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81–151 PDF 2002

S. HRG. 107–605

IMPACT OF SUPREME COURT RULINGS ON LAW

ENFORCEMENT IN INDIAN COUNTRY

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

CONTEMPORARY TRIBAL GOVERNMENTS: CHALLENGES IN LAW ENFORCEMENT RELATED TO THE RULINGS OF THE U.S. SUPREME

COURT

JULY 11, 2002

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

DANIEL K. INOUYE, Hawaii, Chairman

BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

PAUL WELLSTONE, Minnesota

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

FRANK MURKOWSKI, Alaska

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

PATRICIA M. ZELL, Majority Staff Director/Chief Counsel

PAUL MOOREHEAD, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

Statements:

Akaka, Hon. Daniel K., U.S. Senator from Hawaii ....................................... 3

Bengochia, Monty J., tribal chairman, Bishop Reservation .......................... 22

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, vice chairman, Committee on Indian Affairs .............................................................. 2

Heffelfinger, Thomas B., U.S. Attorney, city of Minneapolis ........................ 9

Hillaire, Darrell, chairman, Lummi Indian Business Council ...................... 4

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman, Committee

on Indian Affairs ........................................................................................... 1

James, Gary, chief of police, Lummi Nation .................................................. 5

Pouley, Theresa, chief judge, Lummi Tribal Council .................................... 5

Toulou, Tracy, director, Department of Justice, Office of Tribal Justice ..... 11

APPENDIX

Prepared statements:

Bengochia, Monty J. ......................................................................................... 48

Cypress, Billy, chairman, Miccosukee Tribe of Indians, Florida .................. 54

Heffelfinger, Thomas B. ................................................................................... 35

Hillaire, Darrell ................................................................................................ 27

Toulou, Tracy .................................................................................................... 41

Wellington, Victor, mayor, Metlakatla Indian Community, Annette Islands Reserve ................................................................................................ 58

(1)

IMPACT OF SUPREME COURT RULINGS ON

LAW ENFORCEMENT IN INDIAN COUNTRY

THURSDAY, JULY 11, 2002

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC.

The committee met, pursuant to notice, at 10:00 a.m. in room

485, Senate Russell Building, Hon. Daniel K. Inouye (chairman of

the committee) presiding

Present: Senators Inouye, Akaka, and Campbell.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM

HAWAII, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. The committee meets this morning to receive testimony on the challenges confronting contemporary tribal governments as they provide for the health, safety and welfare of those

who reside on Indian reservations, both Indians and non-Indians.

Enforcing the law on Indian reservations has increasingly become frustrated by the complex pattern of jurisdictional authorities

that have been engendered by rulings of the U.S. Supreme Court.

Today, we will receive testimony on the results of studies conducted by Department of Justice, and we will learn about more recently gathered reports and statistics which are simply shocking.

For instance, Justice Department reports indicate that American

Indians are victims of violent crime at rates more than twice the

national average, far exceeding any other ethnic group in the country. Nearly one out of every four Native Americans between the

ages of 18 and 24 are victims of a violent crime—the highest per

capita rate of violence of any racial group considered by age and

representing 10 percent of the violent crimes prosecuted by the

Justice Department.

Other alarming information instructs us that over a 5-year period, American Indian females were victimized by a spouse or intimate partner at rates which greatly exceed the comparable rates

for any other ethnic group. Now, consider that the U.S. Supreme

Court has ruled that tribal governments have lost their inherent

authority to exercise criminal jurisdiction over non-Indians on the

grounds that it is inconsistent with the domestic dependent status

of Indian Nations and you can begin to understand the extent and

nature of the devastating problems we are here to address.

The incidents of domestic abuse and domestic violence are high,

yet if the abusing spouse is a non-Indian, tribal law enforcement

officers are without jurisdiction to intervene. What other law en-
2

forcement presence is there on the vast majority of Indian reservations? The answer is none. Tribal law enforcement officers can call

upon State or local authorities, but more often than not those enforcement authorities are reluctant to come on the reservation because the rulings of the Supreme Court have also rendered their

jurisdiction unclear.

Federal law enforcement officers have criminal jurisdiction over

felonies and other acts enumerated in the Major Crimes Act, but

sadly we know that the Federal law enforcement effort is underfunded, understated, and simply not able to respond in a timely

fashion when crimes are in the process of being committed.

Add to that the increased burdens placed on all of law enforcement—Federal, State, local, and tribal—in responding to the new

climate of terrorism, additional responsibilities associated with

homeland security and border security, and one could say that we

may well have a crisis in law enforcement in Indian country.

It is not widely know, but many Bureau of Indian Affairs police

have been drafted to serve as air marshals, and there are no replacements provided for those officers who are no longer providing

protection in tribal communities. Some have suggested that the

Justices of the Supreme Court knew what impact their rulings are

having on the ability of tribal governments to provide for the

health, safety and welfare of all their citizens because if they did,

they would not have invalidated the intergovernmental agreements

that many State and tribal governments have entered into in order

to provide a seamless and comprehensive law enforcement framework, as the court did in the Nevada v. Hicks decision handed

down last year.

This is just one of many dynamics that we are contending with

when the legal experts tell us that the Supreme Court’s rulings are

having devastating impacts in Indian country. No where else in

America does law enforcement jurisdiction depend on a determination of the race or ethnicity of the victim and the perpetrator of a

crime. That in and of itself should signal to one and all that we

need to bring some sense, some order and some clarity back to law

enforcement in Indian country.

Mr. Vice Chairman.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM COLORADO, VICE CHAIRMAN, COMMITTEE ON

INDIAN AFFAIRS

Senator CAMPBELL. Thank you, Mr. Chairman.

This is the second hearing we have held where we are analyzing

the impacts of recent Supreme Court decisions on Indian tribes and

residents, both Indian and non-Indian, as you have mentioned.

Dealing as it does with matters relating to law enforcement, today’s hearing will hopefully shine some light on a very practical

problem. I do not want to knock the Supreme Court, but I have to

tell you in many cases they live a very insulated lifestyle in an insulated atmosphere, and they are simply not out in the field

enough to see how their decisions impact people at the local level.

As the Justice Department continues to report to us, on many

reservations crime is on the rise, as you mentioned, increasingly

particularly violent crime, and that leads to both Indians and non-
3

Indians being victimized. High crime on Indian lands also creates

the obvious disincentive for different businesses that might come

on the reservations to invest or innovate or create jobs and income

for depressed economies, in many cases. And the complicated system of jurisdictions—on some reservations there are nine jurisdictions, so there is no question that it complicates prosecutions. And

although some innovations like cross-deputization has helped,

there are still huge loopholes in the system of trying to bring people to justice as the perpetrators of crime.

Certainly, I think one of the most immediate concerns to me and

to the Nation since 9–11 is homeland security and the need to collectively protect our borders and our citizens from people who

mean to do us harm. Just as tribal law enforcement offices are

often the first, and sometimes the only responders to crimes and

other problems on Indian lands, in many areas of our Nation they

are the first in the line of defense against those who would harm

us. In some places on Indian reservations, there is a lag-time, a

delay-time of when you actually call sometimes of one-half hour to

an 1 hour of response time. That is not uncommon on reservations,

unlike most urban areas where law enforcement has a response

time of 5 or 6 minutes.

Certainly, tribes are on the front lines in our borders. The

Tohono O’odham, the St. Regis Mohawks in Upper New York, the

Blackfeet of Montana, the tribes along the California-Mexico border, and the tribes in the Seattle-Puget Sound area, to name a few.

Against this backdrop, the Court has ruled that tribes do not have

jurisdiction over non-Indians who commit crimes on Indian lands.

I do not know where that leaves the enterprising terrorist, very

frankly, if they infiltrate, come across the border on Indian lands

from other countries. Since they are not Indian, that raises the

question, do Indian law enforcement people have any control over

potential terrorists? It really raises some obvious problems for

tribes that are trying to arrest and prosecute offenders on their

lands. I believe this is not just a tribal problem.

So certainly this is a time of war. We are in this together, and

I think the faster we recognize that, the quicker we will try to work

on a seamless web of Federal, State and tribal law enforcement.

Thank you, Mr. Chairman.

The CHAIRMAN. Senator Akaka.

STATEMENT OF HON. DANIEL K. AKAKA, U.S. SENATOR FROM

HAWAII

Senator AKAKA. Thank you very much, Mr. Chairman.

I share the concerns of my colleagues this morning regarding the

impact of recent U.S. Supreme Court hearings and rulings on tribal

sovereignty, specifically as they relate to law enforcement in Indian

country and adjudication of cases in tribal courts. Tribal governments face unique challenges in law enforcement due to a number

of issues, including inadequate funding and resources. I am disturbed by the statistics which reflect that the highest per capita

rates of violence are experienced by residents on Indian reservations. I am even more concerned by reports that in some cases responding to situations in Indian country is considered too low a pri-
4

ority to warrant a response by local, State or Federal law enforcement.

All of this adversely impacts the health, safety, and the wellbeing of American citizens who deserve to live freely and safe from

harm. We are faced with a difficult task of rectifying this situation.

In doing so, we must ensure that tribal governments are afforded

the right, their sovereign right, to be a part of the solution, to clarify criminal jurisdiction within government-to-government framework. We must be careful to preserve the fundamental authority of

tribal governments. I am pleased to learn of efforts within Indian

country to unify to protect these rights and I hope you continue to

do that.

I therefore, Mr. Chairman, look forward to hearing from our distinguished witnesses this morning, and I look forward to working

with all of you to preserve the inherent sovereignty of tribal governments and to address the law enforcement needs in Indian

country.

Thank you very much, Mr. Chairman.

The CHAIRMAN. I thank you very much, Senator.

Our first witness is the Chairman of the Lummi Indian Business

Council of Bellingham, Washington, Darrell Hillaire. Chairman

Hillaire will be accompanied by Judge Theresa Pauley, Chief Judge

of the Lummi Nation, and Gary James, Chief of Police, Lummi Nation.

Mr. Chairman, welcome sir.

STATEMENT OF DARRELL HILLAIRE, CHAIRMAN, LUMMI

INDIAN BUSINESS COUNCIL

Mr. HILLAIRE. [Statement in native dialect.]

Good morning. With me I have the esteemed Chief Judge of the

Lummi Court System, Theresa Pauley, and our Chief of Police

Gary James.

We are really thankful for being given this opportunity to come

and speak with you today. We felt at home at Lummi among our

people that there seems to be this confusion in this relationship between the U.S. Government and the Lummi Nation. We felt the

best way to clear up some of that confusion is to come here and

speak with you one-on-one, eye-to-eye, and reiterate our understanding that we would be recognized as a government and respected as a people.

We had this opportunity a couple of weeks ago to meet with one

of our Elders. He is 83 years old, World War II veteran, who as

a young boy wanted to become the chief of police on our reservation

when nobody wanted to come to our reservation. So when he came

back from the war, our Elders got together and they voted him in,

and he was our chief of police for over 20 years. He was given a

badge and a pistol and some handcuffs. And they were from treatysigning in 1855, and he was passing it on to me to keep, to make

sure that I remember that we have always provided law and order

on our reservation, and in those days for only our people because

we were the only ones that lived there.

Today, under self-governance, self-determination, we have a law

and order office of over 20 sworn officers. We have a court system

that is autonomous from the Business Council. We have a relation-
5

ship with the county, with inter-local agreements with the Sheriff’s

Department and the welfare offices. We have a full faith and credit

with the State court system and our court system.

Though these things are important to us, that we extend ourselves to other local governments and work hard with them to understand one another, it is here that we seem to recognize a lot of

confusion. I would like to have Chief Judge Pauley say a few

words, and Chief of Police Gary, if they would.

STATEMENT OF THERESA POULEY, CHIEF JUDGE, LUMMI

TRIBAL COUNCIL

Ms. POULEY. Good morning, Senators. I am Theresa Pouley. I am

the Chief Judge of the Lummi Nation.

I am here to talk to you a little bit today about contemporary

tribal court and tribal judicial systems. Your honors, tribal judicial

systems are poised to join the mosaic of State, local and Federal

court systems to help provide solutions to all of the problems that

Indian country experiences today, and that all of you have pointed

out today. It is these problems that are facing our reservation that

make it so important that Congress act.

Tribal courts, tribal nations are looking for respect and recognition of their governments. As part of that, we pledge to be responsible to provide justice for all the people of the reservation.

Chief.

STATEMENT OF GARY JAMES, CHIEF OF POLICE, LUMMI

NATION

Mr. JAMES. Thank you.

Good morning. My name is Gary James. I am the Chief of Police,

Lummi Nation.

We want to continue to lead and monitor a fair, just and safe law

enforcement system on our reservation. We meet regularly with the

Federal Bureau of Investigation [FBI] and other law enforcement

agencies in our area. Because of this communication, we have an

overwhelming response from tribal and non-tribal citizens wanting

us to continue to do the work that we do within the boundaries of

our reservation.

Thank you.

Mr. HILLAIRE. The number one priority at Lummi is healthy spirits—healthy spirits for our entire community, especially our children. What we mean by that is that there seems to be an epidemic

of substance abuse on our reservation. We know that. We have

hired an extra drug detective. We have set up a drug court. We are

going to build a treatment center. We have doubled our youth activities—all of this to set a clear path of opportunity for our children, to make sure that the homes they live in are safe and they

are healthy.

As was pointed out in opening remarks, it is of great concern to

us because we have heard stories of our children where they are

born to a tribal member and a non-tribal member. Perhaps the

tribal member is gone and the non-tribal member is in care of the

abuse of the child. And that is not acceptable to us, to stand there

when substance abuse is going on and our children have to be

abandoned for perhaps 3 days, and we do not have, as interpreted
6

by this Supreme Court, the authority to go in and take care of

those kids. We cannot afford that jurisdictional confusion, and that

happens on our reservation.

So we are going to extend ourselves to work real close with the

local governments to make sure we understand one another going

forward, but we need your help. We appreciate your help as we

continue to work on recognition of each other as government and

respect its people.

So I thank you for this opportunity and really welcome some

questions perhaps or some comments on where we are at, and

where we need to go.

So ‘‘heishka’’ to each and every one of you.

[Prepared statement of Mr. Hillaire appears in appendix.]

The CHAIRMAN. I thank you very much, Mr. Chairman. As noted

by you, in order to better understand the problem, we have a few

questions.

We have been advised that the Lummi Nation and the State of

Washington has entered into an agreement where the Lummi Nation will be assuming primary responsibility for areas that were

previously assumed by the State pursuant to Public Law 280. Will

you describe the responsibilities that you have assumed?

Ms. POULEY. There are a variety of responsibilities that Lummi

has assumed and will assume in the very near future. In particular, and it is hard to list because there are so many that have happened recently, Lummi provides virtually all the law enforcement

on our reservation. Almost all of our officers are the ones who respond to crime. We are working very closely and carefully with the

State to map out ways to enforce child support so that children of

the reservation can be supported. We are working with Washington

State and the Washington State Supreme Court to establish agreements so that we give full faith and credit to tribal court orders.

We are working in virtually every area for natural resources to

have an ability and to work with the State of Washington so that

we can provide protection to those resources that are on the reservation.

So in virtually every area where the tribe lost jurisdiction under

Public Law 280, the State of Washington and Lummi are willing

to work and negotiate to give that jurisdiction and that authority

back to the tribe.

The CHAIRMAN. May I ask the Chief of Police a few questions?

In the year 2001, last year, how many incidents would you say that

your police department responded to?

Mr. JAMES. In 2001, we responded to just a little over 4,700 incidents for service.

The CHAIRMAN. And of these incidents, how many involved nonIndians?

Mr. JAMES. My best guess would be between probably 30 percent

to 35 percent of them.

The CHAIRMAN. Would your nation face any civil liability if a

non-Indian is injured while being detained or arrested by the

Lummi Nation?

Ms. POULEY. That would actually be an issue or question for the

court system. We have as part of our jurisdiction the ability to provide due process to all members of the reservation. If a police offi-
7

cer in fact was found to have violated some responsibility to a citizen, the tribal court has both the responsibility and the authority

to be able to resolve those disputes between non-Indians and tribal

police.

The CHAIRMAN. The Vice Chairman spoke of terrorism, and your

reservation includes coastline, I believe, of about 12 miles. Do you

have any sort of security along that stretch?

Mr. JAMES. The security that we would be able to—the minimum

security that we do have is our natural resource enforcement officers who do patrol the waters of Puget Sound and around our

areas, and we do cover a majority of a day, as far as security, on

the water.

The CHAIRMAN. Do you have any sort of assistance or advice from

the Federal Government?

Mr. JAMES. Like I said, we meet with the FBI probably at least

once or twice a week, and when issues do come up like that, we

do get advice from them and work closely with them to resolve

issues that do come up like that.

The CHAIRMAN. We have been advised that there are tribes who

have entered into agreements with their respective States just like

you have, but ever since the Supreme Court decision in Nevada v.

Hicks was decided that they need not honor these agreements. Is

that widespread in the United States?

Mr. HILLAIRE. Yes; we have not heard entirely, but it is our intention to go back to these local agencies and sit down with them

and really just clarify what we are trying to do here, outside of

what is the best way to afford safety for all citizens within the

boundaries of our reservation, to make sure that every citizen, Indian and non-Indian can feel that way. That is our intent going forward. We have not gotten anything adverse back from the county

government, city governments surrounding our reservation, or the

State at this time.

The CHAIRMAN. So the State of Washington is willing to honor

the agreement they have entered into with you, notwithstanding

the Nevada decision?

Ms. POULEY. At this point in time, the way we have worked out

full faith and credit with both the Washington State Supreme

Court and the local Whatcom County Court systems, we still are

engaged in an ongoing dialog for how to best solve problems in Indian country. The county courts are sort of in the position that

local solutions to local problems are better, and that tribal courts

are better situated to deal with issues that arise in Indian country.

The problem is, as you have so aptly stated in your opening remarks, is that now the Supreme Court says they do not have to do

that.

While Lummi is very, very fortunate to have good working relationships, lots of other tribes across the United States are not that

fortunate. I have heard different individuals and attorneys speak

at different gatherings of lawyers in the State of Washington where

they believe that the Lummi Nation and all tribal courts may have

no jurisdiction over non-Indians on the reservation—what a terrible, terrible message to send at a time when State and local governments really want to work with tribes to become part of the solution to the problems.
8

The CHAIRMAN. Thank you very much.

Mr. Vice Chairman.

Senator CAMPBELL. Thank you.

You are right. That is a bad message to send because basically

it tells the potential bad guys it is open season, you can do what

you want—a clearly bad message.

You mentioned, Gary, that the natural resources enforcement officers are the ones that really patrol your 12 miles of coastline. Do

they have arrest authority and are they armed?

Mr. JAMES. Yes; they do. They have all the authority and have

the same training as our regular law enforcement officers and all

the officers in the State of Washington have. They have the same

training.

Senator CAMPBELL. They do have.

Mr. Hillaire, in your opening statement you said you anticipated

and expected to be included in the buildup of homeland defense.

Have you been, with any State or Federal or local officials?

Mr. HILLAIRE. We did get invited to a meeting with Attorney

General Ashcroft earlier in the year, but there has not been any

contact since. We feel that is important that we do that. The protection services that we provide now are pertaining to natural resources, but being 15 minutes away from the border, I think we

need to be included.

Senator CAMPBELL. So you have not gotten any direction at all,

as many local communities have across America, about emergency

preparation or anything of that nature that could be related to

homeland defense?

Mr. HILLAIRE. Just that initial meeting with the Attorney General.

Senator CAMPBELL. And, last question, your treaty of 1855, when

your ancestors entered that treaty, was the withdrawal of any of

the tribe’s rights to govern or police your own lands included in

that?

Mr. HILLAIRE. No; it was not.

Senator CAMPBELL. Thank you, Mr. Chairman.

The CHAIRMAN. Thank you.

Senator Akaka.

Senator AKAKA. Thank you very much, Mr. Chairman.

Your testimony requests congressional action, in consultation

with the tribal governments. Your request is to address the erosion

of tribal sovereignty. Have you developed a specific legislative recommendation and are those ready for the committee’s consideration?

Mr. HILLAIRE. We have been working real close with the Tribal

Sovereignty Initiative team under NCAI. We have been submitting

our position on this legislation through that body, but if requested

by you, Senator, we would gladly do that for the committee.

Senator AKAKA. What has happened, what has been the impact

of the Hicks decision in terms of real-life situations for law enforcement in the Lummi Nation?

Mr. JAMES. As far as State officers coming onto the reservation

and enforcement—is that what you are asking? We have a very,

very good relationship with Whatcom County which is the county

that our reservation sits in. They respect our court system and
9

come in and ask for our court’s blessing before they come onto our

reservation and serve their orders. They have been really good

about doing that, so that has had very little impact on us—just because of the good relationship we do have with Whatcom County.

Ms. POULEY. It does, Senator, if I could respond to that question,

it has a huge impact, real-life impact in tribal court. I cannot tell

you how heavy my heart is when I have an Indian person who is

married to a non-Indian person, come into my court with a black

eye and with her tooth knocked out, just to find out that that nonIndian is not a resident of the reservation, so the court does not

have any jurisdiction over them. It is extremely difficult for tribal

courts to be able to protect not only their own people, but all residents of the reservation. Imagine if coming to Washington, DC if

you were going through a 25-mile per hour school zone and every

time a Washington, DC officer stopped you, that you said, ‘‘Oh, no,

I am a citizen of the State of Washington, so I do not have to slow

down.’’ In Indian country, you do not have to slow down. So those

are sort of the real life problems that I see as a tribal court judge

every day.

Senator AKAKA. Thank you for your responses.

Thank you, Mr. Chairman.

The CHAIRMAN. But when you do have someone speeding in

Lummi Nation, you can stop him, can’t you?

Mr. JAMES. We do have an agreement with Whatcom County

Sheriff’s Office. We do have civil traffic jurisdiction over non-tribal

members, and that process is that we are able to stop and detain

and write out a citation and forward it on to the Sheriff’s Office

where they take action on the citation written by our officers.

The CHAIRMAN. And does the Sheriff’s Office follow through and

provide justice as it should be done?

Mr. JAMES. As far as the civil traffic, I think to the best they can,

yes they do.

The CHAIRMAN. Would that procedure apply in all of the cases,

including felonies?

Mr. JAMES. No; that only applies to civil traffic infractions. Anything criminal, we have to actually stop and detain the person and

hold them for a Whatcom County deputy to come and respond.

The CHAIRMAN. But you do have the right to detain?

Mr. JAMES. Yes; we do.

The CHAIRMAN. I thank you all very much.

Ms. POULEY. Thank you.

The CHAIRMAN. And I can assure you that we are prepared to

work with the National Congress of American Indians to come

forth with something that should be a response to the Supreme

Court.

Our next witness is the U.S. Attorney for the city of Minneapolis,

Thomas B. Heffelfinger, and the director of the U.S. Department of

Justice, Office of Tribal Justice, Tracy Toulou.

Mr. Heffelfinger.

STATEMENT OF THOMAS B. HEFFELFINGER, U.S. ATTORNEY,

CITY OF MINNEAPOLIS

Mr. HEFFELFINGER. Mr. Chairman, Mr. Vice Chairman, members

and staff of the committee, my name is Tom Heffelfinger. I am the
10

U.S. Attorney for the District of Minnesota, and chairman of the

Attorney General’s Advisory Committee, Subcommittee on Native

American Issues.

The purpose of our subcommittee is to develop policies pertaining

to effective law enforcement in Indian country, and among the top

priorities that we have identified are terrorism and violent crime

in Indian country.

The Federal Government bears a unique and crucial responsibility for addressing the problem of violent crime in this Nation’s Indian communities. Since 1885, the U.S. attorneys, in collaboration

with the various tribal governments have had primary responsibility for the prosecution of serious violent crime in Indian country,

and that problem is a very significant one.

As you noted, Mr. Chairman, in your opening remarks, Native

Americans are victimized at a rate of 2.5 times the national average in this country. In some areas of Indian country, that victimization is even higher. For example, in my own State of Minnesota,

the residents of the Red Lake Indian Nation are currently suffering

a rash of violent homicides unprecedented in that community’s history. In the past 7 months, there have been 5 homicides in a community of 5,000 people. If one applied that rate to the city of Minneapolis, our State’s largest city, Minneapolis would have had 382

homicides in 7 months. In fact, there have been 21.

The U.S. Attorney, the FBI, and the Government of Red Lake are

working aggressively to solve this problem, but it is indicative of

the fact that in some parts of Indian country violent crime is at an

unprecedented high.

In our attempts to respond to violent crime, prosecutors and investigators face a confusing and frequently uncertain set of laws

and judicial decisions regarding jurisdiction. First, there is confusion regarding who has personal jurisdiction over the subject. If

one looks, for example, at a comparison of the Major Crimes Act

and the General Crimes Act, under the Major Crimes Act, the

United States has jurisdiction to prosecute certain serious offenses.

However, that jurisdiction only extends to prosecution of Indians.

Under the General Crimes Act, the United States has jurisdiction

to prosecute all Federal offenses. However, that does not apply to

Indian on Indian crimes.

In addition, there are a variety of statutes and decisions, some

of which the chairman and vice chairman have already cited, that

address situations such as who has jurisdiction when both the suspect and the victim are non-Indian; whether or not tribal courts

have jurisdiction over non-member Indians or non–Indians; whether a person is an Indian for purposes of determination of jurisdiction; and whether or not jurisdiction is delegated to the State

under laws such as Public Law 280.

If this seems confusing, let me assure you from a prosecutor’s

perspective, it is. Even once you get past the question of personal

jurisdiction, then one has to address whether or not the crime occurred in Indian country, although that term is defined by statute,

I need to assure you that in a particular or individualized case, the

resolution of that can and does tie up litigation for months and

sometimes years.
11

What all this means is that whenever a crime is committed in

Indian country, in order to determine jurisdiction prosecutors must

assess and investigators must investigate facts that would allow us

to determine who has jurisdiction. This involves four factors:

Whether the offense occurred within Indian country; whether the

suspect is an Indian or a non-Indian; whether the victim is an Indian or a non-Indian; and what is the nature of the offense.

Depending on the answers to these questions, an offense can end

up being prosecuted in tribal court, Federal Court, State Court or

not at all. And when you have that kind of diversion and disparity,

then you can end up with the kind of disparity in sentencing,

which is one of the subject of the sentencing commission right now.

In addition, only once these questions are answered can prosecutors and investigators turn to the important question of sufficiency

of evidence and guilt versus innocence. This confusion generally

does not exist in the State system, and this confusion must be remedied.

Confusion over jurisdiction has another detrimental impact

which was alluded to by the vice chairman, and that is homeland

security. Now more than ever we are reliant upon cooperation between tribal, State and Federal authorities. Indian country is involved in the war on terrorism. More than 25 tribes govern land

that is adjacent to borders, either directly or across the water. A

conference was held by the border patrol earlier this year at which

General Ashcroft ‘‘recognized that local law enforcement agencies

play a crucial role in securing our Nation’s borders, and tribal law

enforcement agencies are no exception.’’ Tribal governments have

enthusiastically assumed this responsibility and have expressed

their desire to work with the United States to provide for that security, but cooperation between local, Federal, and tribal agents is

what is necessary in order to assure that protection.

Unfortunately, as the committee has already cited, there have

been decisions that have undermined that cooperation in the recent

past. The Hicks case, which the committee has already cited, has

given law enforcement an opportunity at the local level, at least,

to determine that they do not need that cooperation. So after years

of coalition-building between State and tribal law enforcement officers, this interpretation has allowed for conflict between the agencies.

Now more than ever, members of the committee, we need the jurisdictional clarity in order to allow us to do our multiple functions

within the Department of Justice.

Thank you for the opportunity to address the committee.

[Prepared statement of Mr. Heffelfinger appears in appendix.]

The CHAIRMAN. I thank you very much.

May I now recognize Mr. Toulou.

STATEMENT OF TRACY TOULOU, DIRECTOR, DEPARTMENT OF

JUSTICE, OFFICE OF TRIBAL JUSTICE

Mr. TOULOU. Thank you.

Mr. Chairman, Mr. Vice Chairman, my name is Tracy Toulou

and I am the director of the Office of Tribal Justice in the Department of Justice. Thank you for the opportunity to appear before

you here today.
12

The Office of Tribal Justice spends a significant amount of time

studying and addressing issues related to tribal law enforcement.

My office serves to coordinate and focus the Department’s policies

and positions on American Indian and Alaska Native issues, and

maintain liaison with federally recognized Indian tribes, particularly in the area of law enforcement.

In addition, we work closely with the U.S. Attorneys’ offices that

prosecute violent crime in Indian country. We also regularly communicate with tribal police departments, the FBI, the BIA, and

other Federal law enforcement agencies operating in and around

Indian country. Most recently, we have been working with the U.S.

Border Patrol on Native American border security issues. In my experience as an assistant U.S. attorney in the State of Montana, I

prosecuted major crimes acts violations on a number of reservations, as well as assisted the Northern Cheyenne Tribe in the development of a comprehensive law enforcement program.

Today, I would like to focus on three issues—first, the problem

of violent crime in Indian country; second, the challenges facing

tribal law enforcement; and third, issues that may result from Nevada v. Hicks.

First, the Department of Justice Bureau of Justice Statistics reports entitled American Indians and Crime and Violent Victimization and Race reveal that American Indians experience higher

rates of violent crime than any other group. In November of last

year, Attorney General Ashcroft remarked that these reports show

American Indians are victims of violent crime at rates more than

twice the national average, far exceeding any other ethnic group.

Nearly one out of every four Native Americans between the ages

of 18 and 24 is a victim of violent crime—the highest per capita

rate of violence of any racial group considered by age. This accounts for nearly 10 percent of the violent crimes prosecuted by the

Department of Justice. Indians fall victim to violent crime at about

two-times the rates of African Americans, 21⁄2 times the rates sustained by Caucasians, and 41⁄2 times that experienced by Asian

Americans.

Of particular concern is the problem of domestic violence and

crimes against Indian women, which tragically exist to a high degree in Indian country. A recent National Institute of Justice survey revealed that one in three Native women reports being raped

in her lifetime. That is one in three. American Indian females were

victimized by an intimate partner at rates higher than any other

group. That is 23 per 1,000 American Indian females as compared

to 11 per 1,000 African American females, 8 per 1,000 white females, and 2 per 1,000 Asian American females—a substantial difference.

Now, I want to turn to Indian country law enforcement. As you

know, tribal governments have limited law enforcement resources

for addressing the high rates of crime in many reservation communities. Law enforcement in Indian country is generally either provided by local, tribal law enforcement, or BIA. The typical department serves an area the size of the State of Delaware, but with a

population of only 10,000. It is often patrolled by no more than

three police officers at one time, and sometimes as few as one officer.
13

In 1997, the Department reported that Indian country was

served by only one-half as many police officers per capita as similarly situated rural communities. This provided the needed impetus

for a significant increase in Department of Justice and BIA funding

for tribal law enforcement. Since 1999, the Tribal Resources Grant

Program within the Community Oriented Policing Services, COPS,

program has provided targeted resources for tribal departments to

hire officers or acquire critical equipment. Last summer, the Attorney General and the COPS office announced grants totaling $33.7

million which were awarded to 105 police departments in 23

States.

The efforts of the Department of Justice and tribal police departments are beginning to show results. Between 1998 and 2001, the

number of inmates in custody at tribal facilities grew by 29 percent. The increase in tribal jail population would appear to be

closely related to the law enforcement resources made available to

tribes through the COPS program.

Finally, I know the committee is interested in the impact of the

Supreme Court decision in Nevada v. Hicks on Indian country law

enforcement. As with any single decision which moves the state of

the law in a new direction, the Hicks decision cannot and does not

cover every factual scenario that may be encountered by law enforcement. Until there are additional decisions or statutory clarification, there will be varying interpretations of the scope of this

decision.

In the meantime, I am concerned that this ambiguity may become a source of tension between State and tribal law enforcement

in some areas. Briefly, in some parts of the country, we have seen

State law enforcement officers interpreting this case as a basis to

assert jurisdiction over Indians who are on reservation lands. In at

least one case, this has resulted in a confrontation between tribal

and State law enforcement officers on Indian lands. These types of

situations have the potential to become highly charged and obviously should be avoided. Our office works closely with the Department’s Community Relations Service to mediate these conflicts.

Further, we advocate and assist in the development of cross-deputization agreements and other types of cooperative agreements to

foster better relations between tribal and State law enforcement

communities.

In short, today’s tribal governments face serious challenges in

the area of law enforcement. The Department of Justice Office of

Tribal Justice is working closely with tribal governments to assist

in addressing high violent crime rates, limited law enforcement resources, and the unique challenges of Indian country jurisdiction.

Thank you for the opportunity to appear today. I would be happy

to answer any questions you may have.

[Prepared statement of Mr. Toulou appears in appendix.]

The CHAIRMAN. Mr. Toulou, would you describe the present situation as a result of the Supreme Court decision as a crisis or an

emergency?

Mr. TOULOU. In Nevada v. Hicks? I do not know if at this point

in time if I would say a crisis occurred. I think the potential for

very serious ramifications exists.
14

The CHAIRMAN. But you would agree that something has to be

done?

Mr. TOULOU. I would say that we need some further interpretation or we are going to have some bad situations potentially occurring, yes, sir.

The CHAIRMAN. Mr. U.S. Attorney, the Lummi Nation has advised us that the local FBI agents recently informed their tribal

law enforcement officers that resources that were previously targeted to address organized crime on reservations are now being

transferred to address national security matters. How much of the

FBI’s resources that were devoted to addressing issues in Indian

country prior to September 11 are now being reallocated to address

national security interests?

Mr. HEFFELFINGER. Mr. Chairman, members of the committee,

our committee has met with representatives of the FBI and have

been assured by individuals as high as Director Mueller himself

that he is maintaining his commitment to Indian country and that

staffing levels of agents directed towards violent crime in Indian

country will remain static. I commend Director Mueller for that

recognition at a time when his resources are being stretched very

thin.

However, he also has advised us that there is significant discretion given to each special agent in charge to make permanent or

temporary shifts within that special agent in charge’s office to address local concerns. Issues of organized crime in Indian country

may well, for example, I do not know the Washington situation, but

may well be considered resources that are different from those that

would be applied to violent crime. However, just looking at the

numbers does not adequately address the problem of staffing of

FBI agents, in particular BIA agents as well, in Indian country.

One needs to also consider the impact of the nature of the work

and the frequently remote locations upon those agents. Quite candidly, members of the committee, there is a significant risk of burnout for those agents. If I could use my own reservation at Red Lake

as an example, we have in our office determined that Red Lake

represents approximately 25 percent of the total cases we receive

from the FBI, and yet that work is done on an annual basis by

three agents. Those three agents are dealing with murder, sexual

assault, and some of the most heart-wrenching cases a law enforcement officer can face.

In addition, those agents have to travel five hours each way to

get to court. We are quite frankly facing a serious problem with

burn-out. I know in talking with Mr. Ecoffee from BIA that BIA

faces the same challenges with agent burn-out. So when we consider staffing, we need to also consider what the impact of the nature of the work is and the need to be able to move those people

around to protect, frankly, the mental health of those agents and

their ability to do their job. But I do commend the FBI and I do

commend BIA for maintaining their commitment to Indian country

in this time where resources are diverted to other things.

The CHAIRMAN. From your response, staffing is inadequate. Has

your agency made an attempt to increase the funding?

Mr. HEFFELFINGER. Frankly, unfortunately, Senator, the funding

issues are not really within my purview. Our committee has fo-
15

cused on staffing, which is why we started out first of all to make

sure we worked with the FBI to ensure that at least current levels

would remain the same. I do know that the SACs around the country within the Bureau, I know that BIA and I know that the director are mindful of whether or not increases in staffing and funding

will be necessary, and they may well be. Increases may be necessary in order to ensure that even if we keep the same levels of

agents, that we are able to move those agents through there so

that they are effectively being utilized, and so that they can be

kept on the ground doing investigations instead of driving back and

forth to court.

The CHAIRMAN. You identified four factors that a prosecutor

must resolve to determine jurisdiction, and that reaching this determination of criminal jurisdiction is a complex analysis of sometimes amorphous factors. Do those same four factors need to be resolved by law enforcement officers before they respond to a call for

assistance?

Mr. HEFFELFINGER. Mr. Chairman, members of the committee, in

our experience an officer will respond to a crime as he or she

should, to deal with the immediate public safety issue. However, almost immediately issues of jurisdiction become relevant. Instead of

doing a follow-up investigation focus that would focus on issues like

sufficiency of the evidence or guilt versus innocence, an agent will

find himself focused on questions of whether or not the suspect is

a member of the particular band or is an Indian; was the location

of the crime within the confines of the reservation. These are not

issues that a local law enforcement officer would face in responding

to a murder in Minneapolis. So they become a distraction, if not at

the initial response, prior to the issuance of an indictment or an

information, and it becomes an incredible distraction and delay factor.

The CHAIRMAN. In your experience in Minneapolis, do tribal,

State, local and Federal law enforcement officers have the requisite

knowledge and expertise to make these types of determinations?

Mr. HEFFELFINGER. Mr. Chairman, members of the committee,

within the FBI, yes, clearly the Minneapolis field office has the

most agents of any field office assigned to Indian country, as that

field office also covers the Dakotas. Minneapolis Police Department

definitely not—they rarely deal with Indian communities. They

deal frequently with urban Indian communities, but not with reservations. The local police offices that surround Indian country generally do not possess that requisite information.

Minnesota is an unusual jurisdiction. We have 11 tribal communities, 9 of which are under Public Law 280, 2 of which are Federal. So in some jurisdictions, the local police simply do not care

because they do no need to care. In the Federal jurisdiction areas,

the local law enforcement agencies do not care because it is not

their responsibility. As we attempt to develop the cooperation necessary to deal with increases in crime, we need to have that cooperation. So we are teaching local police about jurisdictional

issues from the ground-floor up. So cooperation is essential at this

time. It is why the Hicks case, for example, is so problematic.
16

The CHAIRMAN. Both of you have suggested that there is confusion that should be clarified. Do you have any suggestions as to

how this confusion can be clarified?

Mr. HEFFELFINGER. I will go first if you want, Tracy, and then— Mr. Chairman, members of the committee, my comments are that

the confusion needs to be addressed, and I would suggest, and my

committee is willing to support your committee in any way we can,

that your committee undertake a comprehensive review of issues of

jurisdiction, as clarification would be extremely important.

Of course, we will assist this committee if all you want to do is

look at the Hicks case, but my concern is that just looking at the

Hicks case will provide a solution or a fix to one part of the challenge, and not to the comprehensive challenge. There are no easy

solutions to this issue because it requires a balancing of the interests of law enforcement, be that State or Federal, and tribal sovereignty, and State sovereignty. These are difficult issues. But

what we need is a review of this issue from a comprehensive perspective, and not just an isolated Hicks fix.

The CHAIRMAN. I look forward to working with you and your organization. Do you have anything prepared at this moment that

you can share with us that we can look at?

Mr. HEFFELFINGER. We have not, your honor—I’m sorry—it is

my court background—Mr. Chairman, no, we have only as you

know been in place for about 9 months now, but we are prepared

to address this issue. Clearly, jurisdictional issues are one of our

five priorities.

The CHAIRMAN. Mr. Toulou.

Mr. TOULOU. As Mr. Heffelfinger said, it is a very complex issue.

We have looked at it within the Department, but I do not think we

have reached any agreement as to where things should go. I think

what is important preliminarily as we hear from tribal leaders and

tribal law enforcement, and understand their perception and where

they would like to see to go with this. Obviously, the committee is

in a better position to do that than the Department. We do look forward to any comments we get from tribal leaders. We would be

happy to help in any way we can and answer any written questions

on this issue, but we are still in the formulation basis. It is a very

complex and comprehensive issue, but there needs to be clarification, without a doubt.

The CHAIRMAN. On the matter that was brought up by the vice

chairman, as a result of Supreme Court decisions, Indian law enforcement officials cannot exercise criminal jurisdiction over non–

Indians. Now, the Department of Justice wants Indian law enforcement people to get involved in anti-terrorist activities, and most of

the terrorists, I presume, are going to be non-Indians. What can be

done to have the Indians play an effective role under those rules?

Mr. HEFFELFINGER. Mr. Chairman, members of the committee,

this is an area where joint powers arrangements, cross-deputization and general cooperation are the only solution. One has to respect tribal sovereignty, at the same time there needs to be collaboration between the Border Patrol, the local sheriff’s offices, and

tribal law enforcement. My expectation is, because I know that the

tribal leadership nationwide is committed to this problem, as are

members of the Department of Justice and other agencies, as are
17

the sheriffs, to the extent that we have impediments to cooperation,

and that is the fundamental concern as I see it, to the Hicks case— as long as we have impediments to that, we will have a difficult

time achieving effective cooperation.

I cite my own State as an example. I have a tribe, the Grand

Portage Band of Ojibwa, which borders the Canadian border. They

are a Public Law 280. That requires cooperation between the State

and the tribe. I also have the Red Lake Band of Ojibwa, which borders on Canada. That is a Federal reservation. That requires collaboration between the Border Patrol and the tribal police.

These are the kinds of diversity of issues that require that we

cannot—there is no one single solution, but we have to develop a

pattern of cooperation across Indian country and across the United

States. The law must foster that.

The CHAIRMAN. I gather from your response you think the impediments should be taken away.

Mr. HEFFELFINGER. Mr. Chairman, members of the committee, as

the committee considers solutions to this jurisdictional issue, I am

confident that the solutions will address some of those impediments.

The CHAIRMAN. I have a few more questions, but Mr. Vice Chairman?

Senator CAMPBELL. Thank you, Mr. Chairman.

Let me start, Mr. Heffelfinger, maybe by asking you somewhat

of a loaded question, because I have a pretty strong opinion on it.

I live in Colorado, but if I go to California, I cannot vote in California. I do not pay taxes in California, but I am still in California

therefore I am subject to California laws. If I go to a different city,

I am subject to local ordinances. If I go to a foreign country, same

thing. If I go to France I am not French, don’t pay taxes, don’t do

anything there except visit. If I break the law, I am going to be

subject to French justice.

So it seems to me it is really out of kilter that we should not expect the same kind of framework if non-Indians come onto the reservation. Tribes are pretty much semi-autonomous, as States are

and as local jurisdictions are, and everybody knows you cannot go

to a different city or a different State and get away with breaking

the law. Basically what we have is a system in which the word is

out that people can get off the hook, so to speak, if they are not

Indian and they do something on Indian land.

Are there any other jurisdictions that you know in the United

States where the same kind of logic applies? Most jurisdictions are

based on geography. They do not care what color you are. You come

in that jurisdiction and you break the law, that is it. The only one

I know of is Indian reservations, and that is based on racial background more than geographic area. Is there anything other than

that, like military bases—are they similar?

Mr. HEFFELFINGER. Mr. Vice Chairman, Mr. Chairman, off the

top of my head, no. I cannot think of one. Even on military bases

and the like, the statutes and the law are quite clear as to where

our jurisdiction lies, and it is based on a geographic assessment of

the boundaries and the confines of a military reserve.

Mr. Vice Chairman, your question sort of underlies, and some of

the parts of your question, underlies some of the challenges faced
18

in Indian country, some of the inconsistencies and confusion associated with establishing jurisdiction in Indian country. In part the

reason that I urge the committee to seek a solution to this confusion is that the confusion is not doing a service to anybody. It is

not doing a service clearly to the tribes, as there is violent crime,

and confusion creates a difficulty in solving that problem. It is also

not doing any favors to the non-Indians who may wish to visit Indian country, as they have the same interest in safety; 10 days ago

I was in the Navajo Nation as a visitor, and I had the same expectations of safety and security as a visitor to that community as did

the people who live there. So I think the resolution of the confusion

is in the Nation’s best interest.

Senator CAMPBELL. If an Indian person from one reservation is

visiting another reservation, he can be arrested by the tribal police,

I guess, for committing a crime. Is that correct?

Mr. HEFFELFINGER. That is my understanding.

Senator CAMPBELL. Where is the line? For instance, there are

some Indian people who are not a federally recognized or State recognized tribe, or they were terminated in the 1950’s and they have

not been reinstated, or something of that nature. Therefore, they

do not have a census number, or they do not have some kind of

identifying factor. How is that filtered through?

Mr. HEFFELFINGER. Mr. Vice Chairman, Mr. Chairman, as I indicated in my earlier remarks, one of the issues we have to address

is whether or not an individual is considered an Indian for purposes of jurisdiction. That requires us to assess issues such as

whether or not the tribe that they are affiliated with is a recognized tribe. These are unique issues we do not face in any other

situation.

Senator CAMPBELL. Another question—in most jurisdictions, law

enforcement officers, even when they are off duty, they carry an ID,

carry a gun, still retain some police authority. How are tribal police

treated? Are they the same? I remember one reservation years and

years ago—it has been about 20 years ago, it may have changed

since then, or 25 years ago—but I was told by one former tribal policeman, he quit because he only had law enforcement authority

when he was on duty. He would arrest someone, another tribal

member, but when the guy bailed out or got out, he would wait for

him when he got off duty, wait for the tribal policeman when he

got off duty, and then assault him when he was off duty.

Mr. HEFFELFINGER. Mr. Vice Chairman, Mr. Chairman, boy, you

have raised a great question. I wish I had a simple answer for you.

Clearly, if you are a post-certified law enforcement officer under

State jurisdiction and you are off duty and you come across a

crime, you have law enforcement authority. A tribal law enforcement officer on tribal land probably has the same right in tribal

land, but I will tell you, I would not have the comfort that that law

tribal law enforcement officer, if he or she leaves the reservation

and goes into the neighboring community, non-Indian community,

would have that same protection. That would be one of the issues

one would try to address in a joint powers arrangement.

Senator CAMPBELL. Yes; speaking of homeland security, we have

touched on that a couple of times, is there any plan to incorporate

tribes into the border security and the so-called ‘‘seamless border’’?
19

I understand in the case of some tribes like the Tohono O’odham,

that they are undermanned because—you know, I used to be a police training officer years ago in a police academy, so I know a little

bit about it, a little bit about law enforcement, a little bit about

drug movement. I have always been convinced that drugs move to

the source of least resistance. If you have an increase of law enforcement, increase of surveillance in one area, they are going to

find another place where there is less surveillance. I mean, it is

commonsense.

There seems to be a movement now, since we have more increased surveillance along our borders, and not so much on Indian

reservations, that people who would elicit drug trafficking have

moved more toward coming across Indian reservations where here

is less surveillance. Do you have any comments about that? I understand that it is really taxing some tribes, so they are as a result

unable to police some of the things they normally would do because

they are trying to spend more time on the borders.

Mr. HEFFELFINGER. Mr. Vice Chairman, Mr. Chairman, I know

that first of all that experience varies around the country, but I

know communities like the Tohono O’odham of which you have

cited are facing that very problem. In connection with the seamless

border issue, both the subcommittee I chair, but I think even ahead

of me, because he has gotten an advance lead on this issue, is Mr.

Toulou, the Department of Justice identified this issue very early

after the 11th as one that needed addressing. It is one of our committee’s priorities, but it is also I know a priority of the larger Department of Justice and of the Office of Tribal Justice. Maybe Mr.

Toulou could address that.

Mr. TOULOU. Yes; the Department is mindful of these issues and

we consider tribes as we formulate policy. We try to make sure in

the short term as policy is being developed that tribes are included

in any discussions we have, and as a first matter make sure that

they are involved in any communications we have between law enforcement and...

Senator CAMPBELL. Well, you are having some discussion with

them, but what direction are you giving them in regards to somebody that they may arrest—potential terrorists, maybe not—who

are not Indian?

Mr. TOULOU. It depends on the law enforcement jurisdiction on

the given reservation. What we have asked is that the Border Patrol regional office communicate with their local tribes and develop

a protocol for use in that area. I believe that has happened in most

situation. A number of the tribes do have jurisdiction. In some of

the areas we have gone in working with the BIA to ensure that the

officers on duty are cross-deputized under BIA jurisdiction. Of

course, that is on an office-by-officer basis and it is not a blanket

arrangement. We try to patch the holes in security as we come

across them.

Senator CAMPBELL. I see.

Mr. HEFFELFINGER. Mr. Vice Chairman, may I address that question as well?

Senator CAMPBELL. Yes; please.

Mr. HEFFELFINGER. The U.S. attorneys uniformly have been directed by the attorney general to engage in training of local law en-
20

forcement officers on issues of terrorism. In those of us who have

Indian country that abuts the border, we have included tribal law

enforcement in those trainings, and have also included the local

sheriffs that may have responsibility in the Public Law 280, for example, areas in that training. But there still is much work that

needs to be done, especially where joint powers arrangements or

cross- deputization between the Border Patrol and tribal police

needs to be completed.

Senator CAMPBELL. Thank you, Mr. Chairman, no further questions.

Thank you.

Mr. HEFFELFINGER. Thank you.

The CHAIRMAN. Many State law enforcement agencies have concluded as a result of Supreme Court decisions that they no longer

need to cooperate with tribal authorities when serving search warrants or arrest warrants in Indian country regarding crimes that

took place off-reservation. What States have taken this position?

Mr. HEFFELFINGER. I will let Mr. Toulou respond to that as well

in a moment, but let me give you, from my committee’s perspective,

where we are seeing more of that. I think to some degree the Hicks

decision has allowed that issue to become relevant in every State

where there is some other irritant in the relationship between local

law enforcement and the tribe. Let me use my State as an example,

then I will get to the answer to your question more directly.

In Minnesota there is a longstanding history between local law

enforcement and tribal law enforcement and as a result we have

longstanding cross-deputization and that type of thing. However,

we have one reservation, as an example, where there is a dispute

going on between the sheriff and the tribal government. The sheriff

has canceled the joint powers arrangement and refuses to renegotiate. That is a symptom of a larger problem. My experience has

been that the issues that you asked of Mr. Chairman are of greatest prevalence in those parts of the country where there is some

other irritant in the relationship between the tribe and the local

community.

I do not think it is accidental that it is in California where we

are seeing a lot of these issues arise. One must recognize that it

is in California where tribal gaming is gaining a foothold for the

first time. That does change the fundamental relationship between

tribes and surrounding communities.

In areas like Minnesota where tribal gaming has been established and is an accepted part of our State structure, these irritants do not exist and the relationships between the tribes and the

surrounding governments has not been significantly affected, other

than the one experience I mentioned.

The CHAIRMAN. So there is no cut and dried answer.

Mr. HEFFELFINGER. I do not think there is a cut and dried answer. I think one has to look at the underlying relationship between the tribes and the State.

Mr. TOULOU. I am not aware of any specific States that have

taken that position. I think it is, as Mr. Heffelfinger said, it is in

individual communities with individual law enforcement, usually at

the county level, that we have heard about a conflict. If you look

at those places that I am aware of, and it is mostly from press ac-
21

counts that we are aware of these situations, they are places that

have had problems in the past.

The CHAIRMAN. At this hearing, the members of the panels have

cited the horrendous statistics on spousal abuse and such. Do you

think Congress should delegate criminal jurisdictional authority

over non-Indians to tribal governments so that they can address

these problems?

Mr. HEFFELFINGER. Mr. Chairman and members of the committee, I think that is clearly an issue that this committee must address. Tribal governments have become much more engaged in the

fabric of the States in which they are located, and tribal communities have done so. This means there is greater prevalent of nonIndians or non-tribal members living within tribal communities. It

is impossible to address from any kind of comprehensive way, and

I use the area of spousal abuse as an example, the need to stop

that in order to break the generational cycle of violence. If we are

going to address in a comprehensive way questions of violence in

Indian country, we must not be hindered by our inability to prosecute one class of individual versus another. I would urge the committee to address this issue as part of a comprehensive solution,

and we look forward to working with you on that.

The CHAIRMAN. My final question—as Chairman of this committee and as a member of this committee over many years—24, I believe—I have been honored by several nations with Indian names

and honorary citizenship. Nations have the right to bestow citizenship on anyone they so desire, and even today certain nations have

blood quantum requirements. What if a nation decided to make me

a citizen? Am I looked upon as an Indian under your law?

Mr. HEFFELFINGER. Mr. Chairman, clearly if you were to come

under the scrutiny of the Department of Justice and the issue was

‘‘are you an Indian,’’ I would have to address that issue. I do not

know that that is enough—the honorary membership.

The CHAIRMAN. No; I am talking about real citizenship.

Mr. HEFFELFINGER. I do not know the answer to that question,

Mr. Chairman. It is an intriguing one.

The CHAIRMAN. So I may not have the protection of citizenship.

Mr. HEFFELFINGER. I simply do not know, and I would be happy

to provide an answer to you, Mr. Chairman, in a written submission, to the extent that I can.

The CHAIRMAN. Certain tribes have suggested that I become a

citizen. That would be interesting, wouldn’t it? [Laughter.]

Mr. HEFFELFINGER. It would be very interesting.

Senator CAMPBELL. If I might ask, has that ever happened to

your knowledge, or been tested in court? It has probably happened.

Mr. HEFFELFINGER. Mr. Vice Chairman, Mr. Chairman, I know

there are many tribes who have bestowed a membership either

honorary or otherwise on people for a number of reasons. I do not

know that it has been tested. I am not familiar with the case law,

but I would be happy to research it, if you would like.

Senator CAMPBELL. If you would, yes, I would be interested in

knowing that, too, because some tribes—well, even some tribes enrolled by blood quantum and some by lineal descendence, and so

as an example in the Cherokees, you could be 1/160th by blood and

still be enrolled as a member of that tribe as a blue-eyed blond or
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a redhead with freckles. It would be an interesting discussion

about whose jurisdiction that redhead with freckles comes under if

a law was broken, as a member. I mean, well—whether it is really

based just on having a census number.

I know people that were from Osage tribes as an example who

have inherited head rights that have not—were not born there,

their parents were not born there—it just came down through head

rights. They could not even find where the Osage live on the map

because they live in California, as their fathers and grandfathers

and so on had. And yet they still have head rights and an enrollment number. So if they did stumble across the reservation where

their ancestors came from, whether they also would be subject to

tribal law because they have a census number, when they have

never, and their parents and maybe their grandparents have never

had any connection with the tribe. There are really huge areas of

gray in this whole dialog, isn’t there?

Mr. HEFFELFINGER. Mr. Vice Chairman, as I believe this committee is aware, there is increasing attention being given to enrollment, for many, many reasons, including access to gaming dollars

and the like. Tribes give great, great importance to that issue. I do

believe that issues of enrollment and how that affects jurisdiction

will only increase as we aggressively respond to the violent crime

problem.

I am going to ask Mr. Toulou, who I think can remedy some of

my ignorance with a better understanding of some of the jurisdiction issues and may be able to give some light to your question

about membership.

Mr. TOULOU. I would like to respond more fully after I have had

a chance to look at it, but I know of situations such, and I am sure

you are aware, too, of the Seminole free men who are tribal members, but a number of those individuals do not have, or at least initially when the rolls were put up, were alleged not to have Native

American blood, but were nonetheless seen as members of the

tribe. Most situations that I am familiar with dealing with, there

is some blood quantum involved, and that is usually a requirement

of membership. We would be happy to look further into the situation.

Senator CAMPBELL. Well, I am going to recommend to any tribe

that gives Senator Inouye full adoption and tribal rights, that he

also get dispensation with that membership. [Laughter.]

Senator CAMPBELL. Thank you.

The CHAIRMAN. I thank you very much, sir.

We do have questions. May we submit them to you?

Mr. HEFFELFINGER. Absolutely, Mr. Chairman. Thank you.

The CHAIRMAN. Thank you very much.

And our final witness is the tribal chairman of the Bishop Reservation of Bishop, CA, Monty J. Bengochia. Welcome, sir.

Mr. BENGOCHIA. Thank you.

The CHAIRMAN. Please proceed.

STATEMENT OF MONTY J. BENGOCHIA, TRIBAL CHAIRMAN,

BISHOP RESERVATION

Mr. BENGOCHIA. Thank you for having me testify. For the record,

I am a Northern Paiute, also known as the Potonowit Band of Pai-
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ute-Hoopa, Paiute-Hoopa-Numa from the Owens Valley, Eastern

Central California, a small reservation of Penn-Daw on the map,

probably about a 600-plus voting membership with a 1,600-enrollment, headcount.

We got from probably 2 million acres of ancestral homeland, we

have been cut down to 875 acres through historical genocide and

trauma. That is probably the primary reason why we are kind of

helpless in the area of law enforcement, whereas in ancestral times

and prehistoric times before our European relatives came over into

our country, we took care of our own law enforcement, because we

were sober people, honorable people. My ancestors, they worked

hard. They knew how to work with nature, live with nature. It is

from atrocities of history that have put us into this situation where

we have got to be harassed and sometimes beating our women,

touched by law officers, and not having the ability to make a

change is kind of very disheartening.

So I am glad I have got the opportunity to talk about some of

that historical background that has put my people, my nation in

this predicament, and hopefully find a solution to remedy this condition, not only for my tribe, but us Paiutes, we cover about Arizona, Northern Arizona, Utah, Southern Idaho, Southern Oregon,

maybe one-half the State of Nevada, Eastern California, and we

have our Mono Nation relatives on the west side of the Sierra Nevada Mountains.

[Prepared statement of Mr. Bengochia appears in appendix.]

The CHAIRMAN. You are here primarily because of a situation

that occurred in March of 2000?

Mr. BENGOCHIA. Yes, when the Inyo County District Attorney

and Sheriff came into our casino to obtain employee records that

belonged to the tribe and proceeded with, I would say at gunpoint,

to obtain those records and cut into our filing cabinets and took

records not only of the three employees that they had a search warrant, but I think about 80 more that they took. From that result,

we filed a lawsuit in the Federal Court, and lost at the District

level, but appealed it and won at the Ninth Appellate.

The CHAIRMAN. Before the county sheriff and the county officials

entered the casino—cut the bolt and everything else—did they

serve you with their warrant? Did they give you a paper?

Mr. BENGOCHIA. No—you mean a warrant to ask to get permission?

The CHAIRMAN. To search.

Mr. BENGOCHIA. To search? I do not recollect that. I just remember that we were to get—I do not remember if it was paperwork,

but I knew that they wanted to come in, and we told them if we

get permission from the employees that it would be open. That is

our policy that we operate on.

The CHAIRMAN. Did the county officials damage your casino?

Mr. BENGOCHIA. No; not probably other than—I would say no.

The CHAIRMAN. Have the county officials taken other actions that

infringed upon your sovereignty?

Mr. BENGOCHIA. Besides the action that they took on that day?

The CHAIRMAN. Or any other time?

Mr. BENGOCHIA. I guess in the sense that for the purpose of this

hearing that they have—because of Public Law 280, it has been an
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invasive environment as a result of the county and State law preserves our—you know, physically present. To me, that is an invasion of our sovereignty.

The CHAIRMAN. You have indicated in your testimony that members of your tribe do not do much drinking, and so you have problems with non-Indians who drink and drive and engage in drug

abuse. Have your members been injured as a result?

Mr. BENGOCHIA. Have we been injured from the—you said that

our testimony is indicative that we do not party?

The CHAIRMAN. No, no—you frown upon it.

Mr. BENGOCHIA. Have we been injured from that lifestyle, that

drug abuse—yes, sir.

The CHAIRMAN. Do you have any established procedures to handle complaints of police misconduct?

Mr. BENGOCHIA. No; we did—I would not say it is established.

It has been adopted through tribal ordinance, but we do—we have

taken complaints from members who have been, who have waged

a complaint and we have compiled it, and we did submit that to

the State Attorney General Bill Lockyer over 1 year ago, maybe

11⁄2, and also to the sheriff’s department, to the county sheriff. We

have not received any kind of response from the county, and we did

understand that they were to do an internal investigation and

come up with findings of those allegations, and either deny them

or discipline the officers or something, but to my knowledge nothing has been done.

The CHAIRMAN. In your prior communication with the committee,

you mentioned that there is a very sacred site at Casa Diablo—

some rock sites—and they have been vandalized. Have you had

Federal law enforcement agencies investigating this sacred site

vandalism?

Mr. BENGOCHIA. I believe that particular tract of land is a reservation that was established in 1912 by President Taft and then

revoked in 1932 by another President, by President Hoover. That

land is currently under the jurisdiction or control of the Bureau of

Land Management. I do believe that they have looked into the matter and are probably doing what they can with their limited financial resources and personnel.

The CHAIRMAN. Thank you very much, Chief.

Mr. Vice Chairman.

Senator CAMPBELL. Mr. Chairman, you are from Bishop, is that

right?

Mr. BENGOCHIA. Yes; sir.

Senator CAMPBELL. When your police get a call—your police department receives an emergency call—do they ask the person calling if they are Indian or non-Indian?

Mr. BENGOCHIA. No, sir; I do not think so. They might——

Senator CAMPBELL. They just go ahead and respond?

Mr. BENGOCHIA. I would say yes.

Senator CAMPBELL. If they did respond and the people they respond to are non–Indian, do they then have an agreement with the

local deputy sheriff through some cross-deputization or something

to address the caller’s concerns?

Mr. BENGOCHIA. No; on racial—no, sir.
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Senator CAMPBELL. What is the nearest town to the reservation

that is not within the boundaries of the reservation?

Mr. BENGOCHIA. Bishop, California is off the reservation. It is not

on the reservation. We are probably a couple of miles from the

town, from the main street.

Senator CAMPBELL. There are literally thousands of non-Indians

that visit Indian reservations every year, and a lot of reservations

in fact have a pretty sizable population of non-Indians. I happen

to live at Southern Ute, which is a checkerboarded reservation out

of the original something like 600,000 acres that they got in the

olden days, there were two times the Federal Government opened

that reservation to homesteading because the Utes would not comply with some of the dictates of the Federal Government. So after

that was open to homesteading, almost one-half of it was lost to

private ownership. And so it is checkerboarded. You cannot tell

who lives where unless you go into tribal headquarters and look at

a map to see what land is owned by the tribe and what is not

owned by the tribe. Is your reservation that way, too— checkerboarded?

Mr. BENGOCHIA. No, sir; we are one——

Senator CAMPBELL. You are solid—you own the whole thing,

pretty much, yes?

Do you happen to know the percent of people that are on the reservation living there that are non-tribal members?

Mr. BENGOCHIA. I would guess 15 or 20 percent.

Senator CAMPBELL. And does the tribe provide any services at all

to them?

Mr. BENGOCHIA. Sanitation services—that is about it.

Senator CAMPBELL. I think that I have no further questions, Mr.

Chairman. Thank you.

The CHAIRMAN. Mr. Chairman, I thank you very much for your

assistance today. I would like to thank all of the witnesses who

participated in this hearing. We will most certainly study the testimony and we hope to come up with something.

With that, the hearing is adjourned.

[Whereupon, at 12 noon, the committee was adjourned, to reconvene at the call of the Chair.]

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APPENDIX

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