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89–143 PDF 2004

S. HRG. 108–312

TRIBAL GOVERNMENT AMENDMENTS TO THE

HOMELAND SECURITY ACT OF 2002

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

S. 578

TO AMEND THE HOMELAND SECURITY ACT OF 2002 TO INCLUDE INDIAN TRIBES AMONG THE ENTITIES CONSULTED WITH RESPECT TO

ACTIVITIES CARRIED OUT BY THE SECRETARY OF HOMELAND SECURITY

JULY 30, 2003

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

S. 578, text of ........................................................................................................... 2

Statements:

Akaka, Hon. Daniel K., U.S. Senator from Hawaii ....................................... 45

Bennett, Audrey, president, Prairie Island Indian Community of Minnesota ............................................................................................................. 30

Edwards, Gary, chief executive officer, National Native American Law

Enforcement Association .............................................................................. 50

Filler, Josh, director, Office of State and Local Government Coordination,

Department of Homeland Security .............................................................. 26

Hall, Tex, president, National Congress of American Indians ..................... 47

Heffelfinger, Thomas B., U.S. attorney, State of Minnesota, on behalf

of the Department of Justice ........................................................................ 22

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice chairman, Committee on Indian Affairs ............................................................................... 1

Johnson, Roland E., Governor, Pueblo of Laguna ......................................... 33

Juan-Saunders, Vivian, chairperson, Tohono O’odham Nation of Arizona .. 38

Old Person, Earl, chief and tribal council member, Blackfeet Tribal Business Council of Montana .............................................................................. 36

Raub, William F., principal deputy assistant secretary, Office of Public

Health Emergency Preparedness, Department of Health and Human

Resources ....................................................................................................... 27

Sanders, Tim, emergency operations coordinator, Gila River Indian Community Office of Emergency Management, Gila River Indian Community ................................................................................................................. 52

Virden, Terry, director, BIA, Department of the Interior ............................. 25

Windy Boy, Alvin, chairman, Chippewa Cree Business Committee of

Montana ......................................................................................................... 40

APPENDIX

Prepared statements:

Bennett, Audrey (with attachment) ................................................................ 60

Edwards, Gary (with attachment) ................................................................... 63

Filler, Josh ........................................................................................................ 127

Hall, Tex ............................................................................................................ 131

Heffelfinger, Thomas B. ................................................................................... 137

Johnson, Roland E. (with attachment) ........................................................... 148

Juan-Saunders, Vivian (with attachment) ..................................................... 167

Old Person, Earl ............................................................................................... 183

Sanders, Tim (with attachment) ..................................................................... 187

Raub, William F. .............................................................................................. 59

Viarrial, Jacob, Governor, Publo of Pojoaque, New Mexico .......................... 199

Virden, Terry .................................................................................................... 202

Windy Boy, Alvin .............................................................................................. 204

(1)

TRIBAL GOVERNMENT AMENDMENTS TO THE

HOMELAND SECURITY ACT OF 2002

WEDNESDAY, JULY 30, 2003

U.S. SENATE,

SENATE COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 2 p.m. in room 216,

Hart Senate Building, Hon. Daniel Inouye (vice chairman of the

committee) presiding.

Present: Senators Inouye and Akaka.

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

HAWAII, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

Senator INOUYE. The Committee on Indian Affairs meets this

afternoon to receive testimony on S. 578, a bill to amend the Homeland Security Act of 2002 to include Indian tribal governments

among the entities consulted with respect to activities carried out

by the Secretary of the Department of Homeland Security.

[Text of S. 578 follows:]
2

1

II

108TH CONGRESS

1ST SESSION S. 578

To amend the Homeland Security Act of 2002 to include Indian tribes

among the entities consulted with respect to activities carried out by

the Secretary of Homeland Security, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 7, 2003

Mr. INOUYE (for himself, Mr. CAMPBELL, Mr. AKAKA, and Ms. CANTWELL)

introduced the following bill; which was read twice and referred to the

Committee on Governmental Affairs

A BILL

To amend the Homeland Security Act of 2002 to include

Indian tribes among the entities consulted with respect

to activities carried out by the Secretary of Homeland

Security, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Tribal Government

5 Amendments to the Homeland Security Act of 2002’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—Congress finds that—
3

2

•S 578 IS

1 (1) there is a government-to-government rela2 tionship between the United States and each Indian

3 tribal government;

4 (2) through statutes and treaties, Congress has

5 recognized the inherent sovereignty of Indian tribal

6 governments and the rights of Native people to self7 determination and self-governance;

8 (3) each Indian tribal government possesses the

9 inherent sovereign authority—

10 (A)(i) to establish its own form of govern11 ment;

12 (ii) to adopt a constitution or other organic

13 governing documents; and

14 (iii) to establish a tribal judicial system;

15 and

16 (B) to provide for the health and safety of

17 those who reside on tribal lands, including the

18 provision of law enforcement services on lands

19 under the jurisdiction of the tribal government;

20 (4) tribal emergency response providers, such

21 as tribal emergency public safety officers, law en22 forcement officers, emergency response personnel,

23 emergency medical personnel and facilities (including

24 tribal and Indian Health Service emergency facili-
4

3

•S 578 IS

1 ties), and related personnel, agencies, and

2 authorities—

3 (A) play a crucial role in providing for the

4 health and safety of those who reside on tribal

5 lands; and

6 (B) are necessary components of a com7 prehensive system to secure the homeland of

8 the United States;

9 (5) there are more than 25 Indian tribes that

10 have primary jurisdiction over—

11 (A) lands within the United States that

12 are adjacent to the Canadian or Mexican bor13 der; or

14 (B) waters of the United States that pro15 vide direct access by boat to lands within the

16 United States;

17 (6) the border lands under the jurisdiction of

18 Indian tribal governments comprise more than 260

19 miles of the approximately 7,400 miles of inter20 national border of the United States;

21 (7) numerous Indian tribal governments exer22 cise criminal, civil, and regulatory jurisdiction over

23 lands on which dams, oil and gas deposits, nuclear

24 or electrical power plants, water and sanitation sys-
5

4

•S 578 IS

1 tems, or timber or other natural resources are lo2 cated; and

3 (8) the involvement of tribal governments in the

4 protection of the homeland of the United States is

5 essential to the comprehensive maintenance of the

6 homeland security of the United States.

7 (b) PURPOSES.—The purposes of this Act are to en8 sure that—

9 (1) the Department of Homeland Security

10 consults with, involves, coordinates with, and in11 cludes Indian tribal governments in carrying out the

12 mission of the Department under the Homeland Se13 curity Act of 2002 (Public Law 107–296); and

14 (2) Indian tribal governments participate fully

15 in the protection of the homeland of the United

16 States

17 SEC. 3. TABLE OF CONTENTS; DEFINITIONS.

18 (a) TABLE OF CONTENTS.—The table of contents of

19 the Homeland Security Act of 2002 (Public Law 107–296;

20 116 Stat. 2135) is amended in the item relating to section

21 801 by inserting ‘‘, Tribal,’’ after ‘‘State’’.

22 (b) DEFINITIONS.—Section 2 of the Homeland Secu23 rity Act of 2002 (6 U.S.C. 101) is amended—

24 (1) in paragraph (6), by inserting ‘‘tribal,’’

25 after ‘‘State,’’;
6

5

•S 578 IS

1 (2) by redesignating paragraphs (9), (10), (11),

2 (12), (13), (14), (15), and (16) as paragraphs (10),

3 (11), (12), (13), (14), (15), (16), and (19), respec4 tively;

5 (3) by inserting after paragraph (8) the follow6 ing:

7 ‘‘(9) INDIAN TRIBE.—The term ‘Indian tribe’

8 means any Indian tribe, band, nation, or other orga9 nized group or community located in the continental

10 United States (excluding the State of Alaska) that

11 is recognized as being eligible for the special pro12 grams and services provided by the United States to

13 Indians because of their status as Indians.’’;

14 (4) in paragraph (11) (as redesignated by para15 graph (2)), by striking subparagraph (B) and insert16 ing the following:

17 ‘‘(B) an Alaska Native village or organiza18 tion; and’’; and

19 (5) by inserting after paragraph (16) (as redes20 ignated by paragraph (2)) the following:

21 ‘‘(17) TRIBAL COLLEGE OR UNIVERSITY.—The

22 term ‘tribal college or university’ has the meaning

23 given the term in section 316(b) of the Higher Edu24 cation Act of 1965 (20 U.S.C. 1059c(b)).
7

6

•S 578 IS

1 ‘‘(18) TRIBAL GOVERNMENT.—The term ‘tribal

2 government’ means the governing body of an Indian

3 tribe that is recognized by the Secretary of the Inte4 rior.’’.

5 SEC. 4. DEPARTMENT OF HOMELAND SECURITY.

6 (a) EXECUTIVE DEPARTMENT; MISSION.—Section

7 101(b)(2) of the Homeland Security Act of 2002 (6

8 U.S.C. 111(b)(2)) is amended by inserting ‘‘tribal,’’ after

9 ‘‘State,’’.

10 (b) SECRETARY; FUNCTIONS.—Section 102(c) of the

11 Homeland Security Act of 2002 (6 U.S.C. 112(c)) is

12 amended—

13 (1) in the matter preceding paragraph (1), by

14 inserting ‘‘, Tribal,’’ after ‘‘of State’’; and

15 (2) by inserting ‘‘, tribal,’’ after ‘‘State’’ each

16 place it appears.

17 SEC. 5. INFORMATION ANALYSIS AND INFRASTRUCTURE

18 PROTECTION.

19 (a) DIRECTORATE FOR INFORMATION ANALYSIS AND

20 INFRASTRUCTURE PROTECTION.—Section 201(d) of the

21 Homeland Security Act of 2002 (6 U.S.C. 121(d)) is

22 amended—

23 (1) in paragraphs (1), (3), (6), (7)(B), (8), (9),

24 (11), and (13), by inserting ‘‘, tribal,’’ after ‘‘State’’

25 each place it appears;
8

7

•S 578 IS

1 (2) in paragraph (16), by inserting ‘‘, tribal,’’

2 after ‘‘State’’; and

3 (3) in paragraph (17), by inserting ‘‘tribal,’’

4 after ‘‘State,’’.

5 (b) ACCESS TO INFORMATION.—Section 202(d)(2) of

6 the Homeland Security Act of 2002 (6 U.S.C. 122(d)(2))

7 is amended by inserting ‘‘, tribal,’’ after ‘‘State’’.

8 (c) CRITICAL INFRASTRUCTURE INFORMATION;

9 DEFINITIONS.—Section 212 of the Homeland Security

10 Act of 2002 (6 U.S.C. 131) is amended in paragraphs

11 (3)(A) and (5)(C) by inserting ‘‘tribal,’’ after ‘‘State,’’

12 each place it appears.

13 (d) PROTECTION OF VOLUNTARILY SHARED CRITI14 CAL INFRASTRUCTURE INFORMATION.—Section 214 of

15 the Homeland Security Act of 2002 (6 U.S.C. 133) is

16 amended—

17 (1) in subsection (a)(1)—

18 (A) in subparagraph (C)—

19 (i) by inserting ‘‘tribal,’’ after

20 ‘‘State,’’; and

21 (ii) by striking ‘‘or State’’ and insert22 ing ‘‘, State, or tribal’’; and

23 (B) in subparagraph (E)—

24 (i) in the matter preceding clause (i),

25 by inserting ‘‘, tribal,’’ after ‘‘State’’;
9

8

•S 578 IS

1 (ii) in clause (i), by inserting ‘‘, trib2 al,’’ after ‘‘State’’; and

3 (iii) in clause (ii), by inserting ‘‘, trib4 al,’’ after ‘‘State’’;

5 (2) in subsection (c), by inserting ‘‘tribal,’’ after

6 ‘‘State,’’; and

7 (3) in subsection (e)(2)(D), by inserting ‘‘, trib8 al,’’ after ‘‘State’’.

9 (e) ENHANCEMENT OF NON-FEDERAL

10 CYBERSECURITY.—Section 223(1) of the Homeland Secu11 rity Act of 2002 (6 U.S.C. 143(1)) is amended by insert12 ing ‘‘, tribal,’’ after ‘‘State’’.

13 (f) MISSION OF OFFICE; DUTIES.—Section 232 of

14 the Homeland Security Act of 2002 (6 U.S.C. 162) is

15 amended—

16 (1) in subsection (a)(2), by inserting ‘‘tribal,’’

17 after ‘‘State,’’;

18 (2) in subsection (b)—

19 (A) in paragraphs (2) and (3), by inserting

20 ‘‘tribal,’’ after ‘‘State,’’ each place it appears;

21 (B) in paragraph (6)—

22 (i) in the matter preceding subpara23 graph (A), by inserting ‘‘tribal,’’ after

24 ‘‘State,’’; and
10

9

•S 578 IS

1 (ii) in subparagraph (H), by inserting

2 ‘‘, tribal,’’ after ‘‘State’’; and

3 (C) in paragraphs (9), (11), and (14), by

4 inserting ‘‘, tribal,’’ after ‘‘State’’ each place it

5 appears; and

6 (3) in subsection (g)(1)(A), by inserting ‘‘trib7 al,’’ after ‘‘State,’’.

8 (g) NATIONAL LAW ENFORCEMENT AND CORREC9 TIONS TECHNOLOGY CENTERS.—Section 235(d) of the

10 Homeland Security Act of 2002 (6 U.S.C. 165(d)) is

11 amended by inserting ‘‘tribal,’’ after ‘‘State,’’.

12 SEC. 6. SCIENCE AND TECHNOLOGY IN SUPPORT OF HOME13 LAND SECURITY.

14 (a) RESPONSIBILITIES AND AUTHORITIES OF THE

15 UNDER SECRETARY FOR SCIENCE AND TECHNOLOGY.—

16 Section 302(6) of the Homeland Security Act of 2002 (6

17 U.S.C. 182(6)) is amended by inserting ‘‘tribal,’’ after

18 ‘‘State,’’.

19 (b) CONDUCT OF CERTAIN PUBLIC HEALTH-RELAT20 ED ACTIVITIES.—Section 304(a) of the Homeland Secu21 rity Act of 2002 (6 U.S.C. 184(a)) is amended by insert22 ing ‘‘and the Indian Health Service’’ after ‘‘Public Health

23 Service’’.

24 (c) CONDUCT OF RESEARCH, DEVELOPMENT, DEM25 ONSTRATION, TESTING, AND EVALUATION.—Section
11

10

•S 578 IS

1 308(b) of the Homeland Security Act of 2002 (6 U.S.C.

2 188(b)) is amended—

3 (1) in paragraph (1)(A), by striking ‘‘colleges,

4 universities,’’ and inserting ‘‘colleges and universities

5 (including tribal colleges and universities),’’; and

6 (2) in paragraph (2)(B), by inserting ‘‘(includ7 ing tribal colleges or universities)’’ after ‘‘univer8 sities’’.

9 (d) UTILIZATION OF DEPARTMENT OF ENERGY NA10 TIONAL LABORATORIES AND SITES IN SUPPORT OF

11 HOMELAND SECURITY ACTIVITIES.—Section 309(d) of

12 the Homeland Security Act of 2002 (6 U.S.C. 189(d)) is

13 amended by inserting ‘‘, tribal,’’ after ‘‘State’’.

14 (e) HOMELAND SECURITY INSTITUTE.—Section

15 312(d) of the Homeland Security Act of 2002 (6 U.S.C.

16 192(d)) is amended by inserting ‘‘tribal colleges and uni17 versities,’’ after ‘‘education,’’.

18 (f) TECHNOLOGY CLEARINGHOUSE TO ENCOURAGE

19 AND SUPPORT INNOVATIVE SOLUTIONS TO ENHANCE

20 HOMELAND SECURITY.—Section 313 of the Homeland

21 Security Act of 2002 (6 U.S.C. 193) is amended—

22 (1) in paragraphs (1) and (4) of subsection (b),

23 by inserting ‘‘tribal,’’ after ‘‘State,’’ each place it ap24 pears; and
12

11

•S 578 IS

1 (2) in subsection (c)(1), by inserting ‘‘, tribal,’’

2 after ‘‘State’’.

3 SEC. 7. DIRECTORATE OF BORDER AND TRANSPORTATION

4 SECURITY.

5 (a) OFFICE FOR DOMESTIC PREPAREDNESS.—Sec6 tion 430(c)(5) of the Homeland Security Act of 2002 (6

7 U.S.C. 238(c)(5)) is amended by inserting ‘‘, tribal,’’ after

8 ‘‘State’’.

9 (b) REPORT ON IMPROVING ENFORCEMENT FUNC10 TIONS.—Section 445(b) of the Homeland Security Act of

11 2002 (6 U.S.C. 255(b)) is amended by inserting ‘‘, tribal,’’

12 after ‘‘State’’.

13 SEC. 8. EMERGENCY PREPAREDNESS AND RESPONSE.

14 (a) RESPONSIBILITIES.—Section 502(5) of the

15 Homeland Security Act of 2002 (6 U.S.C. 312(5)) is

16 amended by inserting ‘‘tribal,’’ after ‘‘State’’.

17 (b) CONDUCT OF CERTAIN PUBLIC HEALTH-RELAT18 ED ACTIVITIES.—Section 505(a) of the Homeland Secu19 rity Act of 2002 (6 U.S.C. 315(a)) is amended—

20 (1) by inserting ‘‘tribal,’’ after ‘‘State,’’; and

21 (2) by inserting ‘‘and the Indian Health Serv22 ice’’ after ‘‘Public Health Service’’.
13

12

•S 578 IS

1 SEC. 9. TREATMENT OF CHARITABLE TRUSTS FOR MEM2 BERS OF THE ARMED FORCES OF THE

3 UNITED STATES AND OTHER GOVERN4 MENTAL ORGANIZATIONS.

5 Section 601(c)(9)(B) of the Homeland Security Act

6 of 2002 (6 U.S.C. 331(c)(9)(B)) is amended by inserting

7 ‘‘tribal,’’ after ‘‘State,’’.

8 SEC. 10. COORDINATION WITH NON-FEDERAL ENTITIES; IN9 SPECTOR GENERAL; UNITED STATES SECRET

10 SERVICE; COAST GUARD; GENERAL PROVI11 SIONS.

12 (a) OFFICE FOR STATE AND LOCAL GOVERNMENT

13 COORDINATION.—Section 801 of the Homeland Security

14 Act of 2002 (6 U.S.C. 361) is amended—

15 (1) in the section heading, by inserting ‘‘,

16 TRIBAL,’’ after ‘‘STATE’’;

17 (2) in subsection (a)—

18 (A) by inserting ‘‘, Tribal,’’ after ‘‘State’’;

19 and

20 (B) by inserting ‘‘, tribal,’’ after ‘‘State’’;

21 and

22 (3) in subsection (b), by inserting ‘‘, tribal,’’

23 after ‘‘State’’ each place it appears.

24 (b) LITIGATION MANAGEMENT.—Section 863(a)(1)

25 of the Homeland Security Act of 2002 (6 U.S.C.

26 442(a)(1)) is amended in the second sentence by inserting
14

13

•S 578 IS

1 ‘‘, or area under the jurisdiction of an Indian tribe,’’ after

2 ‘‘State’’.

3 (c) DEFINITIONS FOR SUPPORT ANTI-TERRORISM BY

4 FOSTERING EFFECTIVE TECHNOLOGIES ACT.—Section

5 865(6) of the Homeland Security Act of 2002 (6 U.S.C.

6 444(6)) is amended by inserting ‘‘, tribal,’’ after ‘‘State’’.

7 (d) REGULATORY AUTHORITY AND PREEMPTION.—

8 Section 877(b) of the Homeland Security Act of 2002 (6

9 U.S.C. 457(b)) is amended—

10 (1) in the subsection heading, by inserting ‘‘,

11 TRIBAL,’’ after ‘‘STATE’’; and

12 (2) by inserting ‘‘, tribal,’’ after ‘‘State’’ each

13 place it appears.

14 (e) INFORMATION SHARING.—Section 891 of the

15 Homeland Security Act of 2002 (6 U.S.C. 481) is

16 amended—

17 (1) in subsection (b)—

18 (A) in paragraphs (2), (4), (5), (7), (8),

19 and (9), by inserting ‘‘, tribal,’’ after ‘‘State’’

20 each place it appears;

21 (B) in paragraph (6)—

22 (i) by inserting ‘‘, tribal,’’ after ‘‘cer23 tain State’’; and

24 (ii) by inserting ‘‘tribal,’’ after

25 ‘‘State,’’; and
15

14

•S 578 IS

1 (C) in paragraphs (10) and (11), by insert2 ing ‘‘tribal,’’ after ‘‘State,’’ each place it ap3 pears; and

4 (2) in subsection (c), by inserting ‘‘tribal,’’ after

5 ‘‘State,’’.

6 (f) FACILITATING HOMELAND SECURITY INFORMA7 TION SHARING PROCEDURES.—Section 892 of the Home8 land Security Act of 2002 (6 U.S.C. 482) is amended—

9 (1) in subsection (a)(1)(A), by inserting ‘‘, trib10 al,’’ after ‘‘State’’;

11 (2) in paragraphs (1), (2)(D), and (6) of sub12 section (b), by inserting ‘‘, tribal,’’ after ‘‘State’’

13 each place it appears;

14 (3) in subsection (c), by inserting ‘‘, tribal,’’

15 after ‘‘State’’ each place it appears;

16 (4) in subsection (e), by inserting ‘‘, tribal,’’

17 after ‘‘State’’ each place it appears;

18 (5) in subsection (f)—

19 (A) in paragraph (1), by inserting ‘‘tribal,’’

20 after ‘‘State,’’; and

21 (B) in paragraph (3)—

22 (i) in the matter preceding subpara23 graph (A), by inserting ‘‘, tribal,’’ after

24 ‘‘State’’;
16

15

•S 578 IS

1 (ii) in subparagraph (A), by inserting

2 ‘‘tribally or’’ after ‘‘other’’;

3 (iii) in subparagraph (B), by inserting

4 ‘‘, tribal,’’ after ‘‘State’’; and

5 (iv) in subparagraph (D), by inserting

6 ‘‘tribal,’’ after ‘‘State,’’; and

7 (6) in subsection (g), by inserting ‘‘, tribal,’’

8 after ‘‘State’’.

9 (g) REPORT.—Section 893(a) of the Homeland Secu10 rity Act of 2002 (6 U.S.C. 483(a)) is amended in the sec11 ond sentence by inserting ‘‘tribal,’’ after ‘‘State,’’.

12 SEC. 11. DEPARTMENT OF JUSTICE DIVISIONS.

13 Section 1114(b) of the Homeland Security Act of

14 2002 (6 U.S.C. 532(b)) is amended by inserting ‘‘tribal,’’

15 after ‘‘State,’’.

16 SEC. 12. AMENDMENTS TO OTHER LAWS.

17 (a) CYBER SECURITY ENHANCEMENT ACT OF

18 2002.—

19 (1) EMERGENCY DISCLOSURE EXCEPTION.—

20 Section 2702(b)(7) of title 18, United States Code

21 (as added by section 225(d) of the Homeland Secu22 rity Act of 2002 (Public Law 107–296; 116 Stat.

23 2157)), is amended by inserting ‘‘tribal,’’ after

24 ‘‘State,’’.
17

16

•S 578 IS

1 (2) PROTECTING PRIVACY—Section 2701(b)(1)

2 of title 18, United States Code (as amended by sec3 tion 225(j)(2)(A) of the Homeland Security Act of

4 2002 (Public Law 107–296; 116 Stat. 2158)), is

5 amended by inserting ‘‘or Indian tribe’’ after ‘‘or

6 any State’’.

7 (b) NATIONAL INSTITUTE OF JUSTICE.—Section

8 202(c)(11) of the Omnibus Crime Control and Safe

9 Streets Act of 1968 (42 U.S.C. 3722(c)(11)) (as added

10 by section 237(2) of the Homeland Security Act of 2002

11 (Public Law 107–296; 116 Stat. 2162)) is amended by

12 inserting ‘‘tribal,’’ after ‘‘State,’’.

13 (c) HOMELAND SECURITY FUNDING ANALYSIS IN

14 PRESIDENT’S BUDGET.—Section 1105(a)(33)(A)(iii) of

15 title 31, United States Code (as added by section 889(a)

16 of the Homeland Security Act of 2002 (Public Law 107–

17 296; 116 Stat. 2250) is amended by inserting ‘‘, tribal,’’

18 after ‘‘State’’.

19 (d) AUTHORITY TO SHARE GRAND JURY INFORMA20 TION.—Rule 6(e)(3)(C) of the Federal Rules of Criminal

21 Procedure (as amended by section 895(2) of the Home22 land Security Act of 2002 (Public Law 107–296; 116

23 Stat. 2256)) is amended—

24 (1) in clause (i)(VI), by striking ‘‘federal,

25 state,’’ and inserting ‘‘Federal, State, tribal,’’; and
18

17

•S 578 IS

1 (2) in the last sentence of clause (iii), by strik2 ing ‘‘state,’’ and inserting ‘‘State, tribal,’’.

3 (e) AUTHORITY TO SHARE ELECTRONIC, WIRE, AND

4 ORAL INTERCEPTION INFORMATION.—Section 2517(8) of

5 title 18, United States Code (as added by section 896 of

6 the Homeland Security Act of 2002 (Public Law 107–296;

7 116 Stat. 2257)), is amended by inserting ‘‘tribal,’’ after

8 ‘‘State,’’ each place it appears.

9 (f) FOREIGN INTELLIGENCE INFORMATION.—Section

10 203(d)(1) of the Uniting and Strengthening America by

11 Providing Appropriate Tools Required to Intercept and

12 Obstruct Terrorism (USA PATRIOT ACT) Act of 2001

13 (50 U.S.C. 403–5d) (as amended by section 897(a) of the

14 Homeland Security Act of 2002 (Public Law 107–296;

15 116 Stat. 2257)) is amended by inserting ‘‘tribal,’’ after

16 ‘‘State,’’ each place it appears.

17 (g) FOREIGN INTELLIGENCE SURVEILLANCE.—

18 (1) INFORMATION ACQUIRED FROM AN ELEC19 TRONIC SURVEILLANCE.—Section 106(k)(1) of the

20 Foreign Intelligence Surveillance Act of 1978 (50

21 U.S.C. 1806) (as amended by section 898 of the

22 Homeland Security Act of 2002 (Public Law 107–

23 296; 116 Stat. 2258)) is amended by inserting ‘‘or

24 Indian tribe’’ after ‘‘subdivision)’’.
19

18

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1 (2) INFORMATION ACQUIRED FROM A PHYSICAL

2 SEARCH.—Section 305(k)(1) of the Foreign Intel3 ligence Surveillance Act of 1978 (50 U.S.C. 1825)

4 (as amended by section 899 of the Homeland Secu5 rity Act of 2002 (Public Law 107–296; 116 Stat.

6 2258)) is amended by inserting ‘‘or Indian tribe’’

7 after ‘‘subdivision)’’.

8 (h) TRANSFER OF CERTAIN SECURITY AND LAW EN9 FORCEMENT FUNCTIONS AND AUTHORITIES.—Section

10 1315 of title 40, United States Code (as amended by sec11 tion 1706(b)(1) of the Homeland Security Act of 2002

12 (Public Law 107–296; 116 Stat. 2316)), is amended—

13 (1) in subsection (d)(3), by inserting ‘‘tribal,’’

14 after ‘‘State,’’; and

15 (2) in subsection (e), by inserting ‘‘, tribal,’’

16 after ‘‘State’’ each place it appears.

17 SEC. 13. CONGRESSIONAL AFFIRMATION AND DECLARA18 TION OF TRIBAL GOVERNMENT AUTHORI19 TIES.

20 (a) IN GENERAL.—For the purpose of this Act, Con21 gress affirms and declares that the inherent sovereign au22 thority of an Indian tribal government includes the au23 thority to enforce and adjudicate violations of applicable

24 criminal, civil, and regulatory laws committed by any per-
20

19

•S 578 IS

1 son on land under the jurisdiction of the Indian tribal gov2 ernment, except as expressly and clearly limited by—

3 (1) a treaty between the United States and an

4 Indian tribe; or

5 (2) an Act of Congress.

6 (b) SCOPE.—The authority of an Indian tribal gov7 ernment described in subsection (a) shall—

8 (1) be concurrent with the authority of the

9 United States; and

10 (2) extend to—

11 (A) all places and persons within the In12 dian country (as defined in section 1151 of title

13 18, United States Code) under the concurrent

14 jurisdiction of the United States and the Indian

15 tribal government; and

16 (B) any person, activity, or event having

17 sufficient contacts with that land, or with a

18 member of the Indian tribal goverment, to en19 sure protection of due process rights.

Æ
21

Senator INOUYE. In the current act, there is a definition of local

governments which, as we all know, are political subdivisions of

the States, but this definition of local government also includes Indian tribes, so one of the objectives of S. 578 is to remove Indian

tribes from the definition of local government and instead to provide for a definition of tribal government. S. 578 also proposes to

insert the term ‘‘tribal government’’ in each place it is appropriate

to do so in the Homeland Security Act.

Finally, based upon testimony received by this committee last

year from a representative of the Department of Justice, this measure clarifies that for purposes of homeland security only. The Congress affirms and declares that the inherent sovereign authority of

an Indian tribal government includes the authority to enforce and

adjudicate violations of applicable criminal, civil and regulatory

laws committed by any person on land under the jurisdiction of the

Indian tribal government.

It is this last section that appears to have generated some mischief by those who want to read the language as if it doesn’t pertain to homeland security. They cite a parade of horribles in which

the alleged tribal governments might engage under the authority

of this act, including ‘‘stripping several million U.S. citizens of their

constitutional protections.’’ They call it a ‘‘breathtaking example of

racial tyranny.’’ I think it is important and prudent that we take

a moment to understand the provision to which these outlandish

comments are directed.

Acts of terrorism or activities which threaten the national security are violations of Federal law. Put another way, if a person

were to engage in an act of terrorism, they would be violating Federal law and they would be subject to prosecution in Federal

courts, not a tribal court. Should tribal governments be able to

stop, detain and arrest those who violate Federal law by committing acts of terrorism until such time as Federal authorities can

take over or do those who reside in Indian country, be they Indian

or non-Indian, want to have hours and sometimes possibly even

days go by before Federal law enforcement officers or the FBI can

travel from a city to a remote rural area in order to arrest those

engaged in terrorism activities?

We do not have to reach far back in our memories to recall the

events of September 11 and to know that in most instances there

will not be the luxury of time to respond in this fashion. That is

why those who are experienced in law enforcement believe, as we

do, that tribal governments must have the authority to enforce

Federal law until such time as Federal law enforcement officers

can assume responsibility. They will tell you that in many areas of

Indian country, tribal governments are the only law enforcement

presence and the only government capable of responding to threats

of terrorism on a timely basis.

One of the commentators whose opposition to this bill is widely

advertised suggests that this bill will ‘‘place this country under attack from within.’’ I would remind one and all that in all the military actions and wars in which this Nation has been engaged in

the last century and the beginning of this century, more Native

people of the United States on a per capita basis have volunteered
22

to serve in the Armed Forces of our Nation and placed themselves

in harm’s way than any other group of Americans.

To suggest that tribal governments are terrorists or that citizens

of this country are subject to attack by Native people is to me one

of the most outrageous assertions I have ever heard. I hope this

kind of inflammatory rhetoric will be seen for what it is. Yesterday

the committee held a full day forum for tribal leaders and Federal

agencies and I believe we learned a great deal about the critical infrastructure that is located in or near Indian country. It is far more

extensive than our records would have indicated, so we are very

grateful and gratified that this crucially important information was

shared with the committee yesterday and that it will be made a

part of the official record of this hearing.

Members of Congress are all too familiar with the scare tactics

that are sometimes employed in opposing legislation. That is why

the information from yesterday’s forum and the testimony received

today, both oral and written, will serve such an important role in

helping us all to focus on the real threats at hand because as the

highest officials of our government have repeatedly stated, it is a

matter of when another terrorist act is likely to take place; sadly,

it is not a matter of if.

With that, I would like to call upon the first panel of witnesses

and welcome them to the committee. The first panel consists of:

Thomas B. Heffelfinger, U.S. attorney, Minnesota, representing the

U.S. Department of Justice; Terry Virden, director, BIA, Department of the Interior; Josh Filler, director, Office of State and Local

Government Coordination, Department of Homeland Security; and

William F. Raub, principal deputy assistant secretary, Office of

Public Health Emergency Preparedness, Department of Health and

Human Services. Gentlemen, welcome.

May I first recognize U.S. Attorney Heffelfinger.

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

STATE OF MINNESOTA, ON BEHALF OF THE DEPARTMENT

OF JUSTICE

Mr. HEFFELFINGER. Thank you, Senator Inouye.

In addition to being the U.S. attorney for the State of Minnesota,

I am also the chairman of the Attorneys General Advisory Committee, Subcommittee on Native American Issues. This is the subcommittee responsible for developing policy, for consideration and

approval by the Attorney General related to effective law enforcement in Indian country.

With the Attorney General’s approval, the NAIS has identified

terrorism as our number one priority. As you heard, Senator, and

as the record made clear yesterday, more than 25 tribes have land

on or near the international borders or shorelines within the

United States as part of our international borders. In addition,

there are numerous potential terrorist targets located within Indian country that are a part of this country’s national infrastructure. Therefore, it is our position that it is imperative that our national homeland security strategy include tribes in the planning

process and in the provision of services relative to homeland security.
23

The Homeland Security Act of 2002 describes tribes as ‘‘local governments’’ along with cities and counties organized under State

law. The U.S. Supreme Court precedent treats tribes as separate

sovereign governments. Administration policies have afforded

tribes sovereign status in accordance with this precedent. Tribal

governments use their governing authority to provide public safety

in Indian country both as to homeland security issues as well as

general criminal issues.

On a wide variety of public safety and criminal issues, the Federal Government consistently works directly with tribes on a government-to-government basis. This is consistent with recent proclamations by many Presidents including the November 12, 2001

statement of President George W. Bush, ‘‘My Administration will

continue to work with tribal governments on a sovereign to sovereign basis.’’

Working directly with tribes to assist them in obtaining the necessary public safety resources and training and to conduct strategic

planning for homeland security concerns is not only consistent with

Supreme Court precedent and the direction of all recent Presidents,

but also enhances the effectiveness of our homeland security preparation in these unique communities.

As the Department of Justice continues our efforts to reach out

to the tribes on these issues, I, on behalf of the Department, applaud the general goals of S. 578 to maximize the opportunities for

the Federal Government to work with tribal governments in carrying out the activities needed to protect our Nation’s homeland.

Likewise, the Department looks forward to working with the committee to address some of the technical issues raised by the bill.

As to section 13 of the bill to which you alluded in your introductory comments, Senator, section 13 of S. 578 is a legislative overturn of the Supreme Court decision in Oliphant v. Suquamish

Tribe. Oliphant held that tribal courts do not have criminal jurisdiction over non-Indians. In the view of many, the Oliphant decision has created a gap in Indian country law enforcement and negatively impacts tribes’ abilities to respond effectively to terrorist incidents and other crimes which may be committed by non–Indians

in Indian country. However, overruling Oliphant in a broad and

isolated manner could result in complicated legal and practical law

enforcement issues such as those of due process concerns, double

jeopardy, resources and appellate rights.

Enacting section 13 prior to working through these complicated

matters is premature and we do not believe that S. 578 provides

the best vehicle for doing so. In this connection, law enforcement

in Indian country is primarily a Federal and tribal function. Those

law enforcement officers who work in Indian country work hard to

address the unique and sometimes confusing jurisdictional challenges associated with protecting the public on Indian reservations.

As an example, in response to Oliphant’s constraints, some tribal

law enforcement agencies have obtained cross-commissions from

State, local and Federal authorities to expand their authority to arrest non-Indian criminal suspects under State or Federal law. Unfortunately, such cooperative arrangements are not made in many

jurisdictions due to various factors such as local political issues or

concerns over civil liability. As a result, effective law enforcement
24

over non–Indians who commit crimes in Indian country is not consistent from reservation to reservation.

Given the law enforcement constraints imposed by the Oliphant

decision, the question therefore becomes what can Congress do to

improve homeland security in Indian country? Section 13 of S. 578

is an attempt to deal with the Oliphant issue head-on. In February

2003, the NAIS, which I chair, formed an Oliphant Working Group

under the leadership of South Dakota U.S. Attorney Jim McMahon.

In addition to other considerations, the working group studies section 13 extensively. The group did not develop a position on whether or not it would eventually support such an Oliphant fix. However, the working group did decide that section 13 as currently

written is too broad. The working group identified a number of concerns including due process issues that Congress may want to consider as it addresses this issue and which become increasingly important as one considers expanding tribal court jurisdiction in the

face of Oliphant. These concerns include issues such as separation

of powers, provision of defense counsel for indigent defendants,

make up of jury pools which was one of the issues cited in the

original Oliphant decisions and appellate and habeas corpus relief.

A significant expansion of tribal court jurisdiction raises serious

issues regarding protections of individual due process rights and

this I know will be considered. Consideration must also be given

to issues such as disparate tribal resources as one looks around the

country, the impact of any mandate of legal obligations on the ability of the tribes to provide such legal protections, and the need for

additional training not currently being provided or for additional

experienced tribal judicial and law enforcement officers that would

be required in response to such a significant change.

Section 13 addresses ‘‘the authority to enforce and adjudicate violations by any person.’’ As such, the section expands the jurisdiction both for tribal law enforcement and for tribal courts. Homeland security concerns are primarily a law enforcement concern

and not a tribal court concern. It is the ability of tribal law enforcement to investigate arrests and/or detain suspected terrorists that

is at issue, not the ability of tribal courts to prosecute such individuals. It is highly unlikely that the Federal Government would defer

Federal felony prosecution of terrorists in deference to tribal court

misdemeanor prosecution. Therefore, consideration should be given

to whether there are other options that can allow tribal law enforcement to be full partners in providing for a secure homeland

while avoiding some of the adverse impact of a significant expansion of tribal court jurisdiction. These options include expanded use

of ‘‘cross commissions’’ and of tribal law enforcement authority recognized under some district court and appellate court decisions to

detain individuals who are suspected of violating State or Federal

law.

While section 13 might address some of the factors limiting the

widespread use of these options, this section also raises issues not

fully addressed in the proposed legislation and there are ways of

expanding the use of these options. Therefore, the expansion of

tribal jurisdiction reflected in section 13, we believe, should appropriately be considered as part of a comprehensive review and clarification of tribal court jurisdiction such as that we suggested to this
25

committee last July in discussing the need for a comprehensive

clarification of tribal court jurisdiction.

We look forward to working with this committee on that and any

other issues that the committee wishes. I want to thank you for the

opportunity to address you and I look forward to standing for questions at the appropriate time.

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

Senator INOUYE. Thank you, very much.

Now may I recognize Mr. Virden.

STATEMENT OF TERRY VIRDEN, DIRECTOR, BUREAU OF

INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

Mr. VIRDEN. Thank you, Mr. Chairman, and thank you for the

opportunity to present the views of the Department of the Interior

on this very important bill to amend the Homeland Security Act of

2002.

The Department supports the concept of maximizing opportunities for the Federal Government to work with tribal governments

in carrying out the activities needed to protect our Nation’s homeland.

Indian country consists of 56 million acres of trust lands, approximately 25 tribes are located on or near international borders

with Mexico and Canada, with additional tribes located on or near

international waterways. Of particular note are the Tohono

O’Odham Nation in Southern Arizona and the St. Regis Mohawk

Nation in upstate New York. Both reservations include lands that

cross the international borders and, therefore, have tribal members

on either side of the border. Border tribes are faced with attempted

illegal border crossings and trafficking of illicit contraband. Tribal

law enforcement works in tandem with Federal, State and local law

enforcement agencies on helping combat these illegal activities.

Since September 11, 2001, our tribal law enforcement officers

have been on alert and have worked with other law enforcement

officers to protect our Canadian and Mexican borders as well as the

waterways that are part of Indian country. Our principal responsibility of homeland security is domestic preparedness to prevent,

respond to and recover from attack. Homeland security for tribes

includes law enforcement, security and emergency management

personnel, key components tribal governance must provide in protecting its members, residents and visitors. There is a need to have

direct funding streams from the Department of Homeland Security

for such activity.

Tribal law enforcement can be vital in protecting our borders and

waterways. In certain areas of the country, tribal emergency management may be the only agency able to respond to a terrorist

threat or attack. Tribal public health can provide valuable expertise in confronting an outbreak of a deadly disease and tribal members may be the only citizens within miles to detect terrorist activity.

S. 578 is an appropriate step in recognizing the importance of

American Indians in protecting our homeland. Establishing the appropriate role for the tribes with the 50 States will facilitate protection of critical infrastructure and key assets in Indian country and
26

bring to bear the leadership, expertise and dedication of Indian

people.

We are concerned, however, that Alaska Native villages and organizations are not included in the definition of Indian tribe. Alaska Native villages and organizations have been included in the definition of Indian tribe under laws including the Indian Self-Determination Act. We believe for this purpose they should be included

in the definition of Indian tribe.

This concludes my prepared statement and I also am available

for questions later.

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

Senator INOUYE. Thank you, very much, Mr. Virden.

Now, may I call upon Mr. Filler.

STATEMENT OF JOSH FILLER, DIRECTOR, OFFICE OF STATE

AND LOCAL GOVERNMENT COORDINATION, DEPARTMENT

OF HOMELAND SECURITY

Mr. FILLER. Thank you, Mr. Chairman.

Good afternoon and thank you for the opportunity to appear before you today to discuss the Department of Homeland Security’s

views on S. 578. We support S. 578’s goals and objectives of enhancing coordination and cooperation between the Department and

tribal governments regarding homeland security.

The Department of Homeland Security recognizes and appreciates the critical role the tribal governments play in enhancing our

homeland security. With tribal lands adjacent to hundreds of miles

of both our northern and southern land borders including readily

accessible coastline and containing numerous pieces of critical infrastructure, tribal governments are essential partners in the work

of the Department of Homeland Security. That is why the Department has created a position specifically for coordination with the

tribes. The director for Tribal Coordination, who participated in

panel discussions hosted by this committee yesterday, is here with

me today.

Since it was created, the Department of Homeland Security has

been actively undertaking outreach to tribal interests to build the

relationships necessary for successful coordination of homeland security activities within tribal lands. These efforts have included but

are not limited to, the creation of a specific position as I mentioned

before for tribal coordination. Through this office, American Indian

tribes, Alaska Native villages, tribal organizations and associations

have a dedicated day-to-day point of contact for tribal concerns.

The U.S. Border Patrol has liaison officers at each sector and at

headquarters specifically focused on tribal law enforcement coordination with their Native American counterparts. Coordination includes sharing training, intelligence, equipment and participating

in joint operations. The Department has met and coordinated with

numerous tribal governments regarding DHS functions, activities

and the Department’s programs.

We are currently working with the National Congress of American Indians on tribal issues. We were pleased to attend the recent

NCAI conference where DHS participated in a workshop on creating emergency preparedness plans. The workshop covered what resources are available from DHS, including training opportunities
27

and emphasized the need for tribal emergency preparedness plans.

We are participating with the National Native American Law Enforcement Association and are providing presenters for homeland

security-related training at the upcoming annual training conference. The U.S. Border Patrol is providing specialized training

seminars for this November conference as well as technical displays of current hardware being employed by the Border Patrol.

DHS is also currently planning the second U.S. Border Patrol/

Native American Border Security Conference. I believe it is tentatively scheduled for the first week in October of this year. The

aim of this conference is to identify mechanisms to better the Patrol’s working relationship with Native American law enforcement

to further our shared goal of securing the Nation’s borders.

DHS is in discussion with other executive branch departments

like those represented here today to ensure coordination of DHS

missions in Indian country. We have been pleased to include tribes

in the consultation process for upcoming discussions on the National Incident Management System as well as the National Response Plan, both of which are required by Homeland Security

Presidential Directive No. 5.

DHS is a participant in informal, interagency, Indian country

working groups which includes the exchange of information and

presentations on Indian country programs and program support.

This is a very positive, ad hoc forum where Federal/Indian country

representatives get together to exchange information and provide

briefings on different programs.

DHS, as you know, is a young department and we view these accomplishments simply as a good start to ensuring that tribal governments are truly integrated into the Department’s efforts to better secure our borders, protect our critical infrastructure and to be

prepared for a terrorist attack or natural disaster.

As indicated earlier, we support S. 578’s objective of improving

the Department’s coordination with tribal governments in the area

of homeland security and we welcome the opportunity to work with

the committee regarding the particulars of the bill.

I thank you for your support of the Department and we would

be happy to answer any questions you might have at the appropriate time.

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

Senator INOUYE. Thank you very much, Mr. Filler.

May I now recognize Dr. Raub.

STATEMENT OF WILLIAM F. RAUB, PRINCIPAL DEPUTY ASSISTANT SECRETARY, OFFICE OF PUBLIC HEALTH EMERGENCY PREPAREDNESS, DEPARTMENT OF HEALTH AND

HUMAN RESOURCES

Mr. RAUB. Thank you very much, Mr. Chairman. I am pleased

to have the opportunity to make some remarks on behalf of the Department of Health and Human Services.

When we use the term public health emergency preparedness,

that is shorthand for readiness for bioterrorism, other outbreaks of

infectious disease and other public health threats and emergencies.

When we talk specifically about bioterrorism, the immutable fact is

that by definition all terrorism is local. Therefore, however complex
28

and widespread the event and incident ultimately may become, it

begins in a particular place and therefore, State, local, and tribal

readiness are very high priorities for us with respect to the way we

direct our investments.

To that end, we use the instrument of the cooperative agreement

with all 50 of the States and certain other eligible entities to provide funding to enhance public health departments, hospitals and

other health care entities. That is over and beyond our direct funding of the hospitals of the Indian Health Service. In fiscal year

2002, we provided approximately $1 billion through those cooperative agreements. In the current fiscal year, and we are amidst the

reward and review process right now, we expect to award approximately $1.5 billion in total.

One of the major priorities of each of those awards is to ensure

that we have a systematic involvement with all of the tribes in the

planning and implementation of these programs. The implementation means that not only the flow of funds to the tribes as appropriate to achieve the statewide plan, but also the availability of

services such as surveillance and epidemiologic response to ensure

that the health needs of the tribes are met as systematically as the

health needs of anyone else within those State borders.

We involve our colleagues from the Indian Health Services in our

review panels, we have an internal Bioterrorism Council of which

the Director of the Indian Health Service is a member, and we

have a strategic plan for the Department for bioterrorism that includes specific roles for the Indian Health Service.

We look forward to continuing to develop these programs overall

and strengthening the relationship and involvement with the Indian tribes.

I appreciate the opportunity to be here today and will respond

with our colleagues here to questions as best I can.

[Prepared Statement of Mr. Raub appears in appendix.]

Senator INOUYE. I am deeply grateful to all of you for your testimony and I must say I am very much encouraged. If I may, I would

like to ask a few questions.

Mr. Heffelfinger, your concerns about chapter 13 I think have

merit. Is your office willing to work with the committee in drafting

language that would address the concerns you have raised?

Mr. HEFFELFINGER. Yes; very much so, Senator. We believe this

is an area that the Department of Justice and your committee

should be working together on. It is a perfect vehicle for us to develop a comprehensive clarification of all of the confusing areas of

tribal jurisdiction. We think this would enhance our ability to provide quality law enforcement both in the area of criminal misconduct as well as the area of homeland security and that they

really cannot be separated.

Senator INOUYE. If I were smart, at this point I would say the

meeting is adjourned. [Laughter.]

I am most grateful for your offer to help us. I think the staff is

prepared to work with you and come forth with a bill that would

meet the needs of all the departments as well as the needs in Indian country. I think we can do that. So thank you very much, Mr.

Heffelfinger.
29

If I may ask, Mr. Virden, at yesterday’s forum we heard something about the Conlee Dam, Grand Conlee Dam. I note that the

Department of the Interior has jurisdiction over that. Has the Department undertaken any activities to secure Grand Conlee Dam?

Mr. VIRDEN. I’m hesitating.

Senator INOUYE. I am not trying to embarrass you but I just

want to know the extent the problem we have.

Mr. VIRDEN. I understand. The Department has an extensive

program of early warning systems that are mandated to be installed and I believe on most of our dams, we are there. I know,

speaking for the BIA, we have installed in most of our high priority

dams early warning systems.

Senator INOUYE. I suppose you would welcome some Indian assistance there?

Mr. VIRDEN. Yes; we would.

Senator INOUYE. I was very much gratified to hear that we have

programs for training Indian tribes and tribal members to carryout

these responsibilities, so I thank you very much.

Mr. Filler, I am grateful that the Administration supports this

measure. Are you also concerned about section 13?

Mr. FILLER. Senator, I’ll be honest, I lack the expertise in the details to which that chapter refers, so I would defer.

Senator INOUYE. So your department would be satisfied if Justice

and the committee can work out something out?

Mr. FILLER. I think we will work with the Justice Department

and follow their lead and work with them on this issue.

Senator INOUYE. Do you have any problems with the definition

of local government as it relates to Indian tribes?

Mr. FILLER. I think it is important that everyone be a part of the

homeland security process. That includes tribes, the territories,

local government, State government and obviously the Federal

Government. Our vision is that you create a coordinated effort

through statewide planning, not State planning but statewide planning, statewide planning, built from the bottom up, including the

tribes, municipalities, counties, towns, parishes, so on and so forth.

I think what is important is everyone has a seat at the table and

that table be the place where the plan for spending homeland security dollars is developed. I think if we do that, the issue of State

versus local or tribal becomes less of an issue. We have a responsibility at the Federal side to ensure that coordination is taking

place.

Senator INOUYE. I was very much pleased with the assurance

that your department will be funding programs to enhance the

ability of Indian country to carryout this mission, but apparently

the funds go through the States, don’t they?

Mr. FILLER. Yes, sir.

Senator INOUYE. Can we get some report from you advising us

as to how much Indian country is receiving for homeland security?

Mr. FILLER. Sure. We will go back to the States. They are required to file paperwork with us on all the funds they receive from

the Department and we can make a request that they tell us exactly how much all of the tribes within the State are receiving.

Senator INOUYE. Recently, we were told that Secretary Ridge established a State and Local Advisory Committee to advise the
30

Homeland Security Advisory Council but I note that this committee

is made up of governors, legislators, mayors, city officials, county

judges but no representatives from Indian country. Can we secure

some sort of representation there?

Mr. FILLER. I will certainly go back and speak with the executive

director of the Homeland Security Advisory Council and engage

him on that issue.

Senator INOUYE. I thank you very much. Dr. Raub, the Indian Health Service has determined that $51.5

million is needed annually for tribal emergency medical services.

Given the potential for terrorism and the threat in Indian country,

what activities has the Department undertaken to inform Congress

of the need for additional funding?

Mr. RAUB. Those matters are under consideration right now with

respect to development of the fiscal year 2005 budget request. I expect one of the issues that will be joined further within the Department and between the Department and the Office of Management

and Budget and ultimately our discussions with the Appropriations

Committees will be the size and the orientation of that investment.

Whatever we spend directly through the Indian Health Service

with respect to terrorism is complemented by the funds I mentioned before that are sent out in the from of the cooperative agreements. In fact, in a few of the States, the State law allows funds

from the cooperative agreement to directly supplement activities of

the Indian Health Service. Other State laws preclude this. To the

extent it is possible, we have tried to use every mechanism available.

Senator INOUYE. As a member of the Appropriations Committee,

I can assure you we will do our best to support your request.

Gentlemen, once again, I thank you very much for your participation. I am certain I speak for Indian country when I say that we

feel very much encouraged and look forward to working with you,

Mr. Heffelfinger.

Mr. HEFFELFINGER. Thank you, Senator.

Senator INOUYE. Thank you, very much.

Now, may I call on the second panel. It consists of the following:

Roland E. Johnson, Governor, Pueblo of Laguna Pueblo of New

Mexico; Audrey Bennett, president, Prairie Island Indian Community, Minnesota; Earl Old Person, chief and tribal council member,

Blackfeet Tribal Business Council, Montana; Vivian Juan-Saunders, chairwoman, Tohono O’odham Nation, Arizona; and Alvin

Windy Boy, chairman, Chippewa Cree Business Committee, Montana.

I have been advised that President Bennett has to get on a plane

right away, so may I call upon you first?

STATEMENT OF AUDREY BENNETT, PRESIDENT, PRAIRIE

ISLAND INDIAN COMMUNITY, MINNESOTA

Ms. BENNETT. Thank you, Mr. Chairman.

Good afternoon. My name is Audrey Bennett. I am president of

the Prairie Island Indian Community and I want to thank you for

inviting me to testify today.

I am here to offer this committee a perspective that is unique to

our community, emblematic of the homeland security issue with
31

which many tribal governments in this country must contend. For

your reference, we have provided an aerial photo of Prairie Island

which is located between the Mississippi and the Vermillion Rivers

in the southeastern Minnesota about 50 miles south and east of

Minneapolis-St. Paul.

Prairie Island is sacred land. Our people have lived there for

countless generations. It is our home as well as our final resting

place for our ancestors. As you can see, our reservation is bordered

by a nuclear powerplant, a nuclear waste storage site, two nuclear

reactors and 17 large storage casts filled with highly radioactive

nuclear waste sits 600 yards from our homes, church, community

center, and business. Additional casts will be added in the coming

years. Our community is the closest in the Nation to a nuclear

powerplant and a nuclear waste storage site. Yet we have no special role in helping to protect these facilities or for that matter ourselves.

For decades, well before terrorism became the issue that it is

today, our tribe had to fight to be properly recognized by the State

of Minnesota and our utility neighbor. In 1997, when the plant was

evacuated after a steam generator leaked radiation into the atmosphere, no one bothered to inform our people of the incident. Most

tribal members realized something was wrong only after witnessing

numerous cars speeding away from the plant. Many of us wisely

followed.

Today, we are better prepared for a similar incident and we have

reasonably cooperative relationships with the plant and the State.

However, conventional emergency planning is simply inadequate

for this age of catastrophic terrorism. The radiological exercises in

which we participate are based on scenarios involving a slow leak

of radiation into the atmosphere, not an intentional act of destruction. Currently our involvement in responding to such an event is

as best ill-defined. As I mentioned previously, we have no formal

role whatsoever in helping to prevent an attack, an attack that

would permanently devastate our community.

Now, imagine being reminded of this vulnerability everytime you

leave your home or look out your window. Imagine to this day of

color coded warnings and credible threats, fearing the worse

everytime an airplane flies by or a news helicopter hovers the

neighboring nuclear plant. Imagine, and this happened just recently, driving down the road only to see military humvees, military personnel armed and stationed at your intersection without

any explanation or notice. This is what we live with every day. We

are uninformed. We are victims in waiting.

Under the existing system, we also have little or no independent

recourse should the worse occur. Instead, we are largely subject to

State authority. It was evident recently when our community was

affected by a major flooding and we had to go through the State

to access Federal resources. Our tribal government is ultimately responsible for the health and safety of as many as 10,000 people, including our tribal members, employees and visitors. Many thousands more live just beyond our reservation. Their fate along with

ours is tied to the safe, secure operation of a nuclear power plant,

a reality not lost on most Minnesotans.
32

According to a January 2003 poll, nearly 60 percent of Minnesotans say they are concerned with that the State’s nuclear power

plants could be targeted for terrorism, and 54 percent say they

would need to live at least 50 miles from the nuclear power plant

to feel safe. Having lived our lives in the shadow of the nuclear facility, we share their concern. We share their concern because we

know more can be done to ensure our safety.

To start, we need to be involved in emergency planning and terrorism prevention initiatives. We need the resources for staff to

help and maintain our readiness. We have the most to lose in an

attack and we cannot afford not to be prepared. We also need access to information. We should be notified of events before reading

about them in the newspapers or experiencing them firsthand.

There should be a resource within the Department of Homeland

Security that is committed to helping our community be informed

and prepared.

Reservation lands located along our Nation’s borders and near

critical infrastructures such as dams, hydroelectric facilities and

nuclear powerplants are vulnerable. Tribal governments should be

given the same mandate and resources needed to keep these areas

safe. Furthermore, in keeping with the Federal Government’s trust

responsibility to tribes, the Department of Homeland Security

should be required to deal with tribes on a government-to-government basis, just as any other Federal agency would.

Clearly if it is going to be effective, the Homeland Security Act

must involve tribes and be inclusive of tribe interests. It should

recognize the needs of tribal governments and demand the vigilance of us that is expected from others charged with protecting

this Nation.

On behalf of our community council and tribe, I thank you again

for this opportunity to testify here today. Each of us has an obligation as Americans to do our part to protect the homeland as our

ancestors before us protected Mother Earth, it is up to us to protect

it for generations not here yet. We pledge to do our part, the Prairie Island Community, and to cooperate in this matter and welcome

the opportunity to do our part.

Thank you, Mr. Chairman.

[Prepared statement of Ms. Bennett appears in appendix.]

Senator INOUYE. Thank you very much, President Bennett.

Since you will be leaving us and I hope you don’t miss the plane,

do you believe the passage of this measure would in some way help

your situation?

Ms. BENNETT. I believe it would, Mr. Chairman. Again, it is

something we always have to keep fighting for as tribes, to be included in languages that affect us. I think by inserting ‘‘tribes and

reservations,’’ it is very important, especially with the threat of terrorism that we know today and also to have the same representation as governors, mayors and local units of city people. Tribes

should also be on any of those councils and committees to be a

part, to keep information flowing and communication moving forward to find solutions everybody can live with. I think it is very

important.

Senator INOUYE. We will do our best, Madam President.

Ms. BENNETT. Thank you.
33

Senator INOUYE. I hope you make the plane.

Ms. BENNETT. Thank you.

Senator INOUYE. May I now recognize Governor Johnson.

STATEMENT OF ROLAND E. JOHNSON, GOVERNOR, PUEBLO

OF LAGUNA

Mr. JOHNSON. Thank you very much, Mr. Chairman.

The Pueblo of Laguna is most appreciative of the committee’s invitation to provide testimony in support of S. 578. The Pueblo of

Laguna supports S. 578 because it ensures consultation and coordination with and the involvement and inclusion of Indian tribes in

the mission of the Homeland Security Department. It ensures that

tribal governments participate fully in the protection of the homeland of the United States, including tribal homelands. These purposes are carried out in a direct relationship with tribal governments and not as subdivisions of States.

The Pueblo of Laguna needs S. 578 to address three things.

First, to be capable partners, the Pueblo must be well prepared to

handle emergency situations. Second, it must be recognized as the

legitimate governmental authority responsible for reservation

health, safety and welfare. Third, it must have the resources to ensure that all people in the Laguna Pueblo homeland receive timely

and expert protection and assistance.

Laguna is at the crossroads of vulnerability because it is located

along a major east/west Interstate 40 corridor where a major accident could potentially cripple the rest of the Nation. Laguna’s

560,000 acres of reservation are situated in four counties. The

Pueblo’s six villages are located approximately 45 miles west of Albuquerque and 25 miles east of the community of Grants, New

Mexico.

Laguna has over 8,000 members, making it one of the more populated Pueblo areas in New Mexico. The Burlington Northern and

Santa Fe Railroad lines travel approximately 40 miles across our

reservation. In addition, both the El Paso Natural Gas Company

and Transwestern Pipeline Company have high pressure, interstate

gas lines that also cross our reservation. All routes and pipelines

converge within a 1-mile radius of each other near the Laguna Industries, a manufacturing facility whose primary customer is the

Department of Defense. These pipelines are also located in very

close proximity to many homes on the reservation. Other jurisdictions are far away. Laguna must therefore be prepared to serve as

the first responder.

Laguna shares vulnerability with neighbors and the State because of many defense and energy related facilities that are located

in the State. The Waste Isolation Pilot Project is located in the

southern part of the State of New Mexico. Interstate Highway 40

is the primary transportation route for shipment of nuclear waste

from sites in Nevada to the site southern New Mexico. Other facilities include the Sandia National Laboratories, the Kirkland Air

Force Base, the White Sands Missile Range and the Los Alamos

National Laboratory. I might mention here that waste from the Los

Alamos National Laboratory is transported across a State road

which also crosses the lands of several of the Northern Pueblo in
34

the State of New Mexico, including the Pueblos of San Ildefonso

and the Pueblo of Pojoaque.

On this past Memorial Day, we had an incident occur at Laguna

which really tested our state of preparedness to respond to emergency situations. At about 4:15 p.m., 13 cars of a 49-car freight

train derailed at Laguna Pueblo and forced and evacuation of a sizable area of the reservation. The westbound Burlington Northern

Santa Fe Railroad company was at first reported to be carrying

some hazardous materials. Although no one was seriously injured

in the accident, some 500 people had to be evacuated from the area

where the train derailed and where approximately 80 family

homes, schools, tribal government offices are situated. Thereafter,

the train tracks were closed in both directions for over 24 hours.

Laguna’s response to the situation resulted in both of Laguna’s

firetrucks with full crews having to respond to the situation, all

four of its police department cruisers, with almost all the department law enforcement personnel, Laguna’s two ambulances and

medical workers, Laguna’s hazardous materials response teams,

emergency equipment and personnel from adjacent non–Indian

communities also responded after Laguna was first on the scene.

One month before this incident took place, Laguna had engaged

in a hazardous materials spill exercise based on a mock train derailment. This exercise helped provide a better organized response

to the real derailment. Deficiencies were revealed, lessons were

learned from both situations. The lessons learned in both situations

are quite revealing.

During the actual derailment, five other communities were left

unprotected for lengthy periods of time. No one knew just what

was on the train or which car might contain dangerous materials.

We need to establish clear command systems to provide on-site decisionmaking leadership. We realized we had insufficient facilities

for use as a central command post. There were insufficient communications systems to the point where private cell phones had to be

used to coordinate many of the activities. We currently have no efficient way to warn our community of impending hazards.

My point here is that approximately 85 trains pass through the

Laguna Pueblo each day and the potential for disaster is ever

present because they do carry hazardous materials periodically. We

need adequate resources to address those disasters when they

occur. Through proper inclusion of tribes in homeland security efforts, we hope that S. 578 will better facilitate providing information and assistance to us directly. We also want to benefit from the

financial and other assistance programs of the Homeland Security

Department to assure that we have adequate planning, training

and equipment and have an improved ability to coordinate and distribute warnings and other public information.

The second purpose of S. 578 is to recognize tribal governments

as participants in securing the United States homeland. Such participation requires us to be alert, ready and able to respond to terrorist activities that are dangerous to human life, violate criminal

laws, are intended to intimidate or coerce a civilian population or

their governments or are intended to affect the conduct of government by mass destruction, assassination or kidnapping. Tribes
35

must be able to investigate, inspect, search, rescue, evacuate, medically treat and suppress fires.

The tribal government must also make sure that governmental

authorities are in place to guide all these activities and that the

activities are conducted in a manner that is cognizant of human

rights and dignity. The Pueblo Government is also the only entity

with authority to enter into intergovernmental agreements, best

practices and other mechanisms to share and coordinate with State

and local governments. This is the only way to ensure that tribal,

State and local governments together complete the web of comprehensive, defensive, protection and response necessary for all

citizens wherever they are to receive the care and services they

need. None of us can do it alone.

Determinations assigning jurisdiction between Federal, State and

tribal forums can be very complex and confusing. Clarification is

needed when the defense and protection of people, places, and infrastructures are at stake. Emergency action can not linger in

order to assess who can be detained, medically treated, evacuated

or whose premises can be inspected.

Section 13 of S. 578 provides this clarification by applying concurrently Federal and tribal law in the context of homeland security and it eliminates the confusing aspects of Federal common law.

This provision makes use of existing applicable laws which are already, for the most part, Federal and tribal law.

Laguna needs resources to pay for the cost of providing comprehensive health and safety protection and assistance. Federal

funds will help but they are limited. States, counties and cities can

raise revenue to support police, fire, medical, emergency, and other

services. Laguna has a possessory tax to do this but the validity

of the tax has come into question because of two Supreme Court

cases, Strait v. A–1 Contractors, Adkinson Trading Company v.

Shirley. Laguna responded to the BNSF train wreck with full ability and resources but the railroad now asserts that these cases

would allow them not to pay the tax that Laguna uses to provide

essential governmental services when needed. We assert that this

is unconscionable and wrong. Congress and Federal agencies have

long encouraged tribal governmental and economic self determination but now the Judicial Branch is crippling exercise of this determination by judicial fiat.

Every other government in this country is allowed to engage in

the basis governmental function of raising revenues through taxation within their physical boundaries to provide the kinds of services that we have been talking about and yet Indian tribes are

being denied the same opportunity.

Laguna requests amendments to S. 578 that would treat tribal

governments in a manner similar to States for the purposes of regulation and taxation to provide health, safety and welfare services

on the reservation. Laguna also requests these amendments to ensure that Indian country includes all fee lands and rights of way,

no matter who owns them within the exterior boundaries of all Indian reservations and the Pueblo land grants. To address this matter, the Pueblo of Laguna has included in its advanced testimony

language to be inserted into S. 578. I refer you to page 8 of the advance testimony of which you have copies.
36

S. 578 and the changes we recommend would greatly enhance

the ability of the Pueblo and other Indian tribes to be prepared for

emergencies and terrorism, to provide the leadership and authorities necessary to work effectively on the reservation and with

States, counties and cities, and to have the funding and revenue

necessary to protect residents, visitors, businesses and critical

transportation and infrastructure systems and assets. After all,

business activities that are conducted on the reservation benefit

from the health, safety and welfare services that are provided by

our governments.

I appreciate this opportunity to present my testimony.

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

Senator INOUYE. Thank you very much, Governor Johnson.

Now, may I call upon the distinguished Chief Old Person.

STATEMENT OF EARL OLD PERSON, CHIEF AND TRIBAL COUNCIL MEMBER, BLACKFEET TRIBAL BUSINESS COUNCIL,

MONTANA

Mr. OLD PERSON. Thank you, Honorable Senator.

I certainly appreciate this chance to be able to come before your

committee and express our concerns on the homeland security. I

have a prepared statement but I do want to make just a general

statement.

Senator INOUYE. It will be made a part of the record, sir.

Mr. OLD PERSON. Last fall and earlier this year, I attended some

meetings pertaining to the homeland security. At that time, I

thought we were going to have a great involvement in this particular act that was taking place. It seemed less all the time, knowing

more about it. I began to wonder how far it was going to go and

how much involvement we, as Indian tribes, were going to have.

The reason the Blackfeet people are very concerned is we have

three border crossings that come into the reservation. The fourth

crossing is just off the reservation to the east. There is traffic going

back and forth all year long. In fact, other Indian people go

through these crossings. We sometimes have problems going

across. We have been working with this for many years now, trying

to help the border crossing people. How can we help make it easier

for people to have access or go into Canada or for people to come

into the United States through our reservation. They have been

very cooperative and we try to cooperate with them as much as we

could.

Within Canada, we have three tribes that are the same with the

Blackfeet. We were all together at one time. It is known as the

Blackfeet Confederacy. Recently we had a meeting in Canada regarding the border crossing. Again, this homeland security was

talked about at that time, what we were doing and how we were

involved. We couldn’t really give them the kind of involvement we

were having with homeland security.

Ms. Johnson and Roland Johnson practically hit every area, the

reasons we are here saying we want to be a part of this, that the

Indian tribes want to be recognized because these are our homelands, the reservation. We are not just trying to help protect these

homelands but also to help protect other lands adjacent and the

whole United States. I have never known our young men and
37

young women to refuse going into the service, going abroad into the

combat fields and we know we have been involved in these kinds

of things that concern our people that could cause problems, that

could damage the kinds of things our people hope to continue.

I was here during 911. I saw what took place and that is why

I was concerned. I know other tribal people were here. We are very

concerned about what took place. These are the kinds of things we

want to help protect. As Indian people on the reservations today,

we are having problems in many ways. Our resources are not that

great that we can outright begin to deal with things and begin to

solve things. That is why we are in need of help. We are in need

of help to get together and help with these kinds of programs that

are coming into effect so we can be a part of them and help ensure

there is going to be protection for our people.

We have a lot of problems, it is true. We have law enforcement

we are trying to upgrade but it takes resources to do it. During my

course of leadership, which goes way back, I have stressed the fact

that in our homelands, our land and our law enforcement, law and

order, is the backbone of our homelands. If we don’t have the land

base, if we don’t have the law and order, then we don’t have anything. That is why we are very concerned. We have different entities within our law enforcement. We have the Bureau of Indian Affairs, FBI, our tribal law enforcement. They are trying to do things

in cooperation on how we can best deal with the things that happen. Our young people are at stake today. We need protection for

them, we need to find a way to help them find ways to help with

the situation so they can begin to understand they are just as important, that they can help us to try to solve some of the things

we are concerned about.

So today I certainly would appreciate if people with the go sign

would include the tribes with this particular bill. It is going to help

our people, help our country, help everyone concerned. Right now,

people back home are concerned about what is going on in Iraq and

in countries abroad because we do have people over there. So whatever we can do to come together, this is our country. We are going

to be here. No one is going to leave. That is why we are trying to

protect it. I know through that joint effort we can put together,

those people that want to see things go otherwise, need to understand they are going to be here too. Anything that affects us is

going to affect them the same.

That is what we are trying to protect today. I hope this particular bill, everybody comes together and let it go through, let our answers be to where we can better understand one another and we

know we can work together and there is protection that is going

to help our people.

I see that within the bill and everything set forth. It addresses

a lot of things, even to the Public Health Service, the Indian

Health Service. We need those people, we need that help.

I appreciate your having me here to testify and to say the things

I’m concerned about because we are concerned. The beef producers

in Canada came to us trying to get us help them to work out things

if we had that mad cow disease that is affecting them. They are

trying to work something out even with the Blackfeet Tribe. These

kinds of things we know about. If they need our help, how can we
38

do it? We can do it if we are given the resources and the kinds of

things to do it.

I appreciate your having me.

[Prepared statement of Mr. Old Person appears in appendix.]

Senator INOUYE. Thank you very much, Chief Old Person.

Now, may I recognize Chairwoman Juan-Sanders.

STATEMENT OF VIVIAN JUAN-SAUNDERS, CHAIRPERSON,

TOHONO O’ODHAM NATION OF ARIZONA

Ms. JUAN-SAUNDERS. I’d like to thank you for this opportunity to

testify on this important matter impacting the Tohono O’odham

Nation

The Tohono O’odham Nation is located in southern Arizona and

is comprised of 2.8 million acres. We have a tribal enrollment of

28,000 enrolled members and approximately 10,000 reside on the

Nation.

Prior to contact, the aboriginal land base of the Tohono O’odham

Nation extended south to the Gulf of California, east to the San

Pedro River, north to the Gila River and west to the Colorado

River. In 1848, the Treaty of Guadalupe-Hidalgo ended the war between the United States and Mexico and it placed the first southern boundary at the Gila River and that placed all of our tribal

members in Mexico. Six years later through the Gadsden Purchase

of 1854, the United States and Mexico further defined the southern

boundary and placed it at its present location. Consequently, that

cut into the heart of the aboriginal lands of our people and today

we have 75 miles of the international boundary which is adjacent

to our reservation lands.

On behalf of the Tohono O’odham Nation, we feel that S. 578 are

important tribal amendments to the Homeland Security Act of

2002. The amendments will recognize the important role that tribal

governments play in defense of our homeland and will help in deterring illegal activities on the Nation’s lands.

The Homeland Security Act of 2002 is very comprehensive but it

is incomplete because it fails to include tribal governments as eligible entities entitled to participate in Department of Homeland Security implementation. In the act, tribal governments are placed in

the local government category, a designation for counties and municipalities. Our understanding of the National Homeland Security

Strategy is one, to prevent terrorist attacks; second, reduce our

homeland vulnerability to terrorism; and third, minimize the damage and recover from the attacks that do occur.

In reducing the vulnerability to terrorism, the Federal Government must not and cannot ignore the fact that 25 tribal governments have land located on or near Canada and Mexico. For the

Tohono O’odham Nation due to our geographic location, we are at

the forefront. Please consider the fact that our tribal police has

stretched its resources to the limit and now spends half of their

tribal budget, an average of $2.5 to $3 million annually in response

to border related incidents. On an average day, our police officers

spend 60 percent of his or her time working on border-related

issues.

In 1999, our officers assisted the Border Patrol with 100 apprehensions per month and in 2002, our tribal police officers recorded
39

6,000 undocumented immigrants detained pending U.S. Border Patrol pick-up. In 2002 and 2003, 1,500 undocumented immigrants

crossed our lands every day and they are not just coming from

Mexico; they are coming from Central America, Guatemala, Honduras and any foreign country for that matter. Illegal narcotics seizures have more than doubled in the last 3 years to over 65,000

pounds in 2002 and in 2003, we have had 49 undocumented immigrants die on our reservation lands. Our tribal police pays for autopsies at $1,400 per body.

In Arizona, these types of statistics would require a state of

emergency. Currently it is unfortunate that these statistics have

brought members of Congress and members of Federal agencies

and State agencies and State representatives to the international

boundary adjacent to our lands. However, we need to take the next

step in providing resources to address these issues.

At our western boundary, we have the Barry Goldwater military

base which is an important note as we discuss terrorism and likely

targets. The Indian Health Service also spent $500,000 last year

for health care for undocumented immigrants. Health care to our

tribal members has been seriously compromised. We don’t get reimbursed for the dollars spent on foreigners.

We have made a few dents in these problems. For example, a

visit by the Washington, DC Homeland Security Telecommunications and Wireless staff member resulted in a $26,000 piece of

equipment to allow for operability amongst our tribal law enforcement and certain units of Department of Homeland Security like

Customs, Border Patrol and local county law enforcement. It allows

them to communicate with one another. We also received a set of

night vision goggles. This is the extent of the assistance. Communications is still an issue due to the potential security breach due

to airways that do not stop at the border.

We also participate in the Arizona/Mexico Commission which allows us to coordinate our planning efforts in the event of bioterrorism. We are in direct communications and have scheduled one on

one meetings with our health counterparts in the State of Senora,

Mexico to collaborate our efforts.

This year, our Chief of Police by exercising our tribal sovereignty,

accompanied the U.S. attorney to Mexico City to begin discussions

with their law enforcement counterparts in Mexico regarding collaboration efforts.

The issues we bring today are the lack of government to government consultation with the Tohono O’odham Nation regarding the

restructuring of Federal law enforcement entities that have functioned on the Tohono O’odham Nation for over 20 years. We believe

that since 2002 with the Federal policies regarding the restructuring of the Department of Homeland Security, we were never consulted about the restructuring and how that would impact the

Tohono O’odham Nation. U.S. Customs has operated on the Tohono

O’odham Nation since 1985 and Border Patrol for 20 years.

One of the concerns we have is the transfer of an elite unit

known as the Shadow Wolves which has 21 Native Americans

whose primary focus was drug interdiction. Now they have been

transferred to Customs and Border Patrol who have a different

mission with regard to immigration. While the GHS has stressed
40

the mission in terms of the Shadow Wolves will not change, we still

remain cautious. Some of our tribal members are Customs agents.

Because of the lack of consultation and the restructuring, the

Tohono O’odham Nation took a formal position on Federal activities

and functions on the Nation. We requested and demanded respect

for government to government consultation, respect for our people,

respect for our lands and respect for sacred sites.

In order for us to be eligible for equipment and training, we must

lobby local counties. In June, I approached the Arizona Director for

Homeland Security when they announced that $3 million was

available for Pima County for homeland security efforts. I asked

how much of the $3 million would come to the Tohono O’odham

Nation and the response was none. When I asked how to access the

funds, the response was we would have to lobby the Pima County

Board of Supervisors for funding.

The Tohono O’odham Nation is in three counties, Pinal, Pima

and Maricopa. We do not have the staff nor the resources to send

our people to three different planning sessions for emergency preparedness. We request the funds come directly to the Tohono

O’odham Nation.

I would just like to conclude by saying that terrorists don’t distinguish between jurisdictions and people. That is our concern. The

Tohono O’odham Nation is at the forefront already. We already detain foreigners as they come through our Nation while we await

Federal entities. It is important for us to continue to have the authority necessary.

Our common goal is national security and tribal governments

must be at the table. We believe that the tribal amendments to S.

578 will allow us to participate in the Department of Homeland Security activities including information analysis and infrastructure

protection, science and technology, the Directorate of Boarder and

Transportation Security and emergency preparedness and response. Passing this legislation together with better communication

and sharing of ideas, coupled with direct Federal funding for manpower and resource support are effective first steps to deterring

these activities on the Nation’s lands.

By working together and continuing to identify and implement

solutions, we can better protect U.S. interests and enhance government to government relations.

Thank you.

[Prepared statement of Ms. Juan-Saunders appears in appendix.]

Senator INOUYE. Thank you very much, Chairwoman JuanSaunders.

Now may I call upon Chairman Windy Boy.

STATEMENT OF HON. ALVIN WINDY BOY, CHAIRMAN,

CHIPPEWA CREE BUSINESS COMMITTEE OF MONTANA

Mr. WINDY BOY. Good afternoon, Senator.

I serve as chairman of the Chippewa Cree Tribe. I am an advocate for Indian issues, especially when the issue impacts our government to government relationship with the United States of

America and our right to tribal self determination and self governance on our reservations.
41

Today, I am here to support the passage of S. 578 which allows

tribal governments to actively participate in our national strategy

to combat terrorism and to protect our tribal members and tribal

homelands.

Mr. Old Person mentioned agriculture. In the great State of Montana, agriculture is the primary source of income. In Montana, we

have 3.1 million head of cattle, Indian ranchers are 26.5 percent

owners of those cattle, so the industry also affects Indian country

on the seven reservations.

If Indian tribes aren’t a part of the national strategy, it would

leave a huge void in our national security plan. As mentioned earlier, we are patriotic people. Our people certainly have paid the ultimate price for freedom. Now our governments must be involved

in retaining that freedom, freedom to accomplish the national objectives of the homeland security plan such as border security, the

protection of critical infrastructure on Indian lands, integrated law

enforcement and emergency response and medical capacity planning and implementation.

In support of S. 578, I’d like to share with the committee members an experience my tribe had with border security, tribal court

jurisdiction over our homelands and the need to access homeland

security funding to enhance our ability as first responders and for

the protection of our infrastructure.

Last summer my tribe had a horrifying experience with an across

the boarder abduction of tribal children into Canada. Our inability

to do anything was a most frustrating experience. Upon learning

that our tribal children were abducted and taken across the border

to Canada which is approximately 50 miles from the reservation in

extreme, north central Montana, we contacted all the Federal and

State law enforcement agencies for assistance and no one could

help us. It was outside the jurisdiction of every Federal and State

entity. The FBI did not have the jurisdiction because of the international border crossings. The State of Montana couldn’t help us

because it was out of their purview. Finally, we contacted the State

Department here in Washington, DC and they referred us to the

Child Abduction Bureau. They gave us sound advice but couldn’t

do anything to get our tribal children back to the United States

and onto our reservation.

Where they lived, every governmental agency we spoke said because we are an Indian tribe, they couldn’t help us and didn’t understand tribal jurisdiction. Basically, we were on our own.

As a self-governance tribe, we are used to taking charge and performing Federal functions to the best of our ability while maximizing the resources we have access to. With the limited resources

available to us, we charged the abductor in tribal court for abduction or kidnapping, which is a class III offense in our tribal law

and order code, punishable for up to 6 months incarceration and a

$500-fine and immediately issued an arrest warrant.

We knew the service of process for the arrest warrant across the

border would be a big problem because both State and Federal authorities couldn’t help us. This was as far as we could go. Everything at that time came to a standstill. Finally, after weeks of trying to get assistance and access governmental resources to help us

locate and return those children, we contacted a barrister in the
42

Canadian justice system. My tribe spent approximately $15,000 to

$20,000 to hire a Canadian attorney to represent us in the Canadian judicial system to locate our children and return them to

Rocky Boy in the United States.

After several months of agonizing hearings and countless phone

calls, we were successful in getting our tribal children back in the

United States and home on our reservations.

This is an experience I will never forget and have vowed not to

go through such an ordeal again. The helplessness and lack of coordinated resources is a shame in this day and age and we can’t

allow this type of void in jurisdiction to carry over into the fight

against terrorism.

Our ability to access direct governmental resources and to do so

on a government to government basis in order to provide better

border security for our tribal homelands is imperative. Today, timing is critical. We must have the ability to immediately access and

evaluate any situation we are confronted with, especially when the

protection of our homelands and members is at issue.

All Indian tribes, especially the tribes bordering international

borders, need to be a part of the comprehensive maintenance of the

homeland security of the United States. We already have the tribal

laws, the tribal court system, law enforcement personnel and governmental infrastructure. What we need is the ability to work together as Mr. Old Person mentioned and coordinate with our Federal counterparts and have access to the various resources available to all agencies involved with law enforcement and border security.

It is my hope that S. 578 will assist us in strengthening our ability to deal with those who intrude on our lands for the purpose of

committing terrorist actions. My tribe, like many others, is not immune to drug traffic. There were several Mexican nationals arrested for pedalling drugs on Rocky Boy only to have them deported and in a very short time, back in Rocky Boy.

We have created expulsion orders for them to stay off the reservation but if it is that easy for them to come onto a little reservation in north central Montana, they have the whole country. Without S. 578, there is a void and we are limited in our ability to protect our homelands, our resources and our people from these relatively new threats to our health, safety and welfare.

In support of section 13 of the act which supports our ability to

exercise jurisdiction over any terrorists entering our lands, closing

the current jurisdictional gap is imperative to protecting our homelands. We currently exercise as much jurisdiction over our lands

that the law allows but there are jurisdictional gaps that cannot be

allowed to continue unless we want Indian reservations to become

the points of entry and activity for terrorist cells. Section 13 will

allow us to close those jurisdictional gaps and to be more responsive to everyone, tribal and non-tribal, within our jurisdiction.

In terms of law enforcement and judicial capabilities, we realize

it is limited for purposes of the act and should not be viewed as

an access to the broad expansion of tribal jurisdiction. The Federal

authorities have been extremely helpful with certain law enforcement cases but they are overburdened. They cover several reserva-
43

tions in our area as well as other Federal cases off the reservation

as well.

Tribes can help offset their enormous load and work together in

a more direct capacity than we currently do. We can perform law

enforcement and judicial duties in a limited capacity. Section 13

will allow us to work together in a true government to government

relationship and to jointly utilize our resources to get the job done

expeditiously and more thoroughly.

Unless you have committed some sort of terrorist criminal act as

defined in the Homeland Security Act of 2002 within our reservation’s boundaries, you have nothing to fear from the enactment of

S. 578. Every American should be supporting this effort to work together to make the reservation environment as safe as the off reservation environment. The effort to combat terrorism cannot be a

game plan full of loopholes.

In addition to law enforcement on reservations, my background

is in law enforcement but as far as local law enforcement, I find

we are not to capacity as the Federal system is. Our current funding level certainly needs to be beefed up, particularly on reservations with large land bases.

With that, Senator, thank you. I would be glad to answer any

questions.

[Prepared statement of Mr. Windy Boy appears in appendix.]

Senator INOUYE. Thank you very much, Chairman.

Governor, when the Memorial Day train derailment happened

and you were informed, did you hesitate before you gave assistance?

Mr. JOHNSON. No; we responded immediately.

Senator INOUYE. The train company was not grateful for that?

Mr. JOHNSON. Eventually, they did acknowledge our response

and thanked us for the response we made but we had people onsite within a matter of minutes after the incident occurred.

Senator INOUYE. But they do not want to pay for it?

Mr. JOHNSON. Apparently not.

Senator INOUYE. We hope this measure will in some small way

be helpful to you.

Mr. JOHNSON. It will help us, Senator.

Senator INOUYE. Chief Old Person, we have been told that BIA

has decreased the number of law enforcement officers protecting

the northern border of the reservation that is on the Canadian border. Is that correct?

Mr. OLD PERSON. No; right now we are having some problems

but we are trying to come together at this time to work this out,

the BIA, the tribal law enforcement.

Senator INOUYE. So you are trying to work this out now?

Mr. OLD PERSON. We are trying to work it out right now.

Senator INOUYE. I hope they will increase their presence there.

Do you have the same sort of problem that Chief Windy Boy has

with his tribe?

Mr. OLD PERSON. Yes; we all have this.

Senator INOUYE. Drugs also?

Mr. OLD PERSON. Drugs. That is why I said our young people are

being affected. We are trying to get them to realize that they need
44

to be a part of what we are trying to do and that we are trying

to help them. So they are very much affected.

Senator INOUYE. You said you support S. 578?

Mr. OLD PERSON. We certainly do.

Senator INOUYE. We will try to do our very best, sir.

Mr. OLD PERSON. Thank you.

Senator INOUYE. Chairwoman Juan-Saunders, you testified your

police department spends about $3 million annually to respond to

border related incidents. How do you pay for this?

Ms. JUAN-SAUNDERS. Through tribal dollars.

Senator INOUYE. And there are no Federal funds for this?

Ms. JUAN-SAUNDERS. No; there is no reimbursement. We have

made attempts and we bear the cost. We have over 70 tribal police

officers and a seven-member investigative unit.

Senator INOUYE. With the assurance provided during the first

panel to share Federal funds with you, I hope they will recognize

your problem. Have you requested reimbursement?

Ms. JUAN-SAUNDERS. Yes; we have and no response.

Senator INOUYE. No response?

Ms. JUAN-SAUNDERS. No.

Senator INOUYE. Can you send us a copy of your communication?

Ms. JUAN-SAUNDERS. Yes; in the audience, we have our chief of

police, Richard Saunders, and legislative council member, Verlon

Jose. We are very much concerned about the issues you raised

today.

Senator INOUYE. You will send us a copy of that communication

and we will see what we can do.

Ms. JUAN-SAUNDERS. Thank you.

Senator INOUYE. Chairman Windy Boy, you are going to have a

new campus there. What are you going to name it?

Mr. WINDY BOY. Stone Child College.

Senator INOUYE. It has been a long time since I have been there.

Mr. WINDY BOY. We would welcome you back.

Senator INOUYE. You indicated you have good working relationships with your local FBI agents but how long does it take the FBI

to respond to calls?

Mr. WINDY BOY. Fortunately in the last year or so, they have located parts of the Great Falls office which is 130 miles to the west,

located them to service both the Chippewa Cree Tribe and the Gros

Vent Tribes.

Senator INOUYE. But it takes a couple of hours for them to drive

down?

Mr. WINDY BOY. Yes.

Senator INOUYE. They cannot respond immediately even if they

tried to?

Mr. WINDY BOY. No.

Senator INOUYE. Has the FBI refused to investigate or pursue a

crime committed by a non-Indian because of lack of adequate resources?

Mr. WINDY BOY. Depending on the situation. Drugs, which is getting predominant in our area, they have been helpful in that arena.

The problem that I see, and I will use Rocky Boy as an example,

we have trained a number of officers and a number of our officers
45

have left tribal service to work for the Bureau of Indian Affairs

where the pay is better and stability with other fringe benefits.

Senator INOUYE. There are ICBM stations near you?

Mr. WINDY BOY. Yes.

Senator INOUYE. How close are they?

Mr. WINDY BOY. The closest one would probably be 9 miles from

the nearest reservation boundary.

Senator INOUYE. Have you ever been called upon to respond to

any problem there?

Mr. WINDY BOY. In reference to?

Senator INOUYE. Some sort of security problem? Have they ever

called you?

Mr. WINDY BOY. No.

Senator INOUYE. Once again, I thank all of you for your testimony.

Now may I call upon my colleague, Senator Akaka.

Senator AKAKA. Thank you, Mr. Chairman.

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

HAWAII

Senator AKAKA. I want to compliment you and commend you for

having this hearing which is important to our Indian nations being

that the Homeland Security Act is to ensure that the local tribal

governments are consulted and involved in homeland security.

From what I gathered from your testimonies here, that is not

happening that way. Section 13 helps to ensure that and I am glad

to also hear that you are supporting that section in the bill.

The Government folks who were here earlier answered the questions and seemed to indicate that these procedures are working. As

you know, we are modifying the Homeland Security plan to meet

States’ needs. The Chairman has asked you about reimbursements.

From what I gather, that has not come through but I’d like to ask

you about grants, whether any of you have received any grants

from homeland security at this time?

Mr. WINDY BOY. One that I’m familiar with was through the De- partment of Agriculture for $20,000. I believe each of the tribes in

Montana and Wyoming received those but $20,000 was limited and

was acquired through the Montana and Wyoming Indian Stock

Growers Association that I chair.

Senator AKAKA. Governor Johnson.

Mr. JOHNSON. As best as I can recall, we have not received any

funds directly from the Department of Homeland Security though

we have received a limited amount of assistance from the State and

various other Federal agencies that also have involvement in homeland security activities.

Senator AKAKA. Chief Old Person.

Mr. OLD PERSON. As Chairman Windy Boy indicated, some of

that we were involved in but there were units built along one of

the border crossings that we tried to get into without success. We

were unable to be a part of those units being built under the

Homeland Security. There really hasn’t been anything we could

recognize that was coming to us. Yet we are still trying to work

with them to be involved. They are wanting to build more units on

one of the other border crossings and we are hoping to work out
46

something that we could be involved in because we have people

that can build too. We thought we should be given that chance to

work with them.

Senator AKAKA. Chairwoman Juan-Saunders.

Ms. JUAN-SAUNDERS. Other than the equipment I referred to in

my testimony, no we have not received any grants at all.

Senator AKAKA. I also wondered whether any grants were offered

to you at all. I guess not.

I also understand from the officials here before you that they

have done some out reach and day to day contact, training and intelligence, Border Patrol training. My question to you is has that

happened as far as you know with your tribes? Governor.

Mr. JOHNSON. I am not aware of any direct contact by the Office

of Homeland Security. In the forum that was held yesterday, the

representative from the Department of Homeland Security, I believe her name is Sherry Rowe, indicated that she had been to

Acoma, the community adjacent to ours. I am not sure she stopped

by to speak with any of our personnel there. So as far as I know,

we have not had any direct contact with the Department.

Senator AKAKA. Chief Old Person, has there been any involvement of the tribe?

Mr. OLD PERSON. I attended a meeting in Helena, MT at the

Fort Harrison Veterans Hospital. It was within the National Guard

unit. At that meeting, we were told by the people working with the

State that the tribes were given a chance to be a part of $7 million

offered and no one responded with the exception of one. Myself, we

did not receive notification. I don’t know about Chairman Windy

Boy. If you are not notified of anything like that, you cannot be involved or you cannot respond. That was one thing brought out to

us.

At the same time, there is a second go round of $2 million but

that never has happened. That is why I said we begin to see less

and less involvement or anything saying we can be a part of this.

Senator AKAKA. You are correct. Dr. Raub did mention there was

a second go round of money and I wondered whether you received

any of that.

Chairwoman Juan-Saunders.

Ms. JUAN-SAUNDERS. Just a few discussions. The Arizona tribal

leaders and law enforcement officials expressed concern to the

State of Arizona about our lack of involvement and access to funding sources. Consequently, the Arizona Department of Homeland

Security scheduled a meeting with the Arizona tribal leaders and

law enforcement.

In terms of the Tohono O’odham Nation, our police chief currently serves on the Homeland Security Directors Advisory Committee. I was invited by the border mayors to a meeting with the

Governor of Arizona to discuss these issues with the Arizona director of Homeland Security. I expressed my concern that we still, as

a tribal nation were not receiving direct funding and I am pleased

to note that the border mayors is at least supporting our efforts.

We are continuing to work in collaboration with them but we still

have not seen any direct resources come to the Tohono O’odham

Nation.

Senator AKAKA. Chairman Windy Boy.
47

Mr. WINDY BOY. Certainly the communications as Chief Old Person mentioned need to be strengthened. I have been involved to the

extent of sending one of my staff persons to those homeland security meetings in Helena. My thoughts are government to government and it is very hard as chairman to have to sit down amongst

non-policymakers, State employees, trying to figure out what is in

the best interest of my tribe. I would like to deal with someone that

is going to create positive change with me as chairman of a sovereign nation.

Senator AKAKA. Thank you for your response.

Mr. Chairman, I have an opening statement that I would like to

have entered into the record.

Senator INOUYE. Without objection, so ordered.

[Prepared statement of Senator Akaka appears in appendix.]

Senator AKAKA. And also some questions for the first panel.

Senator INOUYE. Thank you all very much.

I would like to call the last panel which consists of: Tex Hall,

president, National Congress of American Indians; Gary Edwards,

chief executive officer, National Native American Law Enforcement

Association; and Tim. Sanders, emergency operations coordinator of

Gila River Indian Community, Office of Emergency Management,

Gila River Indian Community.

Mr. Hall.

STATEMENT OF TEX HALL, PRESIDENT, NATIONAL CONGRESS

OF AMERICAN INDIANS

Mr. HALL. Thank you very much for giving us the opportunity to

testify.

I was very concerned about the government officials leaving the

room after they finished with their panel. If that is any indication

of working with tribes, I don’t think it is working very good. I

found out there is a Tribal Homeland Security Director and she

left. So I don’t know how they are going to effectively work with

tribes when they don’t stick around to listen to the testimony of

tribes.

I also want to comment that during 9/11, members of tribes told

me that you were on the Hill during that time, and, as mentioned

tribal leaders were meeting here in Washington, DC. You took the

time to come off the Hill and go down to the Grand Hyatt and tell

the tribes that 9/11 had happened and a tragedy had happened to

our country. I want to just recognize you for that. You didn’t have

to do that, but you did and that tells a lot about who you are and

your relationship with Indian tribes. So thank you very much, Mr.

Chairman, for that.

For the record, my name is Tex Hall, president, National Congress of American Indians and chairman of the Mandan, Hidatsa,

and Arikara Nation in west central North Dakota located on the

Fort Berthold Indian Reservation.

I want to acknowledge the strong role of this committee’s chairman, Chairman Campbell, yourself as Vice Chairman, and members of the committee, and all of the other sponsors of S. 578. We

thank them for their sponsorship and protecting the sovereign

rights of Indian nations and our friendships over the past years.
48

I also would like to thank the committee for conducting this

hearing on tribal government amendments to the Homeland Security Act of 2002.

I am here to express our strong support for the bill and the committee’s effort to correct the troubling exclusion of tribal governments from nearly all aspects of homeland security to date. S. 578

will change the Homeland Security Act’s incorrect definition of

tribes as local governments and thus close a critical vulnerability

gap in our Nation’s homeland security network.

NCAI has three important recommendations to the committee regarding S. 578. First, we recommend the bill be amended by the

committee to include Alaska Native Tribal Governments. Second,

we recommend the inclusion of language to strengthen the jurisdictional provisions in section 13. We have provided the committee

with language for both these recommendations. Third, for tribes to

receive direct Federal services. Tribes should be provided additional funding to alleviate the budgetary strains caused by homeland security related problems such as patient overload in tribal

hospitals and clinics created by illegal immigrants on borders.

In order to give context to my remarks, I want to first demonstrate how the issue of homeland security impacts my tribe in

Fort Berthold. As you mentioned, hundreds of Minute Men missile

launch sites are located throughout North Dakota. The Minute

Man has played a strategic role in our homeland security defense

system for over 40 years. What you may not know, Mr. Chairman,

is there are up to 18 missile silos located on our reservation, only

3 miles from the city of New town, the headquarters for our tribal

administration.

Our police officers are regularly called to investigate trespass

calls on or near these U.S. Air Force-controlled sites, especially

when these incidents happen outside of the Air Force patrols 9 to

5 shift. Despite these services, my tribe did not receive any funds

from the U.S. military or from the Department of Homeland Security.

The Garrison Dam sits near our reservation and when it was

built, it decimated our remaining tribal land base and nearly destroyed our culture. The impacts on our loss of life and property if

the dam was to be destroyed by a terrorist attack is unthinkable.

Now it is over 100 miles in distance to our most southern community from our headquarters.

With regard to State funding, my home State of North Dakota

received over $13.2 million for homeland security. Just under

$73,000 of this amount was earmarked for all of the Indian reservations in North Dakota. That means just a little over $14,000

went to my reservation and the other tribes. That is less than 1

percent of our State’s contribution. We were never consulted about

any formula for appropriations or any formula for determining our

unmet needs for securing our tribal homeland borders. None of that

was done.

The $73,000 is going to be spent for an additional State Homeland Security Liaison to work with Indian tribes. The net result is

that none of these actual monies in the State of North Dakota will

be spent to educate or train tribal law enforcement concerning domestic terrorism in our State.
49

Even more disturbing is the fact that the tribes will not receive

any money to coordinate with the State and Federal law enforcement authorities, which is critical. Coordination is crucial if events

were to happen on or near our reservation.

I have spoken with other tribal leaders throughout the Nation

and the failure of States to consult with Indian tribes and include

them in their homeland security efforts appears to be the rule rather than the exception.

I want to finally point out that many tribes, such as mine, are

becoming more inviting to terrorism because of the presence of our

casinos our tourist attractions, and economic development. The

Lewis and Clark Bicentennial, which started this year from 2003–

06, will draw millions of people to reservations in Indian country

from St. Louis to the West Coast. Homeland security funding and

training is critical to ensuring tourist safety.

As my fellow tribal leaders have attested, tribal lands nationwide

host similar sensitive sites. Tribal lands include over 300 miles of

international borders and 28 tribes are located on or within 5 miles

of an international border. These tribes face serious immigration

issues that have been widely reported and documented. What is

less known is the extensive nature of infrastructure located on or

near tribal lands that is critical to our Nation’s security. These include nuclear power plants, hydroelectrical dams, pipelines, transmission lines, railroads, airports, highway corridors, nearby military installations, and huge populations centers. Like all other governments, tribal governments need the necessary resources to develop the capacity to respond to threats of terrorism. The bottom

line is that our national defense system is only as strong as its

weakest link.

Many of you have hundreds of thousands of constituents who like

it or not have to count on tribal law enforcement to protect these

sites. Your constituents will have to count on tribal first responders

to take action in the event of the unthinkable. Yet, for some reason

Indian tribes have been left out of the planning efforts that this

Nation has taken to date to secure our homeland. S. 578, we believe, will correct these defects.

The Homeland Security Act of 2002 established the Department

of Homeland Security as the principal agency to develop the national effort through a system of counter terrorism analysis, preparedness and information sharing. Yet the Act has a glaring

weakness. It fails to include tribal governments as full-fledged participants in the Department of Homeland Security’s program implementation. Instead, the Act regulates tribal governments to the

local government category, a designation used for counties and municipalities with an entire different level of responsibility for ensuring public safety.

This has to change. The Department of Homeland Security is not

the first agency to encounter problems with Federal program delivery and tribal consultation, but I hope it will be the last. The bottom line is tribes need adequate funding to do the job in protecting

against terrorist threats. For decades, States and local governments have received hundreds of millions of dollars for developing

and enhancing their emergency management infrastructure, including emergency response.
50

As I testified, tribes have been largely ignored when it comes to

funding and technical assistance from Federal agencies. We have

been forced to ask for funding from States and counties counter to

the Federal policy supporting the government to government relationship.

Adding to our frustration is the Department of Homeland Security’s lack of communication and consultation with Indian tribes.

The Department has assembled various work groups and task

forces but have not invited tribal leaders and representatives to sit

at the table. S. 578 is the right bill at the right time to do this.

It is almost 2 years since 9/11.

The President of the United States, President Bush, recently said

we have an obligation to future generations of America to make

sure this country is secure and we will keep that obligation. This

measure is a decisive measure and a smart investment that will

fulfill that commitment for our tribal families and for our future

tribal generations.

I would like to add in closing that the jurisdictional problems

that were talked about previously created by the Oliphant decision

denies tribal people the opportunity to protect our tribal people and

that must change. I greatly appreciate the candid comments made

by Mr. Heffelfinger. The Homeland Security Act is an important

vehicle for discussing this problem because it highlights the very

real issues that tribes face every day, not just in terrorist attacks.

We are interested in having a broader discussion about jurisdiction in Indian country but this cannot wait forever. Tribal police

need the tools to address crimes committed by non-Indians in Indian country. Domestic violence and alcohol and drug crimes are

our biggest problems in sheer volume alone. The most important

civil right we all have is the right to be safe in our homes.

In closing, we would like to have the same opportunity as the Department of Justice to work on the language with the committee

on section 13.

Thank you very much for giving me the opportunity to testify.

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

Senator INOUYE. Thank you very much, President Hall.

Now may I recognize Chief Executive Officer Gary Edwards.

STATEMENT OF GARY EDWARDS, CHIEF EXECUTIVE OFFICER,

NATIONAL NATIVE AMERICAN LAW ENFORCEMENT ASSOCIATION [NNALEA]

Mr. EDWARDS. Vice Chairman Inouye and distinguished members

of the committee, my name is Gary Edwards. I am appearing and

testifying today as the chief executive officer of the National Native

American Law Enforcement Association.

As many of you may be aware, NNALEA is a not-for-profit organization that promotes and fosters cooperation between American

Indian law enforcement officers, agents, their agencies, tribes, private industry and the public. NNALEA recently published its Tribal Lands Homeland Security Report which details many of

NNALEA’s current findings and views on the importance of tribal

lands and tribal governments in the furtherance of the mission of

homeland security. We also have an upcoming Homeland Security
51

Forum in November of this year wherein we will further pursue

vital homeland security issues.

I appreciate the opportunity to appear before you to discuss some

of NNALEA’s views on S. 578 and perhaps even earmark certain

issues that need to be pursued in more detail at our upcoming conference.

I have prepared a written copy of my testimony, along with a

copy of the NNALEA Tribal Lands, Homeland Security Report and

ask that it be accepted into the record.

Senator INOUYE. So ordered.

Mr. EDWARDS. Generally, NNALEA supports the tenets of sections 1–12 of the tribal government amendments to the Homeland

Security Act of 2002. I will refer to these sections further in this

testimony as ‘‘the amendments.’’ In pages 6–9 of the NNALEA

Tribal Homeland Security Report, we set forth an outline of many

of the vulnerabilities located on tribal lands that pose a threat to

the homeland security of our entire country. These vulnerabilities

include border security, critical infrastructure, integration of law

enforcement, lack of jurisdictional clarity, and emergency response

and medical capacity planning and implementation.

Obviously as these vulnerabilities are located on tribal lands, Indian tribal governments have invaluable insight into them and the

best means to safeguard them against terrorist attacks. Accordingly, Indian tribal governments must be included, consulted and

involved in carrying out the mission of the Department of Homeland Security.

Such inclusion, consultation and involvement should occur directly between the United States and each Indian tribe on a government to government basis. Indian tribal governments possess

inherent sovereign authority.

With regard to section 13 of ‘‘the amendments,’’ NNALEA generally agrees with the tenet that the inherent sovereign authority

of Indian tribal governments as recognized in section 2 of the

amendments include the authority to enforce and adjudicate its applicable criminal, civil and regulatory law violated by any person

on tribal lands within certain limitations.

It appears that most everyone agrees these limitations should include at a minimum those set forth in any treaty between the

United States and an Indian tribe as well as those set forth in any

applicable act of Congress. NALEA is, however, aware there are

certain rights in the enforcement and adjudication of applicable

criminal, civil and regulatory laws that are at present guaranteed

on non-tribal land and by non-tribal governments but that are not

guaranteed on all tribal lands and by all tribal governments thereby creating a discrepancy in the enforcement and adjudication of

certain laws.

Such discrepancies invoke a number of concerns such as due

process which probably require a further coming together and balancing of an Indian tribal government inherent sovereign rights,

the rights of all citizens and the resources available to the Indian

tribal governments to enforce and adjudicate applicable laws. Such

discrepancies will ultimately be encountered by the legislature and/

or by the judicial system should section 13 be enacted as currently

drafted.
52

Therefore, NALEA suggests that in considering section 13, the

discrepancies of the rights referenced above should be evaluated in

detail along with the lack of parity in resources provided to nontribal governments versus those provided to tribal governments for

the purposes of enforcing and adjudicating applicable laws.

After consideration of such, it might be surmised that section 13

should be crafted in a way that better ensures both the present discrepant rights in whole or in part and in a way that provides for

Indian tribal governments to receive an influx in resources which

allow them to bring their authorities that enforce and adjudicate

the laws into parity with those of non-tribal governments.

In conclusion, NALEA supports the general tenets of the amendments. However, there are certain specific details of the amendments, especially regarding section 13, that probably require further examination and clarification.

Thank you and I am happy to answer any questions you may

have at the appropriate time.

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

Senator INOUYE. Thank you very much, Mr. Edwards.

Mr. Sanders.

STATEMENT OF TIM SANDERS, EMERGENCY OPERATIONS COORDINATOR, GILA RIVER INDIAN COMMUNITY OFFICE OF

EMERGENCY MANAGEMENT, GILA RIVER INDIAN COMMUNITY

Mr. SANDERS. Good afternoon.

On behalf of the Gila River Indian Community of Arizona, I

would like to thank you for allowing us to testify here today.

My name is Tim Sanders and I am the manager of the Gila River

Indian Community Office of Emergency Management. In the interest of time, I would like to submit my full written testimony and

highlight a few parts for you this afternoon.

We are pleased to be here to discuss S. 578, the Tribal Government Amendments to the Homeland Security Act. We think this is

an important first step in the attempt to clarify the roles and responsibilities of tribal governments in the Homeland Security Act.

I want to share with you some of the experiences we have had with

emergency management and homeland security type issues that I

think may be helpful as we further the discussion.

It has been an honor for me to listen to the tribal leaders discuss

the problems they have and hear about their concerns for the people for whom they are ultimately responsible. I am here as the person charged with implementing the Homeland Security Act and

other emergency management measures in our community. It is a

big responsibility. I take it very seriously. We have some issues

that I think S. 578 will help resolve as we go along.

The Gila River Indian Community is located just south of Phoenix, Arizona, is home to about 14,000 of the 18,000 enrolled members of the community. It is the largest reservation in the Phoenix

metro area.

We have worked very hard over the past several years to establish and build a very respected and successful emergency management program at Gila River. The community also operates a fire

department, a police department, emergency medical services, de-
53

partment of public health, a hospital and these are parts of the Arizona State homeland security network.

I think our current emergency management capabilities demonstrate that tribes can and do play an important role in homeland

security in a regional concept and a State concept of homeland security.

We are here to support S. 578. The bill makes important changes

to the Homeland Security Act that recognizes the sovereignty of

tribal governments. It proposes to establish a more direct government to government relationship. We just received a letter from the

Governor of Arizona that supports S. 578 and I think that letter

was sent to the committee yesterday. We have worked very hard

with the State on some of these issues.

In the broader context of homeland security, however, there are

certain other issues about the treatment and role of tribes that are

unclear. S. 578 only corrects one of several omissions with regard

to tribal treatment and tribal sovereignty for both homeland security and emergency management.

In recent years, we have worked closely with the Federal Emergency Management Agency to address an omission in their authorizing legislation, the Stafford Act, which has the same problem the

Homeland Security Act does with regard to defining tribal governments as local government. This means tribes cannot directly request disaster declarations, they can’t enter a direct government to

government relationship with FEMA and many of their programs.

I want to talk about some examples we have worked on with

FEMA to work around this issue that needs to be fixed. FEMA

worked very well with us on some of these issues. They have established tribal liaisons in each one of their regions. We worked with

them to develop a measurement instrument that is now available

as software to help tribal emergency management programs set

goals and objectives for their programs and measure their program

capabilities. We also worked with FEMA to develop a specific tribal

emergency management training course that is available to tribes.

They present it twice a year at their Emergency Management Institute in Emittsburg, MD.

We think homeland security could probably follow the same lead

as FEMA working with tribes that have developed the capability

that can serve as a model to help other tribes. Unfortunately, we

still have that problem that doesn’t properly recognize the role of

tribal governments. When the rubber meets the road sometimes,

those Federal agencies will fall back on that law as a stumbling

block to providing the proper technical assistance, funding assistance and things like that.

While we are excited about the prospects of amending the Homeland Security Act, we would urge the committee to keep in mind

the Stafford Act is still out there and I think the same changes

may need to be made to that bill as well.

S. 578 doesn’t do anything for the funding mechanisms for tribes.

The majority of homeland security funds are distributed through

the States and we have heard several examples of having to lobby

county governments and things like that and have tribal leaders sit

down with staff members from counties to try to lobby and negotiate for pieces of funding that should be going to the tribes.
54

The Department of Health and Human Services has funding for

hospitals and public health departments. That funding goes

through the State and tribes must sit down at the table with various local governments to negotiate the terms of what if any kind

of assistance they are going to get for this.

None of the programs really direct that grant funding would go

directly to the tribes. It is a matter of how you negotiate and what

kind of relationships you have been able to establish with your

State and local governments. Obviously this is unacceptable for our

community and probably many other Indian communities in the

Nation.

A bill currently under consideration in the Senate, S. 1245, aims

to consolidate a lot of the grant funding programs for the Department of Homeland Security. That bill also has no provisions for addressing the tribal funding needs. Instead, the tribes would have

to depend upon the States and upon those counties and local jurisdictions to compete for those funds they need.

We would urge the committee also to take a look at S. 1245 and

see what kind of language may be developed for that bill that

would address some of those issues. We would be glad to assist

with developing some of that language to make sure that even if

we get S. 578 and the Stafford Act changed, if there is still no funding mechanism, we will still be back to square one on some of those

issues.

We do have some recommendations. We don’t come here with our

hands out today. We have invested considerable resources at the

Gila River Indian Community to establish a program to take care

of the needs of our community in the absence of some of the Federal assistance we should be getting. We are proud we have a sophisticated program that can take care of some of those needs that

allows us to get out there and build working relationships with our

counties, with the State counterparts.

I think from this experience we can bring some recommendations

that will help strengthen tribal emergency management programs

and perhaps give some other recommendations for strengthening

the homeland security package that you are considering.

The first recommendation is the same amendment needs to be

made to the Stafford Act that is made to the Homeland Security

Act. I think it makes sense now to bring that under consideration

while S. 578 is under consideration.

Our second recommendation is that we believe that tribal governments should be given the option of being a reporting jurisdiction in a State’s homeland security plan. Right now Arizona has

made the administrative decision to designate their 15 counties as

reporting jurisdictions for the threat assessments and needs assessments. That means that Gila River and several other Indian reservations in Arizona must artificially divide their needs and threat

assessments and try to make it fit into both or three counties they

are in and that complicates things for the counties as they relay

that information to the State. It doesn’t give a clear picture of what

the threats and needs are on the reservation. I think it leaves gaps

in the State’s homeland security assessment as well.

Congress should stress to DHS and HHS that tribes should be

given an option if they have the administrative ability to manage
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those grants and things like that. We have sent a letter to our

State Director of Homeland Security requesting they give tribes the

option to do that in Arizona. I think we might see some movement

on that in the future.

Third, I think Congress must recognize that tribes have some

unique homeland security issues and needs. Traditionally, they will

come to the table with much less emergency preparedness infrastructure. I think it is unfair to burden States that do have tribes

with having to dilute their funding. It may be possible somewhere

down the road to have a set aside amount that goes to States that

have tribes set aside specifically for tribal homeland security needs.

Fourth, despite the relative disadvantage with respect to emergency management infrastructure, tribes must be given the opportunity to participate as full partners. I think the amendments to

S. 578 will help local and State governments realize tribal governments do exist. They are there and should be treated as equal partners at the table. I think it will enhance our capability to enter into

relationships with them and work out some of these issues.

Finally, we concur with other colleagues in the emergency management community that an all hazards approach to emergency

management should be maintained. We see a lot of emphasis on

the law enforcement side, the surveillance side and things like

that. I think based on our experience, it is very important that the

all hazards approach be maintained. I think there is another bill

under consideration, S. 930, that seeks to amend the Stafford Act

to include terrorism aspects under their umbrella of Federal assistance. There are some vehicles out there to address some of the concerns and some of the recommendations we have.

In conclusion, I would like to thank you again for allowing us to

testify. We are encouraged by the attention that some of these

issues have been getting. We have been involved in trying to get

some action on these for many years. We would like to offer any

assistance we can with language, with serving as a model community, with assisting, whatever we can to help tribal governments

become more active and more participatory in the homeland security arena.

We look forward to working with you on this bill and any other

homeland security issues we can help you with.

Thank you very much.

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

Senator INOUYE. Thank you very much, Mr. Sanders.

As noted by you, we have received a letter in support of this

measure from the Governor of Arizona, Janet Napolitano, and that

will be made a part of the record.

Her letter is in support of S. 578.

President Hall, you made a very interesting observation that

North Dakota received $13.2 million for homeland security purposes and yet only $73,000 was set aside for Indian tribes and all

these limited funds could enable the hiring of a liaison officer with

the result that no actual funds were allocated to the tribes.

Mr. HALL. I got my notice last Friday. It was just under $73,000

and they are going to use it to hire a liaison. We really didn’t get

any money.

Senator INOUYE. How much did you get, $3?
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Mr. HALL. It really is embarrassing. You can’t defend your homeland with that kind of dollars.

Senator INOUYE. This measure will address that.

Mr. HALL. This would be a tremendous help to us. As I mentioned, there are strategic missile silos, and hydroelectric dams located on Fort Berthold, a mere $14,000 for homeland security is

embarrassing. There is no way it can cover any amount of surveillance that is needed.

Senator INOUYE. We intend to use S. 578 as a legislative vehicle

to amend the Stafford Act as far as the definition is concerned. I

presume all of you are in favor of that?

Mr. HALL. Yes, sir.

Senator INOUYE. I do not think the Administration would oppose

that. After all, Justice has said they can go along with that.

President Hall, I am certain you have heard concerns expressed

by certain non-Indians on this measure that it will create a lot of

chaos in reservation communities and authorize broad civil and

criminal jurisdiction over non-Indians. Is there any reason for them

to be concerned?

Mr. HALL. Not at all. If they read the legislation, it is pretty

straightforward, it is limited to the acts of terrorism. I think people

are jumping to conclusions. I think radicals are jumping to conclusions and those radicals have never been in Indian country. They

don’t understand the vastness of Indian country. Indian country is

56 million acres of trust land as you know, Senator. There are strategic initiatives, military installations, airports, railroad, hydroelectric dams located on Indian land. You put all that together,

there is no way we can defend our homeland for only $14,000 for

each tribe?

If there is an attack, heaven forbid, that would be on a reservation, the tribal government is the closest thing within hundreds of

miles in many rural parts of America. Non-Indian communities are

going to call our reservation because of the communication system,

because of the law enforcement, the ambulance, the fire system.

They are going to call our tribal governments and we are going to

respond as Governor Johnson indicated when the railroad had their

incident, they responded. They didn’t get a thank you until quite

some time later but nevertheless that happens throughout Indian

country in the interest of protecting human life. A terrorist doesn’t

care whose jurisdiction it is.

No, those are radical statements that are ill founded and haven’t

led to legislation. The legislation is limited to acts of terrorism and

tribes have to have that ability. If our law enforcement, our emergency response is there, if there is an act of terrorism, we have to

have the ability to move quickly to protect human life. So we have

thought about that and are ready to assist the committee in any

manner whatsoever, but I believe a lot of those are not really

thought out statements. Those are radical statements by anti-Indian groups that don’t like Indian people for whatever reason. They

are very discriminatory and racist towards our people and they are

not focused on this piece of legislation which is the Tribal Homeland Security. It amends the Homeland Security Act to include

tribal governments’ ability to have direct funding and to have the
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authority and jurisdiction to protect all people, all races if an act

of terrorism occurs.

Senator INOUYE. Mr. Edwards, has the Department of Homeland

Security had any official contact with your organization?

Mr. EDWARDS. Yes, sir; they have.

Senator INOUYE. What was the nature of that?

Mr. EDWARDS. To work together to reach out to various Indian

organizations and tribes to work with us on our homeland security

summit. I might add that probably most of that was initiated by

NALEA seeking and looking for help and support from the Department of Homeland Security.

Senator INOUYE. Have members of your organization had the opportunity to work with the law enforcement officials, and the Federal Bureau of Investigation on matters of homeland security?

Mr. EDWARDS. Yes, sir; we have. NALEA is about partnerships,

it’s about building relationships. We work extremely closely with

the FBI. As a matter of fact, just 2 weeks ago we worked with

them to develop a plan with missing and exploited children in Indian country, to take that program to Indian country. So we work

with almost all Federal agencies as well as tribal, State and local.

Senator INOUYE. You think this measure will enhance that?

Mr. EDWARDS. Yes, sir; I definitely do.

Senator INOUYE. Mr. Sanders, thank you for your testimony. As

you know when we report out a measure for consideration by the

full Senate, we accompany that with a committee report. In that

committee report, I will advise the staff to make certain the provisions are clearly set forth that by this measure or perhaps another

measure, we will make certain that Gila River will become a reporting jurisdiction and furthermore, we would like to include clarifying language to assure that when funds are appropriated, they

will not go through the State but go directly to tribal governments.

Mr. SANDERS. That would be excellent.

Senator INOUYE. I do not suppose you would oppose that. We do

respond to testimony, believe me. I hope the measure we report to

the full Senate will be one that will address some of your concerns.

We realize that this is not a cure all but I think as some of you

have indicated, it is a good first step. We hope this will become not

just a first step but will serve as a foundation on which we may

add many more steps.

With that, I thank all of you for your participation today. We will

now get to work and report out a bill.

The hearing is adjourned.

[Whereupon, at 4:22 p.m., the committee was adjourned, to reconvene at the call of the Chair.]

(59)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF WILLIAM F. RAUB, PH.D., PRINCIPAL DEPUTY ASSISTANT

SECRETARY, OFFICE OF PUBLIC HEALTH EMERGENCY PREPAREDNESS

William F. Raub is the Principal Deputy Assistant Secretary of the Office of Public Health Emergency Preparedness, Office of the Secretary of Health and Human

Services [HHS]. He has also served as the Principal Deputy Assistant Secretary of

the Office of Planning and Evaluation, also within the Office of the Secretary.

Dr. Raub was the HHS Deputy Assistant Secretary for Science Policy from 1995

to 2001. He was the Science Adviser to the Administrator, United States Environmental Protection Agency from 1992 to 1995 after a 1-year assignment as Special

Assistant for Health Affairs in the Office of Science and Technology Policy, Executive Office of the President of the United States. Prior to that, he was the Deputy

Director of the National Institutes of Health [NIH] in the Department of Health and

Human Services from August 1986 through November 1991. From July 1989

through March 1991, he was the Acting Director, NIH.

From 1978 to 1986, Dr. Raub served first as Associate Director, and later Deputy

Director, for Extramural Research and Training at NIH. He was Associate Director

of the National Eye Institute from 1975 to 1978 and Chief of the Biotechnology Resources Branch in the Division of Research Resources from 1969 to 1975. Dr. Raub

was Acting Chief of the Special Research Resources Branch, Division of Research

Resources, in 1968-1969, and was a Health Scientist Administrator in the Division

of Research Facilities and Resources from 1966 to 1968. From 1966 through 1979,

Dr. Raub led the development of the PROPHET system, the first integrated array

of computer-based tools for the study of the relationships between molecular structures and biological effects.

Dr. Raub has received numerous awards from external organizations for his government service—including the Society of Research Administrators’ Award for Distinguished Contribution to Research Administration, the American Medical Association’s Nathan Davis Award, and election as a fellow of the National Academy of

Public Administration. In addition, within HHS, he has twice been presented the

Distinguished Service Award and has received the Presidential Meritorious Executive Rank Award and the Presidential Distinguished Rank Award.

Born in Alden Station, Pennsylvania, Dr. Raub was graduated summa cum laude

with the A.B. degree in Biology from Wilkes College in Wilkes-Barre, Pennsylvania.

He received the Ph.D. degree in Physiology from the University of Pennsylvania,

where he also was awarded a National Science Foundation Graduate Fellowship and

was a Fellow of the Pennsylvania Plan. During 1965-1966, Dr. Raub was an instructor and post-doctoral fellow at the University of Pennsylvania Medical School.
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PREPARED STATEMENT OF AUDREY BENNETT, PRESIDENT, PRAIRIE TRIBAL COUNCIL

Good afternoon Mr. Chairman and committee members. My name is Audrey Bennett, and I’m president of the Prairie Island Indian Community. Thank you for inviting me to testify today.

I’m here to offer this committee a perspective that is unique to my community

but emblematic of the homeland security issues with which many tribal governments in this country must contend.

For your reference, I’ve provided an aerial photo of Prairie Island, which is located

between the Mississippi and Vermilion Rivers in southeastern Minnesota, about 50

miles south and east of Minneapolis-St. Paul.

Prairie Island is sacred land. Our people have lived there for countless generations. It is my home as well as the final resting place for my ancestors.

As you can see, our reservation is bordered by a nuclear powerplant and nuclear

waste storage site. Two nuclear reactors and 17 large storage casks filled with highly radioactive nuclear waste sit just 600 yards from our homes, church, community

center, and business.

In fact, our community is believed to be the closest in the Nation to both a nuclear

powerplant and nuclear waste storage site—yet we have no special role in helping

to protect these facilities, or for that matter, ourselves.

For decades, well before terrorism became the issue that it is today, our tribe had

to fight to be properly recognized by the State of Minnesota and our utility neighbor.

In 1979, when the plant was evacuated after a steam generator leaked radiation

into the atmosphere, no one even bothered to inform our people about the incident.

Most tribal members realized something was wrong only after witnessing numerous

cars speeding away from the plant. Many of us wisely followed.

Today we are better prepared for a similar incident, and we have a reasonably

cooperative relationship with the plant and the State. But in this age of catastrophic

terrorism, conventional emergency planning and tangential communication seems

grossly inadequate. While we participate in the State’s radiological drills and exercises, we have no formal role in helping to prevent an attack, and our involvement

in responding to such an event is, at best, ill-defined.

Imagine every time you leave your house or look out your window, seeing a nuclear powerplant and being reminded of your vulnerability. Imagine in this day of

color-coded warnings and credible threats, fearing the worst every time an airplane

flies by or a news helicopter hovers over the neighboring nuclear plant. Imagine,

and this happened recently, driving down your road only to see military Humvees

stationed at your intersection without any explanation or notice.

This is what we live with every day. We are uninformed. We are victims in waiting.

Even in disaster recovery, should the worst occur, under the existing system we

have little to no independent recourse; instead, we are largely subject to State authority. This was evidenced recently when our community was affected by major

flooding, and we had to go though the State to access Federal resources.

While there, of course, needs to be cooperation between tribal and State governments, it is not appropriate for States to be in the position of deciding what tribes

need to prepare for or recover from a disaster—natural or otherwise.

Our tribal government, not the State, is ultimately responsible for the health and

safety of as many as 10,000 people, including our tribal members, employees and

visitors. But we also have a responsibility to scores more that live in the area by

virtue of our proximity to a potential terrorist target and our obligation as Americans to help protect the homeland.

According to a January 2003 poll, nearly 60 percent of Minnesotans are concerned

that the State’s nuclear powerplants could be targeted for terrorism. And 54 percent

say that they would need to live at least 50 miles from a nuclear powerplant to feel

safe.

Having lived much of my life in the shadow of a nuclear facility, I share their

concern. I share their concern because I know more can be done to ensure our safety.

Reservation lands located along our nation’s borders and near critical infrastructure such as dams, hydroelectric facilities, and nuclear powerplants are vulnerable.

Tribal governments should be given the mandate and resources needed to help keep

these areas safe. Furthermore, in keeping with the Federal Government’s trust responsibility to tribes, the Department of Homeland Security should be required to

deal with tribes on a government-to-government basis—just as any other Federal

agency would.

Clearly, if it is going to be effective, the Homeland Security Act must involve

tribes and be inclusive of tribal interests. It should recognize tribal governments
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and demand the same vigilance of tribes that is expected from others charged with

protecting this Nation.

On behalf of my community and tribal council, thank you again for the opportunity to, testify here today. We pledge our full cooperation in this matter and we

look forward to further dialog and prudent action.

Mr. Chairman, I’d be happy to answer any questions.
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