ability or in my efforts to prosecute and forward the initiative in Indian Country. Let me tell you what this Administration is doing in 

that respect. 

With regard to the United States Attorneys in Indian Country, 

the Native American Issues Subcommittee regularly is meeting for 

purposes of advising the Attorney General. Not only were we out 

in South Dakota two weeks ago, we were there with the tribal liaisons, because we recognized, we are about to leave. But to continue 

the mission of the Department of Justice, we need to make sure 

that we empower the Assistant United States Attorneys who are 

working in Indian Country. 

Not only were we there, but the Deputy Attorney General sent 

representatives, the Executive Office of U.S. Attorneys was there, 

and we were there with other law enforcement. We are currently 

planning yet another meeting of the same components in Arizona 

for September. We are on the agenda for the Attorney General’s 

Advisory Committee. 

You want me to talk about declinations. 

The CHAIRMAN. Yes, please. 

Ms. SHAPPERT. Okay, glad to. There are two different kinds of 

cases that U.S. Attorneys prosecute, proactive and reactive. 

Proactive cases are the paper-intensive, grand jury-intensive, document-intensive Title III wiretap going after Enron cases that we 

typically do. The reactive cases are more akin to what we do in Indian Country and are frequently more akin to what local district 

attorneys do. They are the violent crimes, they are responding to 

issues of violent crime. 

Fully a quarter of the violent crime prosecuted by U.S. Attorneys 

is in Indian Country. It requires a different skill set and it requires 

a different criteria. When we accept a case for prosecution, a couple 

of things. First of all, we can only accept it if we can prove it beyond a reasonable doubt. We can’t indict a case without being able 

to prove it beyond a reasonable doubt. Probable cause is not a high 

enough standard, because we are not only interested in protecting 

the rights of victims, we have to be concerned about rights of defendants, and do justice. So we don’t indict a case if we can’t prove 

it. 

When we are looking at a case in Indian Country, we are going 

to look to make sure it is Indian Country, we are going to look at 

50 

whether the victim is an Indian or non-Indian and we are going to 

be looking at whether the perpetrator is an Indian or non-Indian. 

So we go through that kind of an analysis. 

The CHAIRMAN. I would understand you do that. My question is 

not, is there work going on. My question is about the result and 

the Justice Department says, we don’t have the foggiest idea how 

many declinations there are. Now, you have heard the testimony 

here, you have heard it from Chairman His Horse Is Thunder, 

Chairman Garcia, you have heard it from Ms. Stoner. It seems to 

me that the system doesn’t work. 

Let me make one other point. The current Attorney General, I 

understand your point about him. I met with him. I provided him 

the testimony by a U.S. Attorney who said, we were reprimanded. 

I talked about the crisis, and I appreciate the fact that he apparently took that seriously. My discussion is about a good number of 

years prior to that, in which we have seen this fester and build, 

and the violence continue. 

But my specific question about declinations is in response to Ms. 

Stoner and others that I have heard from repeatedly that you send 

a case up of a violent rape, you don’t have the foggiest idea whether somebody is going to pursue it or not, and maybe you don’t hear 

back for a year and a half, and they say, we have decided not to 

pursue it. If the Justice Department can’t even tell us how many 

they have declined, I don’t understand what kind of track they are 

keeping of these issues. 

Ms. SHAPPERT. First of all, the Department of Justice is currently 

working through the Office of Justice Affairs to improve the quality 

of our stat keeping, which needs improvement and we are currently 

working on that. So that is a work in progress. 

And I would be glad to report back to this Committee as to what 

the Department is doing to improve their stat keeping. 

Secondly, sometimes cases are referred to another jurisdiction, be 

it the State or tribal court, for prosecution. Under the current status of the law, it is within the discretion of the U.S. Attorney 

whether to report our declination. We may not do it for a couple 

of reasons, Senator. One is, if it is an ongoing grand jury investigation, there may be confidentiality concerns. We may have a victim 

who is related to a tribal law enforcement officer. And our first concern will always be protecting the victim. So we may not disclose 

it if we are trying to protect a victim or certain witnesses. So we 

have those kinds of concerns. 

But with regard to the stat keeping, I will be glad to see that 

we report back to you. But we are working to improve our stat 

keeping. 

The CHAIRMAN. And this is not about statistics so much as it is 

about U.S. Attorney’s office deciding that this ought to be in the 

front of their office rather than the back of their office, the serious 

requirement to prosecute felons on reservations. 

Mr. Ragsdale, let me ask you, are there, as Mr. Lamar indicated 

in his testimony and as I have heard before, are there juvenile detention centers that have been built, paid for and standing open 

unused at this point? 

Mr. RAGSDALE. There are, sir. 

The CHAIRMAN. Tell me the reason. 

51 

Mr. RAGSDALE. The reason, one of the primary reasons is difficulty staffing them, staffing them and recruiting qualified people, 

because there is no place for them to live. That is one problem. 

Another problem is that some of the recent facilities that were 

brought online were not designed to keep the type of typical juvenile offender that we maintain in our systems today and need improvements. 

The CHAIRMAN. Let me ask you specifically about the provision 

in Mr. Lamar’s testimony, the Hualapai Reservation, the juvenile 

detention center, newly-constructed, on that reservation, sits empty 

a year after construction. Juvenile crime on the reservation is 

rampant to the point of the very juveniles who should be incarcerated in that facility are now vandalizing the facility. 

What is the purpose of having that facility sit vacant, do you 

know? 

Mr. RAGSDALE. There is not a good purpose for having a facility 

sit vacant. 

The CHAIRMAN. Why is it sitting vacant? 

Mr. RAGSDALE. It is sitting vacant because of two reasons. One 

reason is that we have not been able to staff that facility with the 

necessary personnel, because it is located in a remote location. The 

current tribal council is proposing, originally the tribe wanted us 

to operate the facility, us being the BIA, as a direct operation. They 

have since decided that they want to contract out the facility and 

that they want to provide the service directly and are in the process of doing that. 

In the meantime, while we have been going back and forth with 

the tribe on the contracting issue, we have been trying to recruit, 

but have not been able to staff the facility adequately. And there 

are improvements that need to be made. Excuse me, I am thinking 

about another facility. I am sorry, Senator. I don’t know that we 

need to make improvements at Hualapai. The issue has been primarily not being able to staff it. 

The tribal government also thinks that they need more money 

than we have allocated to run the facility. So that has been an 

issue between the tribe and us. 

The CHAIRMAN. You know, Mr. Ragsdale, I have been very critical of the BIA recently. It is, in my judgment, so bureaucratic, so 

difficult to see accomplishments coming from the agency. And I 

don’t understand why it is not an emergency situation, when you 

have violent juvenile crime occurring, you have a new facility that 

is sitting there empty a year after it was built. Why is that not an 

emergency? You need to make things happen. I am so disappointed 

with the Bureau of Indian Affairs for its failure to make things 

happen, in so many different areas. 

Mr. RAGSDALE. May I respond? 

The CHAIRMAN. You may respond, yes, of course. 

Mr. RAGSDALE. Senator, from your perspective, I understand 

where you are coming from. The Bureau works with very limited 

resources. There is a system that we have to abide by doing security checks under the post–9/11 requirements. We have been working very hard to try to streamline the bureaucracy so that we can 

hire people. But even the personnel resources that we have available to us to focus on law enforcement issues is very limited. We 

52 

are trying very hard, and the Secretary of Interior is right behind 

that effort to try and make that better. That is what we are trying 

to do. 

The CHAIRMAN. This limited resources thing, I don’t hear anybody coming to these tables from the BIA saying, look, we have a 

crisis going on here, people are dying, there are people being raped, 

victims of sexual assault. The fact is, Senator Thune talked a bit 

about this at the start when we asked for some additional resources to go into the Standing Rock Reservation. This is not a 

third world country. This is part of our Country. 

The dilemma here is we have this fractionated law enforcement 

system that doesn’t work at all, in my judgment. But this notion 

of not enough resources, I understand that, I believe that is the 

case. I would like somebody to come to the table who runs the BIA, 

and it doesn’t matter whether it is in the past Administration or 

this Administration, that says, by God, we need more money to 

save lives and to help people. Nobody ever does that, because the 

requirement is to come to this table and support the Administration’s budget. 

The last person that came to the table and said, I don’t agree, 

we need more resources, got fired the next morning. The very next 

morning. So I understand why they all—— 

Mr. RAGSDALE. Well, Senator, I will tell you we need more resources, and I am not afraid to say that. I have testified before this 

Committee a number of times, and I have not tried to varnish over 

the situation that we have with regard to public safety in Indian 

Country. It is a national disgrace. 

The CHAIRMAN. I hope you are all right tomorrow morning, then. 

Mr. RAGSDALE. We will see. 

The CHAIRMAN. But I appreciate that. And what kind of resources are necessary? How much are we short here? I know what 

we are short in health care, 40 percent of the health care needs are 

unmet, so we have rationing going on. 

But in law enforcement, it seems to me we are desperately short 

of doing what we need to do. How much do we need here? 

Mr. RAGSDALE. Senator, we did a gap analysis. Typically we find, 

and there are variances, because there are some tribal law enforcement departments that do very well and put their own money and 

resources into it. But typically, we have about one-third to one-half 

as many as you would find in the rest of America, as compared to 

rural law enforcement in America, which is not really a real high 

standard. 

With respect to detention and corrections, in my view, what the 

Administration and the Congress needs to do is to step back for a 

moment and look at the status of detention and what we are trying 

to provide throughout Indian Country. We have to do things differently. Everybody cannot have a detention facility. We have to 

strategically place detention facilities so that we can handle the 

kind of population that we have in our facilities. 

When I first got started in the Indian Bureau, which is a long 

time ago, most of our detention facilities were like the hometown 

jails, where somebody that was arrested for alcoholic behavior or 

misbehavior associated with alcohol, they were checked into the 

jail, they sobered up and then they came out. That is not the kind 

53 

of offender that we hold in our jails today. We hold dangerous offenders serving one year or more terms that have come from every 

type of criminal activity from rape to homicide to serious assaults 

and all those things. The people that we used to hold in our jails 

we don’t hold, because we can’t hold them. 

The CHAIRMAN. I have so many additional questions, but I don’t 

want to dominate this. The Vice Chair I know has questions as 

well. Senator Murkowski. 

Senator MURKOWSKI. Thank you, Mr. Chairman. I know that 

Senator Thune has to leave, so I will defer to him for a few questions and then if I may ask my round. Thank you. 

Senator THUNE. Thank you, Mr. Chairman. I want to thank Senator Murkowski for giving me an opportunity to ask some questions. 

I appreciate the testimony of the panel. It seems to me, at least, 

that there ought to be a basic expectation of people who live on the 

reservations, Indian and non-Indian, that public safety is going to 

be there. I think that is something that most people in America 

sort of accept as a basic premise, that that is something that their 

Government ought to be able to provide. And because of the trust 

and treaty responsibilities that the Federal Government has with 

respect to our reservations, the lack of public safety seems to me 

like a major failure. It is tragic, what we are seeing happening on 

our reservations, and the data bears that out. 

I think the thing I would like to get at, is the resource issue, and 

I think Mr. Ragsdale has spoken to that. I offered an amendment 

to the budget resolution this year, when it went through the Senate, to increase the funding for tribal justice by $200 million over 

a five-year period or $40 million a year. Senators Dorgan and Murkowski were supportive of that effort. But it seems to me that is 

a big—I don’t dispute for a moment that that is an issue here. We 

have to do something to address the resource issue. But we have 

so many challenges and problems that we face on our reservations 

today, none of which can be solved until we deal with the basic fundamental issue of public safety. I just don’t know how you can have 

children learning, absent having a secure environment in which to 

learn. You can’t create jobs, you can’t have economic development 

if you don’t have public safety. You can’t get a company to create 

jobs on a reservation if they are worried about vandalism or they 

are worried about crime. 

So many of these issues tie back to resources, it all starts there. 

I think this is the foundation of a lot of the issues that we are facing on the reservations today. So I just say that as a basic overall 

observation. I think that we have a responsibility, which perhaps 

because of insufficient funding we haven’t met here. But I also 

think that we just have to have a focus from the BIA on this issue. 

That is not to say that to the detriment of other important work 

that the BIA is doing. 

But we have jails in our State of South Dakota. The Crow Creek 

jail closed on the assumption that the Lower Brule jail was going 

to open. It has not been adequately staffed. They are shipping people to Cheyenne River. We have all these ongoing issues with the 

wide geography that we have in South Dakota, 2.4 million acres, 

as Chairman His Horse Is Thunder has testified on Standing Rock, 

54 

and just inadequate law enforcement presence out there. It just 

goes up and down the chain. 

That is why I think this bill is so important, because there are 

so many issues that need to be addressed, some of which are policyrelated, I think addressing the issue of tribal courts being able to 

put people in jail for longer than a year at a time is important. 

That seems to me to be, you have to know that if you are going 

to get involved in crime on the reservation, there are going to be 

consequences to that. 

But I guess I say all that in a circuitous way of getting around 

to a question. Mr. Ragsdale, I do want to ask you, because I think 

this Operation Dakota Peacekeeper could be a model that could be 

implemented other places around the Country, certainly on some of 

the reservations in South Dakota. So I would like to have you 

speak a little bit more specifically to that, perhaps Mr. Chairman, 

you could add some insights on that, too. I know this is an issue 

we have discussed on a number of different occasions. 

Mr. Ragsdale, when you were in South Dakota in the last couple 

of weeks and I had a conversation with you, you indicated that you 

had seen first hand and actually detained and made some arrests 

while you were out there. But this seems like a runaway problem, 

and the only way we are going to address it is to really attack that 

problem. 

I think that Operation Dakota Peacekeeper is, to me at least, an 

important first step. I am curious to get your reaction about how 

that has worked, how it might be used as a model on other reservations, and what is necessary in terms of resources to do that. Senator Dorgan raised the issue about resources, too. What is it, what 

do we need to do to bring some security to our reservations and 

how can this Operation Dakota Peacekeeper be a part of that solution? 

Mr. RAGSDALE. Thank you, Senator. When Mr. Artman first 

brought up the idea about doing something at Standing Rock because of the problems and the issues and because of the concern 

of both States’ delegations, I was kind of skeptical, because the 

problem boils down to having the right number of public safety personnel to cover a very large reservation. I sat down with my staff, 

we did some planning. We decided to employ our emergency service 

function team, which is set out to do national incidents like responding to hurricanes and national incidents and such. We have 

used that team to supplement the existing law enforcement operation that we have there. 

In terms of numbers, we have uniformed police officers integrated into the local police department, which about measures up 

to the gap analysis that we need. We have about 12, 14 officers 

there to operate 24/7 over huge geographic differences. We have 

supplemented that with about 20 officers, which is still less than 

the gap, but it appears to be really making a difference. 

We have also sent in additional criminal investigators to assist 

in the difficult crime cases. We have people that are meeting with 

local officials on a daily basis. What we hope to do is, because we 

are not going to be able to sustain it for much more than three 

months, what we hope to do is to help the community find its way 

55 

so that we can develop some community strategies, so that we can 

do better with the limited resources we have. 

It appears to be working. The community has accepted us. I was 

surprised when I was out there on the streets talking to the grandmas and mamas and little kids, how grateful they were to have police officers on the streets. I guess the point is, if we can do that 

at Standing Rock and make a huge difference and rally the community, to do the community policing that we would like to do, but 

if you are just reacting to incidents, you don’t have time to talk to 

neighbors and set up neighborhood watches and work with the 

church leaders and so forth. 

So I am hopeful that if we can do that in three months at Standing Rock and make a difference, and as we start to withdraw that 

the community will be in better shape, and we may be able to employ this tactic at other places. As someone has pointed out, we 

chose Standing Rock because we had strong tribal support from the 

chairman, from the delegation. It seems to be working real well. 

But Standing Rock is not our worst reservation, by far. Standing 

Rock has six times the national violent crime rate. We have reservations that it is up to 32 times. We have reservations where police are just reacting, reacting, reacting to calls. 

The CHAIRMAN. Senator Thune, President Garcia has an 11:25 

departure for an airplane. So in the remaining minute before President Garcia has to leave, might we ask President Garcia, do you 

wish to comment on some of the other statements you have heard 

before you have to depart to catch an airplane? 

Mr. GARCIA. Yes, Senator, thank you. 

The CHAIRMAN. Thank you, Senator Thune. 

Mr. GARCIA. I think that if you have statistics like this, this 

model that we are just now talking about, you have the cost breakdown for a model, you have the effectiveness, because you have 

monitored it very closely. So roughly, what might happen is that 

there should be a suggestion that this is X amount of dollars that 

it costs, and if you can implement that same model throughout Indian Country to some realistic level, that automatically gives you 

a number that we ought to be requesting to take care of the crime 

rates and break the cycle of crime, if you will. 

But if that kind of data is not provided for you, like the question 

you asked, Senator, on what is the need, and so I will answer that 

question about what is the need. I think the funding level for BIA 

in terms of law enforcement, it is probably less than 20 percent of 

the needs in Indian Country, is the funding level that they receive. 

So in order to break the cycle of crime, we need that amount of dollars to move and to make some kind of impact. 

If we don’t get that, then we are struggling. Because when does 

the budget cycle start and who implements that budget request? It 

comes from the President, goes through OMB, and so the only 

thing that I see the Bureau and the Department asking for is really honing in and trying to hold to the budget request that the 

President makes, and never mind the needs out there in Indian 

Country. It is a big dilemma. So I think that is why it is so important that the legislation needs to reflect that. I see that is where 

we are headed. 

56 

But major, major change needs to happen. We can go on and on 

on criteria and performance and lack of funding and all of that. But 

I think this sets the tone for where we need to go. So I hope that 

is what we can do and I hope the funding comes with the legislation. 

The CHAIRMAN. President Garcia, thank you. Section 101 of the 

bill requires the BIA to submit an annual unmet needs report, so 

we would know their assessment of the quantity of unmet needs 

and the cost of it. 

Thank you very much for being with us. 

Senator Thune? 

Senator THUNE. Thank you, Mr. Chairman. 

I will let you continue, Senator Murkowski, with your questions. 

But I would just like to, if I could, get maybe some perspective 

from Chairman His Horse Is Thunder, too. And I appreciate the 

fact that it takes a lot of leadership to make this model that is 

being attempted to be implemented here in the Standing Rock 

Sioux Tribe work, sometimes standing up against some forces that 

would not like to see it work. So I appreciate the leadership you 

have provided. 

But maybe just your thoughts about that, too, how this particular project has worked. I know it is early in terms of implementation, but I think the concern that most people have is how do we 

continue it after this three-month period, the so-called surge is 

completed. I think again, I appreciate, a lot of things in this bill 

have been based upon input that we have received at all aspects 

of tribal justice. Hopefully the funding issue we can help address 

in the budget process. I recognize the need to do that. 

But we really need to get our arms around this. I don’t know how 

we can continue to have huge populations of people living in fear. 

That is not right and we have to do something about it. 

I need to go before long, too, but Mr. Chairman, if you would care 

to comment about your observations about how this Peacekeeper 

operation is working, I would appreciate that. 

Mr. HIS HORSE IS THUNDER. Mr. Chairman, Senator Thune, it 

appears to be making a huge impact. As Mr. Ragsdale talked about 

the gap in law enforcement officers and the need that was on our 

reservation, that the gap analysis said we need somewhere around 

36 law enforcement officers. Currently there are an additional 20 

law enforcement officers on the reservation. We have 10 who were 

there before, we have 2 unfilled slots, at least they are not there 

yet. 

So we have 30 police officers. It is close to what we need in terms 

of filling that gap. The most law enforcement officers Standing 

Rock ever had is in 1890. We had 45 law enforcement officers on 

the reservation. As soon as they arrested and killed Sitting Bull, 

then the number of law enforcement officers started to dwindle on 

our reservation, to the point today we only have 10. 

The Dakota Peacekeepers operation, it is a good operation. But 

you hit it on the nose, Senator, and that is, what happens after 

three months, when these 20 law enforcement officers then leave? 

Do the criminals then come back out of the woodwork? That is a 

concern. 

57 

In terms of what Mr. Ragsdale talked about, that is engaging the 

community, the churches, the district communities, myself as well, 

too, in trying to bring the resolve back to the community in terms 

of, they have an obligation to take care of some of the problem, it 

is not just a police officer problem, it is a community problem. We 

agree. It is a community problem, it is. 

However, with lack of police officers there, I am afraid that in 

many ways it will revert back to the same reservation it was before, that we do need additional dollars in order for the community 

to stay engaged, to have some of the resources it is going to need 

to supplement, if you will, the lack of law enforcement officers. If 

we had community security forces, we wouldn’t need to be paying 

nearly as much as regular law enforcement officers, but resources 

to engage the community in terms of having foot patrols in the 

communities, programs to engage the youth, the Boys and Girls 

Clubs are starting to pop up on the reservation, but they are severely under-funded. Opportunities for children to engage in other 

activities other than criminal activities would be great. So taking 

a look at resources for those types of programs, in the end it comes 

down to resources. 

Right now, it is a good influx of police officers. It does create one 

additional problem for us, and that is our court systems. Our court 

system is arraigning people now seven days a week and our jails 

are full. We have not been given the additional resources we need 

to man our courts to keep up with the number of criminals that 

are arrested on the reservation. 

It is a good surge, it is making a difference. I don’t think we are 

going to have the resources to continue, with community support 

for it, once the surge ends. As Mr. Ragsdale talks about, this peacekeeping pilot was a pilot program to test their abilities to respond 

to emergencies, such as hurricanes and floods, et cetera. Hurricanes and floods go away. The regular police force that was in 

those communities where they had hurricanes and floods, et cetera, 

don’t have as big of a task once those natural disasters are taken 

care of. This is not a natural disaster here, we need a long-term 

solution. 

The CHAIRMAN. Senator Murkowski. 

Senator MURKOWSKI. Thank you, Mr. Chairman. Thank you all 

for your testimony. 

We all appreciate that funding is the crux of so much of the problem. If you don’t have adequate funding, it is very difficult to institute any of the initiatives. But Chairman His Horse Is Thunder, I 

appreciate the recognition, as you spoke in your opening comments, 

for instance, when you talk about the level of consistency with law 

enforcement, having the available number of law enforcement, it is 

not just the numbers. It is the quality of the training that they 

have. 

But we have to appreciate that it is not just a situation where 

you are able to hire a certain number of qualified individuals, train 

a certain number. You then have the issues that we face, certainly 

on your reservation, but we face it up in the State of Alaska, we 

are trying to get law enforcement individuals out into very remote 

areas, areas where the environment is not hospitable, you are not 

on the road system, you are not connected, you have lots of difVerDate Aug 31 2005 09:27 Jul 22, 2008 Jkt 043268 PO 00000 Frm 00063 Fmt 6633 Sfmt 6601 S:\DOCS\43268.TXT JACK PsN: JACKF
58 

ferent things going against you. You don’t have support for those 

that are providing the law enforcement there. And then you don’t 

have basic services. And housing is the most basic. If you can’t provide for a place in a rural area, you have a trained individual who 

is willing to come out, willing to make that commitment. ut if your 

family is miserable out there because you are crammed into very 

inhospitable spaces, I appreciate your reminding us that it is not 

just about getting a certain number of individuals to sign onto a 

program. There s a whole host of other factors that allow for success in making sure that we have the quality individual, and those 

folks that are able to do their jobs. 

I don’t know what the answer is. I know in Alaska, as we were 

looking at our teacher shortage issue, we had to make a commitment to build housing for our teachers in certain villages. We have 

to have housing that is provided by the villages to those who are 

willing, the village safety officers, that are willing to come in. Otherwise, there is no way that we can keep them. 

So as we look to the law enforcement issues, I think we need to 

recognize that it is bigger than just the prison facilities, the detention facilities and the numbers. We have to have the other aspects 

of a quality life there as well. 

I wanted to ask you, Ms. Shappert, because you have indicated 

that the Department opposes placing the Indian defendants in the 

Bureau of Prisons facilities. Yet the reason this is in the draft is 

because nearly all the tribes have no detention facilities, or very 

limited space available. If we can’t support using the Bureau of 

Prisons facilities, what is the alternative? Where do you go? What 

do you do? 

Ms. SHAPPERT. I think I have to reiterate the same issues of resource that we have heard from the other members of the Committee. But let me try to explain some of the concerns we have 

about BOP in particular. 

As I think you are probably aware, Senator, the Bureau of Prisons right now is 37 percent over capacity. Most but certainly not 

all the prisoners in the detention facilities in Indian Country right 

now are one year offenders. Many of them have much less serious 

criminal records than the people in the Bureau of Prisons. 

If we put them into the Bureau of Prisons, a couple of things. 

First of all, on a one year sentence, they may never make it into 

BOP. They would be housed in a detention facility or a State or 

local jail that is contracted with BOP, because their sentences are 

so short they wouldn’t actually get to BOP. So they may not actually have the advantages of the BOP resources. 

The other concern that we have heard raised by some of the 

tribes is that if they are placed in Bureau of Prison Federal detention facilities, any infractions or violations of the law implicate 

Federal law and they are subject to punishment under Federal law. 

The third thing I would ask you to do, and we will be glad to 

provide it, is look at a map of where the BOP facilities are in the 

United States and juxtapose it with Indian Country. There are not 

many BOP facilities in Indian Country. So as a practical matter, 

somebody who was convicted in the Great Plains, if they were to 

go into BOP, might be housed in Florida, might be housed in Pennsylvania. And in respecting the sensitivity of ethnicity and tribal 

59 

relationships and family communities and the need to maintain 

those ties in Indian Country, we are going to lose that if individuals are housed 1,000 miles from where they are otherwise. 

Senator MURKOWSKI. And we appreciate that. We are faced with 

the same situation in Alaska, where we send many of our prisoners, many of whom are Alaska Natives, they go down to Arizona. 

It is not the ideal situation. But it does seem to me that this is an 

area that we have to be thinking creatively here. 

Mr. Ragsdale, you had mentioned in your comments constitutional concerns that you have, not you necessarily, but that the Department may have with increasing the tribal court sentencing authority as well as placing the Indian defendants in the Bureau of 

Prisons. Can you elaborate a little bit more on what you believe 

those constitutional concerns to be? 

Mr. RAGSDALE. Yes, ma’am. Typically, as you know, the Federal 

law sets the maximum amount of punishment to $5,000 and one 

year in jail, which in this Country is considered a misdemeanor, 

even though it may be a felony type crime that someone has committed that the tribe has adjudicated. All tribes do not provide defense attorneys. I know the Navajo Nation does, the Cherokee Nation does, I don’t know about the Eastern Band. But there is not 

a requirement. So that is one issue that would probably have to be 

addressed. 

The other issue would be, there are, and this is a sovereignty 

issue, is there is a lack of separation of powers between, in many 

of our tribal government institutions, which is not necessarily bad. 

But it would raise those kinds of concerns and for both the tribe 

and the United States of America, in my opinion, to ensure, there 

would have to be, in my opinion, some reform or consistency overall 

within the tribal court system. 

Senator MURKOWSKI. I have more specific questions about certain provisions in the draft bill that I will direct to individuals by 

way of written questions. But I wanted to ask you, Mr. Lamar, because of your experience with the BIA and in law enforcement, in 

Section 104 of the draft legislation, where an office of Indian Country crime within the DOJ Criminal Division is created, this has 

been objected to by the Department of Justice because they believe 

that it may pull Indian Country experts from the field. 

What do you think about this as a concern? And kind of give me 

your comments on how you think this new office that we are proposing would assist in prioritizing or coordinating activities between DOJ and how they relate to law enforcement in Indian 

Country? 

Mr. LAMAR. I think, number one, such an office would probably 

be able to pull up the statistics rather quickly with regard to the 

declination rates in Indian Country. I know when I was at the FBI, 

we had a fairly sophisticated records management system back 

then, in the mid-1990s. In the mid-1990s, there was a question 

from the FBI agents with regard to the number of declinations. 

They felt like those declinations were inappropriately high. So it is 

a push of a couple of buttons on a computer that says how many 

cases were presented to the United States Attorneys, how many 

were closed on declination. So those numbers are actually readily 

available, and I am surprised—— 

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Senator MURKOWSKI. You just need to ask the right division, is 

that what you are suggesting? 

Mr. LAMAR. I think the numbers are readily available, and it is 

a matter of saying, let’s find out what this really is and let’s give 

an inkling to this Committee, is it really an issue and how large 

is the issue. 

The CHAIRMAN. Might I just ask, if you would yield on this. 

Senator MURKOWSKI. Yes, please. 

The CHAIRMAN. The Justice Department presentation to us yesterday, dated June 17th, says ‘‘We do not have statistics that we 

believe accurately reflect the declinations in Indian Country.’’ Do 

you say that is not accurate? 

Mr. LAMAR. Well, I wouldn’t say that that is not accurate, because that would leave out the Bureau of Indian Affairs declinations, and would only account for the FBI declinations. But I think 

it would give an inkling, because the FBI is a primary investigative 

agency in Indian Country with regard to those crimes. So I think 

that would give an idea, is it really the problem that we think it 

is. I believe that it is. I believe that those numbers are going to 

be extremely high. 

So I think that division would be able to then concentrate the 

right priority on Indian Country. The Department of Justice has 

previously come in this very room and testified that there is no further need for funding for detention facilities. When I was at the Department of Interior, we were begging for additional dollars to continue to build facilities. Though we had a hard time, as does Mr. 

Ragsdale, with funding and staffing those facilities, we continued 

to ask for money to build facilities because the need was there. Yet 

the Department of Justice testified that the need was not there and 

that the current facilities were only 79 percent filled. 

Clearly, we need more facilities in Indian Country. I think that 

the Department of Justice, given Indian Country the right priority, 

will be able to answer those questions, will be able to respond 

stronger in Indian Country to the crimes that are presented. Clearly, their resources as well are tapped. But if you have 25 percent 

of your violent crime that is associated with Indian Country, are 

25 percent of the resources at the Department of Justice dedicated 

to that? 

When I left the Department of Interior, the Department of Interior is one of the largest Federal law enforcement, represented one 

of the largest Federal law enforcement contingencies in the United 

States. So I would say that here you have the Bureau of Indian Affairs occupying about three or four offices at the end of a wing, and 

an entire building that, a Department that represents a law enforcement agency of that size from the Park Service of BLM, Reclamation and so on. Why aren’t some of those folks moved over and 

detailed to Bureau of Indian Affairs to help them solve some of 

these tremendous problems? 

Senator MURKOWSKI. I appreciate your response, sir. I think it 

is helpful. I recognize that oftentimes around here, it is not only 

asking the right question, but making sure that it is exactly the 

right person that you are asking that question to. It is somewhat 

frustrating that the Chairman has received a letter saying, we 

61 

can’t give you the information that some of you believe is available, 

perhaps just not as fully as they would want. 

I would like to point out, and President Garcia mentioned this, 

that in his opinion, this draft legislation wasn’t, I don’t think he 

used the term wasn’t complete, but that one of the areas where 

there was an absence was as it related to Alaska Natives. We recognize that many of the issues as they relate to law enforcement 

and jurisdiction are different in Alaska than they are in the lower 

48, and that has been one of the reasons why we have been a little 

more reserved as this legislation, or this draft legislation has gone 

forward. Our State Attorney General has expressed some concerns 

with the way the legislation is drafted at this point and just how 

Alaska fits in. So it is something that I want to work with you, Mr. 

Chairman, as we advance this. 

But listening to the testimony this morning, the concerns that 

are raised, I heard good comments about the general direction. 

There were some good suggestions in terms of those areas where 

we perhaps have not yet addressed. So I think this is the start of 

a very meaningful dialogue on an issue that is of great importance 

across the Country. I look forward to working with you and other 

members that are currently co-sponsoring this, to see if we can’t 

make a difference. Knowing that we thought we did something 

good back in 1990, and then 18 years later, we realize we are no 

further along than many of us thought. So I would like to know 

that we can advance this. I look forward to working with you. 

The CHAIRMAN. Senator Murkowski, thank you very much. I look 

forward to working with you as well. 

Mr. Ragsdale, thank you for being here and for being candid with 

us. I am candid with you about my frustrations with the BIA. I 

hope, I mean, I think we need the BIA to work and work well, 

work aggressively, work smart on a wide range of issues. 

I happen to think we are under-funded on a wide range of things, 

including health care, housing, education and law enforcement. We 

are going to work to try to address all of those issues. 

Today’s hearing was about law enforcement. I think the information given us by a number of witnesses describes the urgency here. 

Ms. Stoner, thank you for your background and the years you have 

spent in these areas. I notice you indicated you were at Spirit 

Lake, you were a tribal judge, I believe, at Spirit Lake for eight or 

nine years? 

Ms. STONER. Tribal prosecutor, yes. 

The CHAIRMAN. At the Spirit Lake Nation. And you are now in 

academics, but you are contributing as well to the same area, and 

we appreciate that. 

Mr. Lamar, thank you for your candid observations and helpful 

observations. Ms. Shappert, thank you for traveling here to give us 

the perspective of the U.S. Attorneys. Chairman His Horse Is 

Thunder, as always, thanks for your leadership day to day on one 

of our Country’s important Indian reservations. 

The hearing record will remain open for two weeks for additional 

submissions to the record. We likely will be submitting additional 

questions to witnesses and ask that you would respond. 

This hearing is adjourned. 

[Whereupon, at 11:50 a.m., the Committee was adjourned.] 

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A P P E N D I X 

PREPARED STATEMENT OF HON. FLOYD JOURDAIN, JR., CHAIRMAN, RED LAKE BAND

OF CHIPPEWA INDIANS

Mr. Chairman, I thank you and the other distinguished members of the Committee for this opportunity to provide testimony on behalf of the Red Lake Band of 

Chippewa Indians (the ‘‘Tribe’’). My name is Floyd Jourdain, Jr., and I am the dulyelected Chairman of the Tribal Council of the Red Lake Band. 

The focus of my testimony will be on the Tribe’s juvenile detention facility, which 

was constructed in 2005 mainly with Department of Justice (DOJ) corrections facility grant funds, but which has sat empty for the past three years because the BIA 

failed in its commitment to provide staffing and operational dollars. 

In the mid-1990s, the DOJ launched its Indian Country Justice Initiative to enhance and streamline its support for tribal community law enforcement programs. 

For several years beginning in 1999, Congress appropriated $34 million annually to 

DOJ to award correctional facility grants to tribes for the purpose of repair or replacement of dilapidated detention facilities. 

In the 1990s, Red Lake was in dire need of a new detention facility. Our old jail 

was nothing more than an old storage garage designed for our Red Lake Forestry 

program that was converted in the 1970s for use as a jail, law enforcement center, 

and courthouse. The facility was severely overcrowded and had been condemned by 

the BIA. 

Between 1999 and 2001, the Tribe was fortunate to receive a DOJ Corrections Facility grant to build two detention facilities. The first detention facility (Phase I) was 

a 42-bed, medium security facility designed primarily for adult detention, but with 

capabilities to house an additional 26 juveniles on a short-term basis. The second 

detention facility (Phase III) was a 24-bed, minimum-security juvenile detention facility, designed for longer-term stays, and with counseling and classroom education 

capabilities. 

The BIA participated in the development of both facilities by providing design 

funding, and by reviewing and approving the designs prior to construction. The two 

buildings were inspected by the BIA after construction, and both facilities were certified for occupancy by the BIA. The BIA owns the two facilities and has provided 

Facility Operations and Maintenance funding for both buildings since the time the 

BIA approved their occupancy. The BIA also provided furnishings for both facilities, 

including flat screen televisions, bunk beds, desks, and other equipment for the 

Phase III juvenile detention facility. 

The initiative to repair and replace Indian Country jails was to be a partnership 

between DOJ and BIA. Funds to construct facilities were to be provided by the DOJ 

and funds to staff and operate the new facilities were to be provided by BIA. The 

BIA did provide funding for staffing and operation of the Tribe’s Phase I adult detention facility since it was opened in 2003. But the BIA has provided no funds for 

the operation of our Phase III juvenile facility, despite multiple promises to do so. 

In August of 2004 the Tribe held its CY 2005 Self-Governance negotiations with 

BIA and OSG. At that time, construction of the Phase III juvenile detention facility 

was nearing completion, and was expected to be operational in CY 2005. The Tribe, 

during its negotiations, requested staffing and operations funding for the juvenile 

facility in the amount of $1,218,482, consistent with the Tribe’s operational budget 

for the facility. The BIA agreed by contract to assist the Tribe in obtaining the $1.2 

million for staffing and operations in CY 2005. Additionally, the BIA agreed by contract to include $1.2 million in funding for the juvenile facility in the next President’s budget request (FY 2006). The Tribe relied on the BIA to follow through with 

its contractual commitments to the Tribe and to honor its partnership agreement 

with DOJ by requesting the funds to staff and operate the Tribe’s new juvenile detention facility. 

In 2004, a few months before the BIA agreed to provide funding for the Tribe’s 

juvenile facility for CY 2005, this Committee and the Committee on Finance held 

hearings on the Interior Department’s Office of Inspector General Report: ‘‘Neither 

64 

Safe Nor Secure: An Assessment of Indian Detention Facilities.’’ General Devaney 

told the Finance Committee on September 21, 2004, that: 

BIA–LES was unable to produce any annual budget submissions for our [OIG] review. We later learned that BIA–LES managers use historical funding levels as 

their new annual budget requests and have rarely asked for actual budget increases. In addition, we discovered that BIA–LES does not seek to obtain accurate 

or realistic budget projections from detention facility administrators. In fact, funds 

allocated to individual jails by BIA–LES are not even tracked. Their failure to make 

an effort to assess the true cost of operations or to have any internal controls in 

place becomes a self-fulfilling prophecy. 

These fiscal management failures also impact new detention facilities built with 

funds awarded as grants by the Department of Justice (DOJ). Since 1997, DOJ has 

provided over $150 million in construction grants for new detention facilities. However, these grants are only for construction of the facility. BIA is then responsible 

for providing the funding for operational costs. Given the poor budget planning and 

execution by BIA–LES, it was not surprising to learn that facilities completed with 

DOJ grant monies often do not get the necessary funding to actually open for business. 

General Devaney forecast what would happen to Red Lake a year later when BIA 

abandoned its contractual obligations to Red Lake. We received no funds in CY 

2005. The BIA failed to request funding for the Tribe’s juvenile facility in the FY 

2006 budget and provided no other assistance to the Tribe to obtain such funding. 

The Tribe was shocked to learn of this breach of contract and breach of trust. The 

Tribe needs this facility to be opened and operated. It is intended to help us deal 

with a significant number of youth involved with drugs, alcohol, violence, and gangs. 

Many of these youth have been in and out of our tribal court system and are often 

released because they are too vulnerable or too young to be placed in the adult detention facility. The purpose of the Phase III juvenile facility is to house and rehabilitate these young offenders and turn their lives around before it is too late. 

About the time we first learned of BIA’s failure to honor its commitments to the 

Tribe, the tragic events of March 21, 2005 unfolded, in which a troubled juvenile 

went on a shooting rampage at our Reservation high school, killing 10 people, including himself. After the tragedy of March 21, the Tribe reached out for assistance 

for its youth and received some aid, including the ultimate realization of a new Boys 

and Girls Club facility from non-BIA sources. But the Tribe still needs a juvenile 

detention facility to deal with troubled teens who currently are sent through a revolving door. These kids require an environment in which there is confinement and 

security, but at the same time one which enables continuation of their education 

and offers rehabilitative treatment. In the aftermath of the shootings, the Tribe declared that the BIA had breached its contractual obligations to the Tribe, and asked 

again that the BIA include the Tribe’s juvenile detention facility funding in the FY 

2007 budget process. So what was BIA’s response to the Tribe’s request that BIA 

finally make good on its promises? The BIA pivoted and began arguing that the 

Tribe’s new juvenile detention facility was not a facility eligible for BIA funding. 

Considering that BIA participated every step of the way, from funding its design 

to certifying the facility for occupancy and furnishing it, this new position of the BIA 

was outrageous. 

So where are we today? The Tribe sorely needs a juvenile detention facility. It has 

one, but it has been sitting empty for over three years now. DOJ did its job as part 

of the DOJ–BIA partnership and constructed the Red Lake Juvenile Jail. But BIA 

failed to do its job and fund the operation of our juvenile facility, forcing the Tribe 

to sue the BIA in federal court. In the meantime, for over three years now, troubled 

juveniles at Red Lake are devoid of the option for rehabilitation that the Tribe’s new 

juvenile detention facility was intended to provide. 

Mr. Chairman and members of the Committee, this story is not a happy one, but 

I thank you for the opportunity to tell it to you today. 

PREPARED STATEMENT OF HON. ELBRIDGE COOCHISE, INDEPENDENT COURT REVIEW

TEAM

Our Team has spent the last three years traveling throughout Indian Country. 

We have reviewed approximately 37 Tribal Courts. We have, perhaps, more knowledge and experience than anyone else regarding Tribal Courts. We offer this knowledge and experience in our comments on this draft bill. 

This is, without question, a good bill. There is much in here to be satisfied with. 

Thus, we have, with few exceptions, limited comments to proposed changes. We understand this is a Tribal wish list and that DOJ and Interior have not yet weighed 

65 

in. It is our experience that Crime is uncontrolled in Indian Country. This, we feel, 

needs to be the priority for Congress. With this in mind, we offer the following comments. 

Within the bill, Programs are extended to 2013. Given the usual length of legislation, this we feel is too short. It would be better if the programs in the bill were 

given a seven year life to 2015. 

The legislation amends several bills to include Tribes in a similar status to states. 

This should have been done in the first place and is a welcome update of this legislation. 

The legislation also includes and considers DOJ over site of Indian Country. Considering the U.S. Attorney portion of law enforcement in Indian Country, this 

should also have been done sooner. 

If this bill has a major failing, it is the failure to deal with Oliphant. Non-Indians 

are moving to reservations to make and deal drugs, including Meth. Non-Indians 

are abuser/perpetrators in relationships with Indian women and nothing can be 

done. It may be unrealistic to overturn Oliphant. However, this is, after all, misdemeanor jurisdiction. Some classes of crimes, such as DV, lend themselves to jurisdictional oversight by the most available sovereign. Limited criminal jurisdiction 

would not be a problem for Tribes in such cases. At the least, this legislation should 

acknowledge in the findings the potential for problems with non-Indian defendants 

as support for cross-jurisdictional law enforcement agreements. 

It is vital to understand that you can’t just hire more police and build more jails 

and the problems will go away. The step between law enforcement and jails is Tribal Courts. Funding for Courts, for training and staff, (Judges, Prosecutors and 

clerks) is just as important as it is for cops. This is often ignored. For this bill to 

be successful, adequate attention must be paid to the Tribal Courts. 

Finally, the recent centralization of the Bureau of Indian Affairs Police has insulated them from responding to legitimate questions and concerns of Tribal leaders. 

The chain of command makes it difficult to establish an exact location of supervisors 

who should respond to Tribal leaders. In reality, the police administration considers 

itself answerable only to itself. Authority over police should be returned to the Superintendents of the Agencies of the BIA. 

Specific Comments. 

Section 102. Declination Reports 

This section is very important. The DOJ could accomplish this administratively. 

however; it would show the level of work that isn’t being done in Indian Country. 

It is not surprising this type of data isn’t being collected. 

There is some concern that the crimes committed, and subsequently declined, will 

decrease in severity. So that it doesn’t look like an aggravated assault was declined. 

that crime will be labeled a simple assault. Recommend the crime recorded for data 

purposes is the crime charged by the initial Tribal investigation. 

Tribal Prosecutor can pursue the case in Tribal Court once the Feds decline. This 

is good. Tribal Courts are not prepared legally or financially to prosecute what will 

likely be a number of severe (felony-level) cases. They will need training and funding. 

Maintenance of Records. Records should also be maintained by reservation. 

Confidential or Privileged Communication. This should be defined so it can not 

be used as an excuse to limit evidence that would hinder Tribal prosecutions. 

Section 103. Prosecution of Crimes in Indian Country 

Tribal Liaisons. Indian Cases have always had the lowest priority in a U.S. Attorney Office. Pay or other incentives should be used to insure the Tribal Liaison does 

not become an unwanted position. 

To Hold Trials and Other Proceedings in Indian Country. This seems to presume 

U.S. Attorneys will practice in Tribal Courts. Not a bad idea. Perhaps better to consider them Special Prosecutors and require they comply with the rules of the Tribal 

Court regarding practice by outside attorneys. 

Section 106. Office of Tribal Justice 

If this is the only legislative duty of the Office of Tribal Justice, care must be 

taken their other important duties are not neglected down the road. 

Meaningful and Timely Consultation with Tribal Leaders. Is this distinguishable 

from consultation not labeled ‘‘meaningful and timely’’ later in the bill? 

Coordinate Prosecutions of Crimes of National Significance. Is the intent of this 

so Duro/Hicks type cases won’t reach the Supreme Court? It is likely impossible to 

convince DOJ that the OTJ should exclusively handle these types of cases. It may 

be better not to try. 

66 

Section 201. State Criminal Jurisdiction and Resources 

Needs a section; if a Tribe chooses where the Tribe is paying for or capable of 

paying for a sufficient standard of law enforcement, retrocession of state jurisdiction 

will be permitted. Many gaming Tribes are capable but denied this authority by 

their states. 

Section 202. Incentives for State, Tribal and Local Law Enforcement Cooperation 

Grants should also be available to develop cooperative agreements. Many states 

and Tribes have the incentive but do not have the funding to develop agreements. 

Section 304. Tribal Court Sentencing Authority 

Increase to 3 years and $15,000 is reasonable. Three times current levels. 

In Accordance with Guidelines Developed by the BIA. A deadline should be imposed so these guidelines do not take years to develop. 

Appropriate Federal Facility. Though some will object, this should help rid Tribes 

of their most serious offenders. 

Violent Crimes, Sexual Abuse and Serious Drug Offenses. An appropriate list of 

crimes for Federal prisons. Habeas Corpus and Federal review is still available. 

Transfer of a Tribal Court Offender. Is it the intent to require a separate agreement for every prisoner that needs one? This is too cumbersome. It should be by 

charge... which would also limit favoritism. 

Section 305. Indian Law and Order Commission 

Experience and Expertise. These are not intended to be Tribal Leaders. Or even 

Indians. There should be some assurance Indians will be represented on this Commission. 

Powers. The Commission should have subpoena authority because some, probably 

state officials, won’t want to testify. 

Commission Personnel Matters. There is no provision for staff. . . . Or even an 

Executive Director. It needs someone to compile the data. The Commissioners are 

volunteers. Most Tribes are poor. This assures only financially secure individuals 

and organizations are represented. It may cut out valuable applicants. 

Section 403. Cops Tribal Resources Grant Program 

It may be better to identify and designate a percentage of the grant funds for 

Tribes or Tribes, with limited grant-writing skills, will not get funded. 

Section 404. Tribal Jails Program 

(See above.) Set aside and designation of $35 million for Tribal Jails will, over 

time, go a long way toward fixing the Jail space problem in Indian Country. Staffing 

may be a larger problem than facilities. Need training and staff funding as well. 

Section 601. Violation of Tribal Orders 

Under consideration. Any additional protection for victims is valuable. Requiring 

that Tribal Courts meet certain standards before Order reaches Federal felony status is not unreasonable. 

67 

PREPARED STATEMENT OF JAMES S. RICHARDSON SR., PRESIDENT, FEDERAL BAR

ASSOCIATION


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* Response to written questions was not available at the time this hearing went to press. 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO HON. RON HIS

HORSE IS THUNDER * 

Question 1. Can you please describe the Standing Rock Tribe’s Court system? 

Please indicate whether there is an appellate court system, public defenders’ office, 

and other relevant information. 

Question 2. How do you the BIA could more effectively performing its law enforcement duties for direct service tribes like Standing Rock? 

Question 3. In their testimony, the Interior and Justice Departments indicated 

their opposition to Section 305 of the draft bill that would increase tribal court sentencing authority to 3 years imprisonment. The agencies stated their concern that 

the provision could adversely impact defendants’ constitutional rights in tribal 

courts. Please discuss your thoughts on the protection of constitutional rights in the 

Standing Rock Tribal Court system? 

Question 4. You mentioned that Operation Dakota Peacekeeper is already providing increased enforcement of crimes on your Reservation. Can you please additional details on the effects of the Operation, identify the most positive aspects of 

the Operation, and provide a recommendation of what essential components of the 

program should be maintained. 

WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO HON. RON HIS HORSE

IS THUNDER * 

Question 1. This draft bill authorizes the Drug Enforcement Administration to 

award technical assistance grants to tribal law enforcement agencies. What other 

recommendations do you have to improve relations between Indian tribes and the 

DEA and drug abuse prevention and interdiction in Indian Country? 

Question 2. Your testimony suggested improving the availability of housing on the 

Indian reservations to assist in recruiting and retaining law enforcement officers. 

What other recommendations do you have to assist in the recruitment and retention 

of law enforcement officers? 

Question 3. The Department of ,Justice has raised several concerns about providing declination reports to tribal justice officials and indicated that releasing case 

files to the tribal prosecutors may generate potentially discoverable material. You 

suggested that the federal prosecutors should release the entire case file to tribal 

prosecutors so they may proceed accordingly. 

How could tribes protect the confidentiality of such information so that it does not 

impede the successful prosecution of offenders in either the tribal or federal courts? 

Question 4. The Operation Dakota Peacekeeper program has increased the number of law enforcement officers on your reservation. However, you had indicated concerns regarding the temporary nature of that program. Would it be more beneficial 

to the law enforcement efforts and public safety in general to make permanent 


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* Response to written questions was not available at the time this hearing went to press. 

across Indian Country programs such as Operation Dakota Peacekeeper and the 

Safe Indian Communities Initiative? 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO WALTER E. LAMAR * 

Question 1. The Committee has heard concerns about the BIA’s Internal Affairs 

Division. Please describe your thoughts on the possible consequences of the current 

Internal Affairs system. And, if you believe necessary, do you have any recommended legislative proposals to ensure that the BIA and tribal law enforcement 

agencies have adequate internal affairs practices? 

Question 2. As a former FBI agent serving Indian Country, what in your opinion 

could be done on the part of the FBI—other than dedicating additional positions— 

to aid the investigation of crimes in Indian Country? 

WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO WALTER E. LAMAR * 

Question 1. Section 303 of the draft bill would allow tribes broader access to national criminal databases. What recommendations do you have for improving the 

tribal law enforcement officials’ ability to access the NCIC as well as other data or 

information sharing capabilities? 

Question 2. Background investigations and proper training are costly for Indian 

tribes. Section 301 of the draft bill authorizes law enforcement officers to obtain 

training through state police academies. What are other options should be made 

available to Indian tribes, such as accessing the FBI fingerprinting systems, to conduct proper background investigations and training which might decrease the costs 

incurred by Indian tribes in the hiring of qualified law enforcement officers? 

Question 3. There are a significant number of law enforcement agencies and jurisdictions involved in Indian Country. Cross-deputization agreements have been one 

tool to improve coordination between the agencies and reduce confusion over such 

matters as jurisdiction. Section 301 of the draft bill also contemplates a plan being 

developed to enhance the provision of special law enforcement commissions to tribal 

and state law enforcement officers. What other tools are needed to ensure adequate 

coordination and response from and between the various law enforcement agencies 

is provided to victims of crimes in Indian Country? 

Question 4. Your testimony indicated that the Federal Bureau of Investigation 

may have the number of their cases declined by the U.S. Attorney’s Offices, but may 

not include the BIA or tribal cases referred to the U.S. Attorney’s Offices. What 

other recommendations do you have to gather comprehensive data on the declination rates? 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO KELLY GAINES

STONER * 

Question. I want to clarify that the enhanced sentencing provision for tribal courts 

in Section 304 is optional. The intent of the provision is to maintain the current 

standards for prosecutions subject to 1 year or less. However, if a Tribe chooses to 

enact criminal laws subject to sentences between more than 1 year and up to three 

years, the tribal court must afford the defendant certain protections. I agree that 

funding for tribal public defense programs must be included. Section 402 of the draft 

bill would reauthorize the Indian Tribal Justice Support and Technical and Legal 

Assistance Acts, which includes programmatic funding for tribal public defender 

programs. In your opinion, what other initiatives should be included in these tribal 

courts programs? For example, how could the BIA or Tribes collect and provide better data on tribal court statistics? 

WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO KELLY GAINES

STONER * 

Question 1. What types of training should be included for law enforcement officials to increase the chances of successful prosecutions of domestic and sexual violence? 

75 

* Response to written questions was not available at the time this hearing went to press. 

Question 2. Your testimony indicated that you referred cases to the federal prosecutor and either did not receive a declination report or received a delayed response 

from the federal prosecutor. The Committee received testimony from the Department of Justice that there are several serious concerns about releasing declination 

reports. What is your view about those concerns? Do you have any recommendations 

for how the Federal and tribal prosecutors and law enforcement could work together 

to address these concerns? 

Question 3. The Department of Justice indicated that it opposes codifying the duties of the tribal liaisons within the U.S. Attorney’s Offices which are outlined in 

the draft bill. What would you recommend for the U.S. Attorney’s Offices in defining 

the tribal liaisons roles so that Indian Country crimes would receive significant attention, priority and be addressed in a consistent government to government relationship? 

Question 4. The Committee has heard that in some jurisdictions the tribal prosecutors must turn cases over to the FBI, who then must review and present them 

to the U.S. Attorney’s Office. Was this the case when you were the tribal prosecutor 

at Fort Totten? What problems, if any, could tribal prosecutors face in such circumstances? 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO HON. GRETCHEN C. 

F. SHAPPERT * 

Question 1. Please provide the number of federal reservation-based misdemeanor 

prosecutions by District for the years 2006 and 2007. Please indicate the percentage 

of Native American defendants in these cases. 

Question 2. The draft bill would enable the use of declination reports as a positive 

tool to coordinate prosecutions with tribal prosecutors, and to inform Congress regarding where additional resources are needed. This information is not available. 

Please provide a list by Federal District of the percentage of Indian Country criminal cases that were declined by U.S. Attorneys offices nationwide in 2006 and 2007? 

Again, by Federal District, please indicate the general reasons for declinations, attributing percentages to those reasons? 

Question 3. Please describe the Department’s policy on taping recording interviews with suspects, and provide reasons behind the policy. 

Question 4. Please describe the Federal Bureau of Investigations efforts to aid 

background investigations for potential employees of gambling facilities operated by 

Indian Tribes, including the use if any of the Integrated Automated Fingerprint 

Identification System (IAFIS). Would the Department support similar coordination 

for purposes of expediting background checks for candidates for tribal and BIA police and corrections officers? 

Question 5. Please provide the current number of offenders in federal custody (the 

Federal Bureau of Prisons System) that were convicted in either State, local government, or territorial courts? 

Question 6. The Interior Department-contracted ‘‘Master Plan for Justice Services 

in Indian Country’’ indicates that most tribal jails have reached or will soon reach 

the end of their useful life. It notes that 90 percent of jails older than 5 years should 

be replaced. And it notes that contract beds at State and local jails are overcrowded 

and often far from remote tribal communities. 

You indicated the Department’s opposition to the proposal to permit coordination 

between tribal courts and the Federal Bureau of Prisons. What viable alternatives 

to incarceration for tribal justice programs would the Department support? 

WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO HON. GRETCHEN C. 

F. SHAPPERT * 

Question 1. Your written testimony indicated that the Department of Justice N– 

Dex Program office is developing relationships with several Indian tribes to submit 

data to the N–Dex system. What kind of infrastructure does this N–Dex system requires for tribal agency participation? 

Question 2. Your written testimony indicated that the Department’s efforts in Indian Country have been above average across the board. As an example, your testimony cites that in FY 2006, the Department filed 606 cases against 688 defendants 

76 

* Response to written questions was not available at the time this hearing went to press. 

in Indian Country which is nearly 5 percent higher than the average rate of filing 

since 1994 of 580 cases against 643 defendants per year. Does that 5 percent figure 

correspond with the percentage increase in crime rates in Indian Country? What is 

the basis for determining an ‘‘above average’’ effort across the board? 

Question 3. Your written testimony states that the number of FBI agents working 

Indian Country cases has increased by 7 percent since 2001. What has been the percentage increase or decrease in work-hours or Time Utilization Recordkeeping hours 

dedicated to Indian Country since 2001? 

Question 4. Your written testimony indicates that the Department has concerns 

about releasing declination reports for several reasons, particularly the creation of 

potentially discoverable material. What kind of information do you think could be 

conveyed to the tribal justice officials to enable them to understand the status of 

the case and make a decision on proceeding in tribal court without creating potentially discoverable material? 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO W. PATRICK

RAGSDALE * 

Question 1. Please explain the Interior Department’s efforts to coordinate with the 

Justice Department on the construction/renovation and the operation/maintenance 

of tribal jails. 

Question 2. The Interior Department-contracted ‘‘Master Plan for Justice Services 

in Indian Country’’ indicates that most tribal jails have reached or will soon reach 

the end of their useful life. It notes that 90 percent) of jails older than 5 years 

should be replaced. And it notes that contract beds at State and local jails are overcrowded and often far from remote tribal communities. 

You indicated the Department’s opposition to the proposal that would enhance 

tribal court sentencing authority to 3 years, and permit coordination between tribal 

courts and the Federal Bureau of Prisons. What viable alternatives to incarceration 

for tribal justice programs would the Department support? 

Question 3. Please describe the Department’s efforts to fight juvenile crime in Indian Country. 

Question 4. Please provide a detailed spending plan for the $23.7 million appropriated in FY 2008 for the Department’s Safe Indian Communities Initiative? Include the amount spent on Operation Dakota Peacekeeper and other implementation to date. 

Question 5. Please describe in your opinion what aspects of Operation Dakota 

Peacekeeper are working, and comment on whether and how the Operation will duplicated in other tribal communities. 

WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO W. PATRICK

RAGSDALE * 

Question 1. The draft bill would require the Office of Justice Services to coordinate with the Department of Justice to develop specialized family violence training 

for all of the law enforcement officials and prosecutors responsible for Indian country. What kind of training currently exists for such specialized family and domestic 

violence training for BIA and tribal law enforcement? How many BIA law enforcement officers have received this specialized type of family and domestic violence 

training? 

Question 2. Your written testimony indicates that the Department may have constitutional and federal policy concerns with increasing the tribal court sentencing 

authority as well as placing Indian defendants sentenced by tribal courts in the federal Bureau of Prisons. You stated that there may need to be a separation of powers 

within tribal governments as one means of addressing these concerns. Please elaborate on your statement about separation of power—in particular, how or why it 

would address constitutional concerns. 

Question 3. Would a ‘‘separation of powers’’ requirement also require some tribes 

to amend their constitutions? 

Question 4. Your testimony indicated that the Operation Dakota Peacekeepers Initiative is for a limited time, but that the number of law enforcement officers is 

reaching the standard under the GAP Analysis and that it appears to be making 

77 

* Response to written questions was not available at the time this hearing went to press. 

a difference. You also mentioned that you will review this initiative to see if it could 

be employed at other Indian reservations. What other initiatives could be employed 

immediately on other Indian reservations, some of which are experiencing even 

higher crime rates than the Standing Rock Sioux Reservation? 

Question 5. Your testimony indicated that there are Indian reservations with 

crime rates as high as 32 times the national average. Please explain the basis for 

the statement that crime rates on certain Indian reservations were 32 times the national average? 

Question 6. How is the BIA coordinating with tribal law enforcement to improve 

the background checks process? 

Question 7. How does the Indian Child Protection and Family Violence Act improve the background check process? 

Question 8. Please describe the process followed by the BIA and Federal Bureau 

of Investigation to coordinate their efforts in investigating crimes in Indian Country? 

Question 9. Your written testimony indicated that the Incident Management Analysis Reporting System (IMARS) is intended to provide a common information sharing capability across all participating functional areas within the Department of Interior for capturing and reporting law enforcement information. Once it is Department-wide, OJS will determine the feasibility of providing an opportunity for tribal 

collection of crime data using IMARS. What is the time frame for IMARS becoming 

Department-wide? How will OJS determine the feasibility of allowing Indian tribes 

to participate in the IMARS? 

Question 10. What can be accomplished in the interim to assist Indian tribes in 

law enforcement data collection and information sharing? 

Question 11. Your written testimony indicated that consistency in standards and 

staffing among the detention facilities needs to be assured to alleviate both constitutional and federal policy concerns regarding increasing the tribal sentencing authority from one year to three years. What assistance can the BIA provide to Indian 

tribes to achieve these standards and staffing levels? 

WRITTEN QUESTIONS SUBMITTED BY HON. PETE V. DOMENICI TO W. PATRICK

RAGSDALE * 

Question 1. I often hear from New Mexico tribal officials regarding the difficulties 

tribal leaders face in trying to deal with crime including drug activity, gangs and 

other criminal activity. What program(s) or assistance does BIA provide to local 

tribes for the training of local tribal law enforcement officers? 

Question 2. What law enforcement resources, both officers and support personnel, 

does the BIA have deployed in New Mexico at this time? 

Question 3. Are crime rates on New Mexico reservations higher than those of 

other states per capita? 

Question 4. In 2004, the Department of Interior Inspector General issued a report 

entitled ‘‘Neither Safe Nor Secure.’’ The report outlined the poor conditions of detention facilities throughout Indian Country. Since the 2004 report, how has the BIA 

and DOJ worked together to plan for correctional facility replacement? 

Question 5. What is the status of plans for correctional facility replacement and 

renovation and specifically in New Mexico? 

Question 6. Would it be helpful for Congress to clarify what type of collaborative 

process would be required for BIA and DOJ’s work on correctional facility replacement and collaboration? 

WRITTEN QUESTIONS SUBMITTED BY HON. JOHN THUNE TO W. PATRICK RAGSDALE * 

Question 1. Regarding data collection, do all tribes participate in the BIA’s crime 

data collection efforts? Do they all use the same standards? How many tribes are 

still submitting hard copies of their data and what effort is being made to move 

these tribes towards electronic submission? 

Question 2. At the conclusion of Operation Dakota Peacekeeper could you provide 

a report on the successes and failures of the operation as well as its long term 

project effect on crime on the Standing Rock Sioux Tribe? 

78 

Question 3. What percentage of BIA officers are cross-commissioned? How about 

tribal officers? 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO HON. 

JOE A. GARCIA

Question 1. In their testimony, the Interior and Justice Departments indicated 

their opposition to Section 304 of the draft bill that would increase tribal court sentencing authority to 3 years imprisonment. The agencies stated their concern that 

the provision could adversely impact defendants’ constitutional rights in tribal 

courts. Please discuss NCAI’s position on the protection of constitutional rights in 

tribal court systems? 

Answer. Section 305 of the draft legislation would extend tribal sentencing limitations under the Indian Civil Rights Act to provide for up to 3 year sentences for 

more serious offenders. In the original 1968 law, tribal sentencing authority was 

limited to 6 months or $500. In 1986, the authority was expanded to 1 year or 

$5000. 

As a general matter, the rights guaranteed by the United States Constitution do 

not apply to tribal courts. Rather, the Indian Civil Rights Act (ICRA) incorporates 

similar protections as are found in the U.S. Constitution and makes them applicable 

to tribal courts. As such, defendants in tribal courts do not have ‘‘constitutional 

rights’’ other than rights recognized in the tribal constitution. Defendants in tribal 

courts do, of course, have a statutorily guaranteed right to many of the due process 

protections contained in the U.S. Constitution under ICRA. 

We assume that the federal agencies are raising concerns that the full panoply 

of rights that have been enumerated in the U.S. Constitution would not be available 

to defendants in tribal courts, to the extent that some of those rights are triggered 

by a sentence that is greater than one year. 

First, the Supreme Court has recently confirmed that an Indian tribe acts as a 

separate sovereign when it prosecutes its own members or nonmember Indians, and 

such prosecution is not an exercise of federal power. United States v. Lara, 541 U.S. 

193 (2004). The power that Congress would exercise here is Congress’s broad power 

in Indian affairs with its source in several places in the Constitution, and there is 

‘‘no explicit language in the Constitution suggesting a limitation on Congress’ institutional authority to relax restrictions on tribal sovereignty previously imposed by 

the political branches.’’ Lara, 541 U.S. at 546. 

As a matter of constitutional law, the length of the sentence imposed matter differently across constitutional rights. For example, the Sixth Amendment right to 

counsel is applicable as long as the defendant receives any imprisonment at all. See, 

Alabama v. Shelton, 535 U.S. 654 (2002). The right to a jury trial does not attach 

to all criminal offenses, but only attaches for all offenses that are not ‘‘petty offenses,’’ which the Supreme Court has defined as six months in jail or less. See, 

Blanton v. City of North Las Vegas, Nev., 489 U.S. 538 (1989). 

The Fifth Amendment provides a right to a grand jury indictment for ‘‘infamous’’ 

crimes, and a one-year sentence is the dividing line for infamous crimes. See, e.g., 

U.S. v. Fitzgerald, 89 F.3d 218 (5th Cir. 1996) (‘‘Any federal offense punishable by 

imprisonment for more than one year is an offense for which the Fifth Amendment 

requires a grand jury indictment.’’). This is the only criminal procedure issue we can 

find that would relate to the expansion of tribal sentencing authority beyond one 

year. 

However, unlike many other provisions of the Bill of Rights, the Supreme Court 

has ruled that the right to indictment by grand jury is not a fundamental aspect 

of due process, and was not incorporated to apply to state courts via the Fourteenth 

Amendment, and states therefore may elect not to use grand juries. Hurtado v. California, 110 U.S. 516 (1884). ‘‘[W]e are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the 

defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.’’ 

Because tribal prosecution is not an exercise of federal power, and because the 

right to a grand jury indictment has never been considered a fundamental aspect 

of due process, we do not believe that the expansion of tribal sentencing authority 

should trigger constitutional concerns for Congress. However, NCAI strongly supports the protection of due process in tribal courts, and we note that the legislation 

would specifically protect the right to assistance of counsel and the general right 

to due process in criminal proceedings. 

79 

Question 2. Please provide your legislative recommendations, if any, to initiatives 

that should be included in the reauthorizations of the tribal courts, tribal youth, and 

other tribal justice programs. 

Answer. As noted in our testimony, one of the primary recommendations of tribal 

leaders has been to make funding from the Department of Justice programs more 

readily available and more useful for the actual needs on reservations. Right now, 

the funding requires a significant grant-writing capability and is often compartmentalized in ways that do not make sense. Our recommendation would be for Congress 

to consider something like the following: 

25 U.S.C. § 458l—to read: 

(a) Notwithstanding any other provision of law, the Attorney General shall 

carry out a program within the Department of Justice to be known as the Tribal 

Justice Self-Determination and Self-Governance Program. 

(b) Notwithstanding any other provision of law, the Attorney General shall 

enter into contracts, compacts and funding agreements in accordance with Title 

I and IV of the Indian Self-Determination and Education Assistance Act, P.L. 

93–638, as amended, with any Indian tribe who elects to utilize the authority 

of this title to govern any funds available to Indian tribes under the authority 

of the Attorney General. 

(c) Notwithstanding any other provision of law, the negotiation and implementation of each agreement entered into under this section shall be governed by 

this title and the provisions of Title I or IV of the Indian Self-Determination 

and Education Assistance Act, P.L. 93–638, as amended. 

(d) Regulations. 

(I) Not later than 90 days after [DATE OF ENACTMENT], the Secretary shall 

initiate procedures under subchapter III of chapter 5 title 5 to negotiate and 

promulgate such regulations as are necessary to carry out this part. 

(II) A negotiated rulemaking committee established pursuant to section 565 of 

title 5 to carry out this section shall have as its members only Federal and tribal government representatives, a majority of whom shall be representatives of 

Indian tribes with self-governance agreements under this chapter. 

(III) The Secretary shall adapt the negotiated rulemaking procedures to the 

unique context of Self-Determination and Self-Governance and the governmentto-government relationship between the United States and the Indian tribes. 

(IV) The lack of promulgated regulations shall not limit the effect of this part. 

Question 3. Please include any other recommendations or comments on the draft 

bill. 

Answer. NCAI strongly encourages the Committee to consider including the pilot 

project to expand tribal jurisdiction in cases of domestic violence that was included 

in the concept paper for the bill last November. This provision was widely supported 

by Indian country and is a common-sense solution to one of the most pressing problems in tribal communities. Tribal governments should have the authority to intervene when a non-Indian who has chosen to become a member of the tribal community abuses his Indian family members. 

NCAI also encourages the Committee to consider including some of the recommendations for improving the effectiveness of the Adam Walsh Act in Indian 

Country that were made at the July 17, 2008 hearing on sex offender registration. 

There are many excellent provisions in the legislation and NCAI has had a significant opportunity to provide input, so we will limit our recommendations at this time 

to these two, and encourage the Committee to continue to continue its efforts to receive recommendations from tribes. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO HON. 

JOE A. GARCIA

Question 1. Both the Departments of the Interior and Justice appear to have serious concerns about provisions in the draft bill that would increase tribal court sentencing authority and allow tribally-sentenced Indian defendants to serve their time 

in the Bureau of Prisons system. How might tribes address the additional requirement of the defendant’s right to legal counsel in implementing the increase in tribal 

sentencing authority to three years as contemplated by the draft bill? 

Answer. First, NCAI strongly supports the provision which would allow tribes to 

send serious offenders to serve their time in the Bureau of Prisons system. As the 

Committee is aware, tribal detention facilities have been neglected and are significantly under funded. This is one of the most important provisions of this legislation. 

80 

Second, we agree that protecting the right to counsel is important to protect the 

constitutionality of tribal justice systems. In United States v. Lara, the Supreme 

Court left open the question of whether additional due process challenges could be 

raised to tribal prosecutions. ‘‘Hence, we need not, and we shall not, consider the 

merits of Lara’s due process claim. Other defendants in tribal proceedings remain 

free to raise that claim should they wish to do so. See 25 U.S.C. § 1303 (vesting district courts with jurisdiction over habeas writs from tribal courts).’’ 

NCAI’s understanding is that a significant number of tribes already provide counsel to indigent persons who are prosecuted in tribal courts for offenses that could 

include imprisonment. For the remaining tribes, the issue is largely funding. We 

would encourage Congress to provide additional funds for tribal justice systems, but 

also note that the proposed statute would give tribes some flexibility. If the tribe 

chooses to impose sentences greater than one year, the tribal court would be able 

to provide counsel for indigent defendants on a case-by-case basis. 

Question 2. The Operation Dakota Peacekeeper program will provide additional 

law enforcement officers on the Standing Rock Sioux Indian reservation for a limited period of time. Would it be more beneficial to the law enforcement efforts and 

public safety in general to make permanent throughout Indian Country programs 

such as Operation Dakota Peacekeeper and the Safe Indian Communities Initiative? 

Answer. NCAI strongly agrees that increased law enforcement presence and focus 

is the top priority to improve law enforcement in Indian communities. Tribal leaders 

have made this their first concern, and this has only been reinforced by the recent 

successes of the Dakota Peacekeeper Operation. As noted in our testimony, we 

strongly urge increased resources for BIA law enforcement and the creation of specifically focused enforcement units within the Department of Justice and the Federal Bureau of Investigation. 

Question 3. The Committee received testimony recommending that, to improve 

and prioritize law enforcement, the Office of Justice Services within the Bureau of 

Indian Affairs should be elevated to a Bureau directly responsible to the Assistant 

Secretary for Indian Affairs, similar in status to the Bureau of Indian Education, 

and the Deputy Director elevated to a Director. Does the NCAI agree with this recommendation? 

Answer. NCAI does not agree with the recommendation at this time. Tribal leaders have been opposed to reorganization efforts to separate out the functions of the 

Bureau of Indian Affairs for two primary reasons. First, creating a separate bureaucracy requires the creation of additional high-level management positions that 

take away resources from reservation-level services. The priority of tribal leaders is 

to maximize the services provided at the reservation level, and this is particularly 

true for law enforcement. Second, the creation of a separate bureaucracy tends to 

‘‘stove-pipe’’ decision-making and makes it more difficult to coordinate action at the 

local level and create bureaucratic delays. To our knowledge, this is not a question 

that has been discussed with tribal leadership and we would urge the BIA and Congress to take no action to reorganize the Office of Justice Services without support 

from tribal leaders. 

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426611.262
1379 

Æ