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TRIBAL LAW AND ORDER ACT ONE YEAR LATER:

HAVE WE IMPROVED PUBLIC SAFETY AND

JUSTICE THROUGHOUT INDIAN COUNTRY?

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

SEPTEMBER 22, 2011

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

DANIEL K. AKAKA, Hawaii, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

MIKE CRAPO, Idaho 

MIKE JOHANNS, Nebraska 

LORETTA A. TUELL, 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 September 22, 2011 ..................................................................... 1

Statement of Senator Akaka ................................................................................... 1 

Statement of Senator Johnson ................................................................................ 3

Statement of Senator Tester ................................................................................... 2

Prepared statement .......................................................................................... 3

Statement of Senator Thune ................................................................................... 30

WITNESSES

Echo Hawk, Larry, Assistant Secretary, Indian Affairs, U.S. Department 

of the Interior ....................................................................................................... 10

Prepared statement .......................................................................................... 11

Eid, Troy A., Chairman, Indian Law and Order Commission ............................. 38

Prepared statement .......................................................................................... 40

Hyde, Pamela S., J.D., Administrator, Substance Abuse and Mental Health 

Services Administration, U.S. Department of Health and Human Services ... 20

Prepared statement .......................................................................................... 22

Johnson, Brendan V., U.S. Attorney, District of South Dakota, U.S. Department of Justice ..................................................................................................... 14

Prepared statement .......................................................................................... 16

Johnson-Pata, Jacqueline, Executive Director, National Congress of American 

Indians .................................................................................................................. 60

Prepared statement .......................................................................................... 61

Perrelli, Thomas J., Associate Attorney General, U.S. Department of Justice .. 4

Prepared statement .......................................................................................... 6

Posey, Hon. Ivan D., Council Member, Joint Business Council, Shoshone 

and Arapaho Tribes, Wind River Indian Reservation ....................................... 48

Prepared statement .......................................................................................... 50

Pouley, Hon. Theresa M., Chief Judge, Tulalip Tribal Court .............................. 53

Prepared statement .......................................................................................... 55

Weahkee, Rose L., Ph.D., Director, Division of Behavioral Health, Office of 

Clinical and Preventive Services, Indian Health Service ................................. 25

Prepared statement .......................................................................................... 27

(1)

TRIBAL LAW AND ORDER ACT ONE YEAR 

LATER: HAVE WE IMPROVED PUBLIC

SAFETY AND JUSTICE THROUGHOUT

INDIAN COUNTRY? 

THURSDAY, SEPTEMBER 22, 2011

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:20 p.m. in room 

628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. DANIEL K. AKAKA,

U.S. SENATOR FROM HAWAII 

The CHAIRMAN. The United States Senate Committee on Indian 

Affairs will come to order. 

Aloha and welcome to the Committee’s oversight hearing on the 

Tribal Law and Order Act One Year Later: Have We Improved 

Public Safety and Justice Throughout Indian Country? 

Today, our Native communities face severe and disproportionate 

threats to their public safety. Nationwide Indian reservations suffer from a violent crime rate of more than two-and-a-half times the 

national average. And with some reservations facing a violent 

crime rate as high as 20 times the national average. And women 

in our communities are especially vulnerable to violence. More than 

one in three Native women will be raped in their lifetime and two 

in five will fall victim to domestic or partner violence. 

These grave statistics are the result of a complicated jurisdictional maze that often allows severe crimes to go unpunished in 

Native communities. Native justice systems are also extremely underfunded and lack adequate data, training and coordination with 

State and Federal agencies to deal with the problem. 

Signed into law on July, 29, 2010, the Tribal Law and Order Act, 

TLOA, was intended to address the law and order crisis in Native 

communities. It has now been over a year since passage and many 

of the deadlines to implement provisions of the TLOA have passed. 

Today, we will hear from three panels of distinguished witnesses 

to examine progress in implementation of this critical legislation. 

The witnesses include Federal officials who have been charged with 

implementing the law, the Chair of the recently established Indian 

Law and Order Commission, Tribal leaders, Justice officials, and 

representatives from Native organizations. 

2

We are here to listen and to consider how we can continue to improve Native justice systems beyond the TLOA. Our children and 

those generations who follow rely on the decisions made today to 

ensure the safety and success of the communities in the future. 

The CHAIRMAN. And I would like to now ask other Members of 

the Committee for their opening statements. 

Senator Tester? 

STATEMENT OF HON. JON TESTER,

U.S. SENATOR FROM MONTANA 

Senator TESTER. Thank you, Mr. Chairman. 

I want to welcome the witnesses today on all the panels. I am 

glad we are following up on this issue. Too often, we pass legislation. We move on. We never look back. And this is too important 

an issue not to look back on and assess who we are doing. 

Soon after I arrived in the U.S. Senate, I met with Tribal leaders 

across the Country to prioritize their needs. Their needs were so 

many that I said, wow, rank them. And they did. And of course, 

health care was the top. Public safety was number two on that particular day. 

Businesses have told me that because of a lack of law enforcement, customers never come through the door and it is hard for 

them to find good employees. Hospital directors have told me they 

can’t find docs. They can’t find nurses because their families don’t 

want to live in communities that are dangerous. 

Schools tell me they can’t educate kids because they come from 

violent homes, as so many of the students do in Indian Country. 

So I was proud to work with Chairman Dorgan in getting right 

to work on this bill. Our hearings revealed what Native Americans 

already knew. We haven’t done a very good job protecting Indian 

Country and the disparities were incredibly disturbing. Indian communities are no where as safe as our American communities. 

The Chairman talked about some of the statistics. American Indians are two and a half times more likely to experience violent 

crime. The incidence of crimes upon women is incredibly high. Detention facilities are overcrowded, understaffed. Declination on the 

ability to prosecute crimes in Indian Country were way too high. 

Some reservations didn’t even have 24-hour coverage for police and 

they had one person to cover literally hundreds of square miles in 

Indian Country. 

There are other examples, but the bottom line is we need to do 

better. That is why we passed the bill, to give you the support that 

is needed in Indian Country to really keep our families safe, our 

communities safe, our businesses with the ability to succeed. 

The bill we passed requires agencies to share evidence and information better. It allows Tribal Courts to give stiffer penalties, as 

long as protect our Constitutional rights. It encourages different 

law enforcement agencies to share information and work together, 

and provides high-level domestic and sexual violence training. It 

authorizes programs designed to respond to infrastructure needs 

and substance abuse prevention. 

But with more support comes expectations. We are a year out. 

I look forward to hearing the progress. I hope there has been 

progress. And quite frankly, just to let you know as a little tip 

3

going in, saying we are working on it is not going to cut it. We 

have to have things where we have seen positive results as they 

impact Indian Country because it is just that important. 

Look, we have unemployment rates in Indian Country that are 

through the roof. I think this is a big part of that. It is not the only 

solution to it, but it certainly is a big part of it. We are never, ever 

going to see economic growth, job creation, as long as communities 

are unsafe. I think it is my job. It is your job. And I look forward 

to hearing about the progress as we work together to make Indian 

Country all it can be. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Tester.

PREPARED STATEMENT OF HON. JON TESTER, U.S. SENATOR FROM MONTANA

Thank you Mr. Chairman and welcome witnesses. I’m glad we’re following up on 

this critical issue. Too often in this body, we pass legislation, move on to the next 

issue, and never look back. 

As soon as I arrived in the U.S. Senate, I asked Tribal leaders to prioritize their 

needs. After healthcare, public safety was the most important. Businesses told me 

that a lack of law enforcement was driving customers away and made it hard for 

them to find good employees. Hospital directors told me same—they can’t get good 

doctors, because they and their families didn’t want to live in dangerous communities. Schools told me they can’t educate the kids who come from violent homes—

and too many of their students do. 

So, I was proud to join former Indian Affairs Committee Chairman, Senator Byron 

Dorgan, in getting right to work. Our hearings revealed what Indians already know: 

we’ve done a terrible job of protecting Indian communities from crime. The disparities were disturbing. 

Indian communities were nowhere near as safe as most other American communities. American Indians were two and a half times more likely to experience a violent crime than non-Indians. 40 percent of Indian women will experience intimate 

partner violence; and 30 percent will be raped. Detention facilities were overcrowded 

and understaffed. U.S. Attorneys declined to prosecute over 60 percent of all crimes 

in Indian Country and 70 percent of serious crimes. On some reservations, they 

didn’t even have 24-hour police coverage. On others, they had one person to cover 

hundreds of square miles. 

There are other examples of failure, but the lesson is that we can, and must do 

better. Giving you folks the support you need is important, because we rely on you 

to keep our families and communities safe. 

The bill we passed requires agencies to share evidence and information better. It 

allows Tribal courts to give stiffer penalties, as long as they protect constitutional 

rights. It encourages different law enforcement agencies to work together. It provides high-level domestic and sexual violence training. And it authorizes programs 

designed to respond to infrastructure needs and substance abuse prevention. 

But with more support, come higher expectations. Now, more than one year later, 

I look forward to hearing about your progress. I don’t just want to hear that ‘‘you’re 

working on it’’. I want to hear about positive results. 

The bottom line is that we can’t expect anybody in Indian Country to succeed, unless we provide safe communities. That is my job and that is your job. I look forward 

to hearing about your progress today.

Senator Johnson? 

STATEMENT OF HON. TIM JOHNSON,

U.S. SENATOR FROM SOUTH DAKOTA 

Senator JOHNSON. Mr. Chairman, thank you for holding this 

hearing today. This issue is critically important to my home State 

of South Dakota. 

I would like to thank all of our witnesses for joining us today. 

I would like to especially thank U.S. Attorney Brendan Johnson 

4

from my home State of South Dakota for testifying here today. I 

have followed his career closely. 

[Laughter.] 

Senator JOHNSON. And look forward to his testimony, as well as 

all the other witnesses. 

Throughout this hearing today, we will hear about the higher 

than average crime statistics affecting Indian Country. Crime in 

Indian Country in South Dakota is no exception. We have serious 

issues in South Dakota. 

I was proud to have supported the Tribal Law and Order bill. It 

is my hope that this legislation has and will provide the tools to 

correct some of these problems. 

I look forward to the testimony today to see how implementation 

of this law is progressing. 

Thank you again, Mr. Chairman, for holding this hearing today. 

The CHAIRMAN. Thank you very much, Senator Johnson. 

With that, I welcome the witnesses. I appreciate that you all 

have traveled so far to get here today and I look forward to hearing 

your testimony on this very important matter. 

So I ask that you limit your oral testimony to five minutes. Your 

full written testimony will be included in the record. 

Also, the record for this hearing will remain open for two weeks 

from today, so we welcome written comments from any interested 

parties. So thank you very much. 

Our first panel of witnesses today is Mr. Tom Perrelli, Associate 

Attorney General for the Department of Justice; Mr. Larry Echo 

Hawk, the Assistant Secretary of Indian Affairs for the Department 

of Interior; Mr. Brendan Johnson, U.S. Attorney for the District of 

South Dakota; Ms. Pamela Hyde, who is Administrator for the Substance Abuse and Mental Health Services Administration at the 

U.S. Department of Health and Human Services; and Dr. Rose 

Weahkee, Director of Behavioral Health in the Office of Clinical 

and Preventive Services for Indian Services in Rockville, Maryland. 

I want to welcome all of you again. 

And Mr. Perrelli, will you please proceed with your testimony? 

STATEMENT OF THOMAS J. PERRELLI, ASSOCIATE ATTORNEY 

GENERAL, U.S. DEPARTMENT OF JUSTICE 

Mr. PERRELLI. Thank you, Chairman Akaka and Members of the 

Committee. I appreciate the opportunity to appear before the Committee again and to report on the Justice Department’s implementation of the Tribal Law and Order Act of 2010. 

This landmark law takes important steps toward improving the 

delivery and administration of criminal justice services in Indian 

Country, which is a top priority of the Attorney General. Even before the Tribal Law and Order Act passed, the Department began 

implementing key aspects of the proposed statute and going beyond 

the statute, we sought to deepen our engagement with Tribal nations. 

The Department is committed to fulfilling its trust responsibilities to Tribal nations, both by improving its own performance and 

by working with and investing in Tribal communities because we 

believe those communities are often best able to address the public 

safety challenges that they face. 

5

I am honored to be here from the Department of Justice with 

Brendan Johnson, the United States Attorney for the District of 

South Dakota and the Chair of the Native American Issues Subcommittee of the Attorney General’s Advisory Committee. Brendan 

has shown extraordinary commitment to working with Tribal nations and improving public safety and he has been a tremendous 

leader for the Department. 

Since enactment of TLOA, we have worked hard to implement 

both its spirit and its letter. Because it covers so much ground, I 

will only hit a few of the highlights here in my oral testimony, but 

there is more in my written testimony. 

Under TLOA Section 212, FBI investigators and Federal prosecutors are now more effectively than ever coordinating with Tribal 

law enforcement officials on decisions not to pursue or to pursue 

criminal investigations or prosecutions in Indian Country. We will 

be submitting our first annual set of disposition reports as required 

by Congress early next year. 

Under Section 213 of the TLOA, we have already appointed eight 

Tribal prosecutors as Special Assistant United States Attorneys to 

assist in prosecuting Federal offenses committed in Indian Country 

and there are 10 other SAUSA’s in the pipeline for later this year. 

We have at least one Assistant United States Attorney that will 

serve as a Tribal liaison in every district with Indian Country. We 

have established the Office of Tribal Justice as a permanent component of the Department and we have appointed a Native American 

Issues Coordinator to assist the United States Attorneys, all of 

which are requirements of the Tribal Law and Order Act. 

Under Section 221 of the Act, we have prepared regulations for 

assuming concurrent jurisdiction over crimes committed on certain 

Public Law 280 reservations. Those regulations are at OMB currently and we expect to have them out and begin receiving applications from Tribal nations in the coming months. 

Under Section 234, the Department’s Bureau of Prisons has established a four-year pilot program for accepting offenders convicted in Tribal court under TLOA’s enhanced sentencing provisions. And there are a series of reports and memoranda of understanding, including ones with SAMHSA on alcohol and substance 

abuse; our work with Interior on Tribal detention facilities; the 

work of our COPS office, all deadlines in the statute, all of which 

have been met in the last several months. 

Earlier this year, pursuant to Section 251 of the statute, our Bureau of Justice Statistics submitted to Congress a compendium of 

Indian Country crime data, and I think anyone reading that compendium would say that it tells us both that there are tremendous 

public safety problems in Indian Country and that we are a long 

way of having fully researched them to fully understand their 

scope. 

Finally, separate from, but as an extension to the Tribal Law and 

Order Act, we have worked with Tribal leaders to propose legislation to address the issue that Tribal leaders have repeatedly identified to us as one of, if not the most significant issue that they face, 

the scourge of domestic violence. 

That legislation, which we have talked about with this Committee before, follows the path that Congress blazed in the TLOA 

6

by offering Tribal law enforcement and prosecutors additional authority, if they implement procedural safeguards set forth by Congress and the Constitution and it fills critical gaps in the criminal 

justice response to domestic violence in Indian Country. We are 

hopeful that Congress gives us serious legislation as the natural 

next step following the Tribal Law and Order Act. 

I want to thank the Committee again for its work in this area 

and for constantly keeping the spotlight on these issues. We want 

to ensure, and the Department is fully committed to ensuring the 

Native Americans can live in safer communities in the months, 

years, and decades ahead. 

Thank you again. I look forward to your questions. 

[The prepared statement of Mr. Perrelli follows:]

PREPARED STATEMENT OF THOMAS J. PERRELLI, ASSOCIATE ATTORNEY GENERAL, 

U.S. DEPARTMENT OF JUSTICE

Chairman Akaka, Vice Chair Barrasso, and members of the Committee: 

I appreciate this opportunity to appear before the Committee on behalf of the Department of Justice to offer the Department’s report on implementation of the Tribal 

Law and Order Act of 2010, Title II of Public Law 111–211 (TLOA). This landmark 

law includes important steps toward improving the delivery and administration of 

criminal-justice services in Indian country, which is a top priority for the Attorney 

General. The Department has worked hard to implement both the spirit and the letter of the law. 

The Tribal Law and Order Act of 2010 covers an extraordinary range of important 

policies, organized into six subtitles: Federal accountability and coordination (Subtitle A, sections 211 to 214); State accountability and coordination (Subtitle B, sections 221 to 222); empowering Tribal law-enforcement agencies and Tribal governments (Subtitle C, sections 231 to 236); Tribal justice systems (Subtitle D, sections 

241 to 247); Indian country crime data collection and information sharing (Subtitle 

E, sections 251 to 252); and domestic violence and sexual assault prosecution and 

prevention (Subtitle F, sections 261 to 266). In my testimony this afternoon, I will 

address the sections of the Act that have most directly involved the Department of 

Justice. 

TLOA section 212, in Subtitle A, deals with disposition reports. Specifically, it requires Federal investigators and prosecutors to coordinate with Tribal justice officials concerning decisions not to pursue investigations or prosecutions of alleged violations of Federal criminal law in Indian country, and to compile and report annually to Congress data concerning such decisions. 

Throughout 2011, the first calendar year following enactment of the TLOA, the 

Department of Justice has been gathering data for its first set of disposition reports 

to Congress. Both the Executive Office for United States Attorneys (EOUSA) and 

the Federal Bureau of Investigation (FBI) have been working to improve the quality 

of the data they maintain on investigation and prosecution decisions regarding alleged crimes in Indian country. We expect to deliver the initial disposition reports 

in early 2012, to cover data from January to December 2011. 

Moreover, the type of Federal-Tribal coordination and communication that TLOA 

section 212 requires has been a focus of the Department’s for the last few years. 

In January 2010, the Deputy Attorney General issued a memorandum directing that 

every U.S. Attorney’s Office with Indian country in its district, in coordination with 

our law-enforcement partners, engage at least annually in consultation with the 

Tribes in that district to develop operational plans for addressing public safety in 

Indian country and to work closely with law enforcement to prioritize combating violence against women in Indian country. Typically, these operational plans provide 

that U.S. Attorney’s Offices, upon declining to prosecute an alleged crime, must coordinate with Tribal justice officials about the status of the investigation and the 

use of potentially relevant evidence. This engagement has helped foster better communication about ongoing cases and matters in Indian country. 

Increased consultation has been central to Attorney General Holder’s approach to 

working with Tribal nations. In October 2009, the Attorney General convened the 

Department’s Tribal Nations Listening Session on Public Safety and Law Enforcement in St. Paul, Minnesota. Nearly 300 Tribal leaders representing approximately 

100 Tribes attended the session. In addition to the three top leaders of the DepartVerDate 0ct 09 2002 11:11 Jun 18, 2012 Jkt 073817 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 S:\DOCS\73817.TXT JACK
7

ment and representatives from nearly all the Department’s components, representatives from the Departments of the Interior, Health and Human Services, Housing 

and Urban Development, Education, and Homeland Security also participated. In 

2010, the Attorney General established the Tribal Nations Leadership Council, composed of Tribal leaders selected by the Tribes themselves and charged with advising 

the Attorney General on issues critical to Tribal governments and communities, including public safety. The Department also has engaged in dozens of consultations 

with Tribal leaders on specific issues affecting public safety. 

TLOA section 213 deals with two key sets of players in prosecuting Indian-country crimes: Special Assistant U.S. Attorneys and Tribal Liaisons. Subsection 213(a) 

codifies the Attorney General’s authority to appoint Tribal prosecutors and other 

qualified attorneys as Special Assistant U.S. Attorneys (SAUSAs) to assist in prosecuting Federal offenses committed in Indian country. While such appointments had 

been made occasionally in the past, U.S. Attorneys are now proactively recruiting 

Tribal prosecutors for these assignments. Currently, there are eight Tribal prosecutors serving as Special Assistant U.S. Attorneys. And at least ten more Tribal prosecutors have been selected by U.S. Attorneys, in consultation with Tribes, to serve 

as SAUSAs; these individuals are presently undergoing background checks, and it 

is expected that they will be appointed to serve as SAUSAs by the end of the calendar year. 

Subsection 213(b) requires the U.S. Attorney for each district that includes Indian 

country to appoint at least one Assistant U.S. Attorney to serve as a Tribal Liaison 

in the district. While the appointment of Tribal Liaisons has been a long-standing 

practice for many U.S. Attorneys, now every United States Attorney’s Office whose 

district includes Indian country or a federally recognized Tribe has at least one Tribal Liaison, and some districts have more than one. 

TLOA section 214 focuses on two key administrative entities in the Department: 

the Office of Tribal Justice (OTJ) and the Native American Issues Coordinator. Subsection 214(a) requires the Attorney General to establish the Office of Tribal Justice 

as a component of the Department. OTJ was created in 1995 by then-Attorney General Janet Reno and has operated continuously since then, but was not made permanent until 2010. Even before enactment of the TLOA, the Attorney General had 

begun the process of making OTJ permanent. And on November 17, 2010, less than 

four months after TLOA’s enactment, the Department published in the Federal Register a final rule fully implementing subsection 214(a). The Office of Tribal Justice 

is now on the Department’s organizational chart and is one of a half-dozen Department components that report directly to both the Deputy Attorney General and the 

Associate Attorney General. OTJ serves as the principal point of contact in the Department for federally recognized Tribes, promotes internal uniformity of Department policies and litigation positions relating to Indian country, and coordinates 

with other Federal agencies and with State and local governments on their initiatives in Indian country. 

Subsection 214(b) codifies the position of Native American Issues Coordinator in 

the Executive Office for United States Attorneys. The Coordinator assists both the 

United States Attorney’s Offices whose districts include Indian country and the Attorney General’s Advisory Committee’s Native American Issues Subcommittee, 

which is currently chaired by the U.S. Attorney for the District of South Dakota, 

Brendan Johnson. 

Turning to Subtitle B, on State accountability and coordination, TLOA section 221 

provides that, at the request of an Indian Tribe whose Indian country is subject to 

mandatory State criminal jurisdiction under Public Law 280 (18 U.S.C. 1162(a)), the 

United States may accept concurrent jurisdiction to prosecute violations of the General Crimes Act (also known as the Indian Country Crimes Act), 18 U.S.C. 1152, 

and the Major Crimes Act (also known as the Indian Major Crimes Act), 18 U.S.C. 

1153. Here, too, the Department has made great strides in TLOA’s first year. After 

participating in six consultation sessions with Tribal leaders, the Department published proposed procedures for such requests in the Federal Register on May 23, 

2011 (76 Fed. Reg. 29675), with a public comment period through July 7, 2011. A 

draft final rule establishing those procedures is currently under interagency review 

at the Office of Management and Budget. 

The next three TLOA sections that I will discuss are all found in Subtitle C, 

which deals with empowering Tribal law-enforcement agencies and Tribal governments. Section 233 requires the Attorney General to permit qualified Tribal law-enforcement officials access to Federal criminal information databases, such as the 

FBI’s National Crime Information Center (NCIC) databases, so that these Tribal officials can both enter and obtain information. In addition, the Attorney General is 

required to ensure that qualified Tribal law-enforcement officials are permitted such 

access to other national criminal databases. Currently, qualified Tribal 

8

lawenforcement officials are permitted access to NCIC, as well as law-enforcement 

informationsharing resources such as the National Law Enforcement Data Exchange (N–DEx), the DOJsupported Regional Information Sharing Systems (RISS), 

and Law Enforcement Online’s Tribal Public Safety Network (T-Net), to name a few. 

We know that some Tribal lawenforcement agencies face technical and other challenges in using the databases, and the Department has been actively assisting Tribal law-enforcement agencies to trouble-shoot and overcome challenges to access that 

may lie outside the Department. 

Section 234(c) requires the Director of the Department’s Bureau of Prisons to establish a pilot program for accepting offenders convicted in Tribal court under the 

TLOA’s enhanced sentencing provisions. In November 2010, the Bureau of Prisons 

launched the four-year pilot program that allows any federally recognized Tribe to 

request that the Bureau incarcerate a person convicted of a violent crime and sentenced to two or more years of imprisonment. Under TLOA section 234(c), the Bureau is authorized to house up to 100 Tribal offenders at a time, nationwide. However, as of today, no Tribe has made such a request. 

TLOA section 235 establishes the Indian Law and Order Commission, with members appointed by the President, the Majority and Minority Leaders of the Senate, 

and the Speaker and Minority Leader of the House of Representatives. Pursuant to 

section 235, the Attorney General provided recommendations to the White House for 

the Presidential appointees. Because of certain restrictions in the Continuing Resolutions enacted last year and earlier this year that restricted our ability to start new 

activities, the Departments of Justice and the Interior were prohibited until this 

spring from providing funding to the Commission as specified in the TLOA. As a 

result, the Commission was not able to begin its work as quickly as the Department 

or the Commissioners would have liked. But under the most recent appropriations 

acts, the Departments of Justice and the Interior have now moved forward with the 

Commission not only on funding matters, but also on issues of office space, administrative assistance, and personnel. The Commission held its first in-person meeting 

in New Mexico on April 6 and its first field hearing earlier this month on September 

7 on the Tulalip Indian Reservation in Washington. The Department looks forward 

to continuing to work closely with the Commission in the months ahead. 

Subtitle D of the Tribal Law and Order Act deals with Tribal justice systems. 

TLOA section 241 adds the Department of Justice to the list of Federal agencies responsible for coordinating resources and programs to prevent and treat Indian alcohol and substance abuse. Under section 241(a)(1)(A) and after extensive consultation 

with Tribal leaders, Indian organizations, and professionals in the treatment of alcohol and substance abuse, in July 2011, the Departments of Justice, the Interior, and 

Health and Human Services entered into a Memorandum of Agreement. Under that 

agreement, the agencies will collectively determine the scope of the alcohol and substance-abuse problems faced by American Indians and Alaska Natives, identify the 

resources each agency can bring to bear on the problem, and set minimum standards for applying those resources. Also under TLOA section 241, the Justice Department’s Office of Justice Programs joins the Bureau of Indian Affairs, the Indian 

Health Service, and the Substance Abuse and Mental Health Services Administration as a Federal agency partner to assist, in coordination with Indian Tribes, in 

developing and implementing Tribal Action Plans to combat alcohol and substance 

abuse on a Tribe-by-Tribe basis. 

Sections 241(g), 244(b)(3), and 211(b)(5), collectively, require the Attorney General, in coordination with the Secretary of the Interior, acting through the Bureau 

of Indian Affairs, and in consultation with Tribal leaders, Tribal courts, Tribal lawenforcement officers, and Tribal corrections officials, to submit to Congress a longterm plan to address incarceration, as well as juvenile detention and treatment, in 

Indian country, including alternatives to incarceration and juvenile detention. After 

extensive Tribal consultation, the Departments of Justice and the Interior, with 

other Federal partners, developed the plan entitled, ‘‘Tribal Law and Order Act 

(TLOA) Long-Term Plan to Build and Enhance Tribal Justice Systems.’’ This Tribal 

Justice Plan provides short-, medium-, and long-term action steps and recommendations to address incarceration, as well as juvenile detention and treatment, and alternatives to incarceration in Indian country, as well as the reentry of Tribal members from Federal, State, and Tribal jails and prisons to Tribal communities. Central themes of the Tribal Justice Plan include the need to prioritize alternatives to 

incarceration, to implement the Plan in consultation with Tribal leaders, and to support further coordination of Federal, State, and Tribal resources. The Departments 

of Justice and the Interior are working with other Federal agencies and with Tribal 

leaders, Tribal justice practitioners, and community residents to implement these 

action steps and recommendations. 

9

TLOA section 243 reauthorizes and amends the Tribal Resources Grant Program 

within the Justice Department’s Community Oriented Policing Services (COPS) Office. This program provides long-term funding to hire and retain Tribal law-enforcement officers, and it removes matching requirements. Section 243 also requires the 

Department to report to Congress on the extent and effectiveness of the COPS program in Indian country, which the COPS Office did in December 2010, with a report 

entitled, ‘‘COPS Office Report to Congress as required by the Tribal Law and Order 

Act of 2010.’’ The report described and analyzed (1) the problem of intermittent 

funding; (2) the integration of COPS personnel with existing law-enforcement authorities; and (3) how the practice of community policing and the broken-windows 

theory can most effectively be applied in remote Tribal locations. 

TLOA’s Subtitle E concerns Indian country crime-data collection and information 

sharing. Section 251(b) requires the Department’s Bureau of Justice Statistics 

(BJS), together with the FBI and the Department of the Interior’s Bureau of Indian 

Affairs Office of Justice Services, to work with Indian Tribes and Tribal law-enforcement agencies to establish and implement Tribal data-collection systems that will 

enable BJS to effectively collect and analyze statistical information about crime in 

Indian country. Section 251(b) then requires the Director of BJS to submit to Congress an annual report describing the data collected and analyzed relating to crimes 

in Indian country. 

In June 2011, BJS issued a compendium of crime data for Indian country entitled, 

‘‘Tribal Crime Data Collection Activities, 2011.’’ The following are among the compendium’s key findings:

• Tribally operated law-enforcement agencies in 2008 employed nearly 4,600 fulltime personnel, including about 3,000 sworn officers. Eleven of the 25 largest 

Tribal law-enforcement agencies served jurisdictions covering more than 1,000 

square miles.

• In 2007, ninety-three State-court prosecutors’ offices in mandatory or optional 

Public Law 280 States prosecuted felonies committed in Indian country under 

Public Law 280. Most of these offices prosecuted at least one offense involving 

drugs (63 percent), domestic violence (60 percent), or aggravated assault (58 

percent). Seventy percent of these State prosecutors’ offices served judicial districts with fewer than 100,000 residents.

• From 2008 to 2009, the average daily jail population in Indian country increased by 12 percent, as the average length of stay increased from 5.1 days 

to 5.6 days. The percentage of occupied bed space increased from 64 percent to 

74 percent.

• In 2008, juveniles constituted a relatively small fraction of the suspects referred 

to Federal prosecutors (315 out of 178,570 suspects) or of the offenders admitted 

to Federal prisons (156 out 71,663 offenders). Tribal youth constituted nearly 

half of all juveniles (70 out of 152) handled by the Federal courts in 2008. About 

72 percent of these Tribal youth were investigated for violent offenses, including 

sexual abuse (35 percent), assault (20 percent), and murder (17 percent). Ninety-one percent of Federal district-court cases involving Tribal youth resulted in 

a conviction. Admissions to Federal prison among Tribal youth declined 10 percent per year from 1999 to 2008, while non-Tribal youth admissions declined 

12 percent per year.

The final subtitle of the Tribal Law and Order Act is directed to domestic-violence 

and sexual-assault prosecution and prevention. In accordance with Section 265, the 

FBI’s Office of Victim Assistance is partnering with the Indian Health Service to 

expand and support Sexual Assault Nurse Examiner (SANE) and Sexual Assault 

Response Team programs in Indian country. The Department of Justice recognizes 

that simply funding services for victims of sexual assault does not adequately address the multidisciplinary and multijurisdictional challenges that complicate responses to victims of sexual assault in Indian country. Consequently, in 2011 the 

Office for Victims of Crime (OVC) implemented the American Indian/Alaska Native 

Sexual Assault Nurse Examiner-Sexual Assault Response Team Initiative, to enhance Native American communities’ capacity to provide high-quality multidisciplinary, coordinated services and support for both adult and child victims of sexual 

assault. To date, OVC has evaluated potential demonstration sites, has funded a 

technical-assistance service provider and two Federal coordinating positions—one in 

FBI, the other in IHS—and has established a Federal advisory committee to ensure 

that the Initiative develops effective, culturally relevant services and programs that 

can serve as models for other Native American communities. 

As noted above, public safety in Indian country is a top priority of this Department of Justice, especially with respect to violence against women. In July 2011, 

10

the Department proposed legislation that would significantly improve the safety of 

Native women and allow Federal and Tribal law enforcement agencies to hold more 

perpetrators of domestic violence accountable for their crimes. The proposed legislation would address three legal gaps by (1) recognizing certain Tribes’ authority to 

exercise concurrent jurisdiction over crimes of domestic violence, regardless of 

whether the defendant is Indian or non-Indian; (2) clarifying that Tribal courts have 

full civil jurisdiction to issue and enforce protection orders involving any persons, 

Indian or non-Indian; and (3) providing more robust Federal sentences for certain 

acts of domestic violence in Indian country. 

Furthermore, in June 2010, the Attorney General launched a Violence Against 

Women Federal and Tribal Prosecution Task Force composed of Federal and Tribal 

prosecutors. The Task Force was created to facilitate dialogue and coordinate efforts 

between the Department and Tribal governments regarding the prosecution of violent crimes against women in Indian country, and to develop best-practices recommendations for both Federal and Tribal prosecutors. 

In July 2010, the Executive Office for United States Attorneys launched the National Indian Country Training Initiative to ensure that Department prosecutors, as 

well as State and Tribal criminal-justice personnel, receive the training and support 

needed to address the particular challenges relevant to Indian-country prosecutions. 

The training effort is led by the Department’s new National Indian Country Training Coordinator. 

Thanks in large part to the Chairman, Vice Chair, and members of this Committee, the Department has added significant new resources to address public safety 

in Indian country. Twenty-eight new Assistant U.S. Attorneys dedicated to prosecuting crime in Indian country have been added in nearly two dozen districts, and 

nine new FBI positions have been added to work on Indian-country investigations. 

And FBI’s Office for Victim Assistance added 11 Indian Country Victim Specialists 

and one Forensic Child Interview Specialist for Indian Country, all of whom play 

an invaluable role in Indian-country investigations, particularly in cases of domestic 

violence and child abuse. 

Chairman Akaka, Vice Chair Barrasso, members of the Committee, we at the Department of Justice fully recognize that public safety in Indian country still is not 

what it should be, and that we bear a deep responsibility for ensuring that Native 

Americans can live in safer communities in the months, years, and decades ahead. 

But significant progress has been made in the less than fourteen months since Congress passed the Tribal Law and Order Act of 2010, and we at the U.S. Department 

of Justice look forward to working with the Congress to continue improving our efforts to fulfill our trust responsibility to Tribal nations. 

On behalf of the Department, I personally want to thank you for everything you 

have done to combat violent crime and to foster public safety in Tribal communities 

across our Nation. I look forward to continuing to work with you on these vitally 

important issues. 

I will be happy to attempt to answer any questions you may have.

The CHAIRMAN. Thank you very much, Mr. Perrelli. 

Mr. Larry Echo Hawk, please proceed to your testimony. 

STATEMENT OF LARRY ECHO HAWK, ASSISTANT SECRETARY, 

INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR 

Mr. ECHO HAWK. Good afternoon Senator Akaka and Committee 

members, public safety is a top priority for President Obama and 

Secretary of Interior Ken Salazar. And I would also like to note 

that in our work in consulting with Tribal leaders in all regions of 

the Country with the Tribal Interior Budget Council, we have identified criminal law enforcement and Tribal courts as the top two 

priorities when it comes to crafting our budgets in Interior. 

And it was just over a year ago, on July 29th of 2010 that President Obama signed the Tribal Law and Order Act. The goal of the 

Act was to improve law and order and justice in Indian Country. 

And I am pleased to be here before this Committee to say that we 

are moving in the right direction in attaining that goal. 

I am also here today to provide this Committee with an update 

on what the Bureau of Indian Affairs has done over the past year 

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to implement the directives of the Tribal Law and Order Act. I 

have asked two of my key senior officials to be with me today, and 

they are seated right behind me. That is Darren Cruzan, who is 

our Director of the Office of Justice Services, and Jack Rever, who 

is the Director of our Office for Facility Management and Construction. 

The Tribal Law and Order Act tasked the Bureau of Indian Affairs with a number of responsibilities and I would like to spotlight 

in my opening remarks four of those responsibilities. 

First, in Section 211 of the Act, the Bureau of Indian Affairs was 

directed to develop a list of unmet staffing needs: law enforcement, 

corrections, and Tribal court programs. Our first action was to assemble an unmet needs report team. We also established a webbased reporting tool to gather information from public safety departments in Indian Country. This web-based collection system will 

allow the Tribes to input their own data and we continue to work 

with Tribal leadership to complete this report. 

Also, in Section 211(b) of the Tribal Law and Order Act, we were 

directed to develop a long-term plan for Tribal detention. The Bureau of Indian Affairs, in cooperation with the Department of Justice, completed webinar work group meetings to determine what 

Tribes view as the need and the direction for corrections to move 

forward. The Department of the Interior and the Department of 

Justice finalized that report and it was signed by both Departments and submitted to Congress just last month. 

Then in Section 231(b) of the Tribal Law and Order Act, the BIA 

was directed to develop policies and procedures in order for BIA to 

enter into deputation agreements for the purpose of issuing BIA 

Special Law Enforcement Commissions. These policies and procedures were developed and enacted on January 25th of 2011. 

And in Section 231(a)(4)(A), the BIA was required to, when requested by Tribes, to conduct background checks for Tribal law enforcement and corrections officials no later than 60 days after the 

date of the receipt of the request. The BIA developed a new background policy and is working to implement those background 

checks on a timely basis when requested through contracts or 

through direct service support. 

And lastly, due to the enhanced sentencing provisions in the 

Tribal Law and Order Act, the BIA was required to develop guidelines for long-term incarceration in Tribal corrections centers. And 

in consultation with Tribal officials, our Office of Justice Services 

developed a long-term plan for incarceration in Tribal corrections 

centers and those guidelines were enacted in a timely manner on 

January 25th of 2011. 

That concludes my statement, and myself and my senior officials 

would be happy to respond to any questions the Committee may 

have. 

[The prepared statement of Mr. Echo Hawk follows:]

PREPARED STATEMENT OF LARRY ECHO HAWK, ASSISTANT SECRETARY, INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Chairman Akaka, Vice-Chairman Barrasso, and members of the Committee, 

thank you for the opportunity to provide testimony before this Committee on the 

Tribal Law and Order Act (TLOA), Pub. L. No. 111–211 (2010). President Obama 

signed TLOA into law just over a year ago on July 29, 2010. The goal of TLOA is 

12

to improve and address law and order and justice in Indian Country. Thus, I am 

pleased to be here before this Committee to provide an update on what the Bureau 

of Indian Affairs (BIA) has done over the past year since TLOA was enacted. 

In June of 2009, just over two years ago, before this Committee, I stated that this 

Administration acknowledged and was committed to honoring our longstanding government-to-government relationship with the Tribal Nations in this country. I also 

stated that, it was upon this foundation, that the Department of the Interior (Department) and American Indian Tribes and Alaska Natives must come together, 

through meaningful consultation, to develop plans to fight crime in Indian Country. 

That is why this Administration strongly supported, and continues to support, 

TLOA, and commits to fulfilling the goals of TLOA as we move forward. 

Several components comprise the United States Government’s efforts to provide 

public safety and fight crime in Indian Country. These components range from putting law enforcement officers on the streets, arresting, detaining, and, in certain circumstances, adjudicating offenders, to the long-term incarceration of these offenders 

post adjudication. From my past experience as the Attorney General for the State 

of Idaho, I know that these components are necessary to meet those responsibilities. 

Indian Affairs provides a wide range of law enforcement services to Indian Country. 

These services include police services, criminal investigation, detention program 

management, Tribal courts, and officer training by the Indian Police Academy. 

At my confirmation hearing over two years ago, I emphasized the importance of 

addressing public safety matters, and I had, and continue to have, support from Secretary Ken Salazar to make and keep this a top priority. As a top priority, I focused 

my attention on the structure of the Office of Justice Services (OJS) in the BIA. We 

conducted a nation-wide search for a new Director of OJS and we selected Darren 

Cruzan. Darren Cruzan is an enrolled member of the Miami Tribe of Oklahoma and 

comes to the OJS Director position from the Department of Defense, Pentagon Force 

Protection Agency. 

Darren Cruzan started his appointment on September 27, 2010, and under his 

leadership he has pulled together an OJS senior leadership team of core individuals 

with a combined law enforcement field experience of 120 years to address the public 

safety issues in Indian Country. Darren Cruzan brings a wide range of experience 

to OJS. He has served as State patrolman in Missouri as well as a Tribal police 

officer with his Tribe and an officer with the BIA in Oklahoma. Mr. Cruzan has 

been a supervisory police officer, a police academy instructor, a criminal investigator, and an Indian Country law enforcement liaison to the Department. Mr. 

Cruzan is a graduate of the Federal Bureau of Investigation National Academy, and 

holds a Bachelor of Science degree in Criminal Justice Administration from Mountain State University in West Virginia. 

As this summary of his qualifications and his selection to the OJS Director position evidences, we believe Mr. Cruzan is the right person to lead the OJS to assist 

myself and the Secretary for the Department of the Interior to improve and address 

law and order and justice in Indian Country, and to follow through with our commitment to fulfill the goals of TLOA as we move forward. 

High Priority Performance Goals (HPPG) 

One of the most basic needs throughout Indian Country is the need for additional 

officers on the street in Indian Country. On many reservations there is no 24-hour 

police coverage. Police officers often patrol and respond alone to both misdemeanor 

and felony calls. Our police officers are placed in great danger because back up is 

sometimes miles or hours away, if available at all. 

On May 10, 2010, BIA–OJS began implementation of a Presidential Initiative 

known as the High Priority Performance Goal (HPPG) at four selected Indian reservations. Based upon an analysis report of high crime, four reservations were selected as the first four locations to implement the Initiative. Those locations include 

reservations for the Standing Rock Sioux Tribe in North Dakota, the Shoshone and 

Northern Arapahoe (Wind River) Tribes in Wyoming, Chippewa Cree (Rocky Boy) 

Tribe in Montana, and the Mescalero Apache Tribe in New Mexico. 

I am pleased to report that our statistics demonstrate that, through the 3rd quarter of Fiscal Year 2011 at the HPPG locations, the goal of a five percent (-5 percent) 

reduction in criminal offenses was met and, in certain locations, exceeded. We are 

in the last four months of the Initiative, and while we anticipate continued reductions in violent crime, the overall percentage of reduction can fluctuate based upon 

the number of violent crimes reported during that period. 

The goal of the HPPG Initiative is to achieve a reduction in criminal offenses (i.e., 

violent crime) by five percent within a 24-month period. To achieve the intended results at the selected locations, a comprehensive approach was developed and implemented. This comprehensive approach involved intelligence led policing, traditional 

13

community policing techniques, crime reduction strategies, and interagency and 

intergovernmental partnerships. The lack of adequate law enforcement staffing at 

these locations resulted in a deficiency in addressing the violent crime rates on 

these reservations. Therefore, to succeed with this Initiative the number of law enforcement and corrections officers was increased to close the staffing gap with the 

national sworn staffing level averages and the actual staffing levels at the four selected HPPG reservations. 

In order to achieve our goal of reducing criminal offenses by at least five percent 

within 24 months on these four Indian reservations, OJS implemented a comprehensive strategy involving community policing, tactical deployment, and critical interagency and intergovernmental partnerships. At the beginning, OJS conducted an assessment at each location designed to ascertain the service provider’s perception of 

the type of services provided, the availability of services, current infrastructure of 

programs, and identify constraints that affect services and resources needed to improve services provided to the community. The assessment also gathered information regarding quality of life issues that affect the community and the programs providing services to the community. 

Once the assessment was complete, each agency was tasked with identifying 

crime trends in their communities. At the beginning of the initiative, each agency 

analyzed current criminal activity data (previous 12 months) and historical crime 

data (previous 36 months). The purpose of the analysis process was to develop an 

accurate crime rate profile for each location. The analysis process began by examining the types of crime being committed, the locations where crimes are being committed, and the days of the week and times of day when the crimes were being committed most frequently. 

We are now in the implementation phase, and OJS has, and continues, to educate 

law enforcement personnel on the effects of proactive policing by using a crime trend 

analysis. By using the analysis, the law enforcement programs developed a crime 

reduction plan with multi-faceted approaches to crime reduction through proper 

leadership/management principles, adequate staffing and resources, accurate analysis of current and historic criminal activity/trends, community assessments, intelligence-based law enforcement assignments and proactive operations, crime prevention programs, and most importantly, accountability at all levels of the operation. 

OJS also worked in collaboration with the elected Tribal leadership at each reservation so the Tribes would have significant input into the strategies being implemented that directly affect their communities and Tribal members. 

Office of Justice Services (OJS) activities post-TLOA 

Upon TLOA’s enactment, BIA–OJS was tasked with a number of responsibilities 

under the law. Section 211 of TLOA directed BIA–OJS to develop a list of unmet 

staffing needs of the law enforcement, corrections, and Tribal court programs. OJS’s 

first action was to pull together an ‘‘Unmet Needs Report’’ team comprised of courts, 

corrections, and law enforcement professionals. OJS also established a web based 

reporting tool (survey) developed to gather information from public safety departments in Indian Country. This web-based collection system will allow the Tribes to 

input their own data, and we continue to work with the Tribal leadership to complete this report. The survey is currently online and the due date for data submission by Tribes is the end of September. 

Section 211(b) of TLOA directed BIA–OJS to develop a long term plan for Tribal 

Detention. The OJS, in collaboration and cooperation with the Department and the 

Department of Justice (DOJ), completed Webinars and workgroup meetings to determine what Tribes view as the need and direction of Corrections moving forward, 

and to provide a broad base of information from Tribal corrections professionals 

across Indian Country. The Department and DOJ finalized the report and it was 

signed by the Department and DOJ, and submitted to Congress last month. Instead 

of traditional incarceration as the long-term goal, the report highlights rehabilitation and providing services. 

Section 231(b) of TLOA directed BIA–OJS to develop policies and procedures in 

order to enter into Deputation Agreements for the purpose of issuing BIA Special 

Law Enforcement Commissions (SLECs). These policies and procedures were developed and enacted on January 25, 2011. During the development of the policies and 

procedures, OJS conducted numerous consultations with Tribes across the country, 

and thereafter provided draft policies and procedures for continued comment via an 

email address. The new policy has been posted in the Federal Register and training 

is now available and being provided to OJS senior managers on the requirements 

and procedures for implementation of the policies and procedures to enter into 

Deputation Agreements for the purpose of issuing BIA SLECs. 

14

Although not a requirement under TLOA, but as a complement to the purposes 

of agreements between our law enforcement agencies, DOJ along with the OJS have 

created a Criminal Justice in Indian Country (CJIC) work group to review and update the training curriculum. The work group proposed a ‘‘train the trainer’’ course, 

which will be offered to Assistant United States Attorneys. 

Section 231(a)(4)(A) required OJS, when requested by a Tribe, to conduct background checks for Tribal law enforcement and correctional officials no later than 60 

days after the date of receipt of the request. OJS has developed a new background 

policy and we are working to implement background checks when requested through 

contracts and through direct service support. We anticipate that this proposed policy 

will ensure thorough background checks as well as ensuring qualified candidates fill 

our enforcement positions in Indian Country. This will assist OJS in meeting its 

goal of getting more law enforcement personnel on the streets in Indian Country. 

Section 234(d) required OJS to develop guidelines for long-term incarceration in 

Tribal correctional centers. In consultation with Tribal officials, OJS has developed 

a long-term plan for incarceration in Tribal correctional centers. The guidelines 

were enacted January 25, 2011. 

Conclusion 

Thank you for holding this hearing on the Tribal Law and Order Act and for providing the Department the opportunity to discuss what we in the Department have 

done over the past year since TLOA’s enactment into law. The Department will continue to work closely with this Committee, you and your staff, Tribal leaders, and 

our Federal and State partners to address the law enforcement, corrections and 

inter-agency cooperation issues in Indian Country in order to fulfill the goals of 

TLOA as we move forward. 

We are available to answer any question the Committee may have.

The CHAIRMAN. Thank you very much, Mr. Echo Hawk. 

Mr. Johnson, please proceed with your testimony. 

STATEMENT OF BRENDAN V. JOHNSON, U.S. ATTORNEY, 

DISTRICT OF SOUTH DAKOTA, U.S. DEPARTMENT OF JUSTICE 

Mr. JOHNSON. Thank you, Chairman Akaka, Members of the 

Committee. It is an honor to be here today in my capacity both as 

a United States Attorney for the District of South Dakota, as well 

as Chairman of Attorney General Eric Holder’s Native American 

Issues Subcommittee. 

I am proud to report that over the past year, we have made significant progress in improving public safety and justice throughout 

Indian Country. Progress was put in motion by the passage of the 

important Tribal Law and Order Act, as well a very clear message 

from leadership at the Department of Justice that, one, public safety in Indian Country will be a top priority for every U.S. Attorney; 

and two, that every U.S. Attorney will consult with the Tribes in 

our Districts to formulate a new operational plan to improve public 

safety in Indian Country within eight months of assuming office. 

The consultations that we have been conducting have made it 

clear that a serious problem and serious challenges exist. Last 

year, I met with a group of approximately 100 Native American 

teenagers in South Dakota. This group consisted of Native Americans who were both honor roll students, as well as students who 

had been exposed to drugs, alcohol and gangs. At one point, I asked 

them to put their heads down, close their eyes, and to raise their 

hand if they felt safe in their communities. I can tell you that hardly a hand was raised. It wasn’t just the honor roll students who 

didn’t feel safe. It was also some of the kids who had been exposed 

to gangs, who had been involved in the gangs. 

So this is what from the U.S. Attorneys’ Office perspective we 

have been doing over the last year to try to turn this situation 

15

around. One, as the Associate Attorney General mentioned, we 

have been involved in cross-designating Tribal prosecutors as Special Assistant U.S. Attorneys. Now, to provide some context on 

what that means. 

For example, in South Dakota, Rosebud’s Tribal Prosecutor is 

now also a Special Assistant United States Attorney. In the short 

time that he has held that cross-designation, he has appeared twice 

in Federal Court where he successfully prosecuted two non-Indians 

who committed offenses on the Rosebud Reservation. 

Now, in addition, because he has this cross-designation, he has 

also been able to go to the National Advocacy Center in South 

Carolina and receive some of the top training available in the 

Country for prosecutors and bring those skills back to the other 

prosecutors that he works with on Rosebud. 

I think one of the important lessons that we learned during these 

consultations as well is that we are not going to essentially be able 

to arrest our way to safer communities in Indian Country. At the 

request of Tribal leaders, U.S. Attorneys and Assistant U.S. Attorneys have been going into the schools. They have been talking 

about subjects like violence against women, drug abuse, gangs, 

sexting. And frankly, we have learned as much as we have taught. 

We have also been trying to be aggressive when we hear from 

communities about emerging law enforcement concerns. For example, in South Dakota, one of the issues that we have is in the proliferation of the availability of prescription drugs on reservations. 

So in South Dakota, what we have been doing is we have attempted to address that concern not just by prosecuting offenders, 

but also by partnering up with both Tribal and Federal law enforcement officers to conduct community events on the reservations 

in South Dakota where unused prescription drugs can be dropped 

off without question and destroyed. 

Another program that we have up and running in South Dakota 

that we are particularly proud of is our Community Prosecution 

Program on the Pine Ridge Reservation. We recently had Attorney 

General Holder, Secretary Echo Hawk, Mr. Perrelli, the Associate 

Attorney General, join us. We started in Rapid City and then we 

also went to Pine Ridge with 30 different U.S. Attorneys from 

around the Country. And we took a look at the challenges and the 

progress that we have been making in that community. 

And what this program entails is one of our Assistant United 

States Attorneys spent three to four days each week with an office 

on Pine Ridge. His job is not simply to prosecute cases on Pine 

Ridge, but it is also to work with the community so that the community has someone to turn to when they have questions about 

cases or concerns about law enforcement. He also works to ensure 

that the lines of communication remain open between BIA, between the Tribal police, Federal law enforcement and prosecutors 

on the Federal and Tribal level. 

I want to conclude by assuring you that public safety in Indian 

Country is an absolute priority for U.S. Attorneys, and not just because of the leadership at the Department of Justice has told us 

that it is a priority, but because these are communities that we believe in. These are communities that we spend a significant amount 

16

of our time working with, and we are proud of the progress that 

we have made. 

We have learned a great deal from the communities about what 

needs to be done in the future. We have a long ways to go, but we 

are hopeful about the work that we have done and will continue 

to do. 

Thank you. 

[The prepared statement of Mr. Johnson follows:]

PREPARED STATEMENT OF BRENDAN V. JOHNSON, U.S. ATTORNEY, DISTRICT OF

SOUTH DAKOTA, U.S. DEPARTMENT OF JUSTICE

Good Afternoon, Mr. Chairman, and Members of the Committee. It is an honor 

for me to be here today in my capacity as United States Attorney for South Dakota 

and Chairman of the Native American Issues Subcommittee of the Attorney General’s Advisory Committee. 

I want to open my remarks today by thanking the members of this Committee 

for your leadership in crafting the Tribal Law and Order Act. I am proud to join 

you in your efforts to provide Tribal members with the public safety and justice systems that they deserve. The U.S. Attorney community recognizes that the challenges facing Indian Country require continuing focus and commitment. It has been 

my experience that the enactment of the Tribal Law and Order Act, coupled with 

the Department’s initiative to enhance public safety in Indian Country, has resulted 

in significant progress in public safety and justice throughout Tribal nations. 

In January 2010, then-Deputy Attorney General David Ogden issued a memorandum to all U.S. Attorneys declaring that ‘‘public safety in Tribal communities is 

a top priority for the Department of Justice.’’ He directed that (1) every U.S. Attorney’s Office (USAO) with Indian Country in its district, in coordination with our law 

enforcement partners, engage at least annually in consultation with the Tribes in 

that district; and (2) every newly confirmed U.S. Attorney in these districts should 

develop or update the district’s operational plan for Indian Country public safety 

within eight months of assuming office. This leadership from the Department of 

Justice set the stage for what has been a period of unprecedented dialogue between 

Tribal leaders and U.S. Attorneys regarding public safety. 

My experience in South Dakota serves as one example of how this directive has 

been put into action and why the provisions of the Tribal Law and Order Act are 

so important. In February 2010, we held a state-wide Tribal Listening Conference 

that was attended by approximately two hundred Tribal leaders and law enforcement officers as well as Federal, State, and local law enforcement officers. We used 

this conference to listen to the public safety concerns of Tribal members, and we 

promised to continue that dialogue. We followed-up the conference by personally 

meeting with every Tribal chairman and Tribal council in South Dakota as well as 

with Tribal law enforcement and Tribal court officials. We have also held several 

public town hall meetings on reservations across the State over the past two years 

to ensure that we continue to receive guidance on public safety from the Tribal nations. 

Accordingly, the operational plan we designed in South Dakota is not a product 

of haphazard experimentation but rather a thoughtful response to the ideas that 

Tribal members had to improve public safety in their communities. Some of the 

highlights of our new operational plan in South Dakota include (1) the presence of 

a federal prosecutor in an office on the Pine Ridge Reservation approximately four 

days a week; (2) Tribal Prosecutors cross-designated to serve as Special Assistant 

United States Attorneys (SAUSAs) who prosecute cases in Federal court; (3) Tribal 

youth leadership programs that have been attended by approximately 400 Native 

American youth in South Dakota; (4) a cooperative Information Technology (‘‘IT’’) 

program that has sent USAO IT professionals to work with Tribal justice systems 

to provide technical advice and assistance; (5) facilitation of the creation of a South 

Dakota Tribal Prosecutors Association; (6) an Indian Country Advisory Group that 

advises me directly on law enforcement issues in Tribal nations; (7) Monthly MultiDisciplinary Team (‘‘MDT’’) meetings where USAO personnel and Tribal law enforcement discuss cases involving sexual abuse against children; (8) a Tribal Youth 

Diversion Program that allows qualifying Native American youth to be adjudicated 

in Tribal court instead of Federal court; (9) a joint program with the University of 

South Dakota Law School to help update Tribal codes; and (10) continued outreach 

to Tribes including our second Tribal Listening Conference scheduled for September 

29, 2011 which will focus exclusively on violence against Native American women. 

17

The progress in South Dakota has been matched by other U.S. Attorneys who 

have been working closely with their Tribal partners in their districts. For example, 

in June 2011, the North Dakota U.S. Attorney launched an Anti-Violence Strategy 

for Tribal Communities. This program included the assignment of an additional Assistant U.S. Attorney (AUSA) to handle Indian Country cases. Additionally, each of 

their four AUSAs working on Indian Country cases is assigned a specific reservation 

and required to visit that reservation several times a year to conduct MDT meetings, consult with Tribal leaders, provide law enforcement training, and coordinate 

cases with the BIA, FBI and Tribal prosecutors. The North Dakota U.S. Attorney 

reports that the open dialogue with Tribal members has significantly improved relations and he has pledged to continue his Tribal listening conferences as an annual 

event. The District of Arizona’s operational plan focuses on frequent communication 

between the USAO and Tribal governments’ law enforcement and other officials. 

The communication loop is intended to provide Tribal law enforcement all appropriate current information on the status of Federal matters in Indian Country, and 

access to investigative materials in those matters the USAO concludes it cannot 

charge. The policy mandates that within 30 days of receipt of a completed investigation, AUSAs must charge, decline or direct specific further investigative steps. If the 

AUSA declines the case, they must provide a copy of the declination letter explaining the reasons to the chief Tribal prosecutor, and make available appropriate evidence and case materials in the USAO’s possession. Arizona’s operations plan also 

focuses on maximizing investigative and prosecution resources through direct partnerships with Tribal agencies. In the past 15 months, Arizona USAO personnel have 

provided training to nearly 600 Tribal police officers in order to make them eligible 

to receive Special Law Enforcement Commissions (SLECs). With the SLEC, Tribal 

officers can enforce the provisions of the Major Crimes Act in Indian Country. The 

Arizona USAO also has developed a Tribal SAUSA program to appoint well-qualified Tribal prosecutors as Special Assistant United States Attorneys who will handle 

Federal offenses occurring in Indian Country. The program has designated 12 Tribal 

prosecutors from 8 different Tribes. 

In New Mexico, the U.S. Attorney created a new Indian Country Crimes Section 

(ICCS) shortly after assuming office. The ICCS handles all manner of crime arising 

out of New Mexico’s Indian Country, including the range of violent crime, particularly against women and children, as well as drug trafficking, white collar crime, 

and cultural resources cases. The development of this new section was based on (i) 

feedback from Tribal leaders who requested a section dedicated exclusively to Indian 

Country cases, and (ii) the U.S. Attorney’s interest in having prosecutors who prosecute crimes in New Mexico’s Indian Country become experts in this unique area 

of the law and also obtain a greater understanding of the communities they serve. 

The New Mexico USAO also implemented a community prosecution strategy to 

better serve the public safety needs of New Mexico’s Tribes. The model contemplates 

immersion in the community—getting to know the community’s leaders, the police 

and social services providers and developing a sense of confidence and trust in the 

community. The goal is that, by fostering relationships of trust and developing confidence in the justice system, members of New Mexico’s Native communities will 

more readily report crimes and participate in the investigation and prosecution of 

these offenses. It is particularly important that victims of domestic violence trust 

that the USAO will vigorously seek justice for them. The community prosecution 

concept has been implemented in all 22 pueblos and Tribes in New Mexico. Each 

AUSA in the ICCS is assigned to one or more pueblos or Tribes and is responsible 

for building relationships so that the USAO is better equipped to meet their public 

safety needs. The AUSAs are also responsible for providing training to the Tribal 

police departments for the pueblos and Tribes they serve. 

The United States Attorney in Montana was instrumental in creating the new 

Montana Tribal Prosecutors Association. This program provides training for Tribal 

prosecutors. Currently Montana has one Tribal prosecutor who has been cross-designated as a SAUSA, and two additional Tribal prosecutors are undergoing background checks to be designated as SAUSAs. The U.S. Attorney also partnered with 

the FBI to launch the Fearless Justice Initiative in Indian Country. This program 

focuses on Tribal members who are victims of witness intimidation or obstruction 

and has produced positive results. In the short time since its inception, the USAO 

has already obtained two convictions. Additionally, the U.S. Attorney is focusing on 

curbing prescription drug abuse on reservations by working with Tribal and Federal 

law enforcement to reduce the availability of illegal prescription drugs and prosecute offenders who sell these drugs. 

The United States Attorney in Alaska has made the sex trafficking of Alaska Native women a top priority. The USAO recently prosecuted several significant human 

trafficking cases, including four defendants who are alleged to have used Craig’s 

18

List to traffic twenty victims, causing many of them to engage in commercial sex 

acts. Several of the victims are Alaska Natives. In addition, the FBI and Anchorage 

Police Department recently conducted a joint presentation to several hundred 

attendees at a BIA Conference on the dangers of sex trafficking of Alaska Natives 

to raise awareness of this problem. The program was so wellreceived that it has 

been replicated in rural communities. The USAO recently received funding to hire 

a rural Federal prosecutor who is working with Alaska State Troopers to remove 

violent individuals from rural villages. 

Recent efforts by the District of Minnesota further demonstrate how the Department of Justice’s commitment to Indian Country is improving public safety in Tribal 

nations. The number of Indian Country cases filed in Minnesota over the past two 

years has increased by 98 percent when compared with the previous two year period. The Minnesota USAO has worked to strengthen relations with Tribes by having the U.S. Attorney personally host a quarterly Indian Country Public Safety 

meeting that brings together the heads of Tribal police departments, the FBI, DEA, 

and ATF to discuss public safety concerns. The office also maintains regular contact 

with Tribal prosecutors, law enforcement, and Tribal government on the reservations, including AUSAs who travel to the Red Lake Reservation most weeks. During 

the month of September 2011, the Minnesota USAO is conducting a Criminal Jurisdiction in Indian Country training in Red Lake, and is working with the State of 

Minnesota, the National Criminal Justice Association and the National Congress of 

American Indians to plan an Intergovernmental Coordination Meeting. The Minnesota USAO is also concerned about the epidemic of prescription drug abuse on 

reservations and recently worked with the DEA to promote a multi-county prescription drug take back initiative. 

The District of Wyoming has also prioritized Tribal public safety, and specifically 

the issue of violence against Native American women. For example, during the 

month of September 2011, the USAO hosted an Empowering Native American 

Women conference that addressed issues, including how to recognize, avoid and report sexual assault and domestic violence. The following day, the USAO hosted a 

conference on Empowering Native American Youth that discussed avoiding and reporting ‘‘sexting,’’ cyberbullying, dating violence and sexual assault. Approximately 

600 junior and senior high school students from Wind River Reservation schools attended this event. The FBI in Wyoming now shares their office space in Lander, 

Wyoming with BIA Criminal Investigators and they share a rotating ‘‘on-call’’ system. This increased cooperation helps to ensure that fewer cases fall through jurisdictional gaps. 

The United States Attorneys in Washington have provided law enforcement training sessions on reservations across the State that focus on issues selected by the 

Tribes. The United States Attorney in the Eastern District of Washington reports 

that the cooperative efforts between Tribal and Federal law enforcement officers 

have been very productive. He estimates that in the past ten months their declination rate has dropped by approximately two-thirds and that there is easier and more 

frequent communication between the two. 

In the District of Idaho, the U.S. Attorney’s Office meets bi-monthly with Tribal 

police to conduct case reviews and address law enforcement issues; it has conducted 

training on jurisdictional and law enforcement issues, developed and distributed an 

Indian Country Resource Manual to Tribal police departments and prosecutors and 

to other law enforcement agencies that frequently interact with law enforcement 

issues on or near Idaho’s Indian reservations, and partnered with the Department 

of Education to conduct anti-bullying, harassment and hate crime training. In November, the Idaho USAO will present, with Coeur d’Alene Tribal personnel, on domestic violence issues in Indian Country at the Idaho Summit on Sexual Violence, 

sponsored by the Idaho Coalition Against Domestic and Sexual Violence. 

The United States Attorney in Nebraska was recently appointed by Attorney General Eric Holder to Chair his Violence Against Women Tribal Prosecution Task 

Force in Indian Country. As Chairwoman of this Task Force, the Nebraska U.S. Attorney will work to reverse the high rate of violence against Native American 

women and children. The committee is producing a trial practice manual on the 

Federal prosecution of violence against women in Indian Country and working on 

developing ‘‘best practices’’ for prosecution strategies involving domestic violence, 

sexual assault and stalking. This effort has been driven largely by input gathered 

from the Department’s 2009 Tribal Nations Listening Session on Public Safety and 

Law Enforcement, the Department’s annual Tribal consultation on violence against 

women, and from written comments submitted by Tribal governments, groups and 

organizations to the Justice Department. 

The Executive Office for United States Attorneys at the Department of Justice 

has in place a Native American Issues Coordinator who, in addition to the responVerDate 0ct 09 2002 11:11 Jun 18, 2012 Jkt 073817 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 S:\DOCS\73817.TXT JACK
19

sibilities set forth in the Tribal Law and Order Act, also provides assistance and 

support to U.S. Attorneys’ Offices on legal and policy issues and serves as a liaison 

to various law enforcement agencies. In addition to the Native American Issues Coordinator, the Executive Office for U.S. Attorneys also has a full time Native American Issues Training Coordinator who creates, delivers and manages training for 

Federal, State, and Tribal criminal justice and social service professionals at the Department’s National Advocacy Center in Columbia, South Carolina, and on reservations and cities throughout the United States. Training topics have included cultural property law, Indian gaming, violent crime, financial crimes, child sexual 

abuse, and violence against women. 

The special emphasis that U.S. Attorneys in Indian Country have placed on public 

safety in Tribal nations has led to successful prosecutions, some of which are described in a listing of some representative cases that will be submitted for the 

record. 

Thank you for the opportunity to appear before you today about our work to improve the safety and security of all those who live in and around Indian Country. 

REPRESENTATIVE SAMPLE OF RECENT INDIAN COUNTRY PROSECUTIONS BY U.S. 

ATTORNEYS’ OFFICES

District of South Dakota: On February 9, 2011, Frederick One Feather, a/k/a Snow 

One Feather, age 62, was convicted of two counts of Sexual Abuse of a Minor by 

Fear and one count of Abusive Sexual Contact as a result of a federal jury trial. 

On May 16, 2011, One Feather, who has a past federal conviction for rape and felon 

in possession of a firearm, was sentenced to two life sentences to be served concurrently plus 36 months on the sexual contact charge. 

Eastern District of Michigan: On April 14, 2011, David Andrew Delacruz-Slavik, 

a Saginaw Chippewa Indian, was sentenced to 365 months in federal prison after 

pleading guilty to attempted murder and assault causing serious bodily injury to a 

child. During two and a half hours alone with the victim, his girlfriend’s 23-monthold daughter, Delacruz-Slavik inflicted throttle marks consistent with strangulation 

on the child’s neck, bruising to the chest and abdomen, head and brain injury, chest 

injury including a broken rib and bruised lung, blood in the pelvis, ruptured spleen 

and a broken nose. 

District of South Dakota: On May 2, 2011, Suzanna Valandra-Neiss, 37, was sentenced, to 72 months of imprisonment for manslaughter. Valandra-Neiss and the 

victim were driving home after drinking at a bar when they began arguing. The victim stopped, got out of the vehicle, and began walking down the road. ValandraNeiss, in anger and in the heat of passion, killed the victim by striking him with 

the vehicle. 

District of New Mexico: on May 16, 2011, Patrick Baptiste, 51, an enrolled member of the Navajo Nation was sentenced to a 25-year term of imprisonment based 

on his second degree murder conviction for killing Kathleen Francisco, a 71-yearold Navajo woman, within the boundaries of the Navajo Indian Reservation. 

Baptiste and the victim were running errands in her pickup truck. Baptiste attacked the victim by repeatedly striking her in the face with a closed fist, knocking 

out her dentures and breaking her glasses. Baptiste then drove around with the victim who was making gurgling noises and struggling to breath. He then pulled her 

out of the truck onto the ground by her hair, punched her with a closed fist, and 

kicked her at least 4 times. He then left her on the ground and drove off. Relatives 

discovered her body the next day. 

District of North Dakota: On May 23, 2011, John F. Wallette, 36, Belcourt, North 

Dakota, was sentenced to 30 years in federal prison after a jury found him guilty 

on a charge of aggravated sexual abuse of a child. The jury found that Wallette had 

engaged in various sexual acts with a child under the age of 12 from an unknown 

time to about July 2008. Additional evidence presented at trial indicated that 

Wallette also sexually abused other children while employed at a youth shelter facility in Belcourt. 

District of Arizona: On June 13, 2011, Rayfael Hershall Truax, 24, of Hon Dah, 

was sentenced to more than 51 months in prison following a guilty plea to two 

counts of Assault with a Dangerous Weapon. Truax assaulted the victim, his 

girlfriend at the time, by striking her in the back of the head with a piece of firewood, rendering her unconscious. The victim suffered permanent and life threatening injuries as a result of the assault. Previously, Truax had assaulted that same 

girlfriend by hitting her in the head with a beer bottle, then beating her with a 

towel rack he pulled from the bathroom wall, causing serious injuries. 

District of Montana: On August 10, 2011, Aldin Ray Two Moons, Sr., Lame Deer, 

Montana, was sentenced to 57 months imprisonment in connection with his guilty 

20

plea to domestic assault by a habitual defender. Two Moons and the victim have 

a number of young children together, including twins who were two weeks old at 

the time he struck their mother in the face with his fists repeatedly while several 

of their other children were watching. Two moons had ten Tribal arrests for domestic abuse, four of which had resulted in convictions. 

District of Arizona: On August 18, 2011, Paul Beebe, 28, and Jesse Sanford, 26, 

pleaded guilty to federal hate crime charges related to a racially motivated assault 

on a 22 year old developmentally disabled man of Navajo descent. A third defendant, William Hatch, 29, pleaded guilty in June 2011, to conspiracy to commit a federal hate crime. The defendants defaced the victim’s body with white supremacist 

and anti-Native-American symbols and recorded the incident on a cell phone for 

later play. 

District of Montana: On August 19, 2011, JoLaine Lee Flammond, was sentenced 

to 84 months in prison in connection with her guilty plea to possession with intent 

to distribute methamphetamine. Officers of the Blackfeet Safe Trails Task Force 

conducted an extensive investigation of numerous individuals trafficking large 

amounts of methamphetamine on the Blackfoot Reservation during 2009 and 2010. 

Another defendant, Rolan Hank ‘‘Hunky’’ Cobell, of Great Falls, MT, was sentenced 

on August 22, 2011, to 154 months imprisonment in connection with his guilty plea 

to distribution of methamphetamine. 

District of New Mexico: On August 30, 2011, Michael Harrison, 29, a member of 

the Navajo Nation, was sentenced to a 78-month term of imprisonment to be followed by three years of supervised release for his conviction on an assault with intent to commit murder charge. In a guilty plea, Harrison admitted that he attempted to murder his common-law wife, also a member of the Navajo Nation, by 

slashing her throat. 

District of Nebraska: September 12, 2011, Mark Henry, 21, of Niobrara, Nebraska, 

was sentenced to 37 months in prison for his conviction of motor vehicle homicide 

and driving under the influence resulting in serious bodily injury. Henry drove at 

a high rate of speed onto the Santee Sioux Indian Reservation with two other people; he lost control of the vehicle, flipping it several times. Henry and his passengers 

were thrown from the vehicle. One passenger died from his injuries while the second 

passenger sustained serious bodily injuries. Henry’s blood alcohol content was determined to be .295. 

District of Alaska: On September 15, 2011, Sabil Mujahid, 54, was sentenced to 

480 months in prison for aggravated sexual abuse and abuse sexual contact against 

three Alaska Native victims who were inmates at the Anchorage Correctional Center with the defendant, who was incarcerated there as a prisoner. Mujahid was convicted by a federal jury on June 29, 2011, after an eight day trial. During sentencing, the judge described Mujahid’s violent and abusive crimes as, ‘‘They’re 

bluntly, as bad as I have ever seen [in my 27 years on the bench].’’

The CHAIRMAN. Thank you very much, Mr. Johnson. 

Ms. Hyde, will you please proceed with your testimony? 

STATEMENT OF PAMELA S. HYDE, J.D., ADMINISTRATOR,

SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES

ADMINISTRATION, U.S. DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Ms. HYDE. Chairman Akaka, Members of the Committee, thank 

you very much for inviting me today to testify at this important 

hearing on the implementation of the Tribal Law and Order Act. 

We all know that substance abuse is one of the most severe public health and safety problems facing American Indians and Alaska 

Native individuals, families and communities and more must be 

done to diminish these devastating social, economic, physical, mental and spiritual connections. 

We know that the connection between alcohol and other substance abuse to domestic violence and criminal justice matters is 

well documented and that police, courts and jails cannot do their 

mission without attention to the critical public health issues. 

Today, I am pleased to share with you the myriad ways in which 

SAMHSA is working, along with its Federal partners and Tribes, 

21

Tribal governments and organizations to implement the TLOA 

amendments. 

First, it is important to note that SAMHSA’s number one strategic initiative is the prevention of substance abuse and mental illness. And included in this initiative is a strong and consistent focus 

on the prevention of alcohol and drug abuse in Indian Country. We 

have a number of programs, both generally and specifically, to address substance abuse, the needs of youth, suicide and other issues. 

SAMHSA has established, as required by the TLOA, the Office 

of Indian Alcohol and Substance Abuse, and I am pleased that its 

Acting Director, Dennis Romero, is at the hearing with me today, 

along with Angela Richardson, who has been assigned to work in 

that office as well. 

To date, our office, along with DOI and DOJ and additional operating divisions within DHHS is working on an Indian Alcohol and 

Substance Abuse Interdepartmental Coordinating Committee established to serve as a point of contact for Indian Tribes and the 

Tribal coordinating committees with respect to the implementation 

of the Tribal Law and Order Act and in collaboration with the Department of Interior and Department of Justice, the three secretaries finalized a memorandum of agreement on July 29th 2011, as 

directed by the law. 

The IASAI Committee, we always make an acronym for everything, serves as the interagency body composed of representatives 

from different Federal agencies whose responsibility it is to include 

addressing issues of alcohol and substance abuse in Indian Country, and the charter for that committee was also approved in July 

of 2011. 

In addition to the agencies named in the law, we have Education, 

USDA, the Department of Labor, and we have reached out to HUD 

and the Veterans Administration as well. 

The goals of the MOU are going to be achieved through the committee’s efforts, and they are to increase awareness of what Federal 

agencies can do to help Tribal governments around substance 

abuse and mental illness issues and to reaffirm the Federal Government’s recognition of the sovereign status of federally recognized Tribes, and also to promote the Federal Government’s policy 

to provide greater access and quality services throughout Indian 

Country. 

Reaching far and wide, the Office of Indian Alcohol and Substance Abuse staff and I went to a number of Tribal consultations 

and listening sessions before we finalized the work. We also conducted outreach to the National Indian Health Board, the National 

Congress of American Indians, the National Council of Urban Indian Health, and many other organizations. 

As established in the TLOA, the governing body of any Indian 

Tribe may, at its discretion, adopt a resolution for the establishment of a Tribal action plan. We are in the time period right now 

for those resolutions to occur. That Tribal action plan, called a 

TAP, is to coordinate available resources and programs in an effort 

to combat alcohol and drug abuse among its members. The TAP 

guidelines in four models are in process and are almost complete. 

As part of the implementation of the Tribal Law and Order Act 

and in line with SAMHSA’s priority, our number one priority in the 

22

1While the TLOA refers to alcohol and substance abuse among the AI/AN population, alcohol 

is a powerful substance of abuse itself. Given this distinction, this testimony will discuss this 

issue in terms of the prevention and treatment of alcohol and drug abuse. 

President’s fiscal year 2012 budget was a new formula-based grant 

program called Behavioral Health Tribal Prevention Grants. Unfortunately, I understand that that may not have been included in the 

Senate Appropriations Committee’s markup yesterday, but it was 

proposed as a formula grant program that would be available to all 

565 federally recognized Tribes in recognizing our obligation to 

help Tribes deal with physical and behavioral health issues, specifically substance abuse and suicide. 

Additionally, one of the key changes we made in the block grants 

for our States is that they are encouraged and required, and we are 

providing training, on how the States can and should do Tribal consultations for the use of those dollars. 

So I want to thank you again for this opportunity to testify and 

to share with you our efforts, and to assure you that we will continue with our Federal partners to reduce the impact of alcohol and 

drug abuse in Indian Country. 

Thank you. 

[The prepared statement of Ms. Hyde follows:]

PREPARED STATEMENT OF PAMELA S. HYDE, J.D., ADMINISTRATOR, SUBSTANCE

ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION, U.S. DEPARTMENT OF

HEALTH AND HUMAN SERVICES

Chairman Akaka, Ranking Member Barrasso and members of the Senate Indian 

Affairs Committee, thank you for inviting me to testify at this important hearing 

on the implementation of the Tribal Law and Order Act of 2010 (TLOA). I am 

pleased to testify along with my colleagues at the Indian Health Service (IHS), Department of Interior (DOI) and Department of Justice (DOJ). We all know that substance abuse is one of the most severe public health and safety problems facing 

American Indian and Alaska Native (AI/AN) individuals, families and communities 

and more must be done to diminish the devastating social, economic, physical, mental and spiritual consequences. 

The TLOA amended the Indian Alcohol and Substance Abuse Treatment Act of 

1986 (Pub. L. 99–570). The TLOA amendments called for the Substance Abuse and 

Mental Health Services Administration (SAMHSA) to establish an office tasked with 

improving coordination among the federal agencies and departments responsible for 

combating alcohol and substance abuse among the AI/AN population. 1 The TLOA 

also instructs the Department of Health and Human Services (DHHS) to collaborate 

with DOI and DOJ on determining the scope of the ongoing problem; identifying and 

assessing national, state, Tribal, and local alcohol and drug abuse programs and resources; and creating standards for programs. Today, I am pleased to share with 

you the myriad ways in which SAMHSA, along with its federal partners and in coordination and consultation with Tribal governments and organizations, is implementing the letter and spirit of the TLOA amendments codified in Title 25, Chapter 

26 of the United States Code. 

Office of Indian Alcohol and Substance Abuse 

First, it is important to note that SAMHSA’s number one strategic initiative is 

‘‘Prevention of Substance Abuse and Mental Illness.’’ Included in this initiative is 

a strong and consistent focus on prevention of alcohol and drug abuse among the 

AI/AN population. As required by TLOA, SAMHSA has established the Office of Indian Alcohol and Substance Abuse (OIASA) and I’m pleased that its Acting Director, 

Dennis Romero, is at the hearing with me today. In addition, SAMHSA has assigned an experienced program officer to the OIASA and is in the process of hiring 

a permanent Indian Youth Programs Officer. 

OIASA has done an excellent job carrying out its responsibilities. To date, OIASA, 

along with DOI, DOJ, and additional DHHS Operating and Staff Divisions has ensured the establishment of the Indian Alcohol and Substance Abuse Interdepartmental Coordinating Committee (IASA Committee); served as a point of contact for 

23

Indian Tribes and the Tribal Coordinating Committees with respect to the implementation of TLOA; and, in collaboration with DOI and DOJ, finalized the Indian 

Alcohol and Substance Abuse Memorandum of Agreement (MOA) by July 29, 2011 

as directed by the TLOA. 

IASA Committee 

The IASA Committee serves as an interagency body composed of representatives 

from the Federal agencies whose responsibilities include addressing issues of alcohol 

and drug abuse in Indian Country and its Charter was approved in July 2011. The 

Director of OIASA serves as the Committee Chairperson while senior level representatives from IHS, DOI’s Bureau of Indian Affairs (BIA) and Bureau of Indian 

Education (BIE), and DOJ’s Office of Justice Programs (OJP) and the Office of Tribal Justice (OTJ) serve as the Committee Co-chairs. In addition, the IASA Committee 

includes representatives from the Administration on Aging and Administration for 

Children and Families within DHHS, Department of Education, the Office of National Drug Control Policy, the Department of Agriculture, and the Department of 

Labor. The IASA Committee provides a forum for these agencies, bureaus, and offices to collaboratively assist AI/AN communities in achieving their goals in the prevention, intervention, and treatment of alcohol and drug abuse. The IASA Committee will: (1) help to identify opportunities and programs relevant to alcohol and 

drug abuse among Tribes and Native communities; (2) address issues of concern to 

Tribes and Native communities related to alcohol and drug abuse; (3) serve as a 

focal point within the Federal government for coordination, collaboration and outreach on alcohol and drug abuse issues affecting the American Indian, Alaska Native population nationwide; and (4) serve as a liaison advisory body to the federal 

partners responsible for providing programs and services in Indian Country relative 

to alcohol and drug abuse. 

The goals of the IASA Committee will be achieved through the IASA Committee’s 

efforts to: (1) formalize a structure for Interdepartmental coordination and collaboration as it relates to AI/AN alcohol and drug abuse; (2) educate committee members and increase awareness of what federal agencies are currently doing to address 

all AI/AN alcohol and drug abuse issues; (3) reaffirm the Federal Government’s recognition of the sovereign status of federally recognized Indian Tribes as domestic dependent nations and the adherence to the principles of government-to-government 

relations; (4) promote the Federal Government’s policy to provide greater access to 

and quality services for AI/AN individuals throughout the Federal government and 

in Indian Country; and (5) promote the Tribal-Federal government-to-government 

relationships on a Federal Government-wide basis. 

The IASA Committee is comprised of an Executive Steering Committee for which 

SAMHSA’s Director of the OIASA serves as the Chair. In addition to the Executive 

Steering Committee, the IASA Committee includes five workgroups: (1) MOA; (2) 

Tribal Action Plan (TAP); (3) Inventory/Resource Workgroup; (4) Newsletter 

Workgroup; and (5) Educational Services Workgroup. Each of the workgroups is 

chaired by one of SAMHSA’s federal partners. 

Indian Alcohol and Substance Abuse Point of Contact 

Within SAMHSA, the OIASA has actively engaged our cross-Center Tribal Liaison 

Workgroup and convened conference call meetings with the SAMHSA Tribal Technical Advisory Committee which is composed of 14 elected/appointed Tribal leaders. 

OIASA has also worked with the White House Domestic Policy Council—Native 

American Affairs and, in order to improve the coordination and conduct other efforts 

necessary for the implementation of the requirements under TLOA, SAMHSA arranged for Acting Director Romero to serve a part-time detail to the Office of Justice 

Programs (OJP) for a limited engagement. 

Reaching far and wide to the Tribal community, OIASA staff and I, as SAMHSA 

Administrator, have attended, presented and participated in Tribal consultations/listening sessions in partnership with DOI, DOJ and IHS staff and leadership. OIASA 

also conducted outreach to the National Indian Health Board (NIHB), National Congress of American Indians (NCAI), National Council of Urban Indian Health 

(NCUIH) as well as many other organizations. The OIASA staff and TLOA partners 

have provided presentations at conferences for AI/AN groups such as the InterTribal 

Court Justice Council, Affiliated Tribes of Northwest Indians, National American 

Indian Court Judges Association, Tribal Justice Safety Wellness Sessions and The 

Center for Native Youth. 

SAMHSA also established and funds the Native American Center for Excellence 

(NACE) to address issues related to alcohol and drug abuse in AI/AN communities. 

The three principles that direct the approach, attitude, and activities of the NACE 

are: (1) bringing cultural attention, sensitivity, and regard to our interactions and 

24

relationships with AI/AN communities, service providers, researchers, and Native 

people as we invite them to participate in technical assistance, trainings, and gatherings; (2) providing training, technical assistance, meetings, and tools that are accurate in cultural, scientific, technical, and statistical terms; and (3) developing and 

producing trainings, technical assistance, and services for AI/AN communities that 

are high quality and user-friendly in a timely, efficient, and cost-effective manner. 

Finally, in an effort to improve the communication, dissemination of information, 

and to serve as a point of contact for Indian Tribes and the Tribal Coordinating 

Committees regarding alcohol and drug abuse issues across the Federal government, 

OIASA established and launched a new website page at http://www.samhsa.gov/

tloa/. 

MOA 

An interdepartmental workgroup, convened as a precursor to the MOA Workgroup 

of the IASA Committee, oversaw the development, including the policy and legal review, of the MOA. This group also established and managed the overall coordination 

of comments from the various federal departments and other entities; shepherded 

the MOA through partner department clearance processes; secured final signatures; 

and coordinated the submission of the MOA to Congress, its dissemination to Indian 

Tribes, and its publication in the Federal Register, as required by law. The MOA 

was signed by Secretary Sebelius, Secretary Salazar, and Attorney General Holder 

on July 29, 2011. 

Prior to finalization of the MOA, OIASA posted draft versions of the MOA and 

TAP documents on-line at NIHB, NCAI, NCUIH, and NACE websites for input from 

Tribal Leaders and in preparation for a formal consultation. As noted above, federal 

partners also held a formal consultation on the MOA on December 8, 2010. 

Moving forward, the MOA Workgroup will provide leadership in the required annual review of the MOA. 

TAP 

As established in the TLOA, the governing body of any Indian Tribe may, at its 

discretion, adopt a resolution for the establishment of a TAP to coordinate available 

resources and programs in an effort to combat alcohol and drug abuse among its 

members. If a Tribe does not adopt such a resolution, HHS, DOJ, and DOI will identify and coordinate available resources and programs for the Tribe, as directed by 

TLOA. The TAP Workgroup of the IASA Committee will establish the operating 

framework of the TAP, develop an inventory of current evidence-based practices, coordinate Tribal requests for assistance in the development of a TAP, coordinate assistance and support to Tribes as deemed feasible, and collaborate with the Inventory Workgroup of the IASA Committee in developing appropriate responses to Tribal entities seeking assistance. 

Behavioral Health—Tribal Prevention Grants 

As part of the implementation of the TLOA, and in line with SAMHSA’s priority 

of ensuring that all Tribes have access to funding for bringing alcohol and drug 

abuse and suicide prevention activities to scale, the President’s FY 2012 Budget for 

SAMHSA proposes a new formula-based grant program titled Behavioral Health—

Tribal Prevention Grants (BH–TPG). The BH–TPG program is intended to increase 

SAMHSA’s ability to support Tribes and Tribal entities. The BH–TPG, to be funded 

from the Prevention and Public Health Fund, would represent a significant advance 

in the Nation’s approach to the prevention of alcohol and drug abuse and suicide 

in Tribal communities, and is based on the recognition that behavioral health is a 

part of overall health. As a formula grant program, its reach will extend to all of 

the 565 Federally-recognized Tribes. Recognizing the Federal obligation to help 

Tribes deal with physical and behavioral health issues, SAMHSA will work in consultation with Tribes, working toward the establishment of a single coordinated 

mental health and substance abuse program for all Federally-recognized Tribes. 

SAMHSA also will consult and work closely with Tribes and Tribal leaders to develop a comprehensive, data-driven planning process to identify and address the 

most serious behavioral health issues in each Tribal community. 

The BH–TPGs will enable Tribes to develop a comprehensive plan to address the 

most pressing prevention needs based on Tribal data as well as in consultation with 

SAMHSA. The TAP would address the prevention and treatment of substance abuse 

including related issues such as suicide. As noted above, this planning activity is 

one of the basic components of the TLOA. Tribes will continue to be eligible for 

these BH–TPG prevention funds beyond the three-year timeframe so long as they 

meet the requirements of renewal applications, provide the necessary annual reports, and show continued progress toward implementing their approved plans. 

25

Uniform Block Grant Application 

On July 26, SAMHSA announced a new application process for its Substance 

Abuse Prevention and Treatment Block Grant (SABG) and Community Mental 

Health Services Block Grant (MHBG) programs. The change is designed to provide 

States greater flexibility to allocate resources for substance abuse and mental illness 

prevention, treatment and recovery services in their communities. One of the key 

changes to the block grant application is the expectation that States will provide 

a description of their Tribal consultation activities. Specifically, the new application’s planning sections note that States with Federally-recognized Tribal governments or Tribal lands within their borders will be expected to show evidence of Tribal consultation as part of their Block Grant planning processes. A webinar and other 

technical assistance for States to meet this expectation are being planned. It is important to note that Tribal governments shall not be required to waive sovereign 

immunity as a condition of receiving Block Grant funds or services. 

Conclusion 

Thank you again for this opportunity to share with you the extensive efforts 

SAMHSA and its federal partners are undertaking, in collaboration with the AI/AN 

community, in order to implement the TLOA and to reduce the impact of alcohol 

and drug abuse on AI/AN communities. I would be pleased to answer any questions 

that you may have.

The CHAIRMAN. Thank you very much, Ms. Hyde. 

Ms. Weahkee, would you please proceed with your testimony? 

STATEMENT OF ROSE L. WEAHKEE, PH.D., DIRECTOR,

DIVISION OF BEHAVIORAL HEALTH, OFFICE OF CLINICAL 

AND PREVENTIVE SERVICES, INDIAN HEALTH SERVICE 

Ms. WEAHKEE. Mr. Chairman and Members of the Committee, 

good afternoon. Dr. Yvette Roubideaux was unable to be here today 

due to a meeting with the Office of Management and Budget. However, I am pleased to be here to testify on the Indian Health System’s implementation of the Tribal Law and Order Act of 2010. 

The IHS plays a unique role in the U.S. Department of Heath 

and Human Services to meet the Federal trust responsibility to 

provide health care to American Indians and Alaska Natives. The 

IHS provides comprehensive health service delivery to 1.9 million 

federally recognized American Indians and Alaska Natives through 

a system of IHS, Tribal and urban-operated health programs. 

Under the Indian Self-Determination and Education Assistance 

Act, many Tribes across the Country have assumed full authority 

for all health care delivery within their communities. Across Indian 

Country today, the high incidence of alcohol and substance abuse, 

mental health disorders, sexual assault, domestic violence and behavior-related chronic diseases is well documented. Each of these 

serious behavioral health issues has a profound impact on the 

health and well being of communities both on and off the reservation. 

The Tribal Law and Order Act signifies an important step in 

strengthening behavioral health efforts in Indian Country by helping the Federal Government better address the unique public safety and justice issues and challenges that confront Tribal communities. 

The Act also expands the number of Federal agencies who are required to coordinate efforts on alcohol and substance abuse issues. 

The new possibilities for behavioral health efforts brought about by 

the passage of this important legislation, along with the permanent 

reauthorization of the Indian Health Care Improvement Act, have 

26

significant implications for improving the health and well being of 

Tribal communities. 

The Act, as Ms. Hyde stated, breathes new life into Tribal action 

plans on substance abuse prevention and Federal agencies are coordinating our resources and programs to assist Tribes to achieve 

their goals in the prevention, intervention and treatment of alcohol 

and substance abuse. 

The Act also requires the IHS Director to provide written approval or disapproval of subpoenas or other requests from Tribal or 

State courts for the testimony of IHS employees. The IHS has 

drafted a revised delegation of authority to include the requirements under the Act and is developing additional guidance for its 

IHS programs and employees. 

The Act requires the IHS Director to develop sexual assault policies and protocols. The IHS has established a national sexual assault policy which is now the foundation for local policies at hospitals managed by the Indian Health Service. 

The Act also requires the Comptroller General to study the capability of IHS facilities to collect, maintain and secure evidence of 

sexual assaults and domestic violence incidents and to develop recommendations for improving those capabilities. IHS has worked 

closely with the Government Accountability Office in the development of the study and looks forward to their recommendations and 

incorporating those recommendations into our future efforts. 

Strategies to address public safety and justice issues include collaborations and partnerships with Tribes, Federal, State and local 

agencies. For example, the Indian Health Service and the Department of Justice Office of Victims of Crime entered into a partnership involving the Federal Bureau of Investigation and the Department of Interior to address the needs of sexual assault victims in 

Indian Country. 

As part of this effort, there will be two full-time positions, one 

within the Federal Bureau of Investigation and one within Indian 

Health Service to address issues around sexual assault nurse examiner and sexual assault forensic examiner issues. And as part of 

this, I would like to announce that we have selected a new individual, Ms. Beverly Cotton, who has extensive experience and is a 

subject-matter expert on sexual assault nurse examiner issues, as 

well as in adult and pediatric sexual assault abuses cases. 

In summary, the Tribal Law and Order Act of 2010 requires a 

significant amount of interagency coordination and collaboration 

and the leverage and the coordination of Federal efforts and resources will help to further prevention and reduction activities. No 

one individual, community or agency can do this alone. It will take 

all of us working together to make significant improvements. 

This concludes my remarks and I will be happy to answer any 

questions that you may have. 

Thank you. 

[The prepared statement of Ms. Weahkee follows:]

27

1Substance Abuse and Mental Health Services Administration, Office of Applied Studies 

(June 24, 2010). The NSDUH Report: Substance Use among American Indian or Alaska Native 

Adults, Rockville, MD. 

PREPARED STATEMENT OF ROSE L. WEAHKEE, PH.D., DIRECTOR, DIVISION OF

BEHAVIORAL HEALTH, OFFICE OF CLINICAL AND PREVENTIVE SERVICES, INDIAN

HEALTH SERVICE

Mr. Chairman and Members of the Committee: 

Good afternoon, I am Dr. Rose Weahkee, Indian Health Service (IHS) Director for 

the Division of Behavioral Health. I am pleased to have this opportunity to testify 

on the Indian health system’s implementation of the Tribal Law and Order Act of 

2010. 

The IHS plays a unique role in the U.S. Department of Health and Human Services to meet the Federal trust responsibility to provide health care to American Indians and Alaska Natives (AI/AN). The IHS provides comprehensive health service delivery to 1.9 million Federally-recognized American Indians and Alaska Natives 

through a system of IHS, Tribal, and Urban operated facilities and programs based 

on treaties, judicial determinations, and Acts of Congress. The mission of the agency 

is to raise the physical, mental, social, and spiritual health of American Indians and 

Alaska Natives to the highest level, in partnership with the population we serve. 

The agency aims to assure that comprehensive, culturally acceptable personal and 

public health services are available and accessible to the service population. Our 

foundation is to promote healthy American Indian and Alaska Native people, communities, and cultures, and to honor the inherent sovereign rights of Tribes. 

The IHS works in partnership with the communities it serves, and as such IHS 

hospital administration frequently includes Tribal representatives who closely participate, as key stakeholders, in the health care delivery system. Additionally, under 

the Indian Self-Determination and Education Assistance Act (ISDEAA), many 

Tribes across the country have assumed full authority for all health care delivery 

within their communities, including hospital operations. Currently, 84 percent of Alcohol and Substance Abuse programs and 54 percent of Mental Health programs are 

Tribally operated. Traditionally, behavioral health and medical programs, both IHS 

and Tribally operated, have been separately managed; however, it is now a major 

focus of the IHS to reintegrate these programs to provide more efficient and effective patient care. 

Introduction 

Across Indian Country today, the high incidence of alcohol and substance abuse, 

mental health disorders, suicide, violence, and behavior-related chronic diseases is 

well documented. Each of these serious behavioral health issues has a profound impact on the health of individuals, public health, and community well-being both onand off-reservations. American Indians and Alaska Natives are at higher risk for 

certain mental health disorders than other racial/ethnic groups. For example, the 

Office of Minority Health, in the Department of Health and Human Services, reports that AI/ANs experience higher rates than all races in the following areas:

• Serious psychological distress; 

• Feelings of sadness, hopelessness, and worthlessness; 

• Feelings of nervousness or restlessness; and 

• Suicide.

Alcoholism, addiction, and alcohol and substance abuse are among the most severe public health and safety problems facing AI/AN individuals, families, and communities, resulting in devastating social, economic, physical, mental, and spiritual 

consequences. American Indians and Alaska Natives suffer disproportionately from 

substance abuse disorder compared with other racial groups in the United States. 

In a 2010 report from the National Survey on Drug Use and Health (NSDUH), the 

rates of past month binge alcohol use and illicit drug use were higher among AI/

AN adults compared to national averages (30.6 vs. 24.5 percent and 11.2 vs. 7.9 percent, respectively) and the percentage of AI/AN adults who needed treatment for an 

alcohol or illicit drug use problem in the past year was nearly double the national 

average for adults (18.0 vs. 9.6 percent). 1

Alcohol abuse and alcohol dependence contribute to high rates of mortality from 

liver disease, unintentional injury, and suicide. AI/AN communities suffer from 

some of the highest rates of Fetal Alcohol Spectrum Disorders (FASD) in the nation, 

and the damaging effects of alcohol use to an unborn baby during pregnancy are 

permanent. Methamphetamine and other drug abuse are increasingly significant 

problems among AI/AN people and have a devastating impact on families and comVerDate 0ct 09 2002 11:11 Jun 18, 2012 Jkt 073817 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 S:\DOCS\73817.TXT JACK
28

2 Age-adjusted rate per 100,000 population. Rates have been adjusted to compensate for 

misreporting of AI/AN race on state death certificates. 3 Unpublished data. OPHS/Division of Program Statistics (2003–2005 AI/AN age-adjusted 

rates based on 2000 census with bridged—race categories.) 4 U.S. Department of Health and Human Services. Indian Health Service. Trends in Indian 

Health, 2002–2003 Edition. Washington: Government Printing Office, Released October 2009. 

ISSN 1095–2896. p. 195. 5 Centers for Disease Control and Prevention (2008). Adverse health conditions and health 

risk behaviors associated with intimate partner violence-United States, 2005. MMWR, 57(05), 

113–117. Retrieved March 2, 2010, from http://www.cdc.gov/mmwr/preview/mmwrhtml/

mm5705a1.htm. 6Sacred Circle and the National Congress of American Indians Task Force on Violence 

Against Women in Indian Country (2006, September). Restoration of Safety for Native Women. 

Restoration of Native Sovereignty, 5. 7Department of Justice, Bureau of Justice Statistics National Crime Database. 

8 Centers for Disease Control and Prevention (2008). Adverse health conditions and health 

risk behaviors associated with intimate partner violence—United States, 2005. MMWR, 57(05), 

113-117. Retrieved March 2, 2010, from http://www.cdc.gov/mmwr/preview/mmwrhtml/

mm5705a1.htm.

munities. For instance, there are marked disparities in behavioral health morbidity 

and resulting mortality between the AI/AN population and the nation as a whole. 

The following are examples:

• The age-adjusted 2 alcohol related death rate for AI/ANs is 43.3 per 100,000 

(2003–2005) and is over six times the U.S. all races rate of 7.0 per 100,000 

(2004). 3

• The age-adjusted drug related death rate for AI/ANs is 15.0 per 100,000 (2002–

2004) and is 1.5 times greater than the U.S. all races rate of 9.9 per 100,000 

(2003). 4

Domestic violence and intimate partner violence continues to be a serious and pervasive problem. Domestic violence often begins with intimate partner rape and can 

end in homicide. The statistics on domestic violence and sexual assault against AI/

AN women are alarming. According to the Centers for Disease Control and Prevention, 39 percent of AI/AN women have experienced intimate partner violence—the 

highest percentage in the U.S. 5 In addition, one out of every three AI/AN women 

will be sexually assaulted in her lifetime, 6 and AI/AN women are more than five 

times as likely to die from domestic violence-related injuries than women of any 

other race. 7

The numbers do not fully capture the tremendous physical and psychological toll 

that sexual assault and domestic violence take on individuals and society. Besides 

the obvious costs of medical care and evidence collection, there is increasing evidence that interpersonal violence is associated with many common health problems, 

including obesity, hypertension, chronic pain, headaches, gastrointestinal problems, 

complications of pregnancy, post traumatic stress disorder (PTSD), alcohol use disorders, depression, and anxiety. 8 All of these health problems can impact an individual’s family life and ability to work. The economic impact of the loss of work and 

productivity is enormous. 

Tribal Law and Order Act of 2010

The President signed the Tribal Law and Order Act of 2010 (TLOA) on July 29, 

2010. The Act signifies an important step in strengthening behavioral health efforts 

in Indian Country by helping the Federal government better address the unique 

public safety challenges that confront Tribal communities. The Act is one of many 

steps needed to address the public safety and justice challenges faced by AI/ANs. 

The TLOA has several health specific provisions which will be addressed in further 

detail below. 

The TLOA also expands the number of Federal agencies who are required to coordinate efforts on alcohol and substance abuse issues in Indian Country. Agencies 

included in coordinated efforts are the Department of Justice (DOJ) and the Substance Abuse and Mental Health Services Administration (SAMHSA), along with 

the Department of Interior (DOI), the Bureau of Indian Affairs (BIA), and the IHS. 

The Act promises improved Federal interagency coordination on substance abuse 

policy by the establishment of an Office of Indian Alcohol and Substance Abuse 

within SAMHSA. All these elements of the TLOA offer important policy support for 

health, wellness, and public safety in AI/AN communities and a recognition of the 

multiple factors that influence behavioral health concerns. The new possibilities for 

behavioral health efforts brought about by the passage of important legislation like 

the TLOA, along with the permanent reauthorization of the Indian Health Care Improvement Act, have significant implications for increasing resources to improve the 

29

health and well-being of AI/ANs. In addition, the TLOA will provide important information which can be used in the development and implementation of the National Drug Control Strategy and in the Office of National Drug Control Policy’s 

work when coordinating drug control activities and related funding across the Federal Government. 

Memorandum of Agreement 

Section 241 of the TLOA amends the Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986, expanding the number of Federal agencies who are 

required to coordinate their efforts on alcohol and substance abuse issues in Indian 

Country. Specifically, TLOA directs the Secretaries of the Department of Health and 

Human Services (DHHS) and the Department of the Interior, together with the Attorney General, to develop and enter into a Memorandum of Agreement. The Memorandum of Agreement was signed on July 29, 2011 and among other things: (1) determines the scope of the alcohol and substance abuse problems faced by Tribes; (2) 

identifies and delineates the resources each entity can bring to bear on the problem; 

(3) sets standards for applying those resources to the problems; and (4) coordinates 

existing agency programs with those established under the 1986 Act. 

This provision also breathes new life into Tribal Action Plans (TAP) on substance 

abuse prevention, first authorized in 1986. The TLOA mandates that DHHS’ IHS 

and SAMHSA, DOI’s BIA and Bureau of Indian Education (BIE), and DOJ coordinate resources and programs to assist Indian Tribes to achieve their goals in the 

prevention, intervention, and treatment of alcohol and substance abuse. It was determined that there is a need to align, leverage, and coordinate Federal efforts and 

resources at multiple levels within each agency to effectuate comprehensive alcohol 

and substance abuse services and programs for AI/AN individuals, families, and 

communities. With this knowledge, the agencies have developed a TAP Work Group 

to establish the operating framework and guidelines of the TAP. 

Testimony and Production of Documents by Federal Employees 

Section 263 of the TLOA requires the IHS Director to provide written approval 

or disapproval of subpoenas or other requests from Tribal or State courts for the 

testimony of IHS employees or for the production of documents by IHS employees 

under the Director’s supervision. The IHS has drafted a revised delegation of authority to permit IHS Area Directors to authorize testimony by Federal employees 

in criminal and civil cases at the local level. The draft delegation of authority notes 

that: (1) subpoenas and requests may be approved if the request is consistent with 

DHHS’ policy to remain impartial; and (2) subpoenas or requests for documents or 

testimony in violent crime cases which would include sexual assault and domestic 

violence must be approved or disapproved within 30 days after receipt or the subpoenas and requests will be deemed approved. The draft delegation of authority pertains to factual information obtained by Federal employees in carrying out their official duties. It does not apply to requests for expert testimony from Federal employees. 

IHS Sexual Assault Policy 

Section 265 of the TLOA adds a new section to the Indian Law Enforcement Reform Act requiring the IHS Director to develop sexual assault policies and protocol 

based on a similar protocol established by the DOJ. In response, IHS established 

a national sexual assault policy, which is the foundation for local policies at hospitals managed by the IHS as they develop their own standard operating procedures 

and protocols on sexual assault medical forensic examinations. The policy establishes a uniform standard of care for sexual assault victims seeking clinical services. 

The policy ensures that the needs of the victim are addressed, care is culturally sensitive, patient-centered, and community response is coordinated. The policy also includes evidence collection guidance which aligns with criminal justice system response and subpoena regulations. The IHS consulted with Tribal leaders and Urban 

Indian health directors and reviewed comments for incorporation in future revisions 

of this policy. 

Study of IHS Sexual Assault and Domestic Violence Response Capabilities 

Section 266 of the TLOA requires the Comptroller General to conduct a study of 

the capability of IHS facilities, including facilities operated pursuant to contracts or 

compacts under the Indian Self-Determination and Education Assistance Act, to collect, maintain, and secure evidence of sexual assaults and domestic violence incidents and develop recommendations for improving those capabilities. This section 

also requires a Report to Congress to assess current readiness and propose recommendations for improving response capabilities. IHS has cooperated with the 

GAO in the development and completion of this study. 

30

IHS Partnerships 

IHS has devoted considerable effort to develop and share effective programs 

throughout the Indian health system. Strategies to address public safety and justice 

issues include collaborations and partnerships with consumers and their families, 

Tribes and Tribal organizations, Urban Indian health programs, Federal, State, and 

local agencies, as well as public and private organizations. We believe the development of programs that are collaborative, community driven, and nationally supported offers the most promising potential for long term success and sustainment. 

Our partnership and consultation with Tribes ensure that we are working together 

in improving the health of AI/AN communities. Examples include the Indian Health, 

HHS, Bureau of Justice Assistance and the Alliance of States with Prescription 

Monitoring Programs partnership to create a prescription drug data export solution 

capable of exchanging data with State Prescription Monitoring Programs; the IHS–

VA Consolidated Mail Outpatient Pharmacy program that improves medication use 

adherence and safety; Combined drug abuse, prescription drug abuse and alcohol 

abuse partnership trainings. 

Summary 

In summary, the Tribal Law and Order Act of 2010 requires a significant amount 

of interagency coordination and collaboration. The leverage and coordination of Federal efforts and resources will help to further the prevention and reduction activities 

at the national, Tribal, State, and local levels. No one individual, community, or 

agency can do this alone. It will take all of us to prevent and reduce alcoholism, 

addiction, alcohol and substance abuse, domestic violence, and sexual assault across 

AI/AN communities, reservations, and urban areas. 

With the full weight of Tribal leadership, Federal agencies, individuals, and families working together, effective long-term strategic approaches to address behavioral 

health in Indian Country can be established and implemented. To adequately address the problem of public safety and justice, IHS is proactively focusing on behavioral health treatment and rehabilitation through partnerships and initiatives directed at minimizing the causes of such abuse (i.e., domestic violence, sexual assault, child sexual abuse, etc.). The IHS and its Tribal and Federal partners are 

committed to maximizing available resources to provide appropriate prevention and 

treatment services, as well as safe environments for AI/AN communities. 

This concludes my remarks and I will be happy to answer any questions that you 

may have. Thank you.

The CHAIRMAN. Thank you very much, Ms. Weahkee. 

I am pleased that my colleague, Senator Thune, from South Dakota is joining us today. 

Senator Thune, welcome to the Indian Affairs Committee. I want 

to ask you whether you have any remarks you would like to make 

at this time. 

STATEMENT OF HON. JOHN THUNE,

U.S. SENATOR FROM SOUTH DAKOTA 

Senator THUNE. Mr. Chairman, whenever it is appropriate, I 

have a couple of questions I would like to ask the panelists. 

The CHAIRMAN. You are very welcome when we get to that. 

Thank you. 

I know that my colleagues are limited in how long they will be 

able to stay for today’s hearing, so I am going to ask each one of 

the witnesses on the first panel one question, and then defer to my 

colleagues to ask their questions. If time permits, I will have a second round. I know this topic is very, very important. 

Mr. Perrelli, how many Tribes in Public Law 280 jurisdictions 

have requested that the Federal Government exercise concurrent 

jurisdiction over reservation crimes? And what is the state of the 

final rule to implement this important provision? 

Mr. PERRELLI. Thank you, Senator. The review will be published 

in the Federal Register. So no Tribes have yet requested pursuant 

31

to the regulation. We have had a number of Tribes, probably less 

than 10, approach us with different levels of detail of their requests, indicating that they may seek a request that we take concurrent jurisdiction. 

So I think we expect to see a relatively small number initially, 

and then over time, it is possible that number would grow. But we 

would expect to be receiving these applications in the fall and then 

making decisions on them probably in the early part of next year. 

The CHAIRMAN. Mr. Echo Hawk, fixing the Carcieri decision is a 

top priority for the Administration. Do you see any implications for 

law enforcement due to this decision? 

Mr. ECHO HAWK. The Carcieri clean fix legislation is a top priority of the Administration and strongly supported by Secretary 

Salazar, and for good reason because it has implications in a lot of 

different areas that reach into Indian Country. 

With regard to what we are talking about today, criminal law enforcement, as a law professor and former prosecutor and defender, 

I can tell you that it is very complex, the jurisdictional rules that 

apply under normal circumstances. And Carcieri, unfortunately, 

adds another layer of uncertainty in the way that the law applies, 

creating what has been described as a jurisdictional maze that people have to navigate through. 

This would, of course, be of particular concern to any Tribes that 

were taking land into trust after 1934 that arguably may not have 

been under Federal jurisdiction at that time. So it creates problems, particularly I think for landless Tribes that may have been 

recognized recently, that are desiring to now have some territorial 

jurisdiction over a portion of what was once their homeland. 

But in addition to the jurisdictional problems, we probably have, 

and I can get you accurate information on this, maybe 1,000 or 

more pending applications for land-into-trust, and very few of 

those, by the way, relate to gaming, just a handful. And these other 

applications deal with opportunities that Tribes have to develop 

their economies, to build medical facilities, housing and criminal 

law enforcement facilities. And without having the ability to take 

those lands into trust and develop their community infrastructure 

as a result of Carcieri, that is a significant problem. 

Thank you. 

The CHAIRMAN. Thank you. 

Mr. Johnson, you mentioned issues with sex trafficking in your 

testimony. In our recent hearing on Native women, we heard from 

other witnesses that this is a serious and growing problem in Native communities. What else can be done at the Federal level to 

combat sex trafficking in these communities? What data currently 

exists about these cases? 

Mr. JOHNSON. In terms of data, I can tell you that Alaska, for 

example, recently had a very successful prosecution of a sex trafficking case. We have had a sex trafficking case in South Dakota 

that we recently concluded, but that did not involve women on the 

reservation. 

We know, Senator, very clearly that this issue exists and we 

know that it has a terrible effect on communities where this occurs. 

So we have been trying to be very aggressive with both Tribal law 

enforcement, as well as Federal law enforcement in terms of trainVerDate 0ct 09 2002 11:11 Jun 18, 2012 Jkt 073817 PO 00000 Frm 00035 Fmt 6633 Sfmt 6601 S:\DOCS\73817.TXT JACK
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ing so that folks recognize signs and evidence of human trafficking 

and that when we have a report, that we follow up. But also that 

we look at a case that might appear on the face of it to be a prostitution case on the reservation. 

Well, what we in law enforcement need to do is make sure that 

we are following that up, so what may appear to be a prostitution 

case could be a much larger human trafficking operation. 

And so I think a big part of this is education. It is training for 

both law enforcement, as well as the community. Because frankly, 

we often hear about this first from community members. So that 

is really our focus, I think, is on training and education. 

The CHAIRMAN. Thank you. 

Mr. JOHNSON. Thank you, Senator. 

The CHAIRMAN. Ms. Hyde, can you explain how SAMHSA and 

the other agencies at DOJ and DOI will determine the scope of alcohol and substance abuse problems faced by Tribes as they operate in the new MOU? 

Ms. HYDE. Thank you, Mr. Chairman. There are a couple of ways 

that we are going to go about that. Each one of the agencies have 

several pieces of information themselves. We are going to try to 

compile that information that we have across the agencies. 

And then we are also going through the Tribal action plans to 

determine what each Tribe indicates are the scope of the problem. 

So as you well know, there are issues about data or lack of data 

or how data is collected or used to identify that. We have a number 

of grant programs, as do our partners, that tell us what some of 

those problems are within Indian Country. We are trying to compile that through the interagency committee and make that available. 

We really want to try to make this Tribally specific, however. 

This is the whole point, I think, of this law and of our efforts is 

to recognize that each Tribe has within it its own understanding 

of what the scope is and what the needs are. And we want to be 

respectful of that and we want to support each Tribe in identifying 

their own needs, and not trying to generalize that across all of Indian Country. And yet we know there are some common issues and 

common scope that we are trying to make resources available not 

in just one agency, but across all of these agencies touching the 

Tribes. 

So the Tribal action plans will be very important in that process 

as well. 

The CHAIRMAN. Thank you. 

Ms. Weahkee, in implementing the new sexual assault protocol 

at IHS, how do you plan to ensure accountability and quality control locally at all your facilities, to ensure you are meeting the 

needs of the sexual assault victims? 

Ms. WEAHKEE. This issue also came up as part of the Government Accountability Office study looking at the capability of IHS 

and Tribal facilities. And so as part of that feedback and input, it 

became evident and important to note that we really needed to develop an implementation and monitoring plan. And so that is something that we are working on to ensure that our IHS facilities are 

implementing the protocol successfully and also looking at the witVerDate 0ct 09 2002 11:11 Jun 18, 2012 Jkt 073817 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 S:\DOCS\73817.TXT JACK
33

ness testimony and assessing that employees are testifying in 

court. 

So that is a part of our future plans and something that our new 

sexual assault nurse examiner national coordinator will be working 

on, is developing that implementation and monitoring plan. 

The CHAIRMAN. Thank you very much. 

Let me call on Senator Johnson for any of his questions. Then 

I will call on Senator Thune and Senator Tester. 

Senator JOHNSON. Mr. Perrelli, as you stated, the Bureau of Prisons has implemented a four-year pilot program to work with Tribal 

courts to incarcerate persons convicted of violent crime. You indicated that no Tribe has made such a request. Is there a reason why 

no Tribe has participated? 

Mr. PERRELLI. I think the pilot project at BOP is really intended 

for hard-core offenders where the Tribal court has exercised the extended jurisdiction that is available under the Tribal Law and 

Order Act. 

As yet, across the Country, you see Tribes amending their Tribal 

code and putting together funding and other things they will need 

to exercise that enhanced sentencing authority, but it hasn’t been 

occurring very much. We would expect that as Tribes begin using 

that authority, they have their codes up to date, and they have put 

in place all of the procedural pieces, that we will start to see the 

flow of prisoners into the BOP. 

Senator JOHNSON. Mr. Perrelli, two Tribes in my State of South 

Dakota are diminished reservations, resulting in random areas of 

Tribally owned lands and locally owned land. How is the Department of Justice facilitating the intergovernmental relationship between Tribes, local and State law enforcement and court systems? 

Mr. PERRELLI. This is a problem in a number of different places, 

South Dakota, Oklahoma, also in California, but not exclusively 

there, where you have Tribal land interspersed with other land. 

There are many places across the Country where Tribal law enforcement and State or local police departments have effective 

working relationships and we have been encouraging cross-deputation agreements so that there is no debate or dispute about when 

a Tribal officer may pursue off the reservation, off Tribal land, or 

a county official may pursue on reservation land. 

So we have been encouraging that across the Country. We just 

recently had a meeting with Tribes in California where this is a 

significant issue to talk with them about the challenges they are 

seeing. And our COPS Office is funding a pilot project with a crossdeputation agreement in California to see if we can come up with 

best practices that we could then go out and work with the State 

and local law enforcement community and the Tribal law enforcement community to hopefully implement in a broader range of 

places. 

Senator JOHNSON. Mr. Johnson, I am very interesting in hearing 

about the Tribal Youth Leadership Program. As you know, in 

South Dakota many of our reservations lack after-school programs 

and other after diversionary activities. How are these program 

going? 

Mr. JOHNSON. Well, thank you, Senator. We recently in South 

Dakota conducted four Native American youth listening sessions. 

34

We had over 400 Native American teenagers who attended these 

sessions. And their concern is exactly what you have raised: concerns about jobs, about safe basketball courts, safe baseball fields 

where they could go and play, after school programs, cultural programs. 

And there remains real concerns about what there is for Native 

American youth to do, especially when many of these youths have 

to travel distances to get to the center of town. So that remains a 

concern. 

I can tell you what our office is doing is trying to get into the 

schools, listening to the youth. We have had a national Native 

American youth session out in New Mexico. So there is a real effort 

to listen to the Native American youth, to take their concerns, particularly as it relates to law enforcement. 

But when it comes to after school programs and those issues that 

you mentioned, really the best that I can do for the kids who attend these listening sessions is to tell them I will make sure to 

pass that along to our Congressional delegation because it is a 

huge issue. 

Senator JOHNSON. During your consultation with Tribal leaders, 

what is the feedback on implementation of the Tribal Law and 

Order Act, Mr. Johnson? 

Mr. JOHNSON. I think right now the number one issue that some 

of our Tribes in South Dakota are having when it comes to the 

Tribal Law and Order Act is funding the licensed attorneys who 

are necessary to have the increased sentencing jurisdiction. Several 

of the Tribes in South Dakota have licensed attorneys who are 

prosecutors. Far fewer have licensed attorneys who are also public 

defenders. 

So I think that several Tribes are getting close to using that sentencing jurisdiction, but there are still funding issues. 

Senator JOHNSON. My time has expired. 

Mr. JOHNSON. Thank you. 

The CHAIRMAN. Thank you very much, Senator Johnson. 

Senator Thune? 

Senator THUNE. Thank you, Mr. Chairman. I do appreciate very 

much your allowing me to participate today in the hearing, and I 

want to thank our witnesses for being here and for sharing their 

thoughts. 

I think we were all delighted after working on it for about three 

years that the Tribal Law and Order Act finally passed last year. 

The conditions on many of our Nation’s reservations, including in 

our home State of South Dakota, are not acceptable. And the enactment of the Tribal Law and Order Act isn’t going to be a silver bullet in solving all those problems, but I do believe it was an important step in the right direction in improving public safety and justice. 

And so I am very interested in your reaction, obviously, and getting an assessment a year later about how some of these things are 

working. 

Mr. ECHO HAWK. if I might direct this question to you. I want 

to commend Deputy Director Darren Cruzan for all the hard work 

at the Office of Justice Services and the things that have been done 

in the area of law enforcement and correction officer hiring, beVerDate 0ct 09 2002 11:11 Jun 18, 2012 Jkt 073817 PO 00000 Frm 00038 Fmt 6633 Sfmt 6601 S:\DOCS\73817.TXT JACK
35

cause one of the issues that we have been identifying is getting 

people trained through the process, getting them out on the reservations. 

And I think the common sense idea of holding job fairs has been 

very well received by the nine Tribes in South Dakota. It seems to 

be speeding up the hiring process. But my understanding is that 

there is still a bottleneck in hiring when it comes to the applicant 

getting to the background check stage. And so I am wondering if 

you could explain that background check process from the time the 

applicant is given the paperwork for the background check, until 

that individual is fully hired. 

Mr. ECHO HAWK. Mr. Chairman and Senator Thune, I am of 

course not the expert when it comes down to actually describing 

the details of the procedure. But one of the tasks given to us was 

to make sure that we are performing the background checks in a 

timely manner. 

And since the Tribal Law and Order Act was passed, we have 

adopted new policies and procedures, and we are doing background 

checks. I am told that we have done since the Act came into law 

about 35 of those we were able to do in a timely manner. But in 

terms of actually the specific processes, I think I would have to 

defer to someone else like Darren Cruzan to respond to your question. 

Senator THUNE. Maybe if we could get that for the record, but 

it seems to me that some of the delays could be eliminated if there 

was some basic pre-screening that was done, maybe at the job fair 

sometime prior to the conditional offer of a job. And so I am wondering maybe if some of those ideas have been considered. And so 

if you might furnish that for the record, too. 

Mr. ECHO HAWK. Senator, in response, we will continue to look 

for opportunities to speed up the process, but I think the numbers 

show that we have improved greatly the hiring. I have some figures, like in 2007 we had an increase of seven in personnel. I am 

talking about corrections and law enforcement officers. In 2008, 

four, so seven and four. But since 2009, we increased by 39 and 

then in 2010 by 52; and then thus far in 2011, 31. 

So we are moving forward. And law enforcement offices on the 

ground, out there in the streets and in the communities, are very 

important and we have had a 20 percent increase. And of course, 

I have to express appreciation to the Congress for providing the appropriations for us to move forward in this area of hiring. But even 

with the money, when I first came in we were struggling with getting people selected, through the background process, and trained. 

But we have made some very significant advances in that regard 

and we will continue to look for ways to improve. 

Senator THUNE. Good. Sounds like you are heading in the right 

direction anyway. 

The Tribal Law and Order Act included a provision increasing 

the maximum hiring age from 37 to 47. Has that been implemented? 

Mr. ECHO HAWK. As far as I know, yes. And that is something 

that we identified was needed because of the recent history prior 

to 2009 where we were struggling to get people in there. 

36

Senator THUNE. I am going to direct this to Mr. Perrelli quickly 

here, if I might. The Tribal Law and Order Act also included a provision that would allow magistrates to hold trials and other court 

proceedings in Tribal courtrooms, as opposed to Federal courts. Has 

that been implemented? 

Mr. PERRELLI. Well, I think, and that is principally in the Judiciary bailiwick. We have been encouraging courts across the Country 

to do this, whether it is in Tribal courts or to move magistrates 

closer to reservations. We have reservations in this Country that 

are the size of States, with less than 10 police offices patrolling at 

any one time. If two of them have to go testify in Federal court 200 

miles from the reservation, that is an enormous impact on their 

ability to protect public safety. 

So I will try and find out the answer to you about how many instances or when that has happened, but I think it is important for 

us to, where we can, bring the courthouse closer to the reservation 

in many communities across the Country. 

Senator THUNE. And that was the intent of that provision, so 

thank you. 

I see my time is expired. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Thune. 

Senator Tester? 

Senator TESTER. Thank you, Mr. Chairman. 

And by the way, thank you all for testifying. I appreciate your 

testimony. 

This question is for Larry. You can kick it over to Tom if you 

want. We do a lot of things here in Washington, D.C. and you are 

expected to implement them. And Tribes on the ground, many of 

them are a long ways away from here. 

What kind of outreach did you do to let folks know on the ground 

what was available to them? Or did you do any outreach to let 

them know what was available to address any issues that they 

might have? 

Mr. ECHO HAWK. Specifically with regard to the provisions of the 

Tribal Law and Order Act we have responsibility for? 

Senator TESTER. Correct. 

Mr. ECHO HAWK. We conducted six specific consultation sessions, 

so we had that face-to-face interchange with Tribal leaders and 

other interested people. And then beyond that, we held focus 

groups, webinars, opportunities for additional comment. So we 

have had good communication flow. 

Senator TESTER. And I assume these consultations weren’t just 

with one Tribe. You didn’t have six consultations with six Tribes. 

They were with leaders from many different Tribes, each consultation? 

Mr. ECHO HAWK. Senator Tester, these were regional sessions located in different cities where a lot of Tribal leaders attended. 

Senator TESTER. That is great. 

Tom, could we talk about declinations for a second? I mean the 

information that was given to us last year was pretty amazing, actually, and no amazing in a good way. Could you give me an idea 

if you have made any inroads into that 60 percent, 70 percent declination issue? 

37

Mr. PERRELLI. And Senator, I think we are improving. Our first 

report on this is going to come at the beginning of next year, but 

let me break it into two parts. 

First, there is what I would call just a core communication aspect 

of this, which is our agents and prosecutors communicating with 

Tribal law enforcement and Tribal prosecutors, as well as community members, about what is going on in particular cases. That was 

a directive that came from our Deputy Attorney General, that we 

needed to improve in that regard and we have been doing that all 

across the Country. It is a specific element of every U.S. Attorney’s 

operational plan. 

And I would say the U.S. Attorney in Montana is leading this effort and he has a very simple operational plan, which is on a regular basis, his prosecutors sit down with the prosecutors of law enforcement of each Tribe and go through every case so that everyone 

knows either what is going on or makes sure things don’t fall 

through the cracks. 

On the numbers, we are hopeful that the numbers that you will 

see at the beginning of the year are going to show real improvement. As we have said before, there are lots of reasons for a declination. It could be there was just no crime. It could be there was 

no jurisdiction. It could be someone else prosecuted. But all that 

being said, we know that the numbers are too high and we know 

that we need to do a better job of tracking them and explaining 

them. 

Senator TESTER. Yes, it also could be that as we heard last year, 

that the evidence gathered was insufficient. Has there been anything done to address that? 

Mr. PERRELLI. Among other things, we are obviously working 

with training Tribal police officers and moving more resources closer to the reservation so we can get that evidence earlier, but also 

working with State crime labs and developing partnerships with 

them so that some more crime analysis can be done in the field. 

Senator TESTER. Okay, well, we will be looking forward to those 

reports that are coming out after the first of the year. 

Mr. Johnson, you probably have the toughest question I am going 

to ask today, but you said you are here to report that you have 

made progress. You talked about consultations. You talked about 

cross-designation. And you also said we can’t arrest our way out of 

this, which by the way I agree with. 

Can you give me some specific examples of how you have made 

progress as far as the Tribal Law and Order Act and how it applies? Tom said there are studies that are going to come out at the 

end of the year. 

The bottom line is: Are communities being made safer? And what 

are you using for metrics to judge that? Okay, go ahead. 

Mr. JOHNSON. It is a very fair question, Senator. I look at the 

example of Rosebud Sioux Tribe. Where were we a year ago and 

where are we today? 

A year ago, I sat down with the Tribal prosecutor. They had oneand-a-half licensed attorneys who were prosecuting cases there. 

Today, they have seven. I think if you were to talk with their Attorney General, who would probably be in the best position to tell 

you about the changes in the last year, he would describe, for exVerDate 0ct 09 2002 11:11 Jun 18, 2012 Jkt 073817 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 S:\DOCS\73817.TXT JACK
38

ample, our office once a month we have our Assistant U.S. Attorneys, two of them, and two of the best prosecutors in our office, 

who go to Rosebud; who sit down with Tribal prosecutors, the Tribal police department, BIA, FBI, and we go through each one of 

these cases individually. 

And I think one of the biggest differences, and this was a major 

theme of the Tribal Law and Order Act, is there needs to be collaboration. We can’t have the Federal side over here and the Tribal 

side over here. We need to be working together on these cases and 

really addressing them. 

A lot of these cases in Tribal court need to be addressed before 

the simple assault becomes the aggravated assault, and I think 

that is one of the hallmarks that we have seen in the last year is 

greater collaboration. 

Senator TESTER. Okay. Well, thank you very much. 

Thank you, Mr. Chairman. 

I also want to thank Pamela for her testimony. 

Rose, thank you very much for coming to Montana and testifying 

on youth suicide in Indian Country. I very much appreciate that. 

And we may enter some questions for the record for you guys. 

Thank you very, very much. 

The CHAIRMAN. Thank you very much, Senator Tester. 

Let me just ask my colleague if you have any further secondround questions. 

If not, then I will move on. In the interest of time, I will be sending my remaining questions to the panel. Thank you very much. 

I would like to invite the second panel to the table, Mr. Troy Eid, 

Chair of the Indian Law and Order Commission from Denver, Colorado. 

Good to have you as the second panel. And Mr. Eid, will you 

please proceed with your testimony? 

STATEMENT OF TROY A. EID, CHAIRMAN, INDIAN LAW AND 

ORDER COMMISSION 

Mr. EID. Thank you, Mr. Chairman, Committee Members. I 

guess I am the panel of one and I am honored to be here. 

My name is Troy Eid. I am the Chairman of the Indian Law and 

Order Commission. My day job is I am a law partner at the firm 

of Greenberg Traurig in Denver. When I am not practicing law, I 

am an Adjunct Law Professor and teach Indian law at both the 

University of Colorado and the University of Denver. I am Chair 

of the Training Committee of the Navajo Nation Bar Association, 

which does the training for Tribal court judges and Tribal advocates and attorneys on a reservation that is bigger than the State 

of West Virginia. 

I am here to represent our Commission. This Commission as you 

know was established by the Tribal Law and Order Act. There are 

nine of us. We are all volunteers. We appreciate greatly the bipartisan support of this Committee, and I want to thank you personally and I want to thank the staff. They have been fantastic to us. 

I also want to thank the Department of Justice, the Department 

of the Interior, the panel that was just here. They have provided 

to resources. Because of the budget situation, it took until this last 

month for us to be funded. We paid our own way for most of the 

39

time and we were honored to do so, given the statutory requirement. 

I would tell you that we lost a year. We were supposed to have 

two years to report to the President and to the Congress but we 

don’t have a year to get our work done. We just started our field 

hearings the week before last at Tulalip in Washington State. 

So we will be sending you a letter, Mr. Chairman, respectfully 

asking for a one-year extension, which would not cost the taxpayers 

anything, so we could continue our work, and we appreciate your 

consideration of that. 

The Tribal Law and Order Act did, as you know, three basic 

things, and I want to try to give you a report in the three areas. 

The first was it tried to increase and enhance Federal accountability and transparency. Secondly, the Tribal Law and Order Act 

focused on helping Tribes have more freedom and flexibility for 

their own justice systems, designing them, running those systems. 

And third, the role of the Act was to increase cooperation among 

State, Federal and Tribal officials, areas like crime reporting; the 

ability to have interoperability of systems; law enforcement training and so on. 

Very briefly, Mr. Chairman, in the three categories. Number one, 

Federal accountability. I think that is where we are seeing the 

most progress because of the Act. And in this regard, I believe very 

strongly that the Tribal Law and Order Act has increased the 

trend that was happening particularly within the Executive Branch 

to focus on making this more of a priority which is, of course, what 

we should do, what we must do. 

And I would simply say that everywhere I go in Indian Country, 

and I have traveled most weeks of the year since 2004 without a 

break to Indian Country, I hear and I see the change. I know that 

it is happening and it is great to see. 

But, Sir, having said that, we are just now beginning to get this 

job done and accomplished. There are way too many places where 

it is not happening. Case declinations, which I would be delighted 

to talk about, are a great example. What is a case declination? 

What is a case? 

When, as happened a few weeks ago in my home State of Colorado, the Bureau of Indian Affairs, which often does a good job, but 

in this case did not, when they sit on a case for three years. And 

the U.S. Attorney’s Office gets five case files: arson with a confession; sexual assault. And they show up on the desk of a U.S. Attorney after five years. The U.S. Attorney never saw it before. Is that 

a case declination? Because who is going to take that to court? Who 

is going to be able to go to a Federal judge with that stale evidence 

and be able to say we are going to meet the ethical and legal standards for prosecution? 

So how do you define that? Does the U.S. Attorney suffer because 

he or she does not record that case declination statistic appropriately? Was that ever a case to decline? Those issues are very important. And I have to commend U.S. Attorney Johnson because he 

has reached out to us and we are going to sit down in November 

and go through declination criteria, see what we can do to make 

it fair across the FBI, the BIA, the Justice Department; try to 

make sure the public knows what this is about. 

40

Second category, which was the strengthening of Tribal justice 

systems, more freedom. It is great to have enhanced sentencing authority. Hardly anybody is doing it. You may see it from time to 

time, but frankly, there are probably 20 Tribes in this Country that 

are really set up right now to do that. For the vast majority of 

Tribes, they are going in a very different direction. 

At Navajo Nation, we have 144 total jail beds. We have 235,000 

Tribal members. How much more incarceration are we going to do? 

And that is the reality of what we face in the field. Without the 

money and the resources, the prospects for more incarceration are 

very limited. So great to have the freedom. Great to respect defendants’ constitutional rights also. It must be done, but very limited 

in terms of impact except for specific areas where it can be implemented, which is great, like the Tulalip Nation that we visited last 

week. 

And then finally, just to close, Mr. Chairman, cooperation. Wonderful to see more of it between the Federal Government and 

Tribes, just what should happen. But what I would say to the Committee respectfully is that Tribal Law and Order Act did nothing 

to help with relations between the States and Tribes, nothing. And 

you see this in Washington State this last week. The Washington 

Supreme Court ruled there is no hot pursuit. When a non-Indian 

is DUI and drives off the reservation, that Tribal cop can’t even detain that person off-reservation under a mutual aid agreement to 

allow for that county sheriff to show up and get that person behind 

bars. And drunk driving knows no jurisdictional boundaries. 

You see this time and time again. We must fine ways to 

incentivize cooperation between States and Tribes. 

So with that, I will be happy to take questions. Thank you, Sir. 

[The prepared statement of Mr. Eid follows:]

PREPARED STATEMENT OF TROY A. EID, CHAIRMAN, INDIAN LAW AND ORDER

COMMISSION

Thanks for the opportunity to testify on how the Tribal Law and Order Act of 

2010 (‘‘the Act’’ or ‘‘TLOA’’) is affecting Indian Country. My name is Troy Eid and 

I chair the Indian Law and Order Commission (‘‘the Commission’’). This is the independent national advisory commission Congress created when passing the Tribal 

Law and Order Act in July of last year. The President and Congress appointed the 

nine Commissioners, who are all volunteers, last winter. The Commission received 

funding from the U.S. Departments of Justice and Interior late this summer to carry 

out our statutory responsibilities. Our role is not just to assess how the Tribal Law 

and Order Act is being implemented, but to recommend additional ways to strengthen justice and public safety for people living and working on and near Native American communities and lands throughout the United States. 

Introduction 

By way of brief introduction, the Senate Majority Leader, Senator Harry Reid of 

Nevada, appointed me to the Commission, and the other Commissioners elected me 

Chair. I returned to private law practice in January 2009 after serving as the 

United States Attorney for the District of Colorado, appointed by President George 

W. Bush. I’m a partner in the Denver office of the law firm of Greenberg Traurig 

LLP, where I co-chair our American Indian Law Practice Group, which represents 

both Indian Tribes and companies doing business with them. I’m also an Adjunct 

Professor at both the University of Colorado School of Law in Boulder and at the 

University of Denver College of Law, where I teach civil and criminal justice and 

jurisdiction in Indian Country as well as energy, natural resource, and environmental law. My other volunteer activities include the Navajo Nation Bar Association 

(‘‘NNBA’’), where I chair the NNBA Training Committee. This includes preparing 

Tribal court judges, attorneys and lay advocates to sit for the semi-annual Navajo 

41

Nation bar examination in order to gain admission to practice law before the Navajo 

Supreme Court and district courts. 

The Commission does not have offices. We operate virtually—by teleconference, 

email and the web at www.indianlawandordercommission.com—and on the road by 

convening field hearings in Indian Country, as we did earlier this month at the 

Tulalip Tribes of Washington, north of Seattle. The U.S. Department of Justice has 

graciously loaned us two distinguished career federal employees, recruited by the 

Commission, to discharge our statutory duties. Assistant United States Attorney 

Jeff J. Davis, a member of the Turtle Mountain Band of Chippewa Tribe, recently 

joined the Commission as our Executive Director. He is a veteran Indian Country 

prosecutor and Tribal liaison with the United States Attorney’s Office for the Western District of Michigan in Grand Rapids. Eileen Garry, the Deputy Director of the 

Justice Department’s Bureau of Justice Assistance, is also graciously serving as the 

Deputy Executive Director of the Commission. We’re grateful to the Justice Department for the support of these two extraordinarily talented and hard-working public 

servants. The Tribal Law and Order Act likewise provides that the U.S. Department 

of the Interior is to detail one or more loaned officials to the Commission, and we 

look forward to having that conversation with my friend Assistant Secretary Larry 

Echohawk and his team. 

Finally, I want to acknowledge the tremendous bipartisan support that the Commission has received from this Committee. The professional staff has encouraged 

our work at every stage, providing ongoing advice and counsel and enabling us to 

navigate unfamiliar waters while maintaining the Commission’s independence as 

envisioned by the Act. We are exceedingly grateful. 

Keeping in mind our gratitude for the support that the Commission has received, 

we face a very short deadline for our final report to the President and Congress. 

Due to funding and budget restrictions, we were not able to organize until last 

month. This means we have just one year to accomplish our mission, instead of the 

two years envisioned by the Tribal Law and Order Act. We respectfully ask this 

Committee to consider extending the life of the Commission, at no additional cost 

to taxpayers, another year to meet the goals of all involved. We will send a letter 

to you at the earliest opportunity to set forth our request more formally, and thank 

you for your consideration. 

Is TLOA Working? 

Now to the business at hand: Has the Tribal Law and Order Act improved public 

safety and justice throughout Indian Country? 

The answer is yes, but we’re just getting started. 

The Act’s passage last year took many people by surprise, not only among the 

usual Beltway skeptics here in Washington, DC but across Indian Country, where 

a generation of leaders had been disappointed by previous reform efforts. Given 

these very low expectations, the enactment of the Tribal Law and Order Act was 

something of a watershed. 

I don’t say this lightly. On the contrary, I know from my own experience over the 

past 25 years that making meaningful changes to law and policy concerning Indian 

Country can be extremely difficult. We’re dealing with the intersection of all three 

sources of sovereign power recognized by the U.S. Constitution: The Federal Government, the several states, and Indian Tribes and nations that pre-date the Constitution itself but have been shaped and reshaped radically over the years by the other 

sovereigns. The relationships among the three sovereigns never remain static for 

very long. Even within each sovereign, different constituencies may result in competing or contradictory priorities. 

Against that backdrop, TLOA’s enactment was no small achievement. The Act attempts to do many things. Yet having been involved with it as a volunteer since 

2007 when the then-Chairman of this Committee, Senator Byron L. Dorgan, and his 

staff first invited me to get involved in what became TLOA, I believe its basic purpose is threefold. First, TLOA was intended to make federal departments and agencies more accountable for serving Tribal lands. Second, the Act was designed to provide greater freedom for Indian Tribes and nations to design and run their own justice systems. This includes Tribal court systems generally, along with those communities that are subject to full or partial state criminal jurisdiction under Public Law 

280. Third, TLOA sought to enhance cooperation among Tribal, federal and state 

officials in key areas such as law enforcement training, interoperability, and access 

to criminal justice information. Let me briefly address these three areas and look 

to the future. 

42

Federal Transparency and Accountability 

TLOA’s first major purpose was to bolster the Federal Government’s accountability to Indian Tribes and nations that, since the passage of the Major Crimes Act 

in 1885, have largely depended on federal police, prosecutors and judges for protection from the most serious crimes. It is in this area, among the three major purposes of the Act that I’ve just listed, where the Federal Government appears to be 

making the most progress. Nearly everywhere I travel in Indian Country—and I do 

so most weeks of the year, and have since 2004—Tribal and federal officials say 

they’re getting more encouragement from Washington to make Indian Country 

issues a priority. Extending this awareness to state and local officials in neighboring 

jurisdictions is perhaps the most urgent priority, as I’ll discuss a little later. The 

Tribal Law and Order Act, and the many follow-up activities it requires of the Executive Branch, is contributing to this larger trend among federal and Tribal officials. 

This positive energy, and the perception of forward motion from Washington in at 

least acknowledging problems that were often previously dismissed as intractable, 

is refreshing. 

Yet we must also be realistic about how difficult it will be to achieve lasting reform in this area. The issue of publicly reporting so-called ‘‘case declinations’’ by federal prosecutors in Indian Country cases, as the Tribal Law and Order Act requires, 

is just one example. Achieving meaningful accountability and transparency in this 

area is harder than it looks. The underlying statutory responsibilities are split between two cabinet departments. The Department of Justice through the Federal Bureau of Investigation and the United States Attorney’s Offices and the Bureau of 

Indian Affairs (BIA) Office of Justice Services, which provides law enforcement on 

many reservations, are both responsible for serving Indian Country. 

Simply put, the Justice Department’s assessment of whether a given case should 

be publicly reported as ‘‘declined’’ for prosecution may differ markedly from that of 

the BIA which is administratively housed in the Department of the Interior. Despite 

the manifest good intentions of Darren Cruzan, who directs the Office of Justice 

Services, the BIA often lacks enough patrol officers and investigators to build criminal cases that are sufficiently strong to survive the rigors of federal court. BIA officers and investigators are not always properly trained and are frequently detailed 

or transferred from one community to another. Overall staffing levels for patrol and 

investigations, which TLOA did nothing to address, remain woefully inadequate on 

many, if not most, Indian reservations that are subject to primary BIA jurisdiction 

and the federal Courts of Indian Offenses. 

Consequently, case intake and reporting can be inconsistent, and even the most 

serious felony investigations often languish. Last summer, the BIA Police Department on the Ute Mountain Ute Reservation in my home state of Colorado delivered 

investigative files for five previously unknown criminal cases to the U.S. Attorney’s 

Office in Durango. The files in all five BIA felony investigations, ranging from arson 

to sexual assault, were more than three years old and had never been previously 

disclosed to the Justice Department. They just ‘‘fell through the cracks,’’ as one Assistant U.S. Attorney told me last week as so often happens in Indian Country. 

In such instances, the U.S. Attorney might understandably conclude that the admissible evidence obtained during these BIA investigations is either so minimal or 

stale that it does not establish a reasonable likelihood of the defendant’s conviction 

at trial. That is the legal and ethically required standard that guides U.S. Attorneys 

in determining whether to proceed through the federal judicial process. In terms of 

casedeclination reporting, is there really a prosecutable ‘‘case’’ to decline? 

This example attests to how challenging it can be to bring greater accountability 

and transparency to federal agencies serving Indian Country as TLOA requires. Department of Justice leaders are grappling with these issues, and they should be 

commended for doing so. Let me especially thank Brendan Johnson, the United 

States Attorney for the District of South Dakota and Chair of the Native American 

Issues Subcommittee of the Attorney General’s Advisory Committee. U.S. Attorney 

Johnson has reached out to the Commission and invited us to engage with his colleagues in a dialogue on the case-declination issue. 

The stakes are high. To victims of violent crime in Indian Country, who depend 

on federal officials to perform what would otherwise be purely local policing and 

prosecution decisions, seemingly arcane issues such as case-declination reporting 

and accurate Tribal crime data collection and reporting systems have profound realworld consequences. Crime statistics help drive federal criminal justice resources 

throughout Indian Country. Just last week, a senior BIA official assured me that 

the official crime statistics on the Ute Mountain Ute Reservation do not seem to justify additional federal resources there. Underreporting of criminal justice information at Ute Mountain and many other reservations remains a chronic problem, along 

43

with the BIA’s frequent inability to keep accurate and readily accessible records for 

those offenses that are actually reported. 

This is changing in some parts of Indian Country, but slowly. TLOA requires the 

Bureau of Justice Statistics (BJS) of the U.S. Department of Justice to establish and 

implement a Tribal data collection system and to support Tribal participation in national records and information systems. In June, BJS issued its first required report 

summarizing the Department’s efforts to improve Tribal law enforcement reporting 

to the FBI’s Uniform Crime Reporting (UCR) Program. Bear in mind that accurate 

crime reporting in Indian Country has been the exception to the rule. 2009 was the 

first year when BIA submissions to the UCR were actually broken down according 

to Indian Tribe and reported in the FBI’s Crime in the United States report. I participated last year in one of several training sessions that BJS held for Tribal leaders, in conjunction with the FBI and the BIA Office of Justice Services, on the use 

of UCR systems. Such training is vital, especially for Tribes that are not meeting 

FBI data quality guidelines or are not submitting complete crime data to the BIA. 

In this and many other ways, the Departments of Justice and the Interior are working to make Tribal criminal justice data more accurate, complete and accessible, and 

more effectively integrated with state and federal records and reporting systems. 

Some of these initiatives probably would have moved forward even without the Tribal Law and Order Act. But the Act is focusing and accelerating these efforts far beyond what would have otherwise occurred. 

More Flexibility for Tribal Courts 

A second major purpose of TLOA was to strengthen Tribal justice systems, especially through enhanced sentencing such as longer terms of incarceration for the 

most serious criminal offenses under Tribal law. On balance, these provisions appear to be working, but only for the relatively small number of Indian Tribes and 

nations that are in a position to take advantage of them in the foreseeable future. 

The Act amended the Indian Civil Rights Act of 1968 to give Tribal courts the 

sentencing option to impose terms of incarceration for up to three years, a fine of 

up to $15,000, or both for conviction of a single Tribal offense. This compared with 

the previous maximum penalty of a year in jail and/or a $5,000 fine. The statutory 

language attempted to strike a balance between respect for criminal defendants’ federal Constitutional rights and the sovereignty of Tribal courts to enforce their own 

laws. In time, the federal courts may review and recalibrate that balance based on 

the efforts by those comparatively few Tribes that might be expected to assert what 

amounts to felony sentencing jurisdiction over Indian offenders. 

The ground truth in most of Indian Country is that only a minority of Tribal 

courts currently imposes jail sentences of even up to one year. The Tribal Law and 

Order Act required the Departments of Justice and the Interior to develop a longterm plan to build and enhance Tribal justice systems. The most striking feature 

of the August 2011 report produced as a result of that statutory mandate is the 

number of Tribal courts that are pursuing alternative sentencing options, such as 

wellness courts and restitution programs, as opposed to longer terms of incarceration. Many of these programs hold the potential of reducing recidivism and saving 

public money. This is extremely important within the context of corrections where, 

according to a 2009 estimated by the National Institute for Corrections, for every 

one dollar spent on building detention facilities, between nine and 15 dollars is 

spent on continued operations and maintenance. 

Because TLOA did not change any aspect of the U.S. Supreme Court’s 1978 Oliphant decision, Tribal courts still cannot assert any criminal jurisdiction over nonIndians. With respect to Indians, TLOA permits Tribal courts to impose these enhanced sentences of incarceration through licensed judges who are not necessarily 

lawyers. However, Tribes must provide licensed attorneys, at Tribal expense, to all 

indigent Indian defendants facing jail sentences of more than one year, the traditional threshold for felony jurisdiction at common law. 

Inter-Government Cooperation 

A third key purpose of the Tribal Law and Order Act was to enhance cooperation 

among Tribal, state and federal officials in order to create a more seamless and effective criminal justice system. On the positive side, U.S. Attorneys and the BIA Indian Police Academy both report that TLOA has resulted in a greater emphasis on 

Indian Country law enforcement training. This includes ensuring that more Tribal, 

state and local law enforcement officers are commissioned as federal officers—federally deputized—to fight Indian Country crime. Based on past experience, there is 

every reason to believe that encouraging U.S. Attorney’s Offices and the BIA to provide expanded federal deputation training and commissioning, in full partnership 

44

with the Indian nations they serve, can increase law enforcement cooperation, 

strengthen prosecution, and save lives. 

I say this from direct personal experience as a United States Attorney. Between 

February 2007 and December 2008—and as described in the report of this Committee that accompanied the Tribal Law and Order Act—the U.S. Attorney’s Office 

in Colorado partnered with the Southern Ute Indian Tribe’s Justice Department and 

its visionary former director, Janelle Doughty. Together with our respective offices 

and the BIA Indian Police Academy, we developed a model curriculum and training 

program to teach and test Tribal, state and local law enforcement officers on-site 

in Southwestern Colorado. Our goal was for these officers to be federally commissioned by the Bureau of Indian Affairs to enforce federal laws in Indian Country, 

thereby strengthening boots-on-theground law enforcement and fostering inter-jurisdictional collaboration. The curriculum focused on Indian Country jurisdiction, the 

federal judicial process, investigative techniques, officer criminal and civil liability, 

and other challenges routinely encountered by Tribal, state and local law enforcement officers working in the field. 

We started by training officers in Southwestern Colorado, but with assistance 

from the National Congress of American Indians, the program eventually went national. In less than two years, our pilot program expanded into 14 training sessions 

across the country attended by more than 400 law enforcement officers representing 

35 Indian Tribes and 17 states. Testifying before this Committee, Director Doughty 

described how a Tribal officer had responded to a domestic violence case on the 

Southern Ute Indian Reservation. The officer had been deputized through our pilot 

program and earned his Special Law Enforcement Commission (SLEC) card. He 

used his federal arrest power to apprehend a non-Indian who had repeatedly terrorized a Tribal member. As a direct result, the U.S. Attorney’s Office prosecuted that 

case. The perpetrator went to prison. 

These and many other successes attest to what can be done when the federal and 

Tribal law enforcement officer and prosecutors work more closely together and have 

the tools they need to serve the public regardless of land status or the race or ethnicity of victims and defendants. Yet TLOA is doing little to improve law enforcement cooperation between Indian Tribes and nations, on the one hand, and state 

and local officials on the other. 

Earlier this month, for instance, the Washington Supreme Court ruled that Tribal 

police officers in that state lack ‘‘fresh-pursuit’’ authority. This means that Tribal 

officers in that Public Law 280 jurisdiction are prohibited from arresting criminal 

suspects who flee the reservation, even for the limited purpose of detaining them 

under a mutual aid agreement until the proper jurisdiction can arrive at the scene. 

In the actual case, State of Washington v. Eriksen, No. 80653–5 (Sept. 1, 2011), the 

suspect’s blood alcohol content (BAC) exceeded the legal limit in both jurisdictions. 

Yet the effect of the Court’s decision is to prevent Tribal officers from engaging in 

fresh-pursuit even when it means apprehending suspected drunk drivers who are 

no less dangerous on- or off-reservation. 

As a former state cabinet official, I’m profoundly respectful of state and local law 

enforcement prerogatives. Yet we simply must do more—much more—to encourage 

Tribes and states to work more closely together. Just a few days ago, a Tribal police 

officer in PL–280 jurisdiction contacted the Commission to report the following:

One of our officers pulled over a driver, on the reservation, for DUI. The driver 

was a non-Indian. The State Patrol was unable to respond. The County Sheriff’s 

Office was then requested. They refused to come out. Their watch commander 

then ordered us to let the suspect go—on the reservation. I took a breath sample in the field prior to the person being released. He blew a .133 BAC. He also 

had two children in the car with him. Instead of having him drive off as we 

were ordered to do by the County, one of our officers took the keys from him 

and gave him a ride so that he wouldn’t kill himself, the kids or someone else.

For too many communities, scenarios like this are the rule, not the exception. The 

same goes for domestic violence cases. The Commission has already received hours 

of public testimony from state and Tribal court judges about the lack of reciprocal 

enforcement of restraining orders in domestic violence cases. We cannot rest until 

we find more effective ways to promote and reward Tribal-state cooperation on 

criminal justice issues. 

Looking Forward 

Legislation is always the art of the possible—the specific improvements that can 

be achieved in the near future. The passage of TLOA was indeed a milestone. But 

many of the greatest challenges to securing equal justice for Native Americans living and working on Indian lands are structural. They’re rooted in a system of fedVerDate 0ct 09 2002 11:11 Jun 18, 2012 Jkt 073817 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 S:\DOCS\73817.TXT JACK
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eral institutions, laws and practices that pre-date the modern era of Tribal sovereignty and selfdetermination, and which TLOA does little or nothing to change. 

That’s why TLOA created the Indian Law and Order Commission: to look beyond 

the status quo and recommend long-term structural improvements in Indian Country criminal justice. 

We all know that there have been times when reports by blue-ribbon panels do 

little but gather dust. Yet national commissions have sometimes been vitally important to the development of law and public policy concerning Native Americans and 

Tribal homelands. For instance, a nine-member national commission in 1928 published a landmark report, The Problem of Indian Administration. Commissioners 

visited 95 Indian reservations, documented deplorable conditions and failed federal 

policies, and advocated systemic changes ranging from education to Tribal self-governance. The ‘‘Meriam Report,’’ named for chief investigator Lewis Meriam, prompted President Franklin D. Roosevelt and the Congress to enact the Indian Reorganization Act of 1934. This signaled a critical policy shift, despite many later setbacks, from the longstanding national policy of forced assimilation and the unrelenting assault on Native American people, culture and institutions by federal and state 

governments. 

In our own time—and with the continued support of this Committee, the Congress, and this Administration—the Indian Law and Order Commission has the potential to ‘‘think big,’’ strengthening justice in Indian Country. 

Juvenile justice is a case in point. At least one-half of all juveniles held in federal 

criminal detention are Native American. This is due in large part to two federal 

laws: The Major Crimes Act of 1885, covering felonies involving Indians on reservations, and the Juvenile Delinquency Act of 1938, which transfers jurisdiction over 

most felonies involving Tribal youth from Indian nations to the Federal Government. 

In contrast to the vast majority of state and local governments in the United 

States, which have separate justice systems and programs for youth offenders, there 

is no separate juvenile justice system at the federal level. Tragically, Native American youth often enter the federal criminal justice system by operation of these outmoded federal statutes—based solely on their ethnicity and where they live—and 

often do not have access to diversion, drug court, and other rehabilitative programs. 

They’re transferred from Tribal justice systems to federal criminal custody based on 

purely local offenses—even when Tribal courts assert jurisdiction and have rehabilitative programs available for them. 

Once confined to the federal criminal justice system, Native American juveniles 

face harsher punishments for the same or very similar offenses. There is no parole 

in the federal system and no ‘‘good time’’ credits, which means comparatively longer 

sentences. On average, federal sentences for juveniles are about twice as long as 

those imposed by state courts. And because there is no separate juvenile justice system at the federal level, Native American youth are disproportionately sentenced as 

adult offenders. Less than 2 percent of all juveniles processed in state courts are 

sentenced as adults, compared to an amazing one-third of all juveniles in the federal 

courts. 

In addition to the ongoing national tragedy involving Native American juvenile offenders, there are many other significant challenges to making Indian country safer. 

They include:

1. Overly complicated jurisdictional rules that undermine criminal investigations, preventing far too many prosecutions from going forward and, in the 

memorable phrase of an April 2007 by Amnesty International, can create a 

‘‘maze of injustice.’’

2. A chronic resource deficit in which Indian Tribes have access on average to 

less than one-half of the law enforcement resources available to comparable offreservation communities, and which extends to the entire criminal justice system.

3. A lack of respect for the importance of Tribal sovereignty in our federal Constitutional system and how it can reinforce the fundamental American value of 

localism—the expectation that governmental decisions, including those involving public safety, are best made closer to citizens by officials who are directly 

accountable to them.

To gain insight into these and other systemic challenges, the Indian Law and 

Order Commission is visiting communities throughout Indian Country to develop 

recommendations for continuing reform and continuous improvement. In addition to 

support from the Department of Justice and the Interior as required by the Tribal 

Law and Order Act, the University of California at Los Angeles has voluntarily 

46

stepped forward with a generous gift of research support to assist our efforts. The 

breadth and depth of experience of the Commission’s members is its greatest asset:

• Former U.S. Representatives Stephanie Herseth-Sandlin (SD) and Earl Pomeroy (ND), who were instrumental in writing and enacting TLOA.

• Jefferson Keel, Lieutenant Governor of the Chickasaw Nation and President of 

the National Congress of American Indians

• Chief Judge Theresa Pouley (Colville) of the Tulalip Tribal Court

• UCLA Law Professor Carole Goldberg, Indian law scholar and a Justice of the 

Hualapai Tribal Appellate Court

• Affie Ellis (Navajo), public policy expert and a former Assistant Attorney General for Wyoming

• Attorney Tom Gede, the former head of the Conference of Western Attorneys 

General

• Ted Quasula (Hualapai), the General Manager of Grand Canyon Skywalk Development Corporation and the former leader of the BIA Office of Justice Services

Time does not permit me to address the many other issues affecting criminal justice in Indian Country, such as the retrocession process for Tribes in PL–280 jurisdictions; the implementation of the Adam Walsh Act’s Sex Offender Notification and 

Registration System, and other challenges. I welcome your questions and thank you 

again for your support and the opportunity to testify today.

The CHAIRMAN. Thank you very much, Mr. Eid. 

Mr. Eid, do you believe the Carcieri decision further complicates 

Federal criminal jurisdiction? 

Mr. EID. Mr. Chairman, thank you. Yes, absolutely. It needs to 

be fixed. And one reason why it needs to be fixed, Sir, is that any 

ambiguity about whether a conviction took place in a jurisdiction, 

was it under Federal jurisdiction or not, that is a post-conviction 

problem. Someone could challenge that in terms of habeas corpus 

later on and clog up the court system. 

So for that reason, and because it is a cloud right now prospectively for Tribes trying to acquire land and put it into trust, I 

would respectfully suggest it needs to be acted on and passed. That 

is a personal opinion, by the way. 

The CHAIRMAN. Mr. Eid, what role do you think will the Commission play in recommending alternatives to incarceration to BIA and 

DOJ? 

Mr. EID. Thank you, Mr. Chairman. I think we have got to give 

Tribes more flexibility to deal with what they are actually facing. 

Typically, they are not locking people up for longer periods of time. 

It costs too much money. It is also in many cases not consistent 

with the values they have. 

We need to allow for more support for things like wellness 

courts, diversion programs based on restorative justice, whatever 

the Tribes are finding fights recidivism and protects the community. It is really up to them. And I appreciate the efforts that are 

being done to fund those programs, but it needs to be a conscious 

movement toward respecting those Indian nations. 

We have this value of localism in America. We respect local government. We want to be able to know that somebody is being treated in our community and helped. And if they need to be punished, 

they need to be punished. And believe me, I understand that issue. 

But we need to have more respect for what the Tribes are actually trying to do and accomplish. I appreciate the fact that some 

Tribes may want to lock people up longer, and it can certainly be 

47

appropriate. It is great that the BOP, the Federal Bureau of Prisons has provided some spaces for people, but nobody is really going 

in that direction yet, with very few exceptions. 

We need to go the other way where Tribes want to do it, and respect that their needs must be supported. 

And may I say please, Sir, in closing, we have got to begin to enforce domestic violence restraining orders off-reservation. We have 

this huge problem and the Commission has heard lots of testimony 

on this, Sir. And the issue is that when somebody is a domestic violence perpetrator. They get a restraining order against them in the 

Tribal court. You take it to a State judge. The State judge may or 

may not enforce that. And frankly, the problem can be reciprocal, 

too, back the other way. 

The Congress needs to really encourage this cooperation; find incentives to get States and Tribes to enforce these orders so that we 

can protect people. Domestic violence perpetrators don’t care where 

the victim is. They are going to hunt that victim down. So we have 

to try to protect that person. 

The CHAIRMAN. Mr. Eid, where else will the Commission hold 

field hearings? What issues do you expect to focus on? 

Mr. EID. Well, I appreciate that very much, Sir. Sorry to interrupt. 

We are going to be hearing public testimony all over the Country 

and look forward, Sir, to going to both Alaska and Hawaii and 

other parts of the Country throughout Indian Country, East Coast, 

West Coast and in between. 

What I would tell you, Sir, is that juvenile justice is a huge issue 

for us. We are very concerned about the Federal system. As you 

may know, more than half of all the young people in the entire 

Federal criminal justice system for juveniles are Native American. 

And just one statistics, off-reservation the average rate for being 

sentenced as an adult in the State or Local court is between 1 percent and 2 percent. If you are a Native American person, you are 

in the Federal system, your odds are one-third of them are going 

to be sentenced as adults. 

On average, we know from the empirical research that Native 

American young people serve at least twice as long sentences of incarceration than anybody else. I think it is an equal protection 

problem and I think we have to try to address that issue. 

And it is not to blame any one person. We just have got to realize 

that the law has been frozen since about 1938 on juveniles and we 

need to come back and help them and treat them like everybody 

else in terms of other juveniles in this society. 

The CHAIRMAN. Yes, my final question to you is, can you tell us 

about some of the issues you heard at your recent field hearing? 

What should be focus on in the coming months? 

Mr. EID. Well, thank you, Mr. Chairman. What I would say is 

in addition to the issues that I have just mentioned, particularly 

with respect to young people and domestic violence, a lot of concern 

about not just inadequate funding, of course we all hear that, we 

all know that, but how the Federal Government funds Tribal programs through grants. The grants are too hard to use. And we 

have heard this, too, with support from the Justice Department as 

well. They brought this issue to us. The grants are too hard to use. 

48

Oftentimes, only a small percentage of grants for criminal justice 

are even used by the Tribes because they can’t meet all the red 

tape. They can’t cut through it. 

So we want to make sure that when the Congress says here is 

a program; we are going to fund it in this tough time; that the 

money actually goes to those who need it. And that will be looking 

at fiscal reform in terms of grants and other funding mechanisms. 

I know that is very arcane, Sir, but we really want to try to help 

make recommendations in that area. 

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

testimony and also your responses. It will be helpful as we try to 

get a feeling from different groups as well, so that we can move in 

the right direction on this. 

Thank you very much. 

Mr. EID. Thank you, Mr. Chairman. 

I would like to invite the third panel to the witness table. Serving on our third panel is the Honorable Ivan Posey, Council Member of the Joint Business Council of the Shoshone and Arapaho 

Tribes of Wind River Indian Reservation in Wyoming. I want to 

say, Mr. Posey, that our Vice Chair, Senator Barrasso, as you now, 

is not here but wanted to be here today, and had to return to Wyoming for the funeral services for former Senator Wallop. That is 

why he is not here. 

I also want to welcome the Honorable Theresa Pouley, Chief 

Judge of the Tulalip Tribal Court in Washington; and Ms. Jacqueline Johnson-Pata, Executive Director of the National Congress 

of American Indians in Washington, D.C. 

Welcome to all of you to this hearing. 

Councilman Posey, will you please proceed with your testimony? 

STATEMENT OF HON. IVAN D. POSEY, COUNCIL MEMBER, 

JOINT BUSINESS COUNCIL, SHOSHONE AND ARAPAHO 

TRIBES, WIND RIVER INDIAN RESERVATION 

Mr. POSEY. Good afternoon, Senator. I would like to take this opportunity to thank for the opportunity to provide testimony to this 

important group. As you mentioned, our Senator also is a Vice 

Chairman of this group and all of our delegation if back in Wyoming for the funeral today for the late Senator Wallop. 

I have testified several times before on public safety in Indian 

Country. Today, I am pleased to make comments on the Tribal Law 

and Order Act. 

As you know, the Act was passed last July, and hasn’t been fully 

implemented on our Indian reservation yet. I think it gives unprecedented authority to Tribal courts, law enforcement, and from what 

I heard and listened to today, I am very encouraged by the cooperation between the Federal agencies to address the many issues that 

make up a safe community on our reservations. 

Let me start by mentioning some history about the Wind River 

Reservation. We are 2.2 million acres, and we are the only reservation in Wyoming. It is the home to the Eastern Shoshone and 

Northern Arapaho Tribe. In 2010, we were selected under the 

HPPG, which is the high priority performance initiative, a Presidential initiative to look at public safety on our reservation. 

49

At the time, we had six law enforcement officers to cover a vast 

amount of area. Now, we have 22 officers, which has made a key 

difference. We appreciate the help of the local law enforcement for 

helping us to get there. We got more funding for our Tribal court 

system which allows it to function a little bit better, but we still 

have problems. 

Violent crime was one of the reasons we were selected for this 

initiative, and I think there are some aspects of the Tribal Law and 

Order Act that would be very beneficial to us. One is what 

SAMHSA is doing and also what the Indian Health Service is doing 

in terms of addressing substance abuse and alcoholism in our Tribal communities. 

Most violent crimes in our reservation are probably linked close 

to 100 percent alcohol related, whether it is domestic violence, a 

murder or whatever. Most of those are alcohol-related, so I am glad 

to see the coordination and cooperation of those agencies to helping 

the country to address the underlying portion of our problems. 

One area that I am going to mention today is our need to have 

more focus on the juvenile justice system. We have a system now 

that exists that the original deterrent for younger kids if they get 

in trouble from truancy to more violent crimes, they get to be 18 

years old and they end up going to Federal prison. As was mentioned earlier, they spend a lot of time in there and they come out 

hardened criminals. 

Part of our court system now consists of three judges. Our Chief 

Judges holds a juris doctor from University of Wyoming. He is the 

only lawyer that we have. We have two Associate Judges and we 

welcome the ability to sentence for a longer period of time, as mentioned in the Act. I understand that will take a MOA with rural 

prisons to start that process, and I guess no Tribe, from what I 

hear today, has really been implemented or used that agreement 

yet. 

It was mentioned earlier about the lack of follow up on some of 

the prosecution cases, and I think the ability for the U.S. Attorney 

to have a liaison with Indian Tribes would really help in that area. 

I think many times cases fall through the cracks. Some are not followed up, as the gentleman right before us mentioned. They may 

carry on for a long time, and there still needs to be more emphasis 

focused on white collar crime in Indian Country. It seems that 

there is more emphasis on violent crimes, which there should be, 

but there also needs to be more emphasis on some of the white collar crimes that take place in Indian Country every day. 

The Law and Order Act I believe will have positive effects 

throughout Indian Country in addressing our ability to govern ourselves as sovereign nations and assisting our ability to create and 

enhance public safety from our youngest babies to our oldest elders. 

We are prepared to do our part of make our community safer and 

it will be good for our communities. 

So with that, I will close. Thank you and God bless you. 

[The prepared statement of Mr. Posey follows:]

50

PREPARED STATEMENT OF HON. IVAN D. POSEY, COUNCIL MEMBER, JOINT BUSINESS

COUNCIL, SHOSHONE AND ARAPAHO TRIBES, WIND RIVER INDIAN RESERVATION


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The CHAIRMAN. Thank you. Thank you very much. 

And now we will hear from the Honorable Theresa Pouley, your 

testimony, please. 

STATEMENT OF HON. THERESA M. POULEY, CHIEF JUDGE, 

TULALIP TRIBAL COURT 

Ms. POULEY. Good afternoon, Mr. Chairman. Thank you so much 

for allowing me to be here today. I can’t tell you how honored I am 

as a Tribal Court Judge to get to appear to tell you about how the 

Law and Order Act is working in Indian Country, at least in the 

Northwest. 

I very often think about words of my ancestors when I reflect on 

those values. And in this case, Carlos Montezuma, who when he 

was talking about the state of oppression of Indian people in 1915 

said, ‘‘If it wasn’t for the sturdiness, for the strength, and for the 

moral value of our ancestors, would we even be here today?’’ That 

is one of the issues that I would like to address before the Committee today, the sturdiness of Indian people, how the Tribal courts 

view the enhanced sentencing provisions of the Law and Order Act. 

Second, the physical strength, how does the law other than the 

Law and Order Act support Tribes; and third, the physical 

strength, how do we treat our kids. 

The first is how does the enhanced sentencing provision actually 

impact Tribal court on a daily basis. I have to say that it is a difficult, at best, issue for Tribal courts and Tribal court judges. There 

is a great deal of planning that is involved in exercising the enhanced sentencing. And at the end of the day, Mr. Chairman, it is 

all about cost. Although the responsibility of public defense, although the responsibility of law-trained judges and law-trained 

prosecutors came with the Law and Order Act, the funds, Mr. 

Chairman, did not come with it. 

Particularly in terms of cost of incarceration, although the Bureau of Prisons rightly under the Act has promulgated regulations 


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54

to allow us to use the Bureau of Prisons, it is only for major crime. 

Tulalip, like many Tribes in the Northwest, for most of our most 

serious offenders, uses exclusion tools to exclude them from the 

boundaries of our reservation. And if you violate that provision, you 

can then be cited with trespass. Now, we will be in the position of 

figuring out how to house those offenders on our own, because that 

is not covered by the Tribal Law and Order Act. 

The costs of incarceration are going to be substantial. And in Indian Country, we have to balance that with education and with 

health and with services that are needed by our community. 

Tulalip Tribe’s full service court system, we have 1,000 new cases 

a year; 10 staff members; two judges; two probation officers; and 

the one thing that hasn’t changed since 1980, Mr. Chairman, is 

that the Bureau of Indian Affairs provides Tulalip $30,000 to run 

that court system. It simply is not enough. 

Tulalip will be taking advantage of the enhanced sentencing provisions, but in a careful and methodically planned way so that we 

don’t use the scarce resources our community needs for housing 

prisoners. 

The second thing I want to talk about is the physical strength 

of our ancestors, and that really is the law. I am absolutely grateful that the Law and Order Act recognized that Tribes can be given 

more authority and that comes with the responsibility. Unfortunately, the law sends cross-messages all the time. Just this month, 

the Washington State Supreme Court said that Tribal law enforcement officers cannot arrest drunk driving offenders who are driving 

drunk on the reservation if they happen to pull over on the side 

of the road that is the boundary of the reservation on non-reservation land. Chiefs of Police all over the State of Washington, from 

Tribal Chiefs of Police, are worried that it encourages persons to 

essentially flee to the border. 

So if the decision in Oliphant said that you can’t stop those persons or arrest them within the boundaries of your reservation 

wasn’t bad enough, now Eriksen says and you should flee to the 

border. How can we really say that we have increased safety when 

we sent that mixed message? We need to send the message that 

Tribes have full authority within the boundaries of their reservation. 

Last, the physical strength, which is the strength of our children. 

You heard the statistics from Chairman Eid. Half of the juveniles 

in the Federal system are Native. The part that we didn’t hear is 

half of those kids were abused and neglected kids. We need to figure out how to beef up the provisions of the Indian Child Welfare 

Act to give notice to the Tribes so that they can look at all children 

the same, whether they are incarcerated or whether they are 

abused and neglected. Because, Mr. Chairman, they are the same. 

We do this for the future of our children in the ways of our ancestors. 

Thank you for allowing me to testify. 

[The prepared statement of Ms. Pouley follows:]

55

PREPARED STATEMENT OF HON. THERESA M. POULEY, CHIEF JUDGE, TULALIP TRIBAL

COURT

Mr. Chairman and members of the Committee, I appreciate the opportunity to 

provide testimony on the vital role that Tribal courts play in the effective administration of justice in Indian Country, to address the changes we have seen with the 

passage of the Tribal Law and Order Act and to discuss the measures that should 

be taken to build on this foundation. I speak from my experience as a long time 

Judge serving Tribes in the Northwest, the President of the Northwest Tribal Court 

Judges Association and a member of the Indian Law and Order Commission. Currently I serve as the Chief Judge of the Tulalip Tribal Court and Northwest InterTribal Court System (NICS) and an Associate Justice of the Colville Court of Appeals. The Tribes I have had the honor to serve in Washington State range from 

urban to rural, and vary in size from small communities with a greatly diminished 

land base, to Tribes with expansive reservations. Although the governmental services and needs vary for these Tribes, I have found they all share a core commitment 

to fairness and justice for their communities. No government has a greater stake 

in effective criminal justice systems in Indian Country then the Tribes themselves. 

I was honored to testify before this body in July 2008 to support the legislation 

that would become the Tribal Law and Order Act. In 2008, this body was considering measures that could be taken to address the alarming rates of violent crime 

occurring in Indian Country. At that time, the reports and studies that were being 

compiled and released confirmed what we in Indian Country already knew to be the 

tragic reality. I will not restate those statistics here, as they have been repeated 

frequently by many sources. Thankfully, there does not appear to be any further debate or dispute that Indian Country faces a crisis of violent crime. We are relieved 

and encouraged that the discussion has now turned to the more fundamental question of how we can reverse this trend and make Tribal lands safe for all of its citizens and visitors. I would also take this opportunity to thank the Congress and the 

President for the passage of the Tribal Law and Order Act, and the Administration 

for its remarkable steps to address this issue. The efforts to implement the Act are 

commendable, particularly the efforts of Attorney General Holder and the Department of Justice. 

The Tulalip Tribes and Justice System Background 

The Tulalip Tribes consists of a confederation of several Coast Salish Tribes and 

is a signatory to the 1855 Treaty of Point Elliott. Today, the Tulalip community is 

located on a 22,000 acre Reservation bordering the Puget Sound 40 miles north of 

Seattle. This area has experienced rapid population growth and development. 

Tulalip has 4,000 enrolled members, but the majority of Reservation residents are 

non-Indian. A history of allotments on the Reservation created a checkerboard of Indian and non-Indian land ownership that is common to most Reservations in Washington State. The Tribe has in recent years re-acquired a great deal of its Reservation land, and today the Tribe or Tribal members hold approximately 60 percent of 

the Reservation lands with the balance held in non-Indian ownership. 

With great effort, the Tulalip Tribe retroceded criminal jurisdiction in 2001. Since 

then the Tribe has taken on the responsibility to build its own criminal justice system. In the last decade the Tulalip Tribal Justice system has made great strides, 

developing a full service police department and court system as well as a strong 

support system of prosecutors, probation officers and public defenders. In that time 

crime rates have dropped and the quality of life in the community has improved. 

During the same period of time, the Tribe underwent substantial economic development. The Tribes incorporated Quil Ceda Village to promote Reservation based business development including a casino, retail outlet mall, and most recently, a 400-

room resort hotel. The success of this development has created thousands of new 

jobs, brought in millions of new visitors to the Reservation and provided much needed revenues to the Tribal Government. 

Retrocession of the Tulalip Tribes’ criminal jurisdiction from the State of Washington was critical to establishing a substantial increase in public safety on the 

Tulalip Reservation. In Washington State retrocession of criminal jurisdiction is provided by state statute. There is a draft bill in Washington that would allow individual Tribes to ‘‘opt in’’ to taking full jurisdiction within their boundaries and the 

Tulalip Tribes supports every Tribe’s ability to decide the exercise of its own authority and jurisdiction. 

Tribal Efforts 

In 2008 I testified before this body that the Tulalip Tribe was eager to continue 

to develop its Tribal justice system and continue to provide the critical services 

needed by its population. We then supported passage of the Tribal Law and Order 

56

Act and, in particular, asked Congress to authorize enhanced sentencing authority 

to the Tribes. The Act was signed in July 2010 and I would like to update the Committee on the efforts that are being taken at Tulalip in response to passage of the 

Act. 

Since the Act passed I have had the opportunity to meet with many Tribal leaders 

and federal and state government officials interested in the development of Tribal 

justice systems. Congress should be encouraged that Tribes are patiently and methodically taking measured and reasoned steps toward exercising the additional sentencing authority granted by the TLOA. It is important that we not misinterpret 

the Tribes’ lack of immediate implementation of this authority as a sign that the 

problems are not as bad as stated or that Tribes do not care to exercise this authority. We must understand that the TLOA, while offering only an incremental step 

to improving Tribal justice, presents Tribes with a substantial change in the way 

they operate their courts. This change presents risks and costs that the Tribes are 

measuring carefully before simply jumping forward. 

The wisdom of the ‘‘opt in’’ provisions of the TLOA is evident as some Tribes may 

judge the changes in TLOA coming at too high a cost to their sovereignty and independence. It is perceived that some of the requirements in TLOA, presumably 

adopted to protect defendants’ due process, will push Tribal courts to be more like 

federal courts, and this is not typically a welcomed push. At Tulalip we have had 

to carefully study ways to implement the provisions of TLOA while still retaining 

our Tribal identity and balancing extended punishment philosophies with the holistic programs and methods that have been successful over the years. This has not 

been easy and it has required careful planning and cooperation of all the key players in our justice system. 

When Tribes take a realistic look at the provisions of TLOA, it is clear that exercising enhanced sentencing authority will require additional financial obligations. 

While the Act offers Tribes a method to exercise enhanced sentencing authority, it 

came with no new sources of funding and failed to address the substantial economic 

challenges Tribes are already facing in providing fundamental public services to 

their communities such as police and courts. Tribes that wish to build their own justice system are generally left to fund that system with only Tribal resources. Like 

the federal and state systems, Tribal resources are limited, and Tribes must make 

balanced decisions on where and how they will invest those resources. The Committee should be encouraged by the time invested by Tribes to ensure that the decisions they make are right today and right for the future of the Tribe. 

Enhanced Sentencing Authority Requirements 

The Tribal Law and Order Act still leaves the Tribes reliant upon federal prosecution of many crimes, and the U.S. Attorney will still decline to prosecute some major 

offenses. In situations where the U. S. Attorney’s Office chooses not to prosecute, 

expanded authority gives Tribal courts the capacity to more appropriately sentence 

violent offenders. As I acknowledged in 2008 although crimes requiring long-term 

jail sentences are not a common occurrence at Tulalip, in those situations where the 

court is faced with prosecuting serious violent crimes, it is important for the Tribal 

Court to have appropriate sentencing authority. At Tulalip, our focus is on alternatives to incarceration aimed at promoting positive personal changes, healing and 

preventing recidivism. There are, however, times when the Tribal Court is faced 

with violent offenders in which longer incarceration periods are necessary and vitally important. Because we are mindful that expanded sentencing authority comes 

with increased infrastructure demands and incarceration expenses we are carefully 

reviewing and amending our Tribal code to apply the expanded authority to only 

the most serious of offenses. 

The expense of incarceration may be the highest hurdle for Tribal courts to clear 

before expanded sentencing will be imposed. The GAO Report on Indian Country 

Criminal Justice, published in February 2011, confirmed that detention space and 

the cost of detention are major issues for all surveyed Tribes. Unless the incarceration costs are assumed or reimbursed by the Federal Government, few Tribes will 

be able to bear that expense. Regionally, non-Tribal governments spend over 70 percent of their general fund resources on law and justice expenses, and jails are the 

largest line item in that budget. Few Tribes will be willing or able to divert those 

types of resources from funding sources desperately needed for housing, education, 

and healthcare. While the federal Bureau of Prisons pilot project to house Tribal inmates is notable, it is unlikely to offer a viable long-term solution for all Tribes to 

address this significant expense. 

At Tulalip, we are also mindful that cases in which a defendant may face up to 

three years in custody will carry the expectation that a defendant will receive even 

more robust prosecution and defense services. This will increase the costs of running 

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the court, as the trials will be longer, requiring more time of the judges and court 

staff. Defense costs will also likely increase as the need for experts and other special 

trial preparation increases. Although the commitment to protecting defendant rights 

is a shared value throughout Indian Country, the ability to provide sufficient funding to justice systems varies greatly from Tribe to Tribe. Many Indian Tribes have 

extremely limited governmental budgets and sufficient Tribal funds are not always 

available for many essential government functions. If serious public safety issues on 

many reservations are going to be addressed, the Federal Government must fulfill 

its trust obligation by providing funding, or funding mechanisms to provide for public defenders in Indian Country. 

Tulalip has found creative ways to support outstanding public defense services for 

the accused. It has done so by creating a partnership with the University of Washington Law School and establishing a trial practice clinic at Tulalip Tribal Court. 

Through this partnership, the University of Washington Tribal Defense Clinic provides the first line of public defense services that are managed by two highly experienced and highly regarded former state public defenders. They, in turn, supervise 

law students at all phases of the criminal case. In cases where there are conflicts, 

the Court has a panel of counsel to assign to defendants who meet the financial criteria for a public defender. Success in meeting demands such as public defense will 

require support from the Federal Government and creative planning such has been 

done at Tulalip. 

I believe Indian Country is well positioned to exercise the expanded sentencing 

authority extended by the Tribal Law and Order Act. Some communities will be able 

to act quickly to amend their practices and laws as needed to implement the Act; 

others will take years. During that time, significant consultation with and assistance from the Federal Government will be needed. 

Jurisdiction and Authority 

Although the Tulalip Tribes supported the changes brought by the Tribal Law and 

Order Act, those changes are realistically only a good first step to solving the major 

impediments to the development of vital and fully functioning Tribal justice systems. When we recognize the alarming level of violent crime in Indian Country, we 

must not forget that the majority of perpetrators of violent crime against Indians 

are non-Indian. Tribes have been stripped of jurisdiction over non-Indian offenders. 

Tribes seek the assistance of federal law enforcement to address these crimes, but 

given the few federal law enforcement officers assigned to Indian Country, many of 

these crimes go unpunished. 

The 2010 declination report from DOJ confirmed what those of us in Indian Country have reported for years; the Federal Government is prosecuting only a very 

small fraction of major crimes and crimes that are committed by non-Indians that 

are committed in Indian Country. There are many reasons for this disturbing fact, 

some more innocent than others, but one fact appears to be true and is most relevant to the discussion today. The Federal Government is not an appropriate or effective tool for local law enforcement. The very structure of the federal system 

makes it better suited to address issues of national security and nation-wide crime. 

The lack of local resources and lack of understanding and connection to Tribal culture, conditions and concerns render the federal system ill suited to effectuate truly 

meaningful and long-term public safety results. True change can only be achieved 

when Tribal governments and Tribal justice systems are given the ability to address 

the safety of their own communities. 

Currently Tribes have the ability to detain non-Indian perpetrators for a brief 

time and turn them over to state or federal authorities for prosecution. The Tribe 

may also exclude the offender from its territory, but the Tribe cannot prosecute nonIndians for crimes. We support the proposed VAWA amendments that will recognize 

Tribal authority over non-Indian perpetrators of domestic and sexual violence 

against Indian women occurring within the physical jurisdiction of the Tribe. Additionally we are pleased that VAWA amendments address the Tribe’s civil jurisdiction over non-Indians who violate protection orders. We appreciate the Department 

of Justice’s willingness to consult with Tribes on this issue and we greatly appreciate Associate Attorney General Perrelli’s testimony in support of the amendments. 

But that is not enough. The Supreme Court’s decision in Oliphant v Suquamish Indian Tribe, 435 U.S. 191 (1978) left open the possibility that Congress could change 

the presumptive rule that Tribal governments possess no criminal jurisdiction over 

non-Indians. The VAWA 2000 amendments, however, did not do so as they addressed only Tribal civil jurisdiction and did not discuss Tribal criminal jurisdiction. 

While Congress didn’t address it then, it is time to do so now. 

While Oliphant is one of the most notable court decisions impacting Tribal jurisdiction and authority, there are innumerable additional Supreme Court, federal and 

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state court decisions that have thrown the question of Tribal authority into a constant state of confusion. In Washington State, for instance, there have been a number of Supreme Court decisions relating to Indian Country which send conflicting 

messages. Even if the reasoning of the decisions correctly interprets the law, the unpredictable nature of the decisions is disruptive and dangerous. 

In September of 2011 the Washington Supreme Court issued its third decision in 

the case of State v. Eriksen. In the first two decisions in 2009 and 2010 the court 

affirmed the authority of Tribal police to pursue a non-Indian DUI suspect driving 

on a Reservation road off the Reservation and to stop and detain the suspect until 

state authorities can arrive on the scene. This decision followed an earlier opinion 

that authorized Tribal police to stop and detain non-Indian criminal suspects on 

Reservation and turn them over to the state authorities for prosecution. In September of 2011, after a change of Supreme Court justices, the Eriksen decision was 

reconsidered and this time reversed. With this decision, Tribal police are powerless 

to stop criminal suspects that successfully flee beyond the Reservation boundaries. 

The Eriksen majority noted that Tribal officers that successfully complete comprehensive state training, in addition to required federal or Tribal training, may be 

cross-deputized and therefore gain state law enforcement authority to pursue nonIndian perpetrators off-Reservation. Unfortunately, this solution ignores Tribal officers’ inherent authority under Tribal law and discounts their already considerable 

qualifications. It also creates a dangerous situation. The message to non-Indian offenders is that Tribal police have no authority to arrest and if you commit a crime 

on Reservation you should race to the border to escape prosecution. Even in cases 

where the Tribal police have been cross-deputized, this ruling creates an unacceptable risk. Perpetrators are unlikely to know, or consider, whether officers are crossdeputized. In their mind the risk of prosecution now far outweighs the risk of fleeing. Today it is the best defense to run from all Tribal police. This creates a dangerous situation for the perpetrator, the police and the community. 

The Eriksen case is only one example of the type of confusion that exists regarding Tribal jurisdication and authority and the type of danger that this confusion creates in our communities. The time has come for a comprehensive legislative statement that resolves this confusion and affirms the complete and inherent authority 

of Tribes to regulate and police the public safety threats that occur within the Reservation boundaries. 

Juvenile Justice 

The number of American Indian and Alaska Native youth involved in the criminal 

Justice system remains largely unaddressed and unresolved under the Tribal Law 

and Order Act. The June 2011 Bureau of Justice Statistics report entitled ‘‘Summary: Tribal Youth in the Federal Justice System’’ presents a tragic picture of the 

overrepresentation of Tribal youth in the federal justice system. The report notes 

that Tribal youth comprised nearly half of juveniles handled by the federal courts 

in 2008. It also notes that in 2008, Tribal youth served an average of 26 months 

under federal jurisdiction, which is more than double the Tribal justice system maximum sentence at that time. Even more tragic is the fact that the vast majority of 

Tribal youth committing crimes were previously abused and neglected children. 

In Washington State, the Center for Court research provided statistics to the 

Commission on Children in Foster Care which dramatically demonstrated that the 

more extensive the involvement of youth in the child welfare system, the more likely 

they will become juvenile offenders. The report noted that over one-half of all Native 

youth involved in the child welfare system will end up with a new offender referral 

and of those, Native American youth are more likely than any other race (79 percent) to commit another offense within 24 months. 

The intersection of juvenile criminal behavior and child welfare involvement cannot be ignored. The notice provisions of the Indian Child Welfare Act must be enforced and strengthened. As recommended by the National Indian Child Welfare Association, Tribes need a stronger voice and larger presence in state and federal delinquency proceedings. The same practices that are employed in child welfare cases 

can and should be used to create better solutions for Indian children in delinquency 

proceedings. 

Funding 

In 2008, I testified that Tribal courts were the most effective administrators of 

justice in Indian Country and that Tulalip Tribal Court demonstrated that effective 

funding results in substantial public safety gains; a principle the Federal Government agreed with by the passage of the Tribal Law and Order Act. In the last two 

years the DOJ has stepped up efforts to more effectively meet its prosecutorial duties; it has commissioned numerous studies and reports that have provided very 

59

useful data; and Attorney General Holder, his immediate deputies and many DOJ 

staff have dedicated innumerable hours to consultation with the Tribes. All of these 

measures are greatly appreciated by the Tribes. Unfortunately, in the last three 

years, while the Act gives Tribal courts the responsibilities and requirements of its 

state and federal counterparts, one thing has not changed—there has been no increase in base funding for Tribal courts. 

It is impossible to discuss the subject of the development of Tribal justice systems 

without the subject of inadequate funding and lack of resources taking a central role 

in the analysis of all problems and solutions. The GAO confirmed in its February 

2011 report that all Tribes rely on federal funding for justice systems, but for the 

majority federal funding is a fraction of their total budget. The GAO found that the 

lack of resources forces Tribes to make critical trade-offs in services. Lack of funding 

prevents Tribal courts from maintaining adequate staffing and prevents them from 

recruiting and maintaining quality and experienced staff. Given the economic and 

budgetary realities of all governments (federal, state, and Tribal), it is unrealistic 

and unreasonable to simply assert that there needs to be more funding. Although 

more money would be welcome in Indian Country, we must instead explore more 

creative and productive methods of distributing the funding that exists and to open 

doors for the Tribes to find and generate new revenue streams so that they can deliver vital services to their own communities. 

Although the Federal Government has fallen short in addressing the critical public safety problems in Indian Country, Tulalip and other Indian Tribes fortunate 

enough in recent years to raise revenues through gaming and new business enterprises have taken on the primary role of law enforcement on the Reservation. Since 

shouldering this responsibility, Tulalip and other Northwest Tribes have seen crime 

rates begin to drop, and the quality of life on the Reservation improve. Taking a 

lead role in criminal justice has gone hand in hand with steady gains in economic 

development and employment opportunities on the Reservation. Tulalip recognizes, 

however, that these gains are fragile, because Tribes lack reliable revenue sources 

that traditionally fund government justice systems. 

One change that could afford a near immediate infusion of Tribal court funding 

without requiring additional appropriations has already been championed to the 

Senate. It seems like a simple idea, but one that has yet to be adopted by any legislators or policy-makers; Tribal courts should be considered in the same light as all 

federal, state and local courts for funding resources. Some state court systems are 

beginning to recognize that Tribal courts can be and should be important partners 

in the administration of justice in this country. Instead of appearing as strange and 

foreign bodies, Tribal courts are being recognized for their often innovative and effective operations. Even so, Tribal courts are often excluded from federal and state 

planning and budgeting. Tribal justice systems should be included in funding 

streams provided to their federal and state court counterparts. Judge Raquel Montoya-Lewis and Judge Patricia Martin, President of the National Council of Juvenile 

and Family Court Judges, testified jointly before the Senate Finance Committee 

that Tribal courts should be eligible for federal court improvement funds available 

to other court systems. Funding of all court systems must be equal to assure equal 

results. 

I encourage the Committee to identify measures to support and fund strong Tribal 

law enforcement and court operations. More direct funding to Tribal courts is drastically needed. In addition to federal funding, Congress has a role to play in authorizing an expansion of Tribal government authority to raise revenues for Tribal justice systems—justice systems that benefit both Indians and non-Indians who reside 

in and around Reservation communities. Because Tribal justice systems are the 

most effective means of addressing the public safety problems on Reservations, federal funds used to support Tribal justice systems are funds well spent. Tulalip has 

demonstrated that if sufficient resources are dedicated to Tribal justice systems, 

real gains can be made in addressing the serious public safety problems in Indian 

Country. We urge the Committee to authorize increased federal funding to what 

works best—building quality Tribal justice systems. 

Tribal Justice systems and Tribal solutions are the best and most effective method 

to deal with public safety issues in Indian Country. Passage of the Tribal Law and 

Order Act and the Administration’s superb efforts to see effective implementation 

of the Act are long-overdue, but greatly welcomed major steps toward this goal. But 

we must not be satisfied with our current achievements. There is a much longer 

road to journey before we can truly find success. We encourage this Committee to 

make the hard decisions and make the right recommendations that will take us 

down that road. We look forward to the opportunity to work with you on changes 

to strengthen the effectiveness of our justice systems.

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The CHAIRMAN. Thank you very much, Judge Pouley. 

Ms. JOHNSON-PATA. will you please proceed with your testimony? 

STATEMENT OF JACQUELINE JOHNSON–PATA, EXECUTIVE 

DIRECTOR, NATIONAL CONGRESS OF AMERICAN INDIANS 

Ms. JOHNSON-PATA. Thank you, Chairman. Thank you for the opportunity to testify today on behalf of the National Congress of 

American Indians. As you know, we have testified many times before, particularly about the Tribal Law and Order Act and the need 

for that, and we join with the others from the previous panels and 

this panel in congratulating Congress once again for passing this, 

and also the Administration for the implementation thus far. 

We are pleased and satisfied with the implementation and the 

outreach from the Federal agencies, but of course we would be remiss if we didn’t talk about some of our recommendations to improve. NCAI, as others sitting here on this panel, won’t be satisfied 

until the crime rates drop significantly in Indian Country and our 

communities become more safe. 

I want to first start with the first area of our recommendations, 

and I have many more recommendations in my written testimony. 

I am only going to focus on a couple of them. 

The first one is something that has already been talked about, 

which is the need for resources. And so not only do we have this 

need for resources that you hear about, but resources that were 

needed even at the beginning of the implementation of the Tribal 

Law and Order Act that we knew were going to be here and the 

critical funding. But on top of that, we are in a situation where we 

are concerned about the Budget Control Act of 2011, which would 

then take those already meager discretionary funds and have further cuts for Indian Country. 

And so I want to let you know I think Tribes across the Country 

stand united to reminding Congress of our Federal responsibility, 

our Federal trust obligation and responsibility to fund these programs, and particularly these programs that are critical to protecting our land, our resources, which include the safety of our citizenry. And so as we look at these cuts under the Budget Control 

Act, let us be reminded of that. 

Second, the violence against women issue, and I want to again 

thank this Committee for the work that you have done, not only 

having the oversight hearing that you had in July, but also the proposed legislation with statutory changes that you have put forward. 

And, of course, we strongly support those efforts and hope that the 

Committee will continue this work to collaborate closely with the 

Senate Judiciary Committee and to be able to ensure that those 

legislative proposals actually get placed in the upcoming violence 

against women reauthorization. 

And also, as you know, this past summer the Department of Justice released their legislative proposal to ensure that Native women 

receive the same protections and equal access to justice as other 

women in America. And we, of course, support DOJ’s proposal and 

strongly request your support to include those or similar language 

in the violence against women reauthorization. 

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And the third thing that I wanted to talk about is the land confusion issue, which is really the Carcieri v. Salazar, and I appreciate 

the questions that you asked previous panelists about this issue. 

So the decision of the Supreme Court created significant confusion and we have seen rising litigation over the status of reservation lands in Indian Country. And while Carcieri only addressed 

the land-into-trust issue, there are further negative consequences 

if the IRA Act is not clarified. And that is the legal foundation for 

most Tribal constitutions and the jurisdictions that is serves. So 

then it would bring into question Native organizations providing 

services. It brings in the status of land and those provision of those 

services. 

And so I believe as we look at it, we are concerned that it is only 

a matter of time before somebody uses negatively the effect of safety on our reservations to litigate or to find a way to get out of some 

of the jurisdictions of Tribes, particularly around the reinforcement 

of the Violence Against Women Act. And of course, we know that 

that would then harm the greater number of victims, which is our 

children and our women in Indian Country. 

And so in summing up, I want to in the three area of funding, 

of course violence against women amendments, and the land uncertainty are three big things. But in conclusion, I just wanted to 

make one more comment. And that really is the declination rates 

that Senator Tester asked some questions about. 

And of course, that was the driving force behind the TLOA was 

to be able to address those declination rates and to be able to really 

reduce those. And so we are urging the Committee to continue your 

oversight role, to be able to make sure that that report comes timely, and that we able to have that information so it can help us further address the critical needs of improving the protection of our 

citizens within Indian Country and to be able to have those enforced representations that are necessary by our Federal partners. 

So thank you very much for this opportunity to testify. 

[The prepared statement of Ms. Johnson-Pata follows:]

PREPARED STATEMENT OF JACQUELINE JOHNSON-PATA, EXECUTIVE DIRECTOR, 

NATIONAL CONGRESS OF AMERICAN INDIANS

Honorable Chairman and distinguished members of the Committee, thank you for 

the opportunity to testify today. Leading up to the passage of the Tribal Law & 

Order Act (TLOA), NCAI provided testimony multiple times on an array of public 

safety issues relevant to Tribal nations. We commend Congress for passing this historic legislation last year, and we applaud the Administration’s implementation efforts thus far. However, we are acutely aware that these steps are just the first of 

many that must be taken to remedy the broken system of justice found on most 

Tribal lands. It is imperative that we sustain this momentum, not only on TLOA 

implementation, but on other Indian Country public safety initiatives as well. 

Today, I will briefly highlight progress made since enactment of the Tribal Law & 

Order Act, and—most importantly—I will discuss the hard work that is yet to be 

done. 

Before I do that, I want to first thank the members of the Senate Committee on 

Indian Affairs for their efforts in developing the Act. In the tradition of this committee, it was a bi-partisan effort that involved a great deal of outreach and consultation with Tribal leaders. In particular, I would like to thank Senator Barrasso 

and the former chairman Senator Dorgan for their efforts in shepherding the bill. 

Chairman Akaka, I want to thank you for following up and ensuring that the statute is implemented. Implementation and oversight are critical to improving reservation law enforcement. 

62

So far, the results of the TLOA have exceeded our expectations in at least one 

very significant way. The passage of the Act has placed focus and attention on law 

enforcement problems that had flown under the radar for many years. It has made 

people think about ways to improve the system. The implementation schedule in the 

Act has been very helpful because it holds agencies accountable for creating change. 

Today we are looking at the Federal Government’s implementation efforts, but the 

TLOA is also having a significant impact among Tribal governments. Tribes are 

given more choices under the Act, and it is creating an opportunity for Tribal councils to work through their law enforcement codes and develop their own solutions. 

Although NCAI is pleased with the implementation so far, we will not be satisfied 

until reservation crime rates have dropped significantly and every person in Indian 

country lives in a safe community. So I would like to begin there—the next steps 

we need to take to continue to improve reservation law enforcement. 

Work To Be Done 

Despite all of the progress that has resulted from passage of the Tribal Law & 

Order Act and the Obama Administration’s commitment to public safety in Indian 

Country, there is still a lot of work to be done before Tribal nations can achieve 

a level of safety comparable to non-Native communities in the United States. I respectfully urge the Committee to pay special attention to the following three areas. 

Funding 

The intended ends of the TLOA cannot be achieved unless Tribes have the means 

to implement them. This requires adequate federal funding for critical Tribal justice 

programs that will support the overarching TLOA vision of comprehensive law enforcement reform. Native Americans—like all Americans—deserve to live free of fear 

in their communities, where their basic rights are protected and they can trust the 

justice system that serves them. 

We are particularly concerned about the Budget Control Act of 2011 which requires Congress to reduce the deficit under an uncertain process, or cut discretionary spending from FY 2012 through FY 2021, with across the board cuts of 14 

to 15 percent. Most of the funding that fulfills the federal trust responsibility for 

reservation law enforcement is categorized as domestic discretionary spending. We 

are tremendously concerned that impending federal budget cuts will devastate reservation law enforcement. 

Tribes stand united in reminding Congress that the Federal Government’s trust 

obligation to sustain funding for Tribal programs in the federal budget is absolute. 

This obligation is the result of treaties negotiated and agreements made between 

Tribes and the United States in exchange for land and resources. It must be honored and protected within each act of Congress, including those acts pursuant to the 

Budget Control Act of 2011. 

Not only must current budgets be maintained, reservation law enforcement and 

justice systems that have been underfunded and understaffed for decades must be 

given a boost. Increased and targeted funding in the following program areas will 

help combat the violent crime epidemic on Indian lands and strengthen Tribal justice systems for future generations. 

The Senate Committee on Commerce, Justice, and Science recently included language in its appropriations bill for a 7 percent Tribal set-aside from all discretionary 

Office of Justice Programs (OJP) programs to address Indian country public safety 

and Tribal criminal justice needs. This 7 percent set-aside would provide a more 

flexible grant structure to Tribes, which would complement the Department of Justice’s Coordinated Tribal Assistance Solicitation (CTAS). CTAS attempts to streamline the application process for Tribes, enabling them to submit a single application 

and select multiple purpose areas (ranging from juvenile justice to violence against 

women), as opposed to previous years in which they would have been required to 

submit multiple grant applications. However, this streamlined application model 

will not achieve its intended success unless and until it is accompanied by a streamlined funding mechanism. NCAI strongly supports the creation of a 7 percent Tribal 

set-aside of OJP programs and urges Congress to do the same. 

NCAI supports an increase in the number of FBI agents assigned to Indian Country. Funding for additional FBI agent positions, whose sole job would be to focus 

on investigating crimes on Indian reservations, would go a long way toward addressing both the perception and the reality of lawlessness that exist in some Tribal communities. The BIA and DOJ Native American Issues Subcommittee have already indicated that adding more agents is a priority. This personnel enhancement would 

enable the FBI to be more proactive in its approach to addressing crime on reservations. 

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1Tribal Law and Order Act of 2010, Pub. L. No. 111–211, § 202(a)(5) (2010). 2 U.S. GOVERNMENT ACCOUNTABILITY OFFICE, U.S. Department of Justice Declinations 

of Indian Country Criminal Matters, REPORT NO. GAO–11–167R, at 3 (2010). 

We also urge Congress to continue to fund the Community Oriented Policing Services (COPS) Program to fund Tribal law enforcement expenses, as well as the COPS 

Hiring Program used for the hiring and rehiring of Tribal law enforcement officers. 

These programs are being threatened with significant cuts in the upcoming appropriations cycle which would be devastating to Tribes. These and other federal programs, including those within the Department of Interior’s Bureau of Indian Affairs, 

are critical to the administration of justice on Tribal lands. 

In this difficult fiscal climate, as Congress weighs various options to reduce the 

federal deficit, NCAI urges Congress to pay attention to its most basic responsibilities, and among the most fundamental are the responsibilities to provide for public 

safety on federal Indian reservations. The authority to fund programs that fulfill 

this responsibility is founded in the Constitution. Funding for Indian Country public 

safety programs is just one of the many sources of domestic discretionary spending 

dedicated to Tribes that should be held harmless during the budget process. 

Violence Against Women Act Reauthorization 

I would like to commend the Committee for your efforts to draw attention to the 

plight of Native women fleeing violence—first, by hosting an oversight hearing on 

these issues on July 14, 2011, and next, by releasing a discussion draft of proposed 

statutory changes aimed at protecting Native women in August. NCAI strongly supports these efforts and hopes that the Committee will work collaboratively with the 

Senate Judiciary Committee to ensure that the legislative proposals found within 

the SCIA’s discussion draft are included as a part of the upcoming Violence Against 

Women Act Reauthorization. 

No one denies that violence against Native women in the U.S. has reached epidemic proportions: 34 percent of Native women will be raped in their lifetimes and 

39 percent will be the victim of domestic violence. 1 According to a 2010 GAO Study, 

U.S. Attorneys decline to prosecute 67 percent of sexual abuse and related matters 

that occur in Indian country. 2 The TLOA takes steps to improve the safety of Indian 

women, but there are still several issues that it leaves unaddressed, namely the lack 

of Tribal authority to prosecute non-Indians committing heinous crimes on the reservation. 

The lack of Tribal jurisdiction over non-Indian offenders on Indian lands may be 

the key reason for the creation and perpetuation of disproportionate violence against 

American Indian and Alaska Native women. The 1978 U.S. Supreme Court decision 

in Oliphant v. Suquamish Tribe stripped Indian Tribes of their inherent criminal 

jurisdiction over non-Indians unless such jurisdiction is specifically authorized by 

Congress. As such, Indian women—4 out of 5 of whom describe their offenders as 

white—often have no criminal recourse against non-Indian offenders. These non-Indian perpetrators are well aware of the lack of Tribal jurisdiction over them, the 

vulnerability of Indian women, and the unlikelihood of being prosecuted by the Federal Government (or state government in P.L. 280 states) for their actions. This jurisdictional gap feeds the epidemic of violence against Indian women and is at odds 

with the United States’ recognition of Tribal sovereignty and the policy of Tribal 

self-determination. Further, it is in stark contrast to the purposes of the Violence 

Against Women Act that have guided our nation since its enactment over fifteen 

years ago. 

This past summer, the Department of Justice released a legislative proposal that 

not only seeks to address the jurisdictional problem described above, but goes beyond that to ensure Native women receive the same protection and equal access to 

justice as other women in America. The DOJ’s proposal addresses three major gaps 

in the current system that too often leave Native women vulnerable to violent 

crimes of domestic violence and sexual assault. First, it recognizes the inherent authority of Tribes to prosecute any person who commits domestic violence or dating 

violence against a Tribal member in Indian country; second, it clarifies that Tribal 

courts have full civil jurisdiction to issue and enforce protection orders against Indians and non-Indians alike; and third, it amends federal law so as to enable federal 

prosecutors to more effectively combat three types of assault that are frequently 

committed against Native women in Indian country: assault by strangling or suffocating, assault resulting in substantial bodily injury; and assault by striking, beating, or wounding. NCAI’s membership recently passed a resolution that supports inclusion of legislative proposals to enhance the safety of Native women in the upcoming VAWA reauthorization and we strongly support DOJ’s proposed language. 

64

Under the current scheme, non-Indian perpetrators in Indian country are often 

shielded from accountability at the expense of the safety of Indian women. The 

power to reverse this disastrous trend and restore safety in Tribal communities lies 

with Congress. The DOJ’s proposal is the product of true government-to-government 

consultation and collaboration with Tribes, and if included in the Violence Against 

Women Act Reauthorization and enacted into law, it would go a long way toward 

protecting the safety and security of Native women and their access to justice under 

the law. That is why I respectfully request your active support to ensure inclusion 

of the DOJ’s proposal or similar language in the upcoming VAWA reauthorization 

legislation. 

Land Status Confusion (Carcieri) 

Finally, we would like to direct the Committee’s continued attention to the problems created by the Supreme Court’s decision in Carcieri v. Salazar, which is creating significant confusion and litigation over the status of reservation lands. 

The Indian Reorganization Act (IRA) was created by Congress in 1934 to reorganize Tribal governments and restore land bases for Indian Tribes that had been 

greatly harmed by prior federal policies. The passage of the IRA marked a dramatic 

change in federal Indian policy. Congress shifted from assimilation and allotment 

policies in favor of legislation to revitalize Tribal governments and restore Tribal 

lands. In a decision that runs contrary to these purposes, the Supreme Court held 

the term ‘‘now’’ in the phrase ‘‘now under Federal jurisdiction’’ in the definition of 

‘‘Indian’’ limits the Secretary’s authority to provide benefits of the IRA to only those 

Indian Tribes ‘‘under federal jurisdiction’’ on June 18, 1934, the date the IRA was 

enacted. 

The Carcieri decision does not address what it means to be ‘‘under federal jurisdiction’’ in 1934, and is already creating costly and protracted litigation on an esoteric and historic legal question that serves no public purpose. Some of this litigation is aimed at Indian Tribes who were on treaty reservations in 1934. Over the 

last 75 years under the authority of the IRA, entire Indian reservations have been 

restored, and significant amounts of land have been returned to Tribal governments. 

The Carcieri decision is creating litigation and uncertainty on long settled actions 

taken by the Department pursuant to the IRA, as well as on the Secretary’s ability 

to make future decisions that are in the best interests of Tribes. 

While Carcieri addressed only land in trust, there will be further negative consequences if the IRA is not clarified. The IRA is the legal foundation for most Tribal 

constitutions and serves as a framework for Tribal self-government. Future litigation could threaten the integrity of Tribal organizations, Tribal reservations and 

lands, and provision of services. It is only a matter of time before criminal defendants seeking to avoid federal or Tribal jurisdiction attempt to invoke Carcieri, and 

this would negatively affect public safety on reservations across the country. 

When the Supreme Court has narrowly interpreted an act of Congress in a manner that is fundamentally unfair and not in accordance with its original purposes, 

Congress should move quickly to amend and clarify the law. NCAI urges Congress 

to amend the IRA to the effect that all federally recognized Tribes are included in 

the definitions section. We greatly appreciate your leadership and efforts with Senate Bill 676, which will clarify the status of existing Tribal lands and ensure that 

IRA benefits are available to all federally recognized Indian Tribes. 

Implementation Update 

July 29, 2011 marked the one year anniversary of enactment of the Tribal Law 

& Order Act (TLOA), and this new law continues to gain momentum. The Indian 

Law & Order Commission, authorized by the Act, was recently funded, the longterm plan for detention in Indian Country has been finalized, some key provisions 

have been implemented, and consultations are ongoing. Below is a brief update on 

implementation of some of the TLOA’s most significant provisions. 

Concurrent Federal Jurisdiction 

Section 221 of the TLOA makes a significant amendment to P.L. 83–280 (PL 280) 

to allow Tribal governments located in P.L. 280 states to request that the Federal 

Government exercise concurrent jurisdiction over reservation crimes, with consent 

by the Attorney General. The purpose of this change is to address long standing concerns that some states and local governments have not fully addressed reservation 

crime under P.L. 280. 

NCAI is aware of several Tribes who have placed formal requests with the Department of Justice to have the Attorney General exercise concurrent jurisdiction 

over their reservations under this provision. No action has yet been taken on these 

requests. 

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On March 1, 2011, the Department of Justice issued a letter to Tribal leaders in 

which it simultaneously announced its plan to consider implementing Section 221 

through federal regulations and provided Tribes with a draft of such regulations. 

The draft regulations propose a framework and procedures for an eligible Indian 

Tribe to request the assumption by the United States of concurrent Federal criminal 

jurisdiction within the Indian country of the Tribe and describe the process to be 

used by the Attorney General in deciding whether to consent to such a request. 

Subsequently, the DOJ held a Tribal consultation on Lac Courte Oreilles Chippewa Tribal lands in Wisconsin on March 23rd to focus on the process for implementation of Section 221. Since that time, the Section 221 proposed regulations have 

been published in the Federal Register for comment and publication of the final rule 

should be forthcoming. NCAI is encouraging the Department to make prompt decisions on all Tribal requests submitted thus far, notwithstanding the delay in getting 

the final rule published. 

Indian Law & Order Commission 

Section 235 of the TLOA mandates establishment of an Indian Law and Order 

Commission made up of Tribal, federal, and state/local justice officials, and other 

experts, tasked with reviewing the current justice system on Tribal lands and providing recommendations for improvement. 

Although the September 27, 2010 (60 days from enactment) deadline for creation 

was not met, membership selection for the commission has since been completed by 

Congress and the President, and includes the following:

• Presidential appointments: Ted Quasula, Carole Goldberg, Theresa Pouley

• Senate appointments: Jefferson Keel, Troy Eid, Affie Ellis

• House appointments: Stephanie Herseth-Sandlin, Earl Pomeroy, Tom Gede

The Commission held its first in-person meeting on April 6, 2011 at the Buffalo 

Thunder Resort in Santa Fe, New Mexico, where they appointed Troy Eid, former 

U.S. Attorney for the District of Colorado, as the Commission Chair and commenced 

their work. The Commission has acquired a small staff of federal detailees to assist 

with their work. Assistant United States Attorney Jeff J. Davis, a member of the 

Chippewa Tribe, recently joined the Commission as its Executive Director, and Eileen Garry, the Deputy Director of the Justice Department’s Bureau of Justice Assistance, is serving as its Deputy Executive Director. The Commission held its first 

field hearing at the Tulalip Reservation in Washington State on September 7, 2011 

and intends to hold its second at NCAI’s upcoming Annual Convention in Portland, 

Oregon on November 2, 2011. 

The Commission was a bit slow in getting off the ground due to delay in passing 

the FY2011 appropriations bill. However, now that it is funded, the Indian Law and 

Order Commission has the potential to be an important source of new recommendations for policy changes, as well as a body that can continue oversight on implementation of the Tribal Law and Order Act. 

Office of Tribal Justice 

Section 214 of the TLOA requires the Attorney General to establish the Office of 

Tribal Justice as a permanent component of the Department of Justice within 90 

days of the law’s enactment. On November, 17, 2010, Attorney General Eric Holder 

announced that the Office of Tribal Justice is now its own, stand-alone component 

of the Justice Department. Making OTJ permanent was a simple, yet critical, step 

for Tribes. Bestowed with the responsibility to develop and direct the Department’s 

Indian affairs policies and coordinate and consult with Tribal leaders, OTJ is and 

will continue to be an important resource for Tribes on justice matters. 

Tribal Court Sentencing Authority 

Section 234 of the TLOA amends the Indian Civil Rights Act to allow Tribal 

courts to sentence offenders for up to three years imprisonment, a $15,000 fine, or 

both for any one offense. (The previous ICRA language limited the sentencing authority of Tribal courts to one year imprisonment, a $5,000 fine, or both). It also 

authorizes Tribal courts to ‘‘stack’’ sentences for up to nine years total imprisonment. However, in order to utilize this enhanced sentencing authority, Tribes must 

provide a number of defendant protections, including: defense counsel for indigent 

defendants, legal trained and licensed judges, publicly available Tribal codes, and 

detention facilities certified for long term detention. Utilizing the enhanced sentencing provisions of the TLOA will require additional resources for the majority of 

Tribes. In addition, it was always assumed that Tribes would use this authority relatively rarely. As a result, it will likely take time before Tribal courts utilize this 

new authority. 

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Long Term Plan to Address Incarceration in Indian Country 

One of the most significant requirements of the TLOA, and included in multiple 

locations throughout the act, is the requirement that the Department of Justice and 

the Bureau of Indian Affairs coordinate, in consultation with Tribal leaders, courts, 

law enforcement officers, and corrections officials, to develop a long-term plan to address incarceration in Indian country. The plan was to be submitted to Congress 

within one year of the TLOA’s enactment. 

DOJ and BIA held numerous consultations with Tribes on the long term detention 

plan. Several regional Tribal consultations were held last fall, including one at 

NCAI’s Annual Convention in Albuquerque in November. These were subsequently 

followed by more at the Interdepartmental Tribal Justice, Safety & Wellness Sessions #12 and #13 in Palm Springs, California in December and Scottsdale, Arizona 

in May. The Bureau of Justice Assistance (BJA) and the Bureau of Indian Affairs 

(BIA) have also co-hosted three separate focus groups with Tribal leaders and justice stakeholders at various locations throughout the country (Rapid City, SD; Phoenix, AZ; and Billings, MT). Comments on the long term plan were also solicited via 

e-mail at TellTLOA@usdoj.gov. 

On July 15, 2011, the Departments of Interior and Justice released an initial 

draft of their ‘‘Tribal Law and Order Act (TLOA): Long Term Plan to Build and Enhance Tribal Justice Systems.’’ Comments and feedback on the plan were to be submitted to DOJ by July 21, 2011, which left Tribal leaders less than a week to submit additional feedback before the plan was finalized. On August 8, just over a week 

past the one-year deadline, DOJ and DOI released the final version of their long 

term plan and submitted it to Congress. 

While we commend DOJ and DOI staff for taking their responsibilities under the 

TLOA seriously, as well as their obligation to consult with Tribal leaders and justice 

experts, I would be remiss not to flag our two major concerns with the long term 

detention plan for the Committee. First of all, we think that the plan’s heavy reliance on evidence-based solutions to problems faced by Tribes is problematic. Requiring that federal funding for Tribal alternatives and reentry programs be contingent 

on use of evidence-based models is a recipe for failure for many Tribes. The plan 

should explicitly accept and promote successful practices and models that may not 

have yet received the benefits of costly studies. 

Second, we feel that the final plan lacks the strategic long-term vision for the future that Congress intended by including it in the TLOA. It assesses the current 

landscape of alternatives to incarceration, detention, and reentry in Indian Country 

and explains to Tribes the federal resources currently available to Tribes for those 

purposes. The plan makes only minor recommendations for small improvements to 

the status quo over the next year. We do not believe that this type of a report was 

what Congress intended when it passed the TLOA. This was to be a thorough, carefully constructed plan that would guide detention in Indian Country and Tribal justice systems for the next 25 years to a half century. In particular, Indian Tribes are 

looking for a new approach to juvenile justice and alternatives to incarceration so 

that the detention system is not a factory for creating hard core criminals. 

We recognize that the development of a long term detention plan raises a number 

of complex problems, and we are encouraged that the Departments of Interior and 

Justice see their initial plan as only the first iteration. We would urge the Committee to continue its oversight in this area, particularly on juvenile justice and alternatives to incarceration. 

Declinations and Investigations 

Perhaps the main driving force behind the creation of the TLOA was the concern 

that Tribal leaders have had for many years about high rates of declinations to prosecute major crimes in Indian country by U.S. Attorneys. I have been around the National Congress of American Indians since the 1980’s, and we have consistently 

heard the same message from Tribal leaders for over 30 years. Tribes are very 

alarmed that crimes occur and are often neither investigated nor prosecuted. We 

have seen statistics showing that over two thirds of all Indian country crimes are 

declined. This Administration is working hard to do a better job, but we need to 

be able to keep track of investigations and prosecutions to make sure that that the 

improvements really happen, so that we can target problems. That is why the TLOA 

included Section 211, which mandates that the Attorney General submit to Congress annual reports that contain all relevant investigation and prosecution data regarding alleged violations of Federal criminal law that occurred in Indian country 

that were referred for federal prosecution by law enforcement agencies. This is one 

of the most critical components of the TLOA, and Tribal prosecutors will need to 

coordinate closely with their U.S. Attorney counterparts to ensure that it is implemented. The first reports will be due at the end of this calendar year, and we want 

67

to make sure that the reports are useful to Congress and to Tribal leaders in addressing the causes of declinations. 

There are many legitimate reasons to decline to prosecute a crime, as well as 

questionable reasons. For example, one of the most cited reasons for declining to 

prosecute is the inadequacy of the investigation. If there are problems with the police work, Congress needs to know that so that the issues can be addressed. Do we 

need more investigators, or more training, or more access to crime labs? The collected data from declination reports should help answer these questions. Another 

commonly cited concern is the creation of arbitrary ‘‘thresholds,’’ particularly in drug 

cases. We understand that all prosecutors have limited resources, but we cannot let 

non-Indian drug dealers run free on Indian reservations when the Tribe has no jurisdiction and the U.S. Attorney refuses to prosecute. The collected data and related 

Congressional oversight should assist Congress and the Department of Justice in determining the necessary resources to dedicate to Indian country prosecutions. 

NCAI would like to begin more communications with the U.S. Attorneys on declination reporting. These reports will be a useful crime fighting tool if Tribes know 

how to refer crimes for investigation and prosecution and are able to track the results. The first reports are due by the end of this year. So far, this dialogue with 

the U.S. Attorneys is only beginning, and we have a lot of work to do. 

Bureau of Prisons Tribal Prisoner Pilot Program 

As part of the enhanced Tribal court sentencing provisions in Section 234, the Department of Justice Bureau of Prisons (BOP) is required to establish a four-year 

pilot program within 120 days of enactment, under which the BOP shall accept offenders convicted in Tribal court of a violent crime and sentenced to more than two 

years imprisonment. On Friday, November 26, 2010, the BOP met this key TLOA 

deadline by launching its pilot program. However, no Tribes have used it to sentence offenders yet. 

Indian Alcohol and Substance Abuse 

Under Section 241 of the TLOA, the Substance Abuse and Mental Health Services 

Administration (SAMHSA) is to lead the effort on interagency communication by developing a framework and MOA on the issue. A draft of the MOA was released for 

Tribal comment in November 2010, and on July 29, 2011, exactly one year after 

President Obama signed the Tribal Law and Order Act (TLOA) into law, DOJ, DOI, 

and HHS entered into a Memorandum of Agreement to combat Alcohol and Substance abuse among American Indian/Alaska Native Tribes. The Memorandum of 

Agreement was formally published in the Federal Register on August 5, 2011 and 

individual notification was mailed to all 565 federally-recognized Tribes. 

Other Advances 

Of equal importance to TLOA implementation benchmarks are the new initiatives 

and improvements to public safety in Indian Country that are developing largely as 

a result of TLOA enactment. Over the past two years, the Obama Administration 

has demonstrated an increased commitment toward improving public safety on Tribal lands. The Department of Justice, in particular, has shown extraordinary leadership on these issues by launching new law enforcement initiatives in Indian Country, proposing much-needed legislation that would enhance Tribal sovereignty and 

protect Native women, and advocating for increased funding for Tribal programs 

within the federal budget. At the core of this multi-faceted approach is DOJ’s pledge 

to work together with Tribal nations to improve the overall administration of justice 

in Indian Country. U.S. Attorney for the District of South Dakota, Brendan Johnson, perhaps said it best when he remarked that ‘‘the best ideas for making Tribal 

communities safer come from Tribes, not from Washington, D.C.’’ NCAI commends 

DOJ for staying true to that message, and we look forward to continued collaboration and dialogue with the administration on public safety issues in the future. 

Progress is also being made on the local level to combat crime on reservations, 

due in large part to guidance from the Attorney General’s office to build permanent 

infrastructure in Indian Country that will sustain Tribal nations long after President Obama’s time in office. Attorney General Holder’s and Associate Attorney General Perrelli’s leadership on these issues has influenced U.S. Attorney’s offices 

across the country, and resulted in more communication between Tribal and federal 

justice officials, stronger working relationships, and increased Tribal capacity for investigating and prosecuting reservation crimes. There has also been a surge in the 

number of Tribal prosecutors appointed as Special Assistant U.S. Attorneys under 

the TLOA, enabling them to try cases in federal courts. These are just some of the 

local successes that have resulted from TLOA passage and the leadership of this 

Justice Department. 

68

Conclusion 

Public safety problems in Indian Country remain a critical concern, particularly 

domestic violence and violence against women, drug crimes, and gang related 

crimes. While national efforts like implementation of the Tribal Law & Order Act 

and the DOJ’s public safety initiatives in Indian Country are giving Tribes a renewed sense of hope that much needed improvements to the current administration 

of justice on Tribal lands are forthcoming, we must continue to advocate for progress 

until crime rates drop and every Tribal community is safe. NCAI looks forward to 

our continued work to improve public safety within Tribal nations, increase access 

to justice for Native peoples, and protect the health and wellbeing of all Native people. We hope Congress will join us in these efforts. 

Once again, on behalf of NCAI, I would like to thank the Committee for inviting 

us to testify today. I would be happy to try to answer any questions you may have.

The CHAIRMAN. Thank you very much, Ms. Johnson-Pata. 

Councilman Posey, in your testimony you highlight the need to 

focus on youth. Can you please tell us what an effective system 

might look at to deter our young people from criminal activity? And 

what more can we do to support youth? 

Mr. POSEY. Thank you, Mr. Chairman. 

There are several avenues. Obviously, on our reservation there 

is a drug court system which gives the judges the alternative process of sentencing. Recently, the last couple of years, we built a new 

youth facility there and we have created the Boys and Girls Club, 

which had been in place since 1995, which serves hundreds of kids 

there. Most of them are from probably 6 years old to 14 years old, 

but we see probably among Indian nations across the Country here, 

we are missing the 14 to 18, 20 year olds. And I think back, way 

back, they could be sentenced to a certain amount of time in being 

incarcerated. Maybe that turned their lives around. 

But I think now we have to look at, I know with us on the Wind 

River, I think we have a valuable resource there in our natural resources that we have. And I think we need to just think out of the 

box and develop programs where perhaps they could be introduced 

back into the natural resources systems and stuff like this. 

As you know, we are in a fast-paced society. We need some way 

to connect them back to that and connect them back to the family. 

So I think we need to really focus on positive outreach to those 

teenagers where they have a brighter future, instead of being ones 

where they continue to go down that road and eventually end up 

in the penal system, which like I mentioned earlier, they come out 

more hardened. 

So I think that will take collaboration with the schools systems, 

the social services. And one thing is we need to focus on those kids 

that are doing good in our communities. There are several of those, 

youths that are doing very well in our community, but we just kind 

of forget about them. We say they are doing okay in school so they 

need no services. So I think we need to balance that and maybe 

perhaps have a mentoring system to allow those kids with positive 

attributes in life to share those with others. 

The CHAIRMAN. Thank you, Councilman. 

Judge Pouley, you are one of the Country’s leading advocates for 

Tribal courts. The Committee is aware that many Tribal courts 

would like to take advantage of new tools such as enhanced sentencing authority available to them under the TLOA, but they do 

not yet meet the necessary requirements. What else needs to be 

done to support the infrastructure and capacity of Tribal courts? 

69

Ms. POULEY. Thank you, Senator. Many things. Number one 

thing, of course, is funding. One of the things I have been a huge 

advocate for is base-level funding for Tribal courts. Tribal courts 

can best decide how to get proper contract individuals, for example, 

for public defenders that need to be licensed, as well as balanced 

probation requirements, as well as balance restorative sentencing. 

But they need to have some base-level of funding. And like I said, at Tulalip, we only get that at about $30,000 a year, although 

the justice system obviously costs hundreds of thousands of dollars 

a year to run. 

But it has to be flexible because each Tribe individually is going 

to balance each one of those pieces. Not just new funding for Tribal 

courts, there really is a respect issue. Tribal courts should be treated the exact same as State or Federal courts. Tribal courts and the 

National Council for Juvenile and Family Court Judges testified together in front of the Senate Finance Committee about how Tribal 

courts should be able to access court improvement funds. 

So there is a variety of court funding mechanisms out there 

where Tribal courts are just left out of the loop. 

A variety of programs like you just heard described from the 

South Dakota Attorney General that actually go into Tribe on-site 

to help them develop and create particular programs that are going 

to work in their communities and to provide them that expertise 

are absolutely critical. 

So money specifically; availability of funding across the board; 

and training, on-site training for Tribe-specific resources. 

Thank you. 

The CHAIRMAN. Thank you, Judge Pouley. 

Ms. JOHNSON-PATA. in your testimony, you mention a new danger on the Carcieri decision that a criminal defendant may be able 

to avoid Federal or Tribal jurisdiction. Why is this the case? 

Ms. JOHNSON-PATA. I think because when you bring the cloudiness of jurisdiction. We already have a very complex structure, and 

we have had conversations in the past, even just last week about 

the jobs bill and how do we bring more capital to Indian Country. 

So you are looking at the access to financing to Indian Country, 

just think of the complication there. Well, it is the same complication with law and order. We are dealing with cooperative agreements. We are having to deal with high-pursuit cooperative agreements. All these things talk about jurisdiction, where is the jurisdiction and where does the jurisdiction stop. 

And so as Tribes bring land into trust or Tribes have recently 

brought land into trust, it opens up this question of what is the 

status of this piece of land or this parcel within the Tribe’s jurisdiction, or this Tribe. 

And that cloudiness creates a loss of time and money, but what 

it also does in the law enforcement arena, it brings in inaction because it is easier sometimes not to have those questions. 

But what hasn’t happened yet, and given the number of cases 

that are cropping up having to do with litigation around Carcieri

and putting into the question of Carcieri, it wouldn’t surprise me 

that this kind of defense mechanism could be brought forth and 

somewhat successfully because of the controversy or the question 

of Carcieri and land-into-trust. 

70

The CHAIRMAN. Thank you. 

Councilman Posey, you mentioned that violent crime rates in 

your community have dropped since the implementation of the 

HPPG initiative. Does this demonstrate the initiative’s success? 

What part of the initiative have been most important? 

Mr. POSEY. Mr. Chairman, the most important aspect of the 

HPPG was getting more cops on the street. Like I mentioned in my 

testimony, it was six cops. Now, we have 22. We have enhanced our 

Tribal court system. The budget for the Tribal court system went 

from $300,000 to $1.7 million, which is good. It is good base funding, but we also recognized that we are only one of four Tribes that 

were selected for HPPG. So across the Country, they are still dealing in other reservations with the same problems that we had. 

We used to go with people calling the cops and nobody showed 

up just because it was maybe 35 miles away on the other side of 

the reservation on a more violent, a more serious call. So right 

now, we do have a good amount of law enforcement presence there 

that has decreased violent crimes. I am not saying it completely 

went away because we continue to have those age-old violent 

crimes and murders and some of those types of issue, but the response time is better. The cooperation is better. 

And out of this whole issue, as the ladies here mentioned, we did 

create an interagency law enforcement group there that is really 

not official. We just get together every quarter and discuss how we 

could work better together. And I think our outside agencies have 

been very cooperative in helping us when we needed help, so we 

are trying to do the favor back to them, but it has dropped. 

Thank you. 

The CHAIRMAN. Thank you. 

Judge Pouley, the DOJ is currently developing a declination report due at the end of this year. What is the most important information that should be contained in that report? And what kind of 

data do you think Tribes and Tribal courts need to know about why 

cases are not being prosecuted? 

Ms. POULEY. I think for declination reports, there are a couple 

of important pieces of information that Tribal courts need to know. 

Number one, they just need to know in a timely fashion if that case 

is going to be prosecuted. 

So because we have concurrent jurisdiction with the Federal Government, we may actually be holding that person in detention on 

Tulalip’s dime, if you will, waiting to see if the Federal Government is going to pick up the prosecution. 

Now, we can only do that within 90 days. And I guarantee you, 

at Tulalip Tribal Court if you have a right to a trial within 60 or 

90 days, you get it. So that case may actually be adjudicated before 

the Feds even pick it up. 

That means from a resource perspective, we need to know as 

soon as possible if the Feds choose to decline that prosecution. If 

we go forward and they pick it up, then that person’s being prosecuted twice. So that is a resource issue for both of them. 

So the number one thing we would want to see in the report is 

the timeliness of the information provided. 

Number two, the type of crime. Just recently for this year’s annual report, we had seen an increased filing of sexual assault cases 

71

in the Tulalip Tribal Court. I haven’t seen the same increase in filing of sexual assault cases in the Federal court. But if there was, 

I would be interested to know that particular piece of information. 

Part of concurrent jurisdiction is we prosecute those individuals 

when they are a danger to our community. So knowing what 

crimes are being prosecuted is urgent. 

And then the last thing is I really would like to commend the Department of Justice about this particular issue because I have 

heard from almost every Tribal court judge in the Northwest for 

the very first time they have had them prosecute a case that either 

involved violence against Indian women or repeat offenses of domestic violence. So I am appreciative of that fact. 

So know what they choose to prosecute, what they choose not to 

prosecute, and timeliness is absolutely critical for the Tribal court. 

The CHAIRMAN. Thank you very much for your response. 

Ms. JOHNSON-PATA. respecting Native culture is incredibly important as we implement legislation like TLOA. Are there ways 

that we can improve cultural competence and respect for Native 

culture in the administration of justice? 

Ms. JOHNSON-PATA. Well, I could say that we could do it broader 

than the administration and the Department of Justice. But in the 

administration of justice, clear it is very important. In fact, you will 

see when we talk about the Tribe’s ability to expand their jurisdiction, the sentencing authority and some of the challenges of the decisions they are trying to make, and even those who are trying to 

decide whether or not they want to take advantage of the Bureau 

of Prisons opportunity. 

Part of that decision is a cultural decision. In Indian Country, 

these opportunities pose questions for Tribal court judges and Tribal leaders, as they contemplate that balance of prosecution versus 

alternative ways of culturally dealing with juvenile detention, for 

example. Are there other methods for us to be able to provide that 

same kind of learning, re-education, life style change, that makes 

that consistent to our cultural values and where we want our youth 

or our younger person to go. And all those things are very important. 

In addition, so we have that one piece there, in addition to that, 

making sure that we have culturally sensitive administrations, culturally sensitive U.S. Attorneys. All of those are very important to 

once again design a system that can be sustained in our community; that is accepted in our community, so it is not an us-againstthem, but it is us coming together and working together to find 

those kinds of solutions. 

And I think part of that I would like to echo with this cultural 

component was where we go with having other governments accept 

our government as equal government and our Tribal courts as 

equal courts in the court systems and having that reciprocal kind 

of relationship. 

Just because we may have cultural integration into the way that 

we do and how we provide our system isn’t different than other 

court systems that are in certain areas of urban America as they 

deal with the cultural needs of the community they serve. That 

same kind of respect can be integrated into having those reciprocal 

72

agreements that will strengthen our systems throughout Indian 

Country. 

Thank you. 

The CHAIRMAN. Thank you very much. 

My final question to all of you on this panel, and this reaches 

back in your experience of things that have happened. Were there 

any important provisions in TLOA that did not make it into the 

final bill that Congress should reconsider? 

Ms. JOHNSON-PATA. I would just start. I think I am going to echo 

what everybody here is going to say, which is we need to be able 

to have expanded authority over our jurisdictions to be able to deal 

with not only the amendments that you are proposing in the violence against women to deal with those situations under violence 

against women. 

But I would go a step further to say if we can accomplish that, 

let’s think about jurisdiction of non-Natives beyond just violence 

against women provisions to be able to make sure that we not only 

have the protections in our community for all those perpetrators of 

crimes in Indian Country, and we have a system that works whether it is a partnership with the Federal Government; whether it is 

a Tribe who takes on those responsibilities; but that recognition of 

our governmental status to be able to provide those systems within 

our communities that are equal to those within the States and the 

local communities. 

The CHAIRMAN. Judge Pouley? 

Ms. POULEY. I concur 100 percent. We talk about cases like 

Suquamish v. Oliphant, or I talk about cases like State of Washington v. Eriksen. And at the heart of those cases is a lack of recognition and respect that Tribal governments should be the enforcers of the law within their boundaries. 

And Senator, it leads all of our communities at risk. It is not just 

the Tulalip Tribal people or the Lummi Nation people in Eriksen 

who are at risk from that drunk driver. If they didn’t stop them, 

the citizens of the State of Washington would be at risk. 

So it is all of our communities that are placed at risk when we 

have people who are convicted or crimes who subsequently get to 

challenge those crimes on some jurisdictional basis that doesn’t 

have to do with the crime. That, frankly, and you asked the question a couple of times about Carcieri and how important it is that 

we clear up the status of the land because that is exactly the same 

thing that is going to happen that sends the message that we 

should flee to the boundaries of the reservation. 

Our law enforcement officers aren’t safe. Our Tribal members 

aren’t safe. Our police officers aren’t safe. But no citizen of the 

United States is safe as long as the message we send is run from 

Tribal police; commit crimes with impunity because you won’t be 

prosecuted because at some subsequent point in time we will find 

that there wasn’t jurisdiction. 

We simply can’t operate that way. You started at the very beginning about talking about one in three Indian women can expect to 

be raped in their lifetime. Most of those rapes are perpetrated by 

non-Indian offenders over which we have no jurisdiction. 

I came to the Senate in 2000 to plead for a change in the law. 

I came again in 2008 to support the Law and Order Act because 

73

I look in my daughter’s eyes and she asks me the question: Am I 

going to be the one or the three, Mom? And I want to be able to 

answer the question, you are not going to be any of those because 

we fundamentally changed the way we view law and justice in Indian Country. 

Thank you. 

The CHAIRMAN. Thank you. 

Councilman? 

Mr. POSEY. I will be very brief and say that I agree with Jackie 

and Theresa here on jurisdictional issues regarding Tribal court. I 

think the Tribal Law and Order Act has a lot in there, and as 

many other Acts, it is unfunded mandate in some instances. So I 

think Indian Country does need more of those resources through 

funding, through manpower to actually implement this area and 

these issues that have been out there way too long in Indian Country. 

So I just echo my sisters’ comments over here and thank you. 

The CHAIRMAN. I want to thank you. I want to say mahalo and 

thank you all, and to our witnesses. This has been, for me and for 

the Committee, a very informative discussion. 

As you know, we are trying to gather as much data and information as we can so that we can work on some of these needs and 

changes that should improve the system. 

The Tribal Law and Order Act provides important new tools for 

Native communities to address threats to their public safety. But 

these tools are only effective if they are fully and properly implemented. This Committee will continue to examine these issues, especially as other legislation important to Native communities such 

as the Violence Against Women Act reauthorization continue to 

make their way through Congress. 

Again, mahalo, thank you to all of you who participated in today’s hearing. And I want to remind you that the Committee record 

will remain open for two weeks from today. I would like to also 

hear from those who couldn’t be witnesses to let us know how they 

feel. 

So with that, let me say thank you, mahalo again, and this hearing is adjourned. 

[Whereupon, at 4:15 p.m., the Committee was adjourned.]

Æ