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45–126 PDF 2008

S. HRG. 110–576 

TRIBAL COURTS AND THE ADMINISTRATION OF 

JUSTICE IN INDIAN COUNTRY 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JULY 24, 2008 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

BYRON L. DORGAN, North Dakota, Chairman 

LISA MURKOWSKI, Alaska, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

DANIEL K. AKAKA, Hawaii 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

JOHN MCCAIN, Arizona 

TOM COBURN, M.D., Oklahoma 

JOHN BARRASSO, Wyoming 

PETE V. DOMENICI, New Mexico 

GORDON H. SMITH, Oregon 

RICHARD BURR, North Carolina 

ALLISON C. BINNEY, Majority Staff Director and Chief Counsel 

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

(III) 

C O N T E N T S 

Page 

Hearing held on July 24, 2008 ............................................................................... 1 

Statement of Senator Barrasso ............................................................................... 87 

Statement of Senator Cantwell .............................................................................. 93 

Prepared statement .......................................................................................... 93 

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

Statement of Senator Murkowski ........................................................................... 3 

Statement of Senator Tester ................................................................................... 88 

WITNESSES

Duran, Hon. Roman J., First Vice President, National American Indian Court 

Judges Association ............................................................................................... 7 

Prepared statement with attachment ............................................................. 9 

Flies-Away, Hon. Joseph Thomas, Chief Judge, Hualapai Tribe ........................ 20 

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

Pouley, Hon. Theresa M., Judge, Tulalip Tribal Court; President, Northwest 

Tribal Court Judges Association ......................................................................... 26 

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

Ragsdale, W. Patrick, Director, Office of Justice Services, Bureau of Indian 

Affairs, U.S. Department of the Interior; Accompanied by Joe Little, Associate Deputy Director, Office of Justice Services, Division of Tribal Justice 

Support .................................................................................................................. 4 

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

Sahneyah, Dorma L., Chief Prosecutor, Hopi Tribe ............................................. 36 

Prepared statement with attachments ........................................................... 39 

APPENDIX

A Comparison of State Low Level Felony Sentencing Authority by M. Brent 

Leonhard and Cisco Minthorn ............................................................................ 102 

Miller, Alberta Iron Cloud, Chief Prosecutor, Oglala Sioux Tribal Court, prepared statement ................................................................................................... 107 

Patterson, Donnette J., Administrator, Yankton Sioux Tribal Court, prepared 

statement .............................................................................................................. 112 

Pearson, Hon. Myra, Chairwoman, Spirit Lake Tribe, prepared statement ...... 106 

St. Clair, Hon. John, Chief Judge, Shoshone and Arapaho Tribal Court 

Prepared statement with attachments ........................................................... 97 

Response to written questions submitted by Hon. John Barrasso ............... 101 

Written Questions Submitted by Hon. Byron L. Dorgan and Hon. Lisa 

Murkowski ............................................................................................................ 114–117 

(1) 

TRIBAL COURTS AND THE ADMINISTRATION 

OF JUSTICE IN INDIAN COUNTRY 

THURSDAY, JULY 24, 2008 

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

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

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

OPENING STATEMENT OF HON. BYRON L. DORGAN, 

U.S. SENATOR FROM NORTH DAKOTA 

The CHAIRMAN. We will call the hearing to order. My colleagues 

will be joining me shortly, but this is a hearing of the Indian Affairs Committee of the United States Senate. 

This morning, the Committee will examine tribal court systems 

and the administration of justice on Indian lands. 

In a spirit of independence this morning, I ordered that the 

drapes be opened finally in this Committee room. You are welcome. 

I get so weary of going to committee rooms in this United States 

Senate building, and not only this one, but the other buildings as 

well, and the drapes are closed and it is dark, and then they turn 

the television lights on. So we will see how long we get away with 

this. All right. Good. 

It is customary for our Committee to hear from the elected tribal 

leaders, but today we are going to hear for the first time in a while 

directly from the men and women who serve the tribal court systems as judges and prosecutors. I deeply appreciate their willingness to be with us. They get precious little attention. They work 

very hard trying to make a system work that is in many ways almost a dysfunctional system, but the men and women who are joining us today are people that do unbelievably important work on Indian reservations. 

Tribal courts are the frontline institutions for preserving the 

peace in Indian communities. They also help resolve civil disputes 

among community members and those doing business on Indian 

lands. To that end, a strong tribal court system is a proven factor 

in fostering economic development on Indian lands. 

Today, there are about 290 tribal district courts and more than 

150 tribal appellate courts. Training and funding for tribal courts 

is vital to their success. But as we will hear this morning, funding 

shortfalls have limited the ability of tribal courts to fulfill their 

goals. 

2 

For many tribes, Federal funding is the primary source of revenue for the court systems. That funding has not nearly kept pace 

with the increased number of court systems, their responsibilities, 

or for that matter, their growing technology needs. Last year, Congress appropriated $14.3 million to the Interior Department’s Tribal Courts Program. This was the highest figure for the tribal courts 

in more than a decade. The President’s budget proposes a $2 million cut to that program for Fiscal Year 2009. 

As I noted, the funding needs of tribal courts have further increased in recent years. One example is the significant amount of 

time, technology and resources that tribal courts will have to expend to comply with the Adam Walsh Child Protection and Safety 

Act, which this Committee examined last week. 

Another example of increased responsibility is the need to address increases in violent crime and the significant number of cases 

that fall through the cracks or are declined in the Federal system. 

The chart below shows that in the four years from 2004 to 2007, 

the United States Government declined to prosecute an average of 

62 percent of reservation crimes. This means that nearly 75 percent of adult and child sex crimes and 50 percent of reservation 

homicides, went unpunished in the Federal system. 

That is truly stunning to me to see these statistics. When declined in Federal court, the victims and the families of Indian 

Country then must turn to the tribal court systems to deliver justice. But current law limits the authority of tribal courts to sentence offenders to no more than one year in incarceration. One year 

for a rape or murder does not deter those crimes or provide any 

justice at all to these victims or to their families. 

For that reason, yesterday we introduced the Tribal Law and 

Order Act of 2008, with the support of the Vice Chair Murkowski 

and 11 other Senators. We have introduced legislation that we believe will begin to address this serious problem. Senators Domenici, 


724a1.eps
3 

Johnson, Cantwell, Smith, and Tester are from this Committee. 

Senators Biden, Baucus, Bingaman, Lieberman, Kyl, and Thune 

have all signed onto this bill. 

It takes initial steps at addressing the disjointed criminal justice 

system in Indian Country. The bill would enable tribal courts to 

sentence offenders up to three years in prison for violations of tribal law. If a tribe exercises the option to sentence an offense to more 

than one year, it must provide a public defender and must meet 

other requirements as well. 

Again, this is only an option. A tribe may choose to continue to 

act under current law. The bill also would reauthorize the tribal 

court programs within the Interior and the Justice programs. 

These reauthorizations have been waiting for a long, long time. 

They will help address some of the funding shortfalls that I have 

described. 

Let me just mention that in recent years, we have had hearings 

in which we have been told that some have targeted Indian Country as safe havens for crime, drug dealers, and others. It has led 

to a longstanding public safety crisis on many reservations, and the 

tribal court systems themselves are vital to trying to combat this 

problem. 

For that reason, the bill we have introduced seeks to empower 

the tribal court institutions, which are fundamental to the administration of justice on tribal lands. 

Again, I am proud that we were able to introduce a piece of legislation with very strong bipartisan support. I mentioned the staff, 

both the majority and the minority staff, who have worked on this 

a great deal. We consulted carefully all across the Country with Indian tribes, and we worked with local law enforcement officials, 

State law enforcement officials, and others in order to get to the 

point where we had bipartisan support to introduce this bill yesterday. 

It will be our hope to move the bill as quickly as we can. At least 

a part of the discussion of that will be here today with respect to 

the tribal court systems. We appreciate your being here. 

Let me call on the Vice Chair, Senator Murkowski. 

STATEMENT OF HON. LISA MURKOWSKI, 

U.S. SENATOR FROM ALASKA 

Senator MURKOWSKI. Well, thank you, Mr. Chairman. 

I want to add just really my support and truly, I guess it is congratulations as we were able to introduce that legislation yesterday 

with really very strong bipartisan support. I think that is a very 

telling indicator of the commitment within this body to do something meaningful when it comes to law enforcement in Indian 

Country. 

So I was pleased to be part of that, and look forward to kind of 

this ongoing consultation which is what we do in this deliberative 

body. 

I want to thank the witnesses for your appearance here today. 

I know that some of you have come from some far away places, and 

we appreciate the effort that you have made to come here and 

share with us some of your input in this area. I appreciate the 

work that you do within the tribal courts. Your dedication to the 

4 

general task of administering justice in the tribal, as well as the 

CFR courts throughout Indian Country, is greatly appreciated. 

We recognize very well that tribal court officials face some real 

challenges adjudicating the really heartbreaking stories of what we 

see, whether it is with child abuse, domestic violence, juvenile delinquency, the issues that come before you. We know that they are 

not easy for you. So again, we appreciate that. 

So many issues out there, so many things that you can point to 

and say, well, this is not working. We certainly look at the adequacy of the funding. We recognize that in many instances there 

just may be no place to incarcerate the dangerous offender. 

We often see that despite the best efforts of the tribal or the BIA 

law enforcement prosecutors, that there is an inadequate response 

from the Federal justice system as we attempt to deal with these 

serious felony crimes. 

Yesterday, certainly at the press conference and as the Chairman 

has led the debate on what we do with law enforcement in Indian 

Country, the five hearings that this Committee has held, we have 

heard incredible statistics about the various crime rates, the rates 

of sexual assault, violent crimes against women, against our children. It is appalling, and we recognize that the Federal Government has a responsibility to address these public safety concerns 

of Indian Country. It is something that we cannot turn our back 

on. 

So I look forward to hearing your comments this morning. I am 

certain that you will provide additional concerns to the Committee 

regarding the resources, the additional challenges that we face. But 

again, my thanks to you for your appearance here this morning 

and for the good work that you do. 

The CHAIRMAN. Senator Murkowski, thank you very much. 

We thank the witnesses for being here. We are going to begin 

today with Mr. Pat Ragsdale, the Director of the Office of Justice 

Services in the Bureau of Indian Affairs. He is accompanied by Mr. 

Joe Little, the Director of Office of Justice Services, the Division of 

Tribal Justice, at the Department of the Interior. 

Mr. Ragsdale, you may proceed. 

I would say to all of the witnesses that we will include your entire statements as a part of the permanent record. You may summarize. 

STATEMENT OF W. PATRICK RAGSDALE, DIRECTOR, OFFICE 

OF JUSTICE SERVICES, BUREAU OF INDIAN AFFAIRS, U.S. 

DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY JOE 

LITTLE, ASSOCIATE DEPUTY DIRECTOR, OFFICE OF JUSTICE 

SERVICES, DIVISION OF TRIBAL JUSTICE SUPPORT 

Mr. RAGSDALE. Thank you, Mr. Chairman, and thank you, 

Madam Vice Chair. 

I will summarize my testimony. I need to note that there are a 

couple of errors in the testimony, in our formal statement, that I 

will try to correct here in my brief statement. 

The Bureau of Indian Affairs for fiscal year 2008 supports approximately 207 tribal court systems. In Fiscal Year 2008, Congress enacted $14.3 million for tribal courts. Additional funds in 

the amount of $11.5 million are provided in the allocations for the 

5 

consolidated tribal government program and self-governance budgets, for a total allocation of about $26 million to support tribal 

courts. 

On average, the Bureau funding accounts for only a modest 

amount of most tribal court operating budgets. The majority of tribal court budgets are funded with tribal monies and sometimes with 

various grants from other agencies such as the Department of Justice. 

The funds provided by the Bureau are administered though Public Law 93–638 contracts or self-governance compacts. These funds 

support both criminal and civil court systems, and in some areas 

such funding supports intertribal appellate court systems. 

When we indicated in our formal statement that we did not provide funding to Public Law 280 States, that is not correct. We do 

provide some funding to tribal court systems where Public Law 280 

does apply. 

The Tribal Support Division, which is directed by Joe Little, who 

sits at my right, consists of five staff members dedicated to providing technical support, funding and training to tribal and CFR 

court systems nationwide. The division, with the assistance of contractors, has completed about 40 tribal court reviews in an attempt 

to ascertain tribal court needs and tribal judicial trends as they 

apply to sentencing, caseloads, types of crimes, et cetera. 

Based largely on these court reviews, the Bureau distributed 

over $2.4 million to tribal and CFR courts in Fiscal Year 2008 over 

and above the tribal court base funding. These funds are being 

used to cover everything from staffing to fireproof cabinets for storage of case files, to supplying new computers and software. The 

tribal courts are allowed maximum flexibility in allocation of these 

funds. 

The review of tribal courts also provides recommendations to the 

judges for improved or adjustments to ensure fair and impartial 

treatment of those coming before the court. We try to collaborate 

closely with the Department of Justice programs that also provide 

funds and support the tribal court systems. 

Currently, the Division of Tribal Justice Support within the Office of Justice Services is in discussions with the National Judicial 

College in Reno, Nevada to explore the possibility of developing and 

executing more types of on-site training for tribal judges and tribal 

court staff. Although the main request from tribal courts is operating funds, the next two main areas that tribal courts consistently 

seek assistance is in training for tribal judges and staff, and technical assistance in developing judicial administrative systems. 

Finally, we are working on developing a process to acquire data 

on tribal court activities such as extent of and types of caseloads, 

types of sentences, types of repeat offenses, et cetera. 

The Office of Justice and the Division of Tribal Justice Support 

is committed to helping tribal judicial systems maintain and advance the administration of justice in Indian Country. 

Thank you. 

[The prepared statement of Mr. Ragsdale follows:] 

6 

PREPARED STATEMENT OF W. PATRICK RAGSDALE, DIRECTOR, OFFICE OF JUSTICE

SERVICES, BUREAU OF INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Mr. Chairman and Members of the Committee, I am pleased to provide testimony 

for the Department of the Interior, regarding Tribal Courts and concepts aimed toward improving and addressing Tribal Courts and the Administration of Justice in 

Indian Country. 

The Bureau of Indian Affairs (BIA) has a service population of about 1.6 million 

American Indians and Alaska Natives who belong to 562 federally recognized tribes. 

Nationwide, there are over 200 tribal courts, but not all receive funding from the 

BIA. There are currently 156 tribal courts and Code of Federal Regulations (CFR) 

court that are funded by the BIA through a budget line item known as Tribal Priority Allocation (TPA) funds. In fiscal year 2008 Congress enacted $14.3 million for 

Tribal Courts of which $2.5 million was a Congressional increase over the President’s Budget request. 

A majority of tribal courts’ operating budgets are funded with tribal funds and 

various grants from other agencies, such as the Department of Justice (DOJ). The 

BIA funds that are provided are administered through P.L. 93–638 contracts or self 

governance compacts. The BIA funds provided support both criminal and civil court 

systems, and in some areas, the BIA funding supports inter-tribal appellate court 

systems. The BIA does not fund tribal courts that fall within P.L. 83–280 States. 

The Division of Tribal Justice Support (DTJS) is the office that oversees tribal and 

CFR courts funded by the BIA. The DTJS is located within the Office of Justice 

Services (OJS). Prior to 2006 the BIA dedicated one employee, on a part-time basis, 

to work with tribal courts within the Division of Tribal Services in the BIA. In 2006, 

this function of oversight of tribal and CFR courts that receive BIA funding was 

moved to the OJS and re-designated the Division of Tribal Justice Support and two 

full-time staff began developing the program. Currently the Division consists of five 

staff members dedicated to providing technical support, funding, and training to the 

tribal and CFR court systems, nationwide. 

The DTJS has completed over 40 tribal court reviews in an attempt to ascertain 

tribal court needs and tribal judicial trends. The reviews are conducted by independent contractors who assess the operations and administrative activities of the 

courts. The needs and trends may include how sentencing may apply based on the 

offense, current and backlogged case loads, types of crimes, etc. These court reviews 

were used in large part to assist the BIA to distribute over $2.4 million to tribal 

and CFR courts in fiscal year 2008 over and above tribal court base funding. These 

funds are used to cover everything from staffing to purchasing fire proof cabinets 

for storage of case files to supplying new computers and installing new software. 

The tribal courts are allowed maximum flexibility in the allocation of these funds. 

These reviews of tribal courts also provide recommendations, such as developing 

policies to account for and administer fines or ways to amend tribal constitutions 

to provide for separation of powers, to the tribal court judges, court administrators, 

and tribal councils on how court operations might be improved or adjusted to insure 

fair and impartial treatment of those appearing before the court. However, as extensions of sovereign tribal government, the tribal courts are free to follow or not follow 

the Bureau’s recommendations. The Courts of Indian Offenses (CFR Courts) are less 

free to discard any recommendations since they are actually an extension of the 

BIA. 

Over the last two years the DTJS has developed a close working relationship with 

the DOJ in an attempt to collaborate with DOJ programs that also provide funds 

and support to tribal court systems. As the DTJS provides training and funding to 

the tribes, the DTJS will continue to work closely with the DOJ to minimize duplication of services while maximizing support activities to the tribal court systems 

through supplemental and joint initiatives. 

Currently, the DTJS is in discussions with the National Judicial College in Reno, 

Nevada to explore the possibility of developing and executing more on-site training 

for tribal judges and tribal court staff. Two of the main areas that tribal courts consistently seek assistance in is training for tribal judges and staff, and technical assistance in developing judicial administrative systems. 

Finally, the DTJS is working on developing a process to acquire data on tribal 

court activities such as the extent of and types of case loads, types of sentences, 

types of repeat offenses, etc. While some of these data are currently collected under 

P.L. 93–638 contracts at the local level, such information needs to be stored in one 

location to be analyzed and studied. Acquiring such data on a consistent basis and 

subjecting it to close analysis would assist the DTJS, the BIA and tribal courts in 

developing long range planning to better address tribal court needs and to track deVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 S:\DOCS\45126.TXT JACK PsN: JACKF
7 

veloping trends. The DTJS is committed to helping tribal and CFR court systems 

maintain and advance the administration of justice in Indian country. 

Mr. Chairman and members of the Committee, I thank you for providing the Department of Interior’s Bureau of Indian Affairs the opportunity to comment on the 

issues related to Tribal Courts in Indian Country. We will continue to work closely 

with the Committee and your staff, tribal leaders, and our Federal partners. I will 

be happy to answer any further questions you may have. 

The CHAIRMAN. Mr. Ragsdale, thank you very much. We appreciate your testimony. 

Next, we will hear from the Honorable Roman Duran, First Vice 

President, National American Indian Court Judges Association, 

from Albuquerque, New Mexico. 

Mr. Duran, thank you for being here. 

STATEMENT OF HON. ROMAN J. DURAN, FIRST VICE 

PRESIDENT, NATIONAL AMERICAN INDIAN COURT JUDGES 

ASSOCIATION 

Mr. DURAN. Thank you. Thank you, Chairman Dorgan and 

Madam Vice Chair Murkowski. With all due respect, if I could 

speak in my native language for a brief period here. [Phrase in native tongue.] 

Again, Chairman Dorgan, Madam Vice Chair Murkowski, on behalf of the National American Indian Court Judges Association, I 

respectfully thank the Senate Committee on Indian Affairs and 

staffer John Harte for the opportunity to present both oral and 

written testimony on the Tribal Law and Order Act of 2008. 

My name is Roman Duran. I am an enrolled member of the 

Pueblo of Tesuque located in New Mexico, and also a member of 

the Hopi Tribe of Arizona. I currently sit as an Associate Judge for 

the Jicarilla Apache Nation Court in Dulce, New Mexico. 

NAICJA is comprised of tribal judges, peacemakers and tribal 

justice adjudicators representing approximately 350 tribal justice 

systems throughout the Nation. It is important to note that tribal 

courts differ greatly from that of their Federal and State counterparts in that each tribe to a certain degree operates on a theocratic 

form of government, such that there is no separation of church and 

state, whereby custom and tradition is the choice of law on a consistent and daily basis. 

NAICJA has consistently been the main voice for tribal justice 

systems in promoting tribal judicial independence and continued 

development, education, training and funding of such systems. Of 

the 565 federally recognized tribes, approximately 291 have an established tribal justice system or dispute resolution forum, ranging 

from a highly sophisticated judicial system to the newer systems 

with minimal experience in the administration of justice. 

Tribal courts agonize over the very same issues that State and 

Federal courts confront in a criminal context, such as assault and 

battery, child sexual abuse, alcohol and substance abuse, gang violence, violence against women, and now methamphetamines, along 

with the social ills that are left in its wake. 

If tribal courts were not functioning, the respective Federal and 

State court systems would be overwhelmed with the caseload, 

which we unofficially estimate at around 1.6 million cases per year, 

which I am sure the Federal and State courts would not want, esVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 S:\DOCS\45126.TXT JACK PsN: JACKF
8 

pecially given the traditional and customary laws that lay the foundation for tribal statutory and common laws. 

Lack of adequate funding for tribal court systems threatens the 

excellence of tribal justice systems. If adequately funded, it will directly reduce the number of appeals being filed in the Federal 

courts. On average, small tribal judicial systems handle 250 to 

1,500 cases per year, whereas medium to large tribal justice systems handle over 1,500 to 20,000 cases per year. With a disproportionate funding of tribal justice systems, a medium to large justice 

system may have one judge handling a caseload of up to 5,000 

cases a year at a median salary of $40,000 per year. 

The fallacy contained herein is that the Federal and State courts 

are adequately funded, yet scrutinize the ability of tribal court 

judges in their decision-making. However, tribal court judges maintain excellence in applying tradition and customs in their respective courts, while being under-funded. 

Although the crime rate continues to increase in Indian Country, 

tribal court systems have been able to make do with little funding, 

resulting in the creation of alternatives to sentencing, which did 

not sit well with some non-tribal law enforcement agencies and departments. Correctional facilities are a great need throughout Indian Country, but are useless if there are no funds for construction 

and operation, including adequate funding for the entire justice 

system, for law enforcement, prosecution, public defenders, probation, parole and treatment providers. 

The number and complexity of tribal civil caseloads has also increased, including cases involving non-Indians, non-Indian business 

entities, and corporations, which is attributed to Indian gaming 

and economic development in Indian Country. NAICJA is of the 

opinion that the majority of non-Indian parties approve of the tribal court process. 

The assault of critics that feel there is no due process for criminal defendants in tribal courts is a fallacy. Again, a well-funded 

justice system will result in the excellence of such justice systems, 

affording individuals their rights and protections within those systems. 

In addition, Congress must ensure equitable funding of all tribal 

justice systems, including Public Law 280 tribes. 

In conclusion, tribal justice systems are the primary and most 

appropriate institutions for maintaining order in tribal communities. NAICJA fully supports the proposed Tribal Law and Order 

Act of 2008 which will promote for the base funding of tribal courts 

and ensure the identified departments and agencies are held accountable in fulfilling the United States’ trust responsibility for 

maintaining excellence in the tribal justice systems throughout Indian Country. Attached are NAICJA’s comments regarding the proposed Tribal Law and Order Act of 2008. 

Once again, thank you for the opportunity to present the concerns of the tribal justice systems and needs of Indian Country. I 

am happy to answer any questions that you may have. 

[The prepared statement of Mr. Duran follows:] 

9 

PREPARED STATEMENT OF HON. ROMAN J. DURAN, FIRST VICE PRESIDENT, NATIONAL

AMERICAN INDIAN COURT JUDGES ASSOCIATION

Chairman Dorgan, Vice Chairwoman Murkowski, and distinguished members of 

the Committee, on behalf of the National American Indian Court Judges Association 

(NAICJA), I respectfully thank the Senate Committee on Indian Affairs, and staffer 

John Harte for the opportunity to present both oral and written testimony on this 

most important and critical Indian legislation, the ‘‘Tribal Law and Order Act of 

2008’’. My name is Roman Duran; I am an enrolled member of the Pueblo of 

Tesuque located in New Mexico, and also a member of the Hopi Tribe of Arizona. 

I have been a Tribal Court Judge for the last 11 years and currently sit as an Associate Judge for the Jicarilla Apache Nation in Northern New Mexico. 

National American Indian Court Judges Association 

In 1969, NAICJA was established by a small group of tribal court judges who met 

at the University of New Mexico Law School; which incorporated as a voluntary 

non-profit national membership association, and is representative of current and 

former tribal court judges throughout the United States. NAICJA now represents 

approximately 350 tribal justice systems nationwide, with a track record of providing quality training and technical assistance services for tribal justice systems. 

In 1969 NAICJA established a mission to strengthen and enhance tribal justice 

systems through a variety of strategies and services including training, education, 

and technical assistance; such mission is in line with each tribal government sovereign status of self-governance. It is important to note that tribal courts differ 

greatly from that of their federal and state counter parts, in that, each tribe to a 

certain degree operates on a theocratic form of government; such that there is no 

separation of ‘‘Church’’ and ‘‘State’’, whereby custom and tradition is the choice of 

law on a consistent and daily basis. For over thirty-nine years, NAICJA has directly 

and indirectly supported each tribal justice system, and continues to meet its mission. 

NAICJA’s goals are to: (1) foster the continued development, enrichment and 

funding of tribal justice systems as a visible exercise of tribal sovereignty and selfgovernment; (2) to provide continuing education for tribal judges and tribal justice 

systems personnel in order to enhance the operation of the tribal judiciary; (3) to 

further the public knowledge and understanding of tribal justice systems; (4) to establish and maintain a forum for the dissemination of information concerning issues 

impacting tribal justice systems; (5) to encourage and assist tribal officials to support educational programs that serve the members of the NAICJA: (6) to conduct 

research and educational activities that promote the affairs and achieve the mission 

of the Association; and (7) to secure financial assistance and support for the advancement of NAICJA activities and objectives. 

NAICJA is and has been the only national tribal court membership association 

to provide expert and qualified testimony regarding the passage of such legislation. 

This is evidenced in NAICJA’s consistent record of providing direct testimony and 

support for the Indian Tribal Justice Act (Public Law 103–176, December 3, 1993), 

the Indian Tribal Justice Technical and Legal Assistance Act of 2000 (Public Law 

106–559, December 21, 2000), the ongoing Bureau of Indian Affairs funding for 

Tribal Courts under the Tribal Priority Allocations (Public Law 93–638), and all Department of Justice grant funding. 

NAICJA has been the only entity to coordinate the first true cross-court cultural 

exchange between tribal courts and the U.S. Supreme court, dubbed the ‘‘Summer 

2001 Study Tour of Native American Tribal Courts.’’ The Tour had the honor of Justice Sandra Day O’Connor and Justice Stephen Breyer visiting and observing proceedings in the Spokane Tribal Court, and the Navajo Nation Court, culminating 

with a symposium at the National Judicial College, Reno, Nevada. Such events are 

also replicated in various forms in states with numerous tribal governments, such 

as the New Mexico Tribal & State Judicial Consortium, the Wisconsin Tribal and 

State Judges Association, and the Arizona Tribal, State & Federal Forum, to name 

a few. 

Importance of Tribal Courts 

Of the 565 federally recognized tribes and Alaska Native Villages in the United 

States, approximately 291 have an established tribal justice system or some level 

of tribal dispute resolution forum. Tribal courts have a variety of tribal dispute resolution forums ranging from highly sophisticated judicial systems modeled after the 

American jurisprudence system to the newer systems with minimal experience in 

the administration of justice. The jurisdiction and authority applied by each tribe 

is distinctly unique to that tribe. Now more than anytime in their history, tribes 

10 

and their tribal courts are challenged to maintain their judicial and tribal sovereignty in a manner that will pass legal scrutiny by the federal judicial system. 

Tribal courts play a vital and key role in the jurisdictional maze among the federal and state judicial systems, constituting the third sovereign, as Supreme Court 

Justice Sandra Day O’Connor eloquently stated, ‘‘Today, in the United States, we 

have three types of sovereign entities—the Federal Government, the States, and the 

Indian Tribes. Each of the three sovereigns has its own judicial system, and each 

plays an important role in the administration of justice in this country.’’ (O’Connor, 

Lessons from the Third Sovereign: Indian Tribal Courts, 33 TULSA L. J. 1, 1 (1997). 

Justice O’Connor recognized the unique status of tribal sovereignty and more importantly, the recognition of tribal justice systems which ultimately have the responsibility of interpreting that sovereign status. Such support and recognition for tribal 

courts must continue at all levels of the federal, state and tribal governments, to 

ensure equitable administration of justice. 

‘‘Tribal courts constitute the frontline tribal institutions that most often confront 

issues of self-determination and sovereignty, while at the same time they are 

charged with providing reliable and equitable adjudication in the many and increasingly diverse matters that come before them. In addition, they constitute a key tribal entity for advancing and protecting the rights of self-government. . . . Tribal 

courts are of growing significance in Indian Country.’’ (Frank Pommersheim, Braid 

of Feathers: American Indian Law and Contemporary Tribal Law 57 (1995)). Tribal 

justice systems are the primary and most appropriate institutions for maintaining 

order in tribal communities. Attorney General Reno acknowledged that, ‘‘With adequate resources and training, they are most capable of crime prevention and peacekeeping’’ (A Federal Commitment to Tribal Justice Systems, 79 Judicature No. 7, 

November/December 1995, p. 114). It is her view that ‘‘fulfilling the Federal Government’s trust responsibility to Indian nations means not only adequate federal law 

enforcement in Indian Country, but enhancement of tribal justice systems as well.’’ 

Id. 

Tribal courts agonize over the very same issues state and federal courts confront 

in the criminal context, such as, assault and battery, predatory crimes, hate crimes, 

child sexual abuse, alcohol and substance abuse, gang violence, violence against 

women, and now methamphetamine along with the social ills that are left in its 

wake. These courts, however, while striving to address these complex issues with 

far fewer financial resources than their federal and state counterparts must also 

‘‘strive to respond competently and creatively to federal and state pressures coming 

from the outside, and to cultural values and imperatives from within.’’ 

(Pommersheim, ‘‘Tribal Courts: Providers of Justice and Protectors of Sovereignty,’’ 

79 Judicature No. 7, November/December 1995, p. 111). Judicial training that addresses the present imperatives posed by the public safety crisis in Indian Country, 

while also being culturally sensitive, is essential for tribal courts to be effective in 

deterring crime in their communities. 

There is no federally supported institution to provide on-going, accessible tribal 

judicial training or to develop court resource materials and management tools, similar to that of the Federal Judicial Center, the National Judicial College or the National Center for State Courts. Even though NAICJA annually sponsors the National Tribal Judicial Conference, the three-day conference cannot provide the indepth extensive judicial training necessary to make tribal justice systems strong and 

effective arms of tribal government. 

In 1991 the United States Commission on Civil Rights issued its Report on the 

Indian Civil Rights Act, 25 U.S.C. § 1301 et seq. and found that the United States 

Government failed to provide proper funding for the operation and development of 

tribal judicial systems, particularly in light of the imposed requirements of the Indian Civil Rights Act. Finding that the Federal Government had not lived up to its 

trust obligations to tribal governments, particularly the tribal courts, the Commission urged Congress to continue to promote the authority of tribal courts, advocate 

for increased tribal court funding and to work toward strengthening tribal forums. 

It was not until nine years later, in 2000, that a federal grant was awarded to 

NAICJA to establish a clearinghouse and a resource center to meet the technical 

assistance needs of tribal judicial systems. 

National Tribal Justice Resource Center 

NAICJA, through its National Tribal Justice Resource Center, (NTJRC) funded by 

the Department of Justice’s Bureau of Justice Assistance’s Tribal Court Assistance 

Program, (TCAP) has established a clearinghouse and an Internet website 

(www.ntjrc.org) that has become the primary dissemination mechanism addressing 

the technical assistance needs of tribal justice systems throughout the nation. (2009 

award is currently pending.) NAICJA, through its Resource Center provides techVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 S:\DOCS\45126.TXT JACK PsN: JACKF
11 

nical assistance and training through a strategy of collaboration and communication 

by implementing a clearinghouse function for Native American and Alaska Native 

tribal judicial systems that enhances their development and continued successful 

improvement to deliver justice in their respective communities. 

NAICJA, along with the NTJRC staff, successfully works with other national Indian organizations such as the Native American Rights Fund, the National Congress of American Indians, and its technical assistance partner notably, the Tribal 

Judicial Institute, Tribal Law and Policy Institute, Fox Valley Technical College and 

the National Tribal Judicial College to carry out its mission and goals successfully. 

The Center recently relocated is office to Albuquerque, NM in July, 2008, to better 

serve the needs of tribal courts throughout Indian Country. 

Inadequate Support of Tribal Justice Systems 

During the initial hearings on the Indian Tribal Justice Act of 1993, NAICJA provided both written and oral testimony for the full base funding of $50 million per 

year for tribal courts, unfortunately appropriations were never made to the base 

funding. A Tribal Court Survey was conducted by the American Indian Law Center 

and issued a written report in May 2000, which provided a cost analysis and set 

a base funding level for the then existing Tribal Courts, however, not one penny was 

appropriated under the Indian Tribal Justice Act, as the Department of Interior and 

Office of Management & Budget did not approve the report prior to its release. 

Inadequate Funding of Tribal Justice Systems 

There is no question that tribal justice systems are, and historically have been 

under-funded. The 1991 United States Civil Rights Commission found that ‘‘the failure of the United States government to provide proper funding for the operation of 

tribal judicial systems... has continued for more than 20 years.’’ The Indian Civil 

Rights Act: A Report of the United States Civil Rights Commission, June 1991, p. 

71. The Commission also noted that ‘‘[f]unding for tribal judicial systems may be 

further hampered in some instances by the pressures of competing priorities within 

a tribe.’’ Moreover, they opined that ‘‘If the United States Government is to live up 

to its trust obligations, it must assist tribal governments in their 

development . . . ’’ Almost ten years ago, the Commission ‘‘strongly support[ed] the 

pending and proposed congressional initiatives to authorize funding of tribal courts 

in an amount equal to that of an equivalent State court’’ and was ‘‘hopeful that this 

increased funding [would] allow for much needed increases in salaries for judges, 

the retention of law clerks for tribal judges, the funding of public defenders/defense 

counsel, and increased access to legal authorities.’’ 

As indicated by the Civil Rights Commission, the critical financial need of tribal 

courts has been well documented and ultimately led to the passage of the Indian 

Tribal Justice Act, 25 U.S.C. § 3601 et seq. (the ‘‘Act’’). Congress found that ‘‘[T]ribal 

justice systems are an essential part of tribal governments and serve as important 

forums for ensuring public health, safety and the political integrity of tribal governments.’’ 25 U.S.C. § 3601(5). Affirming the findings of the Civil Rights Commission, 

Congress further found that ‘‘tribal justice systems are inadequately funded, and the 

lack of adequate funding impairs their operation.’’ 25 U.S.C. § 3601(8). In order to 

remedy this lack of funding, the Act authorized appropriation base funding support 

for tribal justice systems in the amount of $50,000,000 for each of the fiscal years 

1994 through 2000. 25 U.S.C. § 3621(b). An additional $500,000 for each of the same 

fiscal years was authorized to be appropriated for the administration of Tribal Judicial Conferences for the ‘‘development, enhancement and continuing operation of 

tribal justice systems . . . ’’ 25 U.S.C. § 3614. 

Functionality of Tribal Justice Systems 

Ironically, Associate Justice Anthony M. Kennedy, having appeared before the 

Senate Committee on the Judiciary, for a Hearing on Judicial Security and Independence, on February 14, 2007 stated, 

‘‘[J]udicial independence is just like separation of powers and checks and balances. Those phrases do not appear in the Constitution. They are part of the 

constitutional dynamic that we use. They are part of the constitutional custom, 

part of the constitutional tradition that we have. 

Judicial independence is sometimes overused by judges. Just because you can’t 

get a few more volumes in your library doesn’t mean judicial independence is 

under attack. It’s unfortunate if we over-use the term, because it is essential 

as a principle to establish the idea that the rule of law depends on an independent judiciary, or else you have the rule of power, not the rule of law. 

12 

The raw fact is that the congressional policy with reference to judicial compensation is threatening the excellence of our judiciary. Judicial independence 

presumes an excellent judiciary.’’ 

Justice Kennedy was speaking during the Federal Courts budget hearings and 

pay raises for federal court judges, and the need to sustain a financially healthy judiciary thereby maintaining a well trained and competent judiciary. The truth of the 

matter is that the tribal court systems are facing the very same issues Justice Kennedy pointed out. Lack of adequate funding for tribal court systems also ‘‘threatens 

the excellence’’ of tribal justice systems; properly trained and qualified tribal court 

judges may have a direct result in reducing the number of appeals being filed in 

the federal courts and state courts, and reduce the tension and scrutiny by the federal and state courts. The irony contained herein is that federal and state courts 

are adequately funded yet scrutinize the ability of the tribal court judges in their 

decision making. Nonetheless tribal court judges maintain excellence in applying 

traditions and customs in their respective court while maintaining their judicial 

independence in light of being under-funded. The second irony is that the lack of 

adequate funding of tribal justice systems creates the rule of power, and hinders the 

rule of law and tribal judicial independence. 

If tribal courts were not functioning, the respective federal and state court systems would be overwhelmed with the case load which would unofficially estimate 

around 1.6 million cases per year. Which I’m sure the federal and state courts would 

not want, especially given the traditional and customary laws that lay the foundation for tribal statutory and common laws. 

On average, small tribal judicial systems handle 250 to 1,500 cases per year, 

whereas medium to large tribal justice systems handle over 1,500 to 20,000 cases 

per year. With the disproportionate funding of tribal justice systems, a medium to 

large justice system may have one judge handling a case load of 3,000 to 5,000 cases 

a year, at a median salary of $40,000.00. 

Setting Tribal Court Base Funding 

NAICJA along with various organizations and institutions have reinforced the 

Congressional findings under the initial Indian Tribal Justice Act on countless occasions. Such organizations and institutions includes: Law Schools, State Bar Associations (several of which have included a section on Federal Indian Law on their Bar 

Exams), tribal/state/federal forums, Association of State Chief Justices, National 

Congress of American Indians, National Indian Child Welfare Association, National 

Judges organizations and associations, Federal Indian Bar Association etc. . . In 

addition various federal agencies, departments and programs have also confirmed 

the needs of tribal justice systems both directly and indirectly through their funding 

programs. Such as, the Department of Justice, Department of Interior, Department 

of Health and Human Services, Indian Health Services, Bureau of Justice, Bureau 

of Indian Affairs, Bureau of Justice Statistics, Office of Tribal Support, Office of 

Tribal Justice, Native American & Alaskan Natives Desk, Violence Against Women’s Office, Substance Abuse & Mental Health Services Administration, Office of Juvenile Justice, Delinquency and Prevention, etc. . . These lists go on and on, unfortunately, they do not communicate with one another on a consistent and coordinated 

basis, which is part of the reason for piecemeal tribal justice systems. 

NAICJA provided this Committee written testimony on February 26, 1992 projecting a one judge tribal court (which included a court clerk, secretary, law clerk, 

prosecutor and public defender with operating costs) budget at $290,000.00. (Statement of Judge Elbridge Coochise, President NAICJA, On the President’s Budget for 

Indian Programs.) Noting that ‘‘We (NAICJA) understand the funding caps imposed 

on the Appropriations Committees, however, the tribal courts have never been funded to a sufficient level to meet the needs of the tribes in providing judicial services. 

Only with sufficient financial resources can the tribes hope to make any real improvements. . .’’ Additionally, NAICJA conducted two informal tribal court surveys 

in 1995 and 1998 as a direct result of the lack of efforts to implement the Indian 

Tribal Justice Act. Not surprisingly, the 1995 survey ‘‘revealed an unmet need that 

exceeded the 1995 funding level for tribal courts by 215 percent.’’ (Written testimony 

of Jill E. Shibles, President, NAICJA, Committee of Indian Affairs, Tribal Justice 

Issues Hearing, June 3, 1998.) 

The 1992 figure would have to be recalculated for inflation and cost of living, 

which could have it set at or near $500,000.00. The Final Report on the Survey of 

Tribal Justice Systems & Courts of Indian Offenses, (May 2000) proposed an annual 

budget for a one court judge at $200,000.00 per year (which only accounted for one 

judge and one court clerk, with a service population of 1,000 or less), and a budget 

of $350,000.00 per year for a two judge court (two judges and two clerks, with a 

service population above 1,000.) The Final Report did not budget for a fully funcVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 S:\DOCS\45126.TXT JACK PsN: JACKF
13 

tioning justice system, which gives a stark contrast in funding a fully functional justice system. A vital note to make here is that most tribal justice systems lack access 

to law libraries, legal authorities, internet access, and law clerks to provide the 

needed research in rendering decisions. Most tribal justice system budgets do not 

account for law clerks, and the BIA office of Tribal Justice Support budgets do not 

account for this need as well and/or provide technical assistance in this area. 

Then on December 3, 1994, Chief Judge, Carey Vicenti, Special Assistant for Tribal Justice Support, Office of the Assistant Secretary for Indian Affairs prepared a 

presentation on the Indian Tribal Justice Act; wherein a base funding formula was 

proposed, given the number of factors that gave rise to the needs of each specific 

tribal justice system at the point in time. Interestingly enough, Judge Vicenti noted, 

‘‘[T]he perception of Tribal Courts as institutions solely responsible for the enforcement of criminal laws must be abandoned for a comprehensive vision of Tribal 

Courts and tribal justice systems as an essential component in the maintenance of 

social, economic, and political stability of tribal societies. With the enhancement of 

contemporary and traditional justice systems government stability will be guaranteed, community health will be strengthened, the atmosphere for economic growth 

will be improved, and the possibilities for the fulfillment of individual potential will 

become realized. ’’ (emphasis added) 

Since May of 2000, there have been no other comprehensive surveys of tribal justice systems having been conducted. The current tribal court surveys being conducted by the Bureau of Indian Affairs via and Independent Review Team is not 

a comprehensive survey, and does not take the comprehensive position that the Office of Tribal Justice Support had back in 1994. Therefore it is critical that Congress 

ensure for the consistent coordination of all key players in setting the measures to 

determine accountability and equity in the determination of base funding for tribal 

justice systems. Also that tribal justice systems have full inclusion and consultation 

on the setting of policy and procedures to carryout the Tribal Law and Order Act. 

Issues Relative to the Tribal Law and Order Act 

Native American tribal courts must deal with a wide range of difficult criminal 

and civil justice problems on a daily basis, including the following: 

• While the crime rate, especially the violent crime rate, has been declining nationally, it has increased substantially in Indian Country. Tribal court systems 

are grossly under-funded to deal with these criminal justice problems. Resulting 

in the creation of alternatives to sentencing, some of which do not sit well with 

non-tribal law enforcement agencies and departments. 

• Dealing with the lack of correctional facilities to house serious criminals when 

the Federal Government fails to prosecute those cases. Even if the tribal courts 

are able to impose long term sentences, there is a shortage of funds to incarcerate these individuals. Increasing the sentencing capabilities is only as good 

as there is funding for incarceration, however, this is a political decision of the 

tribal legislatures and the tribal sentencing statutes will provide guidance to 

the tribal judges when imposing each sentence. 

• Number and complexity of tribal civil caseloads have also been rapidly increasing. The number of cases involving non-Indians is also on the rise, and includes 

non-Indian business entities and corporations; which is in direct response to Indian Gaming and economic development in Indian Country. It is the consensus 

of NAICJA that a majority of the non-Indian parties approve of the tribal court 

process. 

• Congress recognized this need when it enacted the Indian Tribal Justice Act in 

1993. Congress specifically found that ‘‘tribal justice systems are an essential 

part of tribal governments and serve as important forums for ensuring public 

health and safety and the political integrity of tribal governments’’ and ‘‘tribal 

justice systems are inadequately funded, and the lack of adequate funding impairs their operation.’’ There is a lack of a coordinated effort to pull the resources needed to sustain healthy communities, when various funding entities 

either duplicate services or are territorial and fail to communicate. NAICAJ 

fully supports the findings and recommendations of the Inter-Tribal Workgroup 

comprised of the Navajo Nation, the Hopi Tribe, and the Fort McDowell 

Yavapai Nation, in their holistic concept of ‘‘restorative justice.’’ 

• The assault of critics that feel there is no or insufficient due process for criminal 

defendant’s in tribal courts since the language contained in the Indian Civil 

Rights Act only requires a lawyer at your own expense which is compounded 

with the lack of funds for public defenders. Again, a well funded justice system 

will result in the ‘‘excellence’’ of such justice systems, affording individuals the 

rights and protections within those systems. 

14 

• Since Congress enacted the Indian Tribal Justice Act, the needs of tribal court 

systems have continued to increase, but there has been no corresponding increase in funding for tribal court systems. In fact, the Bureau of Indian Affairs 

funding for tribal courts has been minimal at best, fluctuating up and down 

since the Indian Tribal justice Act was enacted in 1993. Moreover, there appears to be no direct funding, services and technical assistance to PL–280 

tribes. The PL–280 tribes must be given the same respect and consideration for 

their justice systems as non-PL–280 tribes. As they must handle the ill social 

effects of the drug and alcohol problems that all tribal jurisdictions face. 

• Most importantly, if this bill is passed, Appropriations must be made to carryout 

the intent of the bill. Fourteen years has elapsed since the Indian Tribal Justice 

Act was passed and has yet to be fully funded to ensure the minimal base funding is made for tribal courts. The increased funding to law enforcement will continue to create an additional case load to tribal justice systems, and if this comprehensive bill is not funded, the needs will only increase exponentially. 

As Attorney General Janet Reno stated in testimony before the Senate Indian Affairs Committee on, it is vital to ‘‘better enable Indian tribal courts, historically 

under-funded and under-staffed, to meet the demands of burgeoning case loads.’’ 

The Attorney General indicated that the ‘‘lack of a system of graduated sanctions 

through tribal court, that stems from severely inadequate tribal justice support, directly contributes to the escalation of adult and juvenile criminal activity.’’ 

Concept of Appointing Tribal Judges as ‘‘Special Federal Magistrate Judges’’ 

On February 20, 2008 NAICJA President Eugene Whitefish met with Attorney 

General Michael B. Mukasey, Gretchen C. F. Shappert, U.S. Attorney, Tracey 

Toulou, Director, Office of Tribal Justice, and along with several tribal leaders, to 

discuss the issues of law enforcement and crime in Indian Country. The issues presented in the ‘‘Tribal Law and Order Act of 2008’’ were addressed, and it was there 

that President Whitefish proposed the concept of ‘‘cross-deputization’’ of tribal court 

judges to serve as ‘‘Special Federal Magistrate Judges’’ to address several areas such 

as: 

• Expediting the federal criminal investigations, arrests and indictments of 

crimes occurring in Indian Country. 

• Reducing the case load of the Federal Magistrate Judges (reducing costs to create and establish new special division on Indian Country) regarding the initial 

appearances, and detention and probable cause hearings. 

• Such as system would support the law enforcement and prosecution of crimes 

committed in Indian Country as this Act seeks to do, along with the supporting 

the notion of appointing special prosecutors. 

• Assist in the creation of educational and training opportunities for both federal 

and tribal court personnel. 

• Strengthen the tribal, state, and federal justice systems. 

Conclusion 

Tribal justice systems are the primary and most appropriate institutions for maintaining order in tribal communities. They are the keystone to tribal economic development and self-sufficiency. Any serious attempt to fulfill the federal government’s 

trust responsibility to Indian Nations must include increased funding and enhancement of tribal justice systems 

NAICJA fully supports the proposed ‘‘Tribal Law and Order Act of 2008,’’ which 

is a reauthorization of the initial Indian Tribal Justice Act of 1993 and reauthorized 

under the Indian Tribal Justice Technical and Legal Assistance Act of 2000. The 

Act of 2008, if authorized, will provide for the base funding of Tribal Courts and 

ensure that the identified departments and agencies are held accountable in fulfilling the United States trust responsibility for maintaining ‘‘excellence’’ in the tribal justice systems throughout Indian Country. . Attached are NAICJA’s comments 

regarding the proposed ‘‘Tribal Law and Order Act of 2008.’’ (Attachement A) 

Once again, thank you for the opportunity to present the concerns of the tribal 

justice systems and needs of Indian Country. I am happy to answer any questions 

that you may have. 

15 

NAICJA ATTACHMENT: A 

SECTION-BY-SECTION COMMENT ON THE TRIBAL LAW & ORDER ACT 

OF 2008 

TITLE I. FEDERAL ACCOUNTABILITY AND COORDINATION

Section 101. Office of Justice Services.—Section 101(a) would require the Interior 

Department’s Office of Justice Services to hold timely consultations with tribal leaders, and to provide technical assistance and training to tribal police. This provision 

would also require the Office of Justice Services to submit annual spending and 

unmet needs reports to Congress. It would also require OJS to coordinate with the 

Department of Justice to develop a long term plan to address the tribal jails system. 

Section 101(b) would authorize BIA police to make warrantless arrests where 

the officer has probable cause to believe that a suspect committed any crime in Indian country. Current law limits warrantless arrests to felonies. 

Comment 

While it is important to consult with tribal officials, it is equally important to consult with the appropriate tribal officials and that should be the justice system personnel as well. Judges, probation officers, police officers, court clerks, juvenile system personnel, and traditional justice system personnel should be consulted with by 

not only the DOI’s BIA and Office of Justice Systems but by all federal agencies 

purporting to do business that directly or indirectly affect or impact any aspect of 

tribal justice systems that operate within Indian Country jurisdiction including especially those tribes who reside within the exterior boundaries of PL 280 States who 

share civil and criminal jurisdiction with the state. It is critical that such consultations are done on a consistent basis, along with identified liaison’s to maintain open 

communications between all parties. 

It is important that all peace officers having jurisdiction within Indian Country 

be authorized to make a warrantless arrests based on probable cause and bring the 

offender to justice in both tribal and federal courts; and ensure that such authorizations are executed to established tribal, state and federal laws. 

Section 102. Declination Reports.—This section would require U.S. Attorneys to 

coordinate with tribal justice officials when declining to prosecute a reservation 

crime. It would also require U.S. Attorneys to maintain data on declinations, and 

report to Congress annually on declinations for each Federal District responsible for 

prosecuting crimes in Indian country. 

Section 103. Prosecution of Indian Country Crimes.—Section 103 would clarify 

that U.S. Attorneys may appoint tribal prosecutors and other Indian law experts as 

special Assistant U.S. Attorneys to prosecute reservation crimes in federal court. 

This provision would encourage such appointments, and urge the U.S. Attorneys to 

coordinate with the Federal District and Magistrate courts when such appointments 

are made. 

This section would also define responsibilities of Assistant United States Attorneys serving as Tribal Liaisons. This section clarifies that Tribal Liaisons will coordinate prosecutions of reservation crimes, and be responsible for developing multidisciplinary task forces, and communicating with tribal leaders and law enforcement 

officials. 

We believe the proposed the concept of ‘‘cross-deputization or authorization’’ of 

qualified tribal court judges to serve as ‘‘Special Federal Magistrate Judges’’ to prosecute persons violating federal criminal laws would belong in this section. 

Section 104. Department of Justice Agencies.—Section 104 would elevate the Department of Justice’s Office of Tribal Justice within the Deputy Attorney General’s 

office. It would also define OTJ’s role to develop and direct the Department’s Indian 

affairs policies, and coordinate and consult with tribal leaders on matters affecting 

their interests. 

This section would also establish an Office of Indian Country Crime within DOJ’s 

Criminal Division. The Office would be responsible for developing policies to enhance prosecutions, and coordinating task forces to address Indian country crime. 

Comment 

Section 102. No doubt these subsections recognize an important area of coordination or the lack of coordination between tribal justice systems and the federal justice 

system. Some U.S. Attorneys Offices have done a better job in recent years to cooperate in many Indian Country jurisdictions, however, as these sections point out, 

much more remains to be accomplished in improving the communication and coordination between the two law enforcements systems. 

16 

While requiring declination reports brings some accountability to the problem of 

not prosecuting crimes occurring within Indian Country, it does not mandate that 

such prosecutions occur. Perhaps it is a subtle way of forcing U.S. Attorney’s Offices 

to take a closer look at such prosecutions. Frequently, prosecutions are declined because of the lack of quality law enforcement investigations being conducted by tribal 

police or local BIA law enforcement officers as well as using tribal court prosecutions as a ‘‘discovery’’ device. (Other sections of this Act address that issue so I will 

not comment on that right now.) The time is takes to decide whether to prosecute 

needs to be addressed. Tribal prosecutors are asked if not required to wait for such 

decisions before they can prosecute, and, of course, this can result in seriously long 

delays which may affect constitutional rights of offenders. A time limit of 30 days 

or less should be required, and this time line should not operate to hold up tribal 

prosecutions. Double jeopardy is not a problem. 

Section 103 may help with the delays or lack of prosecutions, and it is welcomed 

if it proves to do so. We believe a few U.S. Attorney’s Offices have implemented this 

kind of cooperation, and it has proved successful, at least on a limited scale, in New 

Mexico. 

Section 104 authorizes the elevation of the DOJ’s Office of Tribal Justice and empowers it with several duties. We welcome and support the elevation and duties as 

outlined. However, the establishment of the Office of Indian Country Crime, which 

we also support, together with the elevation of the OTJ office requires a further coordination and delineation of roles and responsibility between these two offices, and 

the DOI’s tribal law enforcement agency. Too often Indian Country has fallen between the cracks of turf wars between agencies pointing figures at each other. We 

need to ensure this does not happen. 

TITLE II. STATE ACCOUNTABILITY AND COORDINATION

Section 201. Public Law 280.—Section 201 would amend Public Law 280 to permit an Indian Tribe to request federal assistance in investigating and prosecuting 

reservation crimes, providing the United States with concurrent authority over reservation crimes. 

Section 202. Incentives for Tribal-State Cooperation.—Section 202 would authorize the Attorney General to provide grants, technical, and other assistance to tribal, 

state, and local law enforcement agencies that have entered into cooperative law enforcement agreements to combat crime in Indian country and nearby communities. 

Comment 

Perhaps the most critical and least understood sections, these two sections must 

be carefully considered so as not to be deemed any form of diminishment of tribal 

sovereignty. Section 201 increases the role and responsibility of the federal government in PL 280 tribes and states but should not become the reason for ‘‘letting the 

Federal Government do it all.’’ This would not be strengthening tribal sovereignty. 

The USAG should not be consulted as it would impliedly empower that office to say 

‘‘no’’ and leave matters as they are in PL 280 jurisdictions. We believe the language 

should be more directive in setting out the jurisdictional duties of the federal government. Again, funding becomes an issue as to the caseload of federal law enforcement agency. Cross-deputizing and bringing more tribal law enforcement personnel 

may better serve all jurisdictional interests. PL 280 tribes must be treated equally 

as a non-PL 280 tribes in all aspects of this Act. A tribe choosing not to exercise 

criminal jurisdiction should not be considered having a lower priority. Crime rates 

in these jurisdiction are sometimes higher due to the lack of prosecution by state 

authorities. 

We support and applaud the technical assistance and enforcement funding set 

forth in section 202, however, its make little or no mention of local federal enforcement agencies’ roles in relation to these Cooperative Assistance Programs. While 

listing several requirements of the grants, it should also require which jurisdiction 

will actually prosecute or at least require a priority provision, if all three have jurisdiction. More than likely this decision will weigh the correctional (sentence severity) 

element heavily which may affect the tribes’ decision to prosecute. In other words 

the jurisdiction with the more serious crime, i.e., one with the longer sentence will 

be utilized more than tribal prosecutions. 

TITLE III. EMPOWERING TRIBAL JUSTICE SYSTEMS

Section 301. Empowering Tribal Law Enforcement Agencies.—Section 301(a) 

would require Interior to permit greater flexibility in training for law enforcement 

officers serving Indian country, including permitting candidates to train at State 

17 

and tribal academies, tribal colleges and other training centers that meet Peace Officer Standards and Training. 

Section 301(b) would enhance existing law to grant Special Law Enforcement 

Commissions to authorize tribal officers to enforce violations of federal law committed on Indian lands. It would require the BIA and DOJ to coordinate to provide 

trainings in Indian country to certify tribal officers, and add requirements to expedite the MOU process with the BIA. 

Section 302. Drug Enforcement in Indian Country.—Section 302 would authorize 

DOJ’s Drug Enforcement Agency to provide technical and grant assistance to tribal 

police to address drug trafficking in Indian country. This provision would also require the DEA to place tribal law enforcement officials on the advisory panel to develop and coordinate educational programs to fight drug trafficking. 

Section 303. Access to National Crime Databases.—Section 304 would provide 

tribal law enforcement officers broader authority to access and input information 

into the National Crime Information Center and similar federal criminal databases. 

This provision would also direct the Attorney General to ensure that tribal officers 

meeting either state or federal standards would gain access to the databases. Tribal 

officers would be treated as federal officers for purposes of sanctions for misuse of 

the databases. 

Section 304. Tribal Court Sentencing.—This section would acknowledge the ability of tribal courts to sentence offenders for up to 3 years imprisonment, a $15,000 

fine, or both, where the Tribe provides counsel for indigent defendants and meets 

other Constitutional due process standards. This provision would also permit tribal 

courts to sentence offenders to serve time in: (1) the tribal facility that meets minimum federal standards; (2) the nearest appropriate federal facility pursuant to an 

agreement with the summer education and activity programs for tribal youth; (2) 

to develop tribal juvenile codes; and (3) to construct halfway houses and detention 

centers for youth in tribal custody. 

Comment 

Section 301 will help alleviate the shortages of law enforcement officers in Indian Country. We would, however, request, at the least, recognition of an Indian 

Preference law in the recruitment of candidates and the hiring of tribal and BIA 

law enforcement officers. 

301(e) (1)(B) is supportable in that it authorizes the Secretary of the Interior to 

utilize cooperative agreements with other federal agencies including tribes to assist 

with the enforcement of federal laws in Indian Country. The language in this subsection, referring to the laws of a tribe that authorizes the Secretary to enforce tribal law is confusing. Is this referring to cross-deputization agreement, a Code of Federal Regulation court or some other relationship between a tribe and Secretary? 

This needs to be clarified. It would also seem that the U.S. AG be authorized to 

inter into these types of agreements as well and create localized special commissions 

to perform regional trainings. After all, it will be the USAO’s that will do the actual 

prosecution of crimes in Indian Country. (State Councils on Law Enforcement and 

Education Training centers (CLEET) may play a role here if federally funded.) 

Section 302 amend the current laws that centers on drug education and enforcement to include tribes. We support this and hope that additional funds earmarked 

for tribes will follow. 

Section 303 allows tribes access to national crime databases if they meet the requirement of the federal or state regulation. It is the language that requires state 

compliance that is troublesome here. The confidentiality and technical requirements 

are federally mandated and the states should not be involved in this access issue. 

Ownership we believe lies with the federal government and they and they alone 

should authorize access to these national databases. 

Section 304 is perhaps the most if not one of the most important sections of the 

Act. It amends the Indian Civil Rights Act by requiring tribes to provide a public 

defense for defendants charges with a higher level of crime. It does not define what 

a public defense is in regard to a licensed attorney or trained and certified lay public 

defender. It does define the level of a charge that would require such a defender; 

if the crime charged ‘‘subjects a defendant to more than one year imprisonment for 

any single offense’’. Unless funding is also provided for a public defense system, 

tribes would simply amend their sentencing laws to under one year. We think this 

needs to be re-considered especially in light of all the potential law enforcement activity authorized by this Act. Without adequate funding a public defender system, 

this section could prove most harmful. 

18 

The sentencing aspects under this section addresses the dire need for correctional 

facilities in Indian Country. Due to the lack of funds many tribal or BIA correctional 

facilities lack the manpower and funds to operate in a constitutional manner. However, we believe that a BIA is not qualified to determine guidelines for correctional 

facilities and would prefer the Bureau of Prison or the American Correctional Association guidelines be made applicable. Moreover, private prisons may be an alternative that should be considered by tribes. We would recommend excluding the BIA 

in the MOU section dealing with the BOP. 

Section 305 established the Indian Law and Order Commission. We offer no comment on that concept. We believe federal dollars can be better expended in other 

areas. 

TITLE IV. TRIBAL JUSTICE SYSTEMS

Section 401. Indian Alcohol and Substance Abuse.—This section would reauthorize and amend the Indian Alcohol and Substance Abuse Act which provides grants: 

(1) for summer education and activity programs for tribal youth; (2) to develop tribal 

juvenile codes; and (3) to construct halfway houses and detention centers for youth 

in tribal custody. 

This provision would also direct the Substance Abuse and Mental Health Administration (SAMHSA) to take the lead role in interagency coordination on tribal substance abuse programs. It would also direct SAMHSA to establish an Office of Indian Alcohol and Substance Abuse, that would develop a framework for setting 

interagency communication goals, and provide technical assistance to tribal governments. 25 U.S.C. § § 2401 et seq. 

Section 402. Tribal Courts Programs.—Section 402 would reauthorize the Indian 

Tribal Justice Support and Technical & Legal Assistance Acts, which provides funding for tribal court judicial personnel, public defenders, court facilities, development 

of records management systems, and other needs of tribal court systems. 

Section 403. Tribal COPS Program.—Section 403 would reauthorize and amend 

the Tribal Resources Grant Program within the Community Oriented Policing Services Office of DOJ. It would authorize long term funding for the hiring and retention 

of tribal law enforcement officers, and remove matching requirements. 

Section 404. DOJ Tribal Jails Program.—This section would reauthorize and 

amend the DOJ tribal jails construction program. It would authorize and encourage 

the construction of regional detention centers for long-term incarceration, and would 

require DOJ to consult with the Interior Department and tribal governments in development of a 5-year plan for the construction, maintenance, and operation of tribal 

detention and alternative rehab centers. 

Section 405. Assistant Probation Officers.—Section 406 would authorize and encourage the Director of the Administrative Office of the United States Courts to appoint Indian country residents to serve as assistant probation and parole officers to 

monitor federal prisoners living on or reentering Indian lands. This provision would 

also encourage the Director to offer services at more convenient locations closer to 

Indian country. 

Section 406. Tribal Youth Program.—Section 407 would amend the Juvenile Justice and Delinquency Prevention Act by establishing a Tribal Youth Program in 

Title V, and authorizing the Director to provide grants to tribes to establish youth 

leadership programs, tutoring and remedial education, develop job training skills, 

and other activities aimed at reducing delinquency in tribal youth. 

Comment 

Section 401 establishes, inte se, the Office of Indian Alcohol and Substance Abuse 

under SAMSHA. We generally support this office and it functions with regard to 

what SAMSHA does, however, we emphasize that the connection between tribal 

courts, its sentencing to treatment programs operated or funded by SAMSHA should 

be improved and coordinated with our Healing to Wellness or Drug Courts currently 

funded by DOJ’s BJA. We believe there should be closer cooperation with law enforcement and SAMSHA tribal programs. Tribal probation officers should also be involved with these types of program and an emphasis should be placed on meth 

treatment programs. In this regard, BIA schools should actively engaged in drug 

prevention program during the school year as well as during the summer. Summer 

programs can be effective but are short term. We need these programs in our 

schools year round and beginning at an early age or grade. Holistic approaches involving entire families are recommended. 

19 

Training law enforcement officers in drug interdiction techniques as well as investigation of drug related crimes is necessary as drug dealers have discovered Indian 

Country and they work the myriad of jurisdictional issues to their advantage. 

Section 402. NAICJA has been the recipient of BJA grant for several years under 

their Tribal Court Assistant Program. TCAP, as it is called, provides a few tribes 

each fiscal year with improvement grants for up to two years. This has been a successful program authorized under the Indian Tribal Justice; Technical and Legal Assistance Act. We welcome its reauthorization. This act directly impacts and affects 

tribal courts. It should be noted that there should be a commensurate rise in funding as funds increase for tribal law enforcement. Tribal courts have in the past not 

received commensurate funding and have become bogged down, overcrowding of jails 

has occurred, and tribal probation officers ratios, on average, are 1–150 offenders. 

DOJ has done as much as any agency in recent years with funds as little as $7– 

8 million dollars each year. This is hardly sufficient and woefully insufficient in relation to the funds and programs authorized by this Act. It is paramount and 

enough cannot be said that Congress should fund tribal courts improvement programs on a long term basis. Tribal courts are doing the best they can with what 

little funding they receive from their respective tribes and from the federal government but such funding is intermittent and does not lead to long term improvement. 

When federal funding ends so does the improvements gained in many instances. 

This needs to be looked at more closely and directly integrated in the Law and 

Order Act of 2008. 

Tribal courts need more funding and training opportunities and tribal councils 

must be required to give credibility to tribal court operations and judicial independence must be reinforced through federal funding incentives. DOJ views itself as 

more of a law enforcement agency than a judicial improvement agency. Agency personnel have a difficult time justifying tribal court enhancement programs as connected with law enforcement. Section 403 references the COPS program and DOJ’s 

consisted effort to place the TCAP program under COPS is a prime example of this 

mentality. This needs to be addressed in this Act. 

Section 404 funds more jails in Indian Country. This assumes more jails are the 

answer. Traditional justice systems like peacemaking courts or healing to wellness 

courts have also proven to be effective alternatives to the criminalization process. 

The subsection allowing tribes to develop alternatives to incarceration should be 

prioritized. Prison bed space around the nation is at a premium and even more so 

in Indian Country. Tribes practically operate a criminal justice system without any 

jail space and have done so for years. As violent crimes increase, we call upon the 

USAO to prosecute these crimes and look for programs that effectively prevent violence in our communities. Drug interdiction should also help in this regard. 

Section 405 as it relates to increased funding for tribal probation officers is central to an effective tribal justice system but referencing only federal probationers is 

hardly the answer. This probation program should be made available to all probationers and parolees residing within Indian Country. Trained and well equipped 

tribal probation officers and assistants will help with reducing revocations especially 

where treatment programs are available and accessible. 

TITLE V. INDIAN COUNTRY CRIME DATA COLLECTION AND INFORMATION SHARING

Section 501. Uniform Indian Country Crime Reporting.—Section 501 would require all federal law enforcement officers responsible for investigating and enforcing 

crimes committed in Indian country to coordinate in the development of a uniform 

system of collecting and reporting such crimes, including if feasible, amending the 

Uniform Crime Reports monthly returns to acknowledge that crimes were committed in Indian country. 

Section 502. Tribal Data Collection Program.—This section would authorize and 

direct the Interior Department’s Office of Justice Services, in coordination with the 

Department of Justice, to develop a program to aid tribal police departments to establish information systems to uniformly collect and analyze criminal data. 

Section 503. Tribal Criminal History Record Improvement Program.—Section 503 

would authorize the Director of the Bureau of Justice Assistance to provide criminal 

information system grants to Indian tribes to address multi-jurisdictional crimes 

and establish secure information sharing systems to enhance investigations and 

prosecutions. 

Comment 

NAICJA supports the strategy behind these sections. Statistics of any sort is difficult to collect in any meaningful manner. Measuring the success or failure of proVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 S:\DOCS\45126.TXT JACK PsN: JACKF
20 

grams requires an effective statistical reporting tool that is consistent from jurisdiction to jurisdiction. 

TITLE VI. DOMESTIC VIOLENCE AND SEXUAL ASSAULT ENFORCEMENT AND PREVENTION

Section 601. Notification of Tribal Governments.—Section 601 would require the 

Director of the Bureau of Prisons and the Director of the Administrative office of 

the U.S. Courts to: (1) notify tribal justice officials when a person in federal custody 

will return or move to Indian country; and (2) register the offender according to the 

appropriate registry requirements. 

Section 602. Domestic and Sexual Violence Training.—Section 602 would require 

the Office of Justice Services, in coordination with the Department of Justice, to develop specialized family violence training for all law enforcement officers and prosecutors responsible for investigating and prosecuting crimes of sexual violence in Indian country. This provision would also require Bureau of Indian Affairs and tribal 

criminal investigators to take annual sexual violence and evidence collection certification classes, and require the Bureau to make such trainings available to tribal law 

enforcement officials in Indian Country. 

Section 603. Testimony by Federal Employees.—Section 603 would require federal 

employees to testify in tribal court pursuant to request or subpoena on matters 

within the scope of their duties, unless their supervising officer finds that such testimony would violate Department police to maintain impartiality. 

Section 604. Coordination of Federal Agencies.—Section 604 would require the 

Bureau of Indian Affairs, the Indian Health Service, and the Department of Justice 

to coordinate to develop victims services, victim advocate training programs, and 

identify obstacles to prosecuting crimes of domestic violence and sexual assault. 

Section 605. Sexual Assault Protocol.—This section would require the Indian 

Health Service to establish standardized sexual assault protocol at tribal health facilities. 

Comment 

All of these sections are designed to improve investigations that will allow appropriate prosecution by the USAOs and tribes. Training of peace officers is an important step in the right direction. Retention of such officers is also important. Tribes 

may not be able to afford to keep these highly trained officers. Funding programs 

must address these issues. Sex offenses require some form of medical evaluation or 

exams by trained and licensed personnel. Indian Health Service doctors and health 

care providers must be trained and willing and authorized to testify. It should not 

matter whether they get permission from supervisors. Permission denied is justice 

denied. This could be another barrier authorized by law for the lack of prosecutions. 

There is a need for such cooperation between law enforcement and health care providers and while the Act addresses such need it also creates a loop hole for adding 

to the problem. 

Again, thank you for the opportunity to comment on the proposed Act. NAICJA 

supports the Act and its principle to strengthen tribal sovereignty by strengthening 

tribal justice systems. NAICJA remains available to your questions. 

The CHAIRMAN. Judge Duran, thank you very much for your testimony. 

Next, we will have testimony from the Honorable Joseph FliesAway, the Chief Judge at the Hualapai Tribe in Peach Springs, Arizona. 

Judge, you may proceed. 

STATEMENT OF HON. JOSEPH THOMAS FLIES–AWAY, CHIEF 

JUDGE, HUALAPAI TRIBE 

Mr. FLIES-AWAY. Thank you. Good morning and thank you, Mr. 

Chairman and Madam Vice Chairperson. 

I am going to try to talk for five minutes, but it is very hard for 

me to do that, so I am going to do my very best because I am not 

used to that. 

But we are talking about tribal courts, and what I see in the 

tribal courts is that they are a critical component of tribal governVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00024 Fmt 6633 Sfmt 6601 S:\DOCS\45126.TXT JACK PsN: JACKF
21 

ment. They have to be there, just like any conflict resolution system for any government all over the Country. We have to do dispute resolution and we have to work everyone in the government. 

It is not just the tribal court. There are police. There are probation 

officers. There are social workers. It is a system of a bunch of people and programs. 

So when we talk about funding, yes, tribal court needs funding, 

but there is a funding need throughout a government, community 

and nation-building issue. 

Tribal courts in their action actually express tribal sovereignty. 

It is a way for any nation to express their sovereignty, by being 

able to have a conflict resolution system for their people, just like 

the United States. 

It is also, as the Senator stated, a way to contribute to economic 

development, our economic possibility. When people want to come 

to the reservation and do business and there is a fair playing field 

to do so, then that is going to be a court, a good court is going to 

be a place where they can come and actually feel good and comfortable about doing business there. 

It is also a manifestation of tribal culture. Tribal culture can be 

saved in writing and common law, as some tribes are doing that 

in culture, writing the ways and practices into law. That is something that we try to do with the best of our ability. 

It also upholds and protects the constitutional rights of the people. We have constitutions and we have bill of rights sections, due 

process, and all of these different types of rights. It is the place 

where people, tribal members and persons, because the tribal constitution just doesn’t take care of the tribal member. It is all the 

persons under the jurisdiction of the tribe, so it protects their 

rights. 

Now, about the funding. Tribal courts and the systems that are 

involved with it requires adequate funding and resources, facilities 

and programs. I was in a tribal court where I actually got electrocuted one time. I should have just fell over and maybe they would 

have gotten a new building, but there is a lot of need as far as facilities and as well as programs and staffing. 

Tribal courts necessitate consistently availability of detention 

and rehabilitation resources. We talked about detention. We have 

a juvenile detention facility that has been sitting empty at 

Hualapai for the past nine or so months and we don’t have funds 

to operate it. Actually, kids have already broken into it. I talked 

to one of them. I said, you are so eager to get into there you are 

breaking into it. But it sits empty, and we need that facility open. 

A couple of comments about the Act. There is section 303, the 

database. 

The CHAIRMAN. Judge Flies-Away, would you just tell us how 

large that facility is? 

Mr. FLIES-AWAY. It is a 40-bed facility. 

The CHAIRMAN. Forty beds. Thank you. 

Mr. FLIES-AWAY. About $7 million, and $4 million of it came from 

the tribe itself. I am not sure if that is the exact number, but I 

think so. 

Section 303, the database, council members have had a concern 

about how that database is to be used if tribal law enforcement 

22 

puts the information in, and how is it to be used by the other jurisdictions. I used to be a tribal council member myself, so we have 

a concern about sharing information with other jurisdictions and 

how that might be done. The 304 sentencing, I like that, three years/$15,000. The only 

issue with that is the capacity. If we don’t have detention facilities 

to put people in, then how are we going to do that? It takes a lot 

of money for that. But I like that. It is going up. We can do more 

with that. 

Section 603, I have a beef with this one, well, not with this, but 

I will tell you. 

The testifying of Federal employees, I had once asked a BIA detention officer to do something. He was supposed to bring over a 

defendant. He did not do so, so I ordered and order to show cause 

on him. He got your attorney, the Solicitor General, to write me a 

letter, threaten me with arrest for getting in the way of his job. I 

wasn’t calling him to testify on anything. I was calling him to come 

to order to show cause why he did not bring over a person, doing 

his job as a BIA employee. I should have told these guys. But you 

know, but I got a letter from the Solicitor. You will be arrested if 

you interfere with the Federal officer. And I go, oh, my goodness. 

On the IHS side, I asked a health nurse to come in and help create a plan for a minor child. He needed help and she wouldn’t come 

because of the same, I can’t remember, section 45 CFR Part 2. 

They keep Federal employees from testifying in tribal court. Hopefully, there could be an amendment of section 603. 

There is a lot more things to say about this issue, but I am glad 

that I was able to say these few things. 

Thank you. 

[The prepared statement of Mr. Flies-Away follows:] 

PREPARED STATEMENT OF HON. JOSEPH THOMAS FLIES–AWAY, CHIEF JUDGE, 

HUALAPAI TRIBE

Mr. Chairperson, Madame Vice-Chairperson and Members of the Committee, 

Gamyu:je, 

I am honored to be invited to testify before the Senate Committee on Indian Affairs on Tribal Court Systems and the proposed Tribal Law and Order Act of 2008. 

Unfortunately, the timeframe for preparation did not give me the ability to fully articulate all of the prevalent issues that come to mind though I will attempt to address some of the most important issues as I and our Tribal Council sees them. 

Below I describe a few of these issues and comment briefly on specific sections of 

the Act. 

First however, let me let me briefly introduce myself to you. I am a Hualapai 

Tribal Member and the Chief Judge of the Hualapai Judiciary. I have served as a 

Tribal Council Member and Planner for my Tribe in recent years. I have also served 

as a judge for the past 12 years and in total sat in 9 tribal courts throughout Indian 

Country and serve currently as a pro tem judge, visiting judge, and appellate justice 

for various tribal courts as well as consult with tribes when I have time. I have been 

privileged to work with many other tribal courts throughout the country, including 

native villages of Alaska, to help develop their judicial systems and infrastructures, 

perform evaluations, draft and review codes, and provide other technical assistance 

to Courts and tribal government. I have also taught at the university level in Indigenous Community & Nation Building and Federal Indian Law. In my travels and 

efforts throughout Indian Country I see a strong commitment and dedication from 

tribes/villages to continue to rebuild their nations taking the best of their past and 

culture and mingling with the advantages and innovations of the present. I see indigenous peoples take what little resources they may have and make the best of it 

even though the community and nation building journey is difficult and frustrating 

much, if not all the time. 

23 

Below is a short description of the topics that I believe are important for the Committee to hear and take into consideration in your legislating efforts. Unfortunately, 

as the time given to each witness for verbal testimony is only five (5) minutes, my 

comments to the Committee will be limited at that proceeding. I will do my best 

to articulate what I think is most important in the little time that I have. I imagine 

that there may be questions for the witnesses by the Senators on the Committee. 

With your questions I hope I will be able to stress other areas that require federal 

intervention and assistance that I do not mention in my direct comments and in 

this written testimony. 

As requested by Senator Dorgan the primary purpose for my testimony is to discuss Tribal Courts in general and comment on the proposed Tribal Law and Order 

Act of 2008. Below I highlight various issues regarding tribal courts that I think 

are relevant, which I have written about previously and discuss with tribal folks at 

every opportunity. I am sure you will hear similar remarks from the other witnesses 

who I am honored to be sitting before you today. Of course what our tribal leaders 

wanted me to emphasize up front is the need for more funding for tribal courts and 

the areas that support its work. Funds are required so that the need for culturally 

accordant conflict resolution for our Tribe and others can be accomplished more 

thoroughly and for benefit of those persons under our jurisdiction. The other issue 

my Council directed me to emphasize is the need for detention and rehabilitation 

resources that allow the Court to address the criminal and other negative behavior 

that hampers our Tribe’s progress. 

My final statements here regard the proposed Tribal Law and Order Act of 2008. 

Below I have highlighted a few sections in the Bill that our Tribe and I both have 

questions and/or concerns. 

I will begin with general comments about Tribal Systems: 

Tribal Court System (Tribal Justice System) 

Critical Component of Tribal Government 

Tribal Courts and Tribal Court systems are critical components of tribal government. All governments must provide a means for conflict resolution for its polity, 

its people. Without such a forum disputes and disagreements of all sorts would negate the ability of the people to gather, ground, and grow (i.e. build and rebuild communities and nations). Prior to Anglo intervention in the Americas indigenous peoples practiced various forms of conflict and dispute resolution. While the practices 

may not have resembled those of Western Culture the ability of tribal members to 

participate in debate and defend their points of view was not just allowed, but expected (i.e. due process). Unfortunately, because tribal ways did not resemble European practices, they were thought to be savage, backward, and uncivilized. Suffice 

it to say the forums for indigenous people worked for native folks then as much as 

the methods worked for other peoples around the world. 

Tribal Courts/Systems currently are the tribal forums that attempt to resolve various controversy and conflict that Tribal peoples, our governments, and other persons face. Many systems rely on written law (constitutions and codes) to direct the 

settlement of disputes and conflicts. Others apply customary processes, procedures, 

and laws to address controversy. In all the tribes/villages that I have visited thus 

far their Tribal Court systems were thought to be critical to the success of their governmental function to serve the needs of the people. Or, if the systems were in development tribal staff and officials would state that they wanted their Court System 

to provide a fundamental service that would benefit the community/nation as a 

whole. As are many nations around the world, each tribal or village government is 

at a different period of development of a justice system. Some are quite advanced, 

while others are just beginning to develop a judicial system under the conditions 

and circumstances they may face in their part of the United States. Despite the various places these tribes may be in their development journey, they each need the 

resources, support, and encouragement to continue to develop the best practice judicial system they can to bolster their overall governing system. 

Requires the Cooperation & Collaboration of Various Sectors (Departments and Programs) of Tribal Government 

As a judicial system is an important and critical part of tribal government, it cannot function all alone and unto itself. A system to resolve conflict and dispute for 

any polity must include or collaborate with a number of various agencies, programs, 

and people of their government. A true full compliment of a judicial system, though 

to many it is not as clear, does not only consist of a judge, clerk, probation officer, 

jury members, advocates, and bailiff. To fully move towards resolution or conciliation of criminal, civil, juvenile, family, and other issues brought to Court there are 

many others who contribute to a beneficial end; to peace. 

24 

This is not to say that Separation of Powers is not an important and necessary 

characteristic of good government. Separation of Power is essential to keep various 

branches of government from interfering with each others work. Nevertheless, there 

is considerable contribution and cooperation that must exist between the branches 

or departments that must be present in order for resolution/concord to be reached. 

Individual court users, practitioners, and staff including the citizenry of a nation 

must be trained and provided insight of how this separation works and how parts 

of government must also work together. 

Expression and Exercise of Tribal Sovereignty 

The existence and administration of a Tribal Court—Judicial Branch is an expression and exercise of Tribal Sovereignty. As mentioned above the provision of conflict 

and dispute resolution is an important part of a government. Because conflict resolution is a necessary service that the Tribe must provide, the provision of such a 

service demonstrates the government’s sovereign responsibility to address and fix its 

own problems, controversy, and other conflict. As a tribal court confronts conflict 

and listens to the parties regarding the issues raised it must develop a understanding and ruling of the law, wholly applicable to that matter and to that sovereign. The creation and development of law is unique to that nation. This practice 

contributes to the individuality and sovereignty of that nation. As a tribal court continues to resolve conflict, develop standards and precedent for litigants to apply, the 

more the Tribe is expressing and exercising its sovereignty. 

Contributes to Economic Possibility 

Tribal Courts further support an environment of impartiality and fair play. In 

doing so individuals, corporations, and others believe they can safely engage in commerce and business with the Tribe and tribal members with the assurance that 

wrong doing can be challenged, addressed, and corrected. Economic development 

and possibility become more achievable when there is a forum for legitimate legal 

issues to be brought and remedies sought. Whether the matter concerns a promise/ 

contract issue of a small amount of money between tribal members or a multi million dollar claim between a corporation and vendor, Tribal Courts can provide a 

competent and transparent forum for resolution. 

Many tribes, however, are still developing Courts where business matters can be 

brought. Outside business entities are weary of tribal law and processes, which may 

not resemble a U.C.C. or other commercial code. Overtime, however, with greater 

resources and further development, tribal courts will provide the necessary components and legal procedures as does any state or federal court hearing such cases. 

Hopefully, however, Tribes will not adopt other jurisdiction’s laws full sail without 

assuring its efficacy for their nation. Tribes who have developed in this area can 

be supportive and helpful to others in their development. 

Manifestation of Tribal Culture (i.e. culturally accordant conflict resolution/peacemaking) 

Tribal judicial systems can be fashioned into culturally accordant tribal institutions that reflect the culture and history of the tribal people it serves. Tribal Courts 

over the years have been grappling with the nature of the adversarial system that 

was more or less imposed upon them. While some tribes find the adversarial system 

adequate and useful, other tribes desire to develop courts that reflect more of a restorative nature that tribal people traditionally practiced. Unfortunately, because 

the adversarial system is deeply ingrained in tribal court personnel, as that is what 

they were taught, and ‘outsiders’ bring to the Court, it is difficult for some to reclaim the traditional method and move forward with it. Some tribes, however, have 

been successful at this development and produced peacemaking processes or other 

traditional means of bringing people to peace, and the practices are greatly appreciated by their people as they feel familiar and are comfortable with it. Tribes must 

be allowed to develop these processes, perhaps allow for various tracks for court 

users to choose from so that the greatest appreciation can be solicited. 

Uphold and Protect Constitutional Rights (including due process) 

Tribal Courts serve to uphold and defend the rights of all persons, not just members, who are within its jurisdiction. Individual rights as defined in tribal constitutions, codes, and federal statutes such as the Indian Civil Rights Act are best adjudicated in the Tribal forum where the tribal court judge can articulate what the law 

means in that jurisdiction. This is even a more important when the tribal judge is 

a member of the tribe who can also apply or be open to applying tribal custom and 

tradition. 

Tribes throughout the United States are actively pursuing or considering revising 

and amending their constitutions to articulate a more tribal perspective, rather than 

25 

applying the constitutions that were basically written for them or modeled after BIA 

documents. What may be at issue as tribal courts continue to develop and revise 

their constitutions, are conflicts between rights as articulated in their constitutions 

and tribal government (and their subordinate entities) claims to sovereign immunity? If a tribal government does not afford due process to a person under their jurisdiction, and or change the law on an individual after the matter was brought to 

Court, when the Constitution articulates various rights, does sovereign immunity 

completely shield the Tribe from what might be illegal or unconstitutional conduct? 

These claims will be brought before tribal courts and have been slowing reaching 

the courts of late, and outcomes may be telling as to the future of tribal sovereignty. 

Requires Adequate Funding & Resources (facilities & program support) 

All Tribal Courts, including the Hualapai Tribal Court, require the funding to 

fully meet the judicial needs of their constituents. While some tribes, such as 

Hualapai, have been able to put some of their own general funds into Court development, the amount is not enough to fully satisfy the need the growth the Tribe has 

had over the years. Hualapai, and I am sure others, require adequate facilities and 

space to perform its function and purpose for our people. Many tribal courts are 

housed in older buildings and required to hear cases in makeshift court rooms while 

at the same time endeavoring to demand the respect of Court users and others who 

come to Court. Offices are small and hearings sometimes must be held in them as 

there may be only be one court room. Funding issues, of course, are always an issue 

for tribal governments, but it appears that given judicial services is a primary and 

critical function of government that federal funding would rise to the level of support that such a need requires. 

Necessitates Consistent Availability of Detention & Rehabilitation Resources 

Lastly, more funds are required for both detention and rehabilitation resources. 

The Hualapai Tribe has put some of its own funding into building a state of the 

art juvenile detention facility only to have it sitting unused for almost a year. The 

BIA is unable to provide the funding for staffing and operating the facility and the 

Tribe cannot assume the responsibility alone. The Tribe initially intended to provide 

resources in the facility to address rehabilitation issues, however, again BIA funds 

do not serve this function and IHS is also unable to assist in the goals the Tribe 

set out to accomplish. Over time, perhaps, after many years of economic develop for 

us and others, the Tribe(s) may be able to cover various costs for this operation, 

however, at this very moment, the need is huge for our young people to be not only 

disciplined but provided the healing services they need to someday be positive contributors to our tribal society. 

Other 

There is a Federal Law that prevents BIA & IHS employees from being brought 

to Tribal Court via a subpoena as well as denies the Court the ability to issue Order 

to Show Cause orders to BIA detention staff for failure to provide adequate detention services (see below). 

Tribal Law and Order Act of 2008 

Sec. 303—Access to National Criminal Information Databases 

While criminal data collection is important in order to analyze criminal behavior 

and trends, this act will allow tribal law enforcement officials to enter criminal data 

into a national data base, presumably regarding tribal members. One question is 

how will the criminal information be utilized by federal, state, and tribal jurisdictions? Will it be used to augment sentencing orders in each jurisdiction? Tribal leaders in the past have been wary of sharing criminal information as it is thought to 

infringe on tribal sovereignty. Do tribal leaders need to approve the sharing of information in a manner and form that they prefer or is the Federal Government to do 

so for them? 

Sec. 304—Tribal Court Sentencing Authority 

Section 304 of the Act provides for increased Tribal Court sentencing authority for one charge from 1 year/$5,000.00 to 3 years/$15,000.00. Though this provision 

to strengthen Tribal Court sentencing power is positive, capacity issues and shortfalls for most Tribal or BIA detention facilities must be addressed and remedied. 

Many Tribes simply do not have jails and rely on the BIA to provide detention services. The supply of bed space does not meet the demand, which creates an inconsistent detention system allowing for release of inmates for lack of space, medical 

ailments, and swapping of more dangerous inmates for lesser dangerous ones. The 

need for more detention funds (both facility construction and programmatic) is required. Not only must more detention facilities on tribal lands be constructed, 

26 

Tribes must have resources to staff the jails and provide treatment (healing & restoration) to tribal inmates. Though the Act states the possibility of housing tribal 

inmates in Federal detention facilities, the preference for tribes may be to house 

their tribal and native community members in a tribal detention facility. 

Sec. 603—Testimony by Federal Employees in Cases of Rape and Sexual Assault 

Section 603 of the Act will allow federal employees in rape and sexual assault 

cases to testify in tribal court. The Hualapai Tribal Court has received two letters 

from both Bureau and IHS officials citing 45 C.F.R. Part 2, which states that federal 

employees are prohibited from giving testimony unless the appropriate Director approves. How does Section 603 mesh with 45 C.F.R. Part 2? 

A Hualapai Tribal Court Order to Show Cause on BIA Detention Supervisor for 

failure to assure that a Defendant (father) was transported to a custody Hearing, 

upon proper notice to him in the detention facility, caused a U.S. Solicitor to threaten the arrest of any Tribal Judge who interferes with the federal officer’s duties. 

The Tribal Court merely issued the OSC to the BIA Supervisor for failure to perform his trust responsibility to the Tribe by bringing the inmate to Court. 

A Hualapai Tribal Court Order requesting the attendance of an IHS Community 

Health Nurse to a hearing to develop a service plan for a Child in Need of Care 

was denied as the Order needed to be approved by a senior official in the area. 

Again a letter to the Court citing 45 C.F.R. Part 2 was sent to the Court stating 

the Nurse cannot provide testimony to the Court. The hearing, however, was scheduled only to solicit the input of service providers, include the Community Health 

Nurse, to develop a plan to provide services to the Minor Child and family to meet 

his needs. The Nurse was not requested to provide testimony to prove innocence or 

guilt in any way. 

If the Act is to promote cooperation between federal agencies and the Tribes, then 

this area must be reviewed so that the Tribal Court’s request for federal assistance 

is honored and any trust responsibility honored. 

The CHAIRMAN. Judge, thank you very much. 

Next, we will hear from the Honorable Theresa Pouley, the President of the Northwest Tribal Court Judges Association in Tulalip, 

Washington, with the Tulalip Tribal Court. 

Judge, you may proceed. 

STATEMENT OF HON. THERESA M. POULEY, JUDGE, TULALIP 

TRIBAL COURT; PRESIDENT, NORTHWEST TRIBAL COURT 

JUDGES ASSOCIATION 

Ms. POULEY. Good morning. Thank you for the opportunity to 

allow me to testify today. 

As a judge at Tulalip Tribal Court, Colville Tribal Court, Northwest Intertribal Court System, and also as the President of the 

Northwest Tribal Court Judges Association, we appreciate the attention of this Committee to tribal justice systems in Indian Country. 

Justice O’Connor and Janet Reno said that tribal courts are part 

of the mosaic of the justice system in the United States, and that 

they are uniquely situated to resolve problems in Indian Country. 

As tribal court judges in the Northwest, we are acutely aware of 

the violent crime rate. We are acutely aware that one in three Indian women will be raped in their lifetime. And Senators, we are 

poised with the proper funding and the proper authority to be able 

to take responsibility and make a difference in Indian Country. 

As President of the Northwest Tribal Court Judges Association, 

I am delighted to report that we hear over 10,000 cases every year 

for the last five years. As a judge of the Northwest Intertribal 

Court System, we hear 2,400 cases a year. And as a judge of the 

Tulalip Tribal Court System, we heard 1,100 cases last year. 

27 

All of those cases were done in a very competent and professional 

manner. The six biggest tribes in the Northwest all have public defender services. Tulalip, Lummi, Colville, all provide public defender services on their own dime for indigent defendants. All of 

those courts have courts of appeals. The Colville Tribal Court of 

Appeals is a constitutional court with nine appointed justices. Each 

and every one of those courts in the last 30 years has come lightyears forward in being able to resolve issues in Indian Country. 

We certainly appreciate your support and your belief in tribal 

justice systems, but you should know that we have the ability to 

provide those solutions to those problems of crime in Indian Country if we are given both the funding and the tools. 

Tulalip Tribal Court is a perfect example of that. They retroceded 

their criminal jurisdiction from the State of Washington in 2001. 

By 2003, those cases, including criminal cases on the reservation, 

started being investigated by tribal police, prosecuted by tribal 

prosecutors, and entered tribal court systems. 

In five years, Tulalip Tribal Court has gone from what some 

characterized as a lawless reservation with rampant drug and alcohol deaths on our highways, to a very safe community. They did 

that to ensure the economic development of their community, but 

they also did that by prioritizing the tribal justice system. 

Although the Bureau of Indian Affairs gave us $30,000 last year 

to hear those 1,100 cases, Tulalip Tribal Court knows better. And 

the results are absolutely dramatic. In that five-year period of time, 

every year since Tulalip Tribal Court has been hearing cases, violent crime has been substantially decreasing within the boundaries 

of the Tulalip Reservation. Tulalip Tribal Court was given the Harvard’s Honoring Nations Award for a wellness court or drug court 

program that reduced recidivism in just a couple of years by 25 

percent. 

We need stable funding to be able to address those issues. We 

also very much support the holistic and coordinated fashion in 

which this bill addresses the Department of Justice in making sure 

that they provide tribal officials with information regarding the 

declination of prosecution. When you combine that with an increase 

in tribal court jurisdiction, we are going to have the ability together 

to substantially change the face of Indian Country. 

Before I came here to testify, I was visiting with my husband 

about what that testimony might be. I said, and repeated to him, 

one in three Indian women are going to be raped in their lifetime. 

My 15-year-old daughter looked at me and said, Mom, is that true? 

And the look on her face said, Mom, am I the one or am I the 

three? 

This kind of concerted effort and this bill, and support of this 

bill, to allow tribal courts to answer that question for my daughter, 

help us fulfill an old Shenandoah proverb: It is no longer enough 

to cry peace. You have to act peace, live peace, and live in peace. 

We look forward to the opportunity of taking that responsibility 

and we are ready, Senator. 

[The prepared statement of Ms. Pouley follows:] 

28 

PREPARED STATEMENT OF HON. THERESA M. POULEY, JUDGE, TULALIP TRIBAL

COURT; PRESIDENT, NORTHWEST TRIBAL COURT JUDGES ASSOCIATION

Mr. Chairman and members of the Committee, I appreciate the opportunity to 

provide testimony on the vital role that tribal courts play in the effective administration of justice in Indian Country. I speak from my experience as a long time 

Judge serving tribes in the Northwest and the President of the Northwest Tribal 

Court Judges Association. Currently, I serve as a judge in the Tulalip Tribal Court 

and the Northwest Inter-Tribal Court System (NICS) and an Associate Justice of 

the Colville Court of Appeals. The tribes I have had the honor to serve in Washington State range from urban to rural, and vary in size from small communities 

with a greatly diminished land base to tribes with expansive reservations. Although 

the governmental services and needs vary for these tribes, I have found they all 

share a core commitment to fairness and justice for their communities. No government has a greater stake in effective criminal justice systems in Indian Country 

then the tribes themselves. 

A quality justice system is a central component of the right of a people to make 

their own laws and be ruled by them. Congress has expressly recognized the importance of tribal courts in enacting the Indian Tribal Justice Act, (ITJA), 25 USC 

§ 3601 et. seq., ‘‘to assist in the development of tribal justice systems.’’ S. Rep. No. 

103–88, 1993 WL 304728 at 1 (July 15, 1993). In enacting this law, Congress recognized that ‘‘tribal justice systems are an essential part of tribal governments and 

serve as important forums for ensuring public health and safety and the political 

integrity of tribal governments.’’ 

The findings of Congress, however, are often at odds with the actions, or inaction, 

of federal agencies vested with a trust obligation to provide public safety in Indian 

Country. While the Indian Tribal Justice Support Act promised $58 million for tribal court systems per year, tribal courts have yet to see any funding under this Act. 

The vast majority of tribes continue to struggle to meet basic public safety needs 

based on lack of federal support. The ITJA did result in the creation of the 2000 

Report of Tribal Justice Systems prepared for the Bureau of Indian Affairs. The report confirmed the competency of tribal courts, found that tribal justice systems are 

severely underfunded, and recommended base funding levels for tribal courts. 

Although the Federal Government has fallen far short in addressing the critical 

public safety problems in Indian Country, Tulalip and other Indian tribes fortunate 

enough in recent years to raise revenues through gaming and new business enterprises have started taking on the primary role of law enforcement on the Reservation. Since taking on this responsibility, Tulalip and other Northwest Tribes have 

seen crime rates begin to drop, and the quality of life on the Reservation improve. 

Taking a lead role in criminal justice has gone hand in hand with steady gains in 

economic development and employment opportunities on the Reservation. Tulalip 

recognizes, however, that these gains are fragile, without reliable funding sources 

that traditionally fund government justice systems. 

The Tulalip Tribes, NICS and the Northwest Tribal Court Judges support provisions in the proposed Tribal Law and Order Act of 2008 which seek to hold the Federal Government more accountable for addressing the serious crime problems in Indian Country. The Tribes believes that the Federal Government must do a better 

job of supporting and empowering tribal justice systems. Toward this end, we 

strongly support the extension of criminal sentencing authority as necessary in certain cases to protect the Reservation community from dangerous offenders. 

I encourage the Committee to identify further measures to support and fund 

strong Tribal law enforcement and court operations. More direct funding to tribal 

courts is drastically needed. The Tulalip Tribes wholeheartedly supports the additional authorization of Tribal justice system funding that was recently added to S. 

2731. In addition to federal funding, Congress has a role to play in authorizing an 

expansion of Tribal government taxing authority to raise revenues for tribal justice 

systems—justice systems that benefit both Indians and non-Indians who reside in 

and around Reservation communities. 

The Tulalip Tribes 

The Tulalip Tribes consists of a confederation of several Coast Salish Tribes signatory to the 1855 Treaty of Point Elliott. The Tulalip peoples originally occupied 

a large area of western Washington that extended from the crest of the Cascade 

mountains to the islands of Washington’s marine waters. Salmon have always been 

of central importance to Tulalip subsistence and culture, and many Tulalip families 

still depend on fishing for their livelihood. 

Today, the Tulalip community is located on a 22,000 acre Reservation bordering 

the Puget Sound 40 miles north of Seattle. This area has recently experienced rapid 

29 

population growth and development. Tulalip has 4,000 enrolled members, but the 

majority of Reservation residents are non-Indian. This is due to a history of allotments on the Reservation, which resulted in most Reservation land falling out of 

tribal ownership. This created a checkerboard of Indian and non-Indian land ownership that is common to most Reservations in Washington State. The Tribe has in 

recent years re-acquired a great deal of its Reservation land, and today the Tribe 

or Tribal members hold approximately 60 percent of the Reservation lands with the 

balance held in non-Indian ownership. 

Tulalip Justice System—Background 

The Tulalip Tribes is organized under a Constitution and Bylaws adopted by the 

Tribes and approved by the Secretary of Interior in 1936 pursuant to the Indian Reorganization Act. The Tribe is governed by a seven member Board of Directors, who 

are elected to three year terms. The Tulalip Constitution provides authority for establishment of a tribal judiciary, empowering the Tribes governing body to provide 

for the maintenance of law and order and the administration of justice by establishing a court system. 

Despite the Federal Government’s stated commitment under the Indian Reorganization Act to foster tribal self-determination, the goals of the policy went largely 

unfulfilled due to lack of federal support and little economic opportunity for tribal 

members residing on the Reservation. In the years following the IRA, there were 

simply no funds to carry out the basic functions of tribal self-government. 

PL 280—State Assumption of Criminal Jurisdiction Not the Solution 

In order to address the problems associated with inadequate federal criminal justice resources, the Tulalip Tribes requested the State of Washington in 1958 to assume criminal jurisdiction under PL 280. However, Tulalip soon found out that 

State assumption of criminal jurisdiction was not an effective remedy for the public 

safety problem. The county failed to dedicate adequate police resources to the Reservation, in part because the county received no tax revenues from tribal trust 

lands. As a result, little improvement was made in crime rates or public safety on 

the Reservation. 

During this period of the 1950s through the mid 1990s, Tulalip was failing to provide the most basic of services to its community—police and criminal justice. The 

Reservation remained a difficult place to live, and job opportunities were limited. 

Law enforcement and criminal justice on the Reservation was at best inadequate, 

and at worst non-existent. Older tribal members often speak of the harsh conditions 

on the Reservation during most of this time, when serious crimes such as murder, 

rape and aggravated assaults often went uninvestigated and perpetrators were not 

prosecuted or punished. 

Building an Effective Tribal Justice System at Tulalip 

The Tulalip Tribal justice system has made great strides in the last decade. Tribal 

law enforcement has gone from a single part time officer to a full service police department of 47 officers and staff protecting the community seven days a week. The 

Tribal Court has evolved from part time operations in an old trailer to a large modular facility with two full service court rooms and a complement of court staff operating 5 days a week. Crime rates have dropped and the quality of life in the community is improving. The Tulalip Tribes has taken on this responsibility to build its 

own criminal justice system on the Reservation largely because the Federal Government has failed to fulfill its responsibility, and the state criminal authority proved 

ineffective. 

The Tribes recent success in criminal justice is attributable to two key factors— 

(1) retrocession of state criminal jurisdiction under PL 280, and (2) new tribal economic development on the Reservation generating much needed revenues and creating new jobs. 

Retrocession—Tulalip Assuming Primary Law Enforcement Responsibilities 

The Tulalip Tribes began the process of seeking retrocession of State criminal jurisdiction in 1996. Navigating the retrocession process under current federal law 

proved to be an arduous task. Indian tribe’s had not petitioned the Department of 

Interior for some time which meant that there were few in the Interior accustomed 

to the process of retrocession. Also during this time, as is true with the Justice Department’s current opposition to S. 2731, the Tribes found out that the U.S. Attorneys Office in Seattle was not supportive of the Tribes request for retrocession because they perceived retrocession as adding responsibilities to that office and other 

federal law enforcement agencies. The Tribes held numerous meetings with Justice 

and argued persuasively that an increased tribal law enforcement presence would 

30 

actually lower crime rates and eventually decrease the demand for federal law enforcement services. Gradually, the U.S. Attorney warmed to the idea and sent a letter of support to the Attorney General. With the Governors support and the letter 

of support from Justice, Tulalip officials were finally successful in obtaining retrocession of state criminal jurisdiction on the Reservation. 

After retrocession, the Tribes took on the responsibility of primary law enforcement on the Reservation. The Tulalip Police Department grew to a full service police 

department with 47 officers and staff. The department is currently headed by a police chief with 27 years of experience. The Tribal police department responds to all 

police calls on the Reservation, from both the Indian and non-Indian community. Incidents range from simple misdemeanors to major crimes such as murder and rape. 

In 2006, the Tulalip Police Department responded to 13,493 distress calls. 

Last year, the State of Washington passed legislation which strengthened the 

agreement by authorizing statewide cross-commissioning of Tribal officers, providing 

Tribal officers meeting specific qualifications with Washington State peace officer 

arrest authority. Currently, 20 Tulalip officers, all with qualifications that meet or 

exceed that required of state officers, are cross commissioned as both Tribal and 

state officers. In addition, two Tulalip police officers hold federal law enforcement 

commissions. This cross-commissioning provides for seamless law enforcement arrest authority over crimes committed by all persons on the Tulalip Reservation. 

Assumption of Primary Tribal Law Enforcement Coincides with Dramatic 

Improvements in the Reservation Economy 

During the same period Tulalip assumed primary law enforcement authority, tribal economic development increased exponentially. It was during this period that the 

Tribes incorporated Quil Ceda Village to promote Reservation based business development, including a casino, retail outlet mall, and most recently, a brand new 400 

room hotel. The success of Quil Ceda village has created thousands of new jobs, 

brought in millions of new visitors to the Reservation and much needed revenues 

to the Tribal government. 

It was these initial gains in Reservation economic development that provided 

funds to establish a police force and further develop the Tribal court system. Tribal 

leaders immediately recognized the important relationship between continuing successful economic development and a strong, quality justice system. The Tulalip 

Tribes recognized that to continue to be successful with growing the Reservation 

economy, the Tribes would need to invest in a first rate justice system. The type 

of crime that was rampant on the Reservation as recent as 10 years ago would need 

to improve if the Tribe was going to be successful in attracting visitors to its economic enterprises on the Reservation and lifting its membership out of poverty. 

Although the Tribes’ new gaming revenues were in great demand to fund unmet 

housing, health care and education needs, the Tribe knew it could not neglect its 

justice system. The Tulalip Tribes have gradually increased its law enforcement and 

tribal justice system budget to more than five million dollars annually. These increases have come almost entirely from Tribal sources, with the Federal Government’s share of the total budget declining. 

This Tribal investment in criminal justice is starting to pay off. Tulalip criminal 

statistics demonstrate improvements in law enforcement and the justice system are 

starting to lower crime rates: 

TULALIP CRIMINAL STATISTICS 2003–2007 * 

Year 2003 2004 2005 2006 2007 

Criminal filings 1172 679 563 493 435 

* The 2007 figure is through the 3rd quarter. 

The criminal statistics show a steady decline in crime from 2003 thru 2007. In 

2007, the number of infractions has almost doubled, from 140 in 2006 to 260 in 

2007. Thus, excluding traffic, criminal cases declined about 12 percent. 

The Tulalip Tribal Court 

The Tulalip Tribes operates its court through a contract with the Northwest Intertribal Court System. The Tribal Court currently employs two full time Judges, utilizes multiple pro tem judges, and is staffed by a Court clerk supervising four court 

support staff. The Tulalip Court judges have distinguished backgrounds with decades of experience as jurists and as licensed attorneys practicing in tribal, state and 

federal courts. 

31 

The Court operates under criminal and civil rules adopted by the Tribes governing 

body. Criminal laws are enforced under a comprehensive criminal code, and the 

Tribes regulates Reservation activities under environmental, fish & wildlife, land 

use, gaming and other regulatory codes. The Tribes also has enacted child dependency, domestic relations and employment codes that generate additional caseload for 

the Tribal Court. The Tribal Court adjudicates a wide variety of civil matters, from 

child dependency cases and domestic relation cases to complex civil torts between 

private litigants, involving both Indian and non-Indian parties. Attorneys practicing 

before the Tulalip Tribal Court must pass a Tribal Bar exam and be licensed to 

practice in the Court. 

The Northwest Intertribal Court System: The Tulalip Tribes operates its 

court through The Northwest Intertribal Court System (NICS). NICS is a consortium of seven western Washington federally recognized tribes and is the oldest continually existing intertribal court system in the country. NICS serves as a cost-effective way for tribes to deliver high quality court services. Last year alone, seven 

NICS tribal member courts heard over 2,400 civil and criminal cases, including appeals. To meet the needs of member tribes, NICS maintains a roster of judges, including lawyers in private practice, law professors, and tribal court judges from nonNICS member Indian tribes. Appellate opinions issued by NICS administered courts 

are published in a NICS reporter. 

As the Tulalip government grew, NICS began to play a much larger role in the 

Tulalip community and government. Today NICS administers the Tulalip Tribal 

Courts, the Appellate Court, the Tulalip Prosecutor’s Office and some probation 

services under a contract and budget supplied by the Tulalip Tribes. Tulalip appoints one member of the NICS Board of Directors and is the largest jurisdiction 

within the NICS system. 

One of the benefits Tulalip realizes in operating its court through this contract 

is that NICS provides the Tribal Court with structural separation from the Tribes 

elected political branch of government. Although judicial independence does not require an arrangement of this type, the Tulalip Tribes long time participation with 

NICS has worked well in developing a quality court system. The Tulalip Tribes 

prides itself on maintaining an independent judiciary providing for the impartial administration of justice on the Reservation. 

Tulalip Public Defender: In expanding its criminal justice system, the Tulalip 

Tribes quickly realized that many defendants could not afford criminal defense attorneys. The Tribal government made a decision that, although costly, it would provide defense counsel to Tribal members meeting low income thresholds. In order to 

meet this need, the Tulalip Tribes developed an institutional relationship with the 

University of Washington Law School to develop the Tribal Law Criminal Defense 

Clinic. Through the Clinic, the Tribes provides all indigent defendants with representation through clinic lawyers, and law students working under lawyer supervision. In addition, the Tulalip Tribes also provides attorneys to indigent parents 

in child dependency proceedings. 

Tulalip Appellate Court: The Tulalip law and order code provides for a right 

of appellate review for all criminal and civil cases. The Tulalip appellate judges, 

under contract with NICS, are paid by the Tulalip Tribes for their services on a case 

by case basis. Currently, there are seven appellate justices—they include distinguished law professors, lawyers and jurists, all with long experience in federal Indian law and tribal government. Decisions of the Tulalip Court of Appeals are published in the Indian Law Reporter and the NICS Reporter and are available to all 

litigants. 

Tulalip Corrections: With the expansion of the police department and the court 

system, Tulalip found it essential to address jail space needs. In 1994, the Tribes 

signed an Interlocal Agreement for Jail Services with Snohomish County which provided for the use of the County jail for the incarceration of Tulalip prisoners. The 

Tribes are currently exploring other options, including an intertribal facility to 

house tribal prisoners. Providing for an intertribal corrections facility would allow 

for more innovation in corrections programs, and would be more cost effective. As 

always, limited funding to operate a new facility is a major obstacle to meeting this 

need. Tulalip is supportive of provisions in the proposed Tribal Law and Order Act 

that will provide for greater support for construction and operation of detention facilities in Indian Country 

Healing-to-Wellness (Drug) Court: An integral part of the Tribes justice program involves rehabilitation programs designed to reduce recidivism. The Tribal 

government is uniquely suited to designing programs that work best in the Tribal 

community. These programs, however, again require new sources of funding, and 

the Tulalip Tribes strongly support re-authorization of federal programs which contribute to the funding of these valuable programs. 

32 

In response to the growing problems of drug-related crimes, the Tribes established 

a Wellness Court, also known as a drug court. Typically, defendants must be 

charged with possessing or purchasing drugs; must not have a history of violent 

crime, or drug-trafficking arrest, or more than two previous non-drug felony convictions. Program participants must have regular drug tests and return to court regularly, often weekly, for a review of their progress. Participants also receive counseling, educational courses, and vocational services. The purpose of the Wellness 

Court is to approach crimes committed by the offender under the influence of drugs 

or alcohol in a holistic manner that supports and encourages traditional practices 

rather than punitively while ensuring that the offender is still held accountable. The 

Court’s Alternative Sentencing approach was awarded the Harvard Honoring Nations Award presented by the Harvard Project on American Indian Economic Development in 2006 for demonstrating its excellence and innovation in addressing the 

combined problems of substance abuse and crime in the criminal justice system. 

Federal Role in Indian Country Justice 

Despite the recent gains by Tulalip and other tribes in fighting crime, Indian 

tribes cannot solve the public safety problem on their own. Due to jurisdictional constraints, and lack of traditional funding sources, tribes must rely on the Federal 

Government to play an important role in addressing Reservation crime problems. 

Tribes rely on the Federal Government for prosecution of most, but not all, major 

crimes pursuant to 18 USC a1153. Tribes must also rely on federal and/or state 

prosecution of non-Indian criminal offenders on the Reservation. 

Indian Country continues to face a crisis of violent crime. A Bureau of Justice Statistics Report covering the period 1992–2002 found that American Indians are victims of violent crime at a rate more than twice that of the national population. 

‘‘American Indians and Crime.’’ (U.S. DOJ Publication No. NCJ 

203097).Washington, DC: U.S. Department of Justice (2004). According the DOJ– 

BJS report, American Indians experienced an estimated 1 violent crime for every 

10 residents over age 12. The figures are even worse for Native American women, 

who are the victims of rape or sexual assault at a rate more than 2.5 times that 

of American women in general. The DOJ–BJS study concluded that 34.1 percent of 

American Indian and Alaska Native women—more than one in three—will be raped 

in their lifetime. This level of violence against native women is tragic and unacceptable. The majority of perpetrators of violent crime against Indians were non-Indian. 

Because tribes have been stripped of jurisdiction over non-Indian offenders, tribes 

need the assistance of federal law enforcement. The Department of Justice must 

work cooperatively with Tribal law enforcement and dramatically step up its efforts 

to combat this crisis. 

Tulalip has shared in this experience of unacceptable levels of violent crime, and 

has worked hard to forge a relationship with federal law enforcement. In recent 

years, Tulalip has built a good relationship with the U.S. Attorneys Office on major 

crimes enforcement on the Tulalip Reservation. However, as president of the Northwest Tribal Court Judges Association, I know many Indian tribes do not share the 

same positive relationship with federal law enforcement. Tribes in more remote locations have experienced problems getting federal support and assistance in investigating and prosecuting crimes. These problems have worsened in recent years with 

the reallocation of federal law enforcement resources to foreign terrorism matters. 

We welcome and support the provisions of the proposed Tribal Law and Order Act 

which call for reporting by the FBI and Justice Department regarding Indian Country criminal investigations and prosecution declinations. We would urge the Committee, however to strengthen the bill by requiring the timely transmission of evidence and case files to tribal justice officials when a federal investigation is closed 

or case declined. 

Another important responsibility of the Federal Government in Indian Country is 

the provision of support for courts and justice systems through funding, technical 

assistance and training. It is in these areas that the Federal Government is falling 

woefully short of fulfilling its trust responsibility. Where tribal justice systems have 

been developed, the systems have been funded by the tribes themselves. These limited tribal funds are in great demands for other essential government functions such 

as health care and education, areas which are equally vital to improving crime rates 

in Indian Country. The current 2008 budget for the Tulalip Tribal Court is over one 

million dollars (including prosecutorial services), of which $30,000 is funded by the 

Federal Government (3 percent). For the Tulalip police department, the annual 

budget is now 4.3 million, with only $212,000 coming from federal funds (5 percent). 

Because tribal justice systems are the most effective means of addressing the public safety problems on Reservations, federal funds used to support tribal justice systems are funds well spent. Tulalip has demonstrated that if sufficient resources are 

33 

dedicated to tribal justice systems, real gains can be made in addressing the serious 

public safety problems in Indian Country. We urge the Committee to authorize increased federal funding to what works best—building quality tribal justice systems. 

Compounding the problem of lack of federal funding is the constraints on tribal 

governments raising revenues for public safety in the same manner as state and 

local governments—through taxation. Washington State funds public safety through 

taxes on retail sales, real property and business activity. On the Tulalip Reservation, (which contains many non-Indian residents and businesses), the Tribe is effectively precluded by recent Supreme Court decisions from imposing these same taxes 

to fund this basic government service. 

The Tulalip Tribes request that this Committee strengthen the proposed legislation by directing that the funding shortfalls for tribal criminal justice systems be 

examined and addressed. In addition, legislation should provide additional funding 

avenues for Tribal justice systems by removing impediments to tribal taxation of all 

persons and activities on Indian Reservations that reap the benefits of effective tribal justice systems. 

Tribal Law and Order Act—Proposed Provisions for Expanding Criminal 

Sentencing Authority of Tribal Courts 

The Tulalip Tribes strongly supports the proposed legislation’s extension of tribal 

court sentencing authority from one to three years. At Tulalip, the Tribal Court is 

the primary forum for criminal prosecutions on the Reservation involving Indian offenders. The effective administration of justice benefits the entire Reservation community, both Indian and non-Indian. The Tribe’s criminal justice system is often the 

first and last line of defense in protecting the community from violent offenders. 

Many serious crimes, including those involving dangerous offenders, end up falling 

to the tribal justice system for prosecution. 

Since September 11, 2001, federal resources have been reallocated. According to 

data released by this Committee, federal criminal investigations on Indian lands in 

Washington State declined by 55 percent since 2001. This has left a gap not only 

in the prosecution of major crimes, but the serious crimes that fall into the gap between misdemeanors and Major Crimes Act felonies. The reality on the ground is 

that Tribal Courts are often responsible for prosecuting felony crimes. 

In sentencing serious criminal offenders, I have long been concerned that the one 

year sentencing limitation was placing the safety of the tribal community at risk. 

Although the need to impose longer sentences is not a common occurrence in my 

courtroom, in those situations where the court is faced with prosecuting serious violent crimes, it is important for the Tribal Court to have appropriate sentencing authority. During my tenure as a judge, I have presided over cases involving charges 

of rape, child sexual assault, drug trafficking, aggravated assault and serious domestic violence. Increasing sentencing to three years will provide Tribal Courts with 

the authority necessary to protect the Reservation community. 

I do not believe that Tribal Courts will need to use this authority often. At 

Tulalip, our focus has been on alternatives to incarceration aimed at promoting behavioral changes, healing and preventing recidivism. However, there are times 

when the Tribal Court is faced with violent offenders in which longer incarceration 

periods are necessary and vitally important. 

Competency of Washington Tribal Courts and Response to the Concerns of 

the Departments of Justice and Interior 

At the hearing last month on the draft Tribal Law and Order Act, representatives 

from the Departments of Justice and Interior expressed concerns to this Committee 

regarding the extension of tribal court sentencing authority. DOJ and BIA expressed 

concerns as to whether tribal courts would adequately protect the rights of criminal 

defendants. DOI expressed similar concerns, and also raised issues regarding increased costs of longer detentions and possibly an increase in habeas petitions. 

With regard to the rights of the accused, I can personally attest that all of the 

tribal courts that I have served as a judge, or practiced in as an advocate, have a 

strong commitment to protecting the rights of criminal defendant that is equal to 

that of the state and federal courts. Although tribal courts may differ in size and 

scope (some tribal governments rely on state rather than tribal criminal law enforcement), an ITJA survey published in 2000 reported that the vast majority of 

participating tribes had formal justice systems similar to state or federal court systems, and virtually all provided for appellate review. Washington State courts have 

adopted court rules which provide full faith and credit for Tribal Court judgments. 

Washington State Civil Rule 82.5 

All NICS member tribes have developed tribal codes. The NICS member tribal 

codes are publicly available from court clerks and law libraries. Many are also availVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 S:\DOCS\45126.TXT JACK PsN: JACKF
34 

able on-line. Most of these tribes have comprehensive civil court procedural rules 

like those at Tulalip. In addition, the other large tribes in Washington State including Colville, Lummi, Puyallup and Swinomish operate their own sophisticated court 

systems complete with indigent public defense services and all utilize comprehensive Tribal codes and court rules. In one small NICS tribe, the tribal court held last 

month that the tribes’ constitution required the appointment of public defenders for 

indigent defendants. 

Similarly, most Washington tribes have developed a court of appeals. NICS provides appellate services to all of its member tribes as well as to non-member tribes 

in Washington, Oregon and California. The Colville Confederated Tribes has a constitutionally established Court of Appeals and appoints nine justices to serve six 

year terms. All the opinions are available and are maintained by the Court. 

Tribal courts have now long been operating under the provisions of the Indian 

Civil Rights Act, which provides the same fundamental protections for the rights of 

the accused as the Bill of Rights provides under the U.S. Constitution. These substantive and procedural protections are embodied in the tribal criminal codes which 

incorporate the protection of defendant rights, including: the right to speedy trial, 

the right to a jury trial, the right to subpoena witnesses and evidence, the right to 

cross examination, the imposition of probable cause warrant requirements, and prohibitions on excessive bail, double jeopardy and compulsory self-incrimination. The 

Tulalip Tribes, as do most tribes in the northwest, also provides defendants with 

the right to seek habeas corpus relief in their Appellate Court. 

It is difficult to understand the objections of federal officials in increasing tribal 

court sentencing authority from one year to three years. The reality is that many 

Indian tribes have been prosecuting the great majority of criminal offenses on their 

reservations, including serious crimes, for many years now. Sentencing an individual to one year in jail is a serious deprivation of liberty, and as a Tribal Court 

Judge, I can tell you the court takes this responsibility very seriously. After years 

of adjudicating criminal cases, we have a demonstrated track record. In my years 

presiding as a judge in the Tulalip and Lummi Nation courts, and other Northwest 

Indian Tribal Courts, I am unaware of any habeas petitions being granted to Indians incarcerated as a result of Tribal prosecutions. Furthermore, the ICRA provides 

habeas relief in federal court which insures due process protections for criminal defendants. These are the same claims made by federal officials when Tulalip requested retrocession and the concerns have proven unfounded then and remain unfounded now. 

Although the commitment to protecting defendant rights is a shared value 

throughout Indian country, the ability to provide sufficient funding to justice systems varies greatly from tribe to tribe. I agree that the provision of criminal defense 

counsel to indigent defendants is an important aspect of prosecuting more serious 

crimes involving the potential for penalties that include extended incarceration. 

However, many Indian tribes have extremely limited governmental budgets and sufficient tribal funds are not always available for many essential government functions. While we do not object to the requirement to provide defense counsel as a condition to exercising longer sentencing authority, it is imperative for the Federal Government to provide a mechanism for funding this responsibility. If the serious public 

safety issues on many reservations are going to be addressed, the Federal Government must fulfill its trust obligation by providing funding, or funding mechanisms 

to provide for public defenders in Indian country. 

Finally, I feel it is important to respond to Department of Justice objections to 

provisions in the proposed legislation which would require additional Justice Department emphasis and accountability in Indian Country. Apparently, current Justice Department officials believe that the status quo is sufficient and that there is 

no need for improvements in federal justice efforts in Indian Country. 

The Department of Justice’s own statistics demonstrate better than anything else 

the need for Congress to act to compel the Justice Department to re-prioritize its 

responsibilities to Indian Country. Despite statistic showing a crisis in violent crime 

rates, Justice Officials cited the filing in 2006 of 606 total cases in all of Indian 

Country as evidence that it was effectively fulfilling its criminal justice responsibilities. This number is unacceptable in the face of the staggering statistics of violent 

crime in Indian Country. 606 total criminal cases filed for all of Indian Country— 

covering over 562 federally recognized tribes with a population of approximately 1.6 

million amounts to little more than one prosecution per tribe per year. Contrast the 

Justice Department’s 606 criminal filings with the 493 criminal cases filed in the 

Tulalip Tribal Court alone in 2006—a single reservation with a population under 

4,000; or the 9,973 criminal cases filed in Seattle-King County Superior Court in 

2006 (just south of the Tulalip with a population of 1.8 million). 

35 

The Need for Greater Federal Support and Funding for Tribal Courts 

The experience at Tulalip has demonstrated that, given adequate resources, tribal 

courts provide the most effective means of addressing the problem of crime in reservation communities. Tulalip has seen first hand the dramatic change in serious 

criminal behavior from a crisis situation a couple of decades ago to one in which 

crime are being steadily reduced. The difference has been the result of a comprehensive tribal police presence on the Reservation accompanied by an effective Tribal 

court justice system. 

Tulalip has been able to step forward and make a difference due to recent gains 

in economic development brought about by its gaming and business enterprises. 

However, these business revenues are subject to economic cycles and other factors 

outside the Tulalip Tribes control. A business downturn could easily put the Tribes 

public safety gains at risk. Like all Tribal governments, Tulalips’ public safety infrastructure needs a reliable source of government revenue. 

The Tulalip Tribes urges this committee to enhance the Tribal Law and Order Act 

by not only authorizing an increase in sentencing authority, but by authorizing an 

increase in tribal justice system funding. No other governmental entity has a greater stake in reducing reservation crime than the tribal governments themselves. 

What tribal courts need to be successful is sufficient level of reliable support—in 

terms of training, technical assistance, and funding. The recent funding authorizations for Tribal justice and law enforcement included in S. 2731 are a step in the 

right direction. I urge the Committee to press for passage of the tribal justice funding included in S. 2731 and continue to authorize greater investments in tribal 

courts as the most effective use of federal resources to combat the problem of crime 

in Indian Country. 

An increase in direct Tribal funding should be complemented by legislation that 

empowers tribal government to raise revenues themselves to meet their public safety needs. Recent Supreme Court cases which limit taxation powers of tribal governments create serious obstacles for tribes struggling to fund public safety needs. Taxation provides a steady and reliable source of revenue that is now effectively foreclosed to tribal governments due to land status and de facto limits on taxation of 

persons and businesses operating in Indian Country. 

I thank the Committee for this opportunity to provide testimony on these important issues of tribal criminal justice and I would be glad to provide additional information and assistance in support of the Committee’s efforts to strengthen tribal justice systems throughout Indian Country. 

ADDITIONAL COMMENTS OF THE TULALIP TRIBES ON THE PROPOSED TRIBAL LAW AND

ORDER ACT OF 2008

FTCA Coverage for Tribal Law Enforcement.—This is an issue that has been in 

dispute in recent years, and several courts have found the FTCA did not cover tribal 

police for many law enforcement related torts, even though the tribal police departments at issue were operating under P.L. 638 contracts. 28 USC 2680 (h) provides 

that the FTCA covers assault, battery, false imprisonment, false arrest, abuse of 

process, or malicious prosecution of investigative or law enforcement officers of the 

United States. 

When a Federal Tort Claim is brought against a tribal police officer for assault, 

battery, false imprisonment, false arrest, abuse of process, or malicious prosecution, 

the United States currently points to 2680 (h) and says that tribal officers are not 

covered if they do not carry a commission from the BIA as a law enforcement officer 

under 25 CFR 12.21. This interpretation has left Tribal police department operating 

under 638 contracts without FTCA coverage for their tribal law enforcement officers. 

Insurance coverage and costs are major issues for tribal police departments. Insurance coverage is also important in securing cross-deputization agreements with 

surrounding jurisdictions. The Tribal Law and Order Act presents an opportunity 

to clear up this problem by authorizing FTCA coverage for Tribal police officers operating under 638 contracts. We propose the following amendment be added to the 

bill: 

Amending Indian Self-Determination and Education Assistance Act of Nov. 5, 

1990 (codified at 25 USC 450f notes) by adding the following language: 

Provided further, that any tribal law enforcement officer deemed to be covered 

under the Federal Tort Claims Act shall not be excluded from coverage for assault, battery, false imprisonment, false arrest, abuse of process, malicious prosecution because of the lack of commission or other appointment by the Bureau 

of Indian Affairs under 25 CFR 12.21 or other federal agency. 

36 

Section 2. Purpose. We suggest that a reference be added that Tribal law enforcement is frequently responsible for responding to distress calls for both Indian and 

non-Indian residents of their reservations. 

Title I, Sec. 102. We support the provisions directing federal law enforcement and 

the U.S. Attorney to report to tribal justice officials with regard to termination of 

criminal investigations or declination of cases. We request that the language be 

amended to ensure that if a tribal justice officials request case files and evidence 

after a federal declination, that the transmission of such files be mandatory rather 

than permissive. 

Title II, Sec. 202. We support assistance and funding for inter-governmental cooperative law enforcement agreements between tribes and other jurisdictions. We request that the authority for support and funding be revised to include support for 

implementation and development of existing joint programs, as well as for new programs. Tulalip has an existing program, but continuing assistance and funding is 

necessary to ensure the continued viability of its Tribal-County cooperative Law enforcement agreement program. 

Title III, Sec. 304. As explained above, the Tulalip Tribes supports the extension 

of Tribal Court Sentencing authority. We request that the legislation additionally 

include authorization for funding tribal public defender programs. 

Title IV, Sec. 401, 402, 403. The Tulalip Tribes support re-authorization of provisions of the Indian Alcohol and Substance Abuse Prevention and Treatment Act of 

1896, the Indian Tribal Justice Act, and the Tribes COPS program(Omnibus Crime 

Control and Safe Streets Act). 

Title IV, Sec. 404. We urge the Committee to authorize additional funding for construction and operation of tribal and inter-tribal regional detention facilities. 

Title IV, Sec. 406. Tribal juvenile justice is a huge unmet need that is 

unaddressed by this legislation. The Tulalip Tribes urges the Committee to add authorizations for federal support and funding of tribal juvenile justice systems. If congress is serious about reducing the serious public safety problems present on many 

reservations, it must invest in tribal juvenile justice programs. 

Title V, Sec. 502. The Tulalip Tribes supports improvement in Tribal data collection systems, which is a big need in Tribal justice systems today. We request, however, that the legislation add a requirement for the Office of Justice Services to consult with Tribes in advance as to the development of grant program requirements. 

In the past, certain grant program requirements, such as mandating the sharing of 

fingerprints with outside agencies, caused many tribes to forgo grant opportunities. 

The CHAIRMAN. Judge Pouley, thank you very much. Thank you 

for being with us. 

Let me mention that the Honorable John St. Clair, Chief Justice 

of the Eastern Shoshone and Northern Arapaho Tribal Court was 

scheduled to be a witness today. He is apparently in Cincinnati, 

Ohio, courtesy of the airlines. As you might know, very substantial 

storm systems came through and I think interrupted flight plans, 

so he is not able to be with us. But we appreciate his attempt to 

get here and we will include his statement as a part of the permanent record as well. 

Finally, we will hear from Ms. Dorma Sahneyah, who is the Tribal Prosecutor at the Hopi Tribe in Kykotsmovi, Arizona. You are 

the Tribal Prosecutor, and we appreciate your being here today. 

You may proceed. 

STATEMENT OF DORMA L. SAHNEYAH, CHIEF PROSECUTOR, 

HOPI TRIBE 

Ms. SAHNEYAH. Thank you. 

Thank you, Chairman Dorgan and members of the Committee for 

taking the time to seriously consider the needs of tribal justice systems in Indian Country. 

My name is Dorma Sahneyah. I am an enrolled member of the 

Hopi Tribe in Arizona. I have a law degree from Arizona State UniVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 S:\DOCS\45126.TXT JACK PsN: JACKF
37 

versity School of Law. I have served as Hopi Chief Prosecutor for 

the past 12 years. 

I represent a work group consisting of tribal government leaders, 

chief justices, judges, lawyers and behavioral health experts from 

the Hopi Tribe, Navajo Nation, Salt River Pima-Maricopa Indian 

Community, Fort McDowell Yavapai Nation, and BIA Tribal Courts 

Program. Navajo Nation Chief Justice Herb Yazzie, Hopi Chairman 

Benjamin Nuvamsa, and Salt River President Diane Enos are the 

work group leaders. 

The work group submitted two memoranda to the Committee on 

April 21 and July 10. The first addresses what Indian justice is and 

what it needs. The second addresses interagency provisions to the 

Indian Alcohol and Substance Abuse Prevention and Treatment 

Act. Both memoranda will be included as addenda to my written 

statement. 

The core responsibilities of Indian justice are broader and more 

community-oriented than American justice. In addition to determining guilt and punishment, tribal courts have the responsibility 

for the overall well being of the entire community. As a result, Indian justice demands that offenders take personal responsibility. 

Indian justice is not soft on crime and does not exclude detention 

and penalty fines. The responsibility of bringing restoration to our 

communities is a vital duty. In all tribes, restoration generally requires that the offender be given real opportunity to make right the 

wrong, and to become a productive member of the community. 

Community participation should be a given. Salt River takes 

community inclusion seriously so as to have located their detention 

center in the heart of their community, both for community access 

and to maintain the sense of community membership in inmates. 

It is ironic that restoration under the American justice system is 

becoming increasingly important as an alternative to incarceration, 

while tribes, eager for legitimacy, have for years been taught to 

unlearn these core duties of Indian justice or address them outside 

of the tribal court system. 

Tribal courts generally are under-funded. Funding that is allocated for restoration programs is often given in piecemeal fashion 

through limited grants. Problem-solving courts which should be the 

pillar of American Indian justice systems are considered alternative programming. Rehabilitative sentencing tools have been in 

short supply. We need treatment resources and facilities for alcohol 

and substance abuse, behavioral health counseling, meaningful 

interagency collaboration, and the ability to control an offender’s 

time in detention and rehabilitation, with the goal of full acceptance of personal responsibility for criminal behavior. 

Our court systems are the principal players in the process of 

achieving restoration. Yet, our judges are constrained by limits on 

sentencing authority and fear of overstepping roles defined for 

them according to modern court systems. These constraints stem 

largely from more than a century of being told what is right and 

what will best work in Indian Country by others who live lives far 

removed from Indian reservations and culture. 

Restoration responsibilities cannot be incorporated into core tribal court functions without adequate resources and personnel, facilities, and funding. We recommend that tribal interagency coordinaVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 S:\DOCS\45126.TXT JACK PsN: JACKF
38 

tion and collaboration in Indian alcohol and substance abuse treatment be given full focus and encouragement. The approach so far 

has been to compartmentalize responsibilities and services, discourage resource and information sharing, yet require that services be 

somehow jointly applied. The Hopi Healing to Wellness Court lacks 

a Federal agency collaboration partly for this reason. 

We recommend first that a consistent framework be established 

for interagency coordination and collaboration, that justice and 

health consolidate their playing field in Indian Country, and that 

programs be fully funded. 

I understand that some recommendations of the work group have 

already been incorporated into the bill and that funding remains 

an issue. I would like to emphasize that our courts must be legitimate for our people. For many years, tribal court practitioners have 

strived to make tribal courts legitimate in the eyes of non-natives. 

Seemingly, no matter how dedicated tribal courts are to their function, they are doomed to being perceived as substandard, even 

when compared to local justice courts in some States like New 

York, where part-time plumbers and retirees who lack any understanding of law, have authority to sentence wrongdoers up to two 

years. 

Our judges receive compulsory ongoing training. Training is provided by tribal, State and Federal programs at the National Judicial College at the University of Nevada, which is affiliated with 

the American Bar Association. All Hopi Justices must be law school 

graduates. All Navajo Nation judges must be members of the Navajo Nation Bar. 

In our tribal courts, witnesses are sworn. Records of court proceedings are maintained and accessible to the public. Written, reasoned judgments must be produced for appeal purposes. And avenues exist for appeal in our appellate courts. Individuals in our respective courts are afforded all the basic rights guaranteed under 

the Indian Civil Rights Act. We give great weight to due process 

of law. 

Additionally, our courts strive to meet greater and more encompassing rights based on our own common values of fundamental 

fairness. I expect that persons with little or no knowledge of how 

tribal courts operate would be surprised at how similar tribal court 

procedures are to those of State and Federal courts. 

We acknowledge that much work lies ahead and we stand ready 

to continue to work closely with the Committee and staff. 

On behalf of the work group, thank you for the opportunity to 

testify today on these critically important issues. Thank you. 

[The prepared statement of Ms. Sahneyah follows:] 

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The CHAIRMAN. Thank you very much for your testimony. 

Mr. Ragsdale, let us first address this issue. Judge Flies-Away 

has raised the issue of a detention facility in his State that has 

been vacant for—Judge Flies-Away, how long? 

Mr. FLIES-AWAY. About nine months or so. 

The CHAIRMAN. So we have a detention facility that is, I assume, 

desperately needed. 

Mr. RAGSDALE. Juvenile. 

The CHAIRMAN. A juvenile detention facility that has been vacant 

for nine months, brand new, sitting empty in a circumstance where 

they desperately need that facility. Tell me what is happening 

there. 

Mr. RAGSDALE. Actually, it has been longer than nine months, 

Senator. It has been over a year. We have not been able to adequately staff that particular facility. Hualapai sits in a remote location in the State of Arizona and we have not been able to recruit 

qualified staff. Now, the tribe has recently within the last 30 to 60 

days proposed to contract to do the service itself. 

The CHAIRMAN. Do you have money in that facility? 

Mr. RAGSDALE. Yes, sir. 

The CHAIRMAN. How much? 


724b43.eps
81 

Mr. RAGSDALE. We have money for operations that is for staffing, 

and we have money for operation and maintenance. I don’t know 

what the number is. 

The CHAIRMAN. But the judge indicated they have put $4 million 

into building this facility. My question is, does the Bureau of Indian Affairs have money in the construction of this facility? 

Mr. RAGSDALE. No, sir. That was a Department of Justice grant 

funded facility, as were the 21 other facilities that are either under 

construction or have been constructed. 

The CHAIRMAN. And was the expectation when that facility was 

built that the Bureau of Indian Affairs would be participating in 

the staffing of it, judge? 

Mr. FLIES-AWAY. The hope was that IHS and BIA would do it together and have it more of a restorative-type healing place, but 

then the funding doesn’t do that. 

The CHAIRMAN. That is unbelievable to me. So we have a facility 

that would hold 43, 46 juveniles. We desperately need the beds in 

the facilities, and it is sitting there empty over a year. Is there 

some emergency action that we can take, or that you can take, to 

resolve this? 

Mr. RAGSDALE. Well, the problem has not been the funding, although the tribe believes that the funding is too low for staffing, 

but nonetheless they have decided to contract the operation out. 

We have money for operation and maintenance. We have money for 

staffing. The difficulty in opening that particular facility is we have 

not been able to recruit the qualified staff. The tribe believes that 

they can, and we intend to provide them with all the assistance 

that we can do to make that operation successful. 

The CHAIRMAN. Judge, would you keep in touch with this Committee over the next two months? I want to try to find out how this 

works. 

Mr. FLIES-AWAY. Yes, sir. 

The CHAIRMAN. Judge, I read last evening, I believe there was 

a story about your work. Was it The Wall Street Journal? 

Mr. FLIES-AWAY. Yes. 

The CHAIRMAN. I read the story in The Wall Street Journal about 

your work, and they described essentially a day in the life of a tribal court judge. One of the things that occurred to me was you had 

people come in front of you, in many cases young people, apparently guilty of some very violent crimes, crimes perpetrated against 

mothers, sisters, brothers, strangers, assault and battery, very vigorous assault. And it appeared to me that they came to your court, 

in some cases they had been previously convicted of violent crimes 

against other people, and you didn’t have a place to put them. I 

mean, you didn’t have a cell to send these people to, particularly 

juveniles. Is that correct? 

Mr. FLIES-AWAY. That is correct. We actually had a stabbing two 

weeks ago when I was here in D.C. and those individuals could not 

be taken because our juveniles have to go to Gallup, Tajique, or 

Globe, Arizona, which are five, six, seven hours away, and they will 

only take them on certain things, and the BIA can’t transport 

them. 

I have many warrants for minors and adults and they are not 

served for the minors because they can’t take them. This is funny. 

82 

They say, well, we could do it next Tuesday, because they are going 

to do a transport. So we have to do our detention stuff on a schedule, so it doesn’t work. But yes, it is not good, not good at all. 

The CHAIRMAN. You know, you heard in the opening statement, 

we have 50 percent of the murders committed on reservations are 

declined for prosecution by the U.S. Attorneys, 76 percent of rapes 

and sexual assaults are declined for prosecution by the Federal authorities. 

Now, I assume when there is declination on the part of the Federal authority, some of that comes to your tribal courts, Judge 

Pouley and Judge Duran and others. When that happens, you are 

limited at this point to imposing a one-year sentence on someone 

who committed a violent rape. You have an opportunity, I assume—and you can answer this—if there is a declination by U.S. 

Attorney on something that you think clearly needs to be prosecuted, let’s say it is a murder or a violent rape, you can bring 

them into tribal court at that point if they are an Indian, Native 

American. And then the most significant sentence you can impose 

is one year incarceration. Is that correct, Ms. Pouley? 

Ms. POULEY. That is absolutely correct. And we actually do those 

cases, a number of them, every year, regardless of the seriousness 

of the crime, regardless of the injury, regardless of the fact that it 

is a rape of a child, we are absolutely limited to one year in jail 

as a maximum penalty. 

I wanted to address, though, Mr. Chairman, the concept that the 

Department of Justice would even provide tribes with information 

that they had declined prosecution. We are actually in a bit of a 

catch–22. We don’t receive that information at all. So tribal prosecutors and tribal courts are left with trying to decide whether they 

should use their resources to prosecute without any information 

from the Department of Justice. 

The CHAIRMAN. Well, the legislation we introduced yesterday is 

going to change all of that. But as you all watch, you are a prosecutor and we have three tribal judges here, as you all watch this 

process, is it your impression that U.S. Attorneys’ offices put this 

sort of in the back of their office? It is not front-shelf to try to go 

out to a reservation to determine what is our responsibility, what 

should we prosecute? What is your impression of the cooperation 

of the U.S. Attorneys’ offices? 

Ms. SAHNEYAH. Well, the U.S. Attorney’s office in Arizona is located in Phoenix. The Hopi reservation is a good five-hour drive 

from there. So you know, we are in a very remote area. And as 

Judge Pouley indicated, we don’t share a lot of information. I have 

a jury trial that is scheduled on a murder, a homicide case on the 

end of this month, on the 30th. We just finished a trial on a juvenile who was convicted of homicide in our court. And like Judge 

Flies-Away said, we don’t have any detention facility at all. What 

we are going to do with this juvenile in sentencing, we are going 

to have to come up with some alternative kinds of things. So we 

are having those kind of issues. 

The CHAIRMAN. Mr. Ragsdale, in Operation Dakota Peacekeeper, 

you have put some folks, 20 people, down into the Standing Rock 

Reservation. We have a violent crime rate that is five times the national average. I appreciate the work you have done. I know that 

83 

my colleagues from North and South Dakota do as well. It is a 90- 

day proposition. I am going to do a hearing down on the Standing 

Rock Reservation August 4, or August 3 perhaps, August 3. But I 

want to ask a question about that. 

You put in BIA folks down on the reservation. Let’s assume that 

there is a crime they observe on the reservation and the tribal 

court is going to prosecute the crime. Can your BIA law enforcement official testify at the tribal court? 

Mr. RAGSDALE. Yes, sir. And I have met with the tribal court officials at Standing Rock, and have assured them that even though 

many of the people are detailed from long distances, that if it is 

a serious case, we will make that officer available. 

The CHAIRMAN. Is that true across the Country? Or is it just true 

with respect to Operation Peacekeeper? 

Mr. RAGSDALE. It should be true across the Country. I mean, our 

duties and responsibilities, whether it is a tribal police operation 

or a Federal police operation, are to honor the requests of the 

court. Now, there are maybe logistical or staffing problems involved 

in certain instances, but the instructions and the policy of the Bureau of Indian Affairs is that we are officers of the tribal court and 

unless there are unusual circumstances, we should obey the orders 

of the court and cooperate with them fully in the prosecution. 

The CHAIRMAN. There is no prohibition against a BIA law enforcement official testifying in a tribal court? 

Mr. RAGSDALE. I have testified a number of times in tribal court, 

as well as BIA police officers do that routinely. Now, there are 

some circumstances that arise that there is a conflict with the 

court, and it is fairly unusual, but in those instances we consult 

with our attorneys and advise the court that there is an intrusion 

into the Federal duty responsibility and we cannot cooperate. 

The CHAIRMAN. Let me frame it another way. Is it your policy 

to cooperate with the tribal courts and testify when necessary? 

Mr. RAGSDALE. Absolutely. 

The CHAIRMAN. And do the tribal judges experience that? 

Mr. FLIES-AWAY. Well, let me just read you a letter from Solicitor 

Quinn from Arizona. Subpoenas or court orders requiring DOI employees to appear are controlled by 43 CFR 2(H)2007ED. Fortythree CFR Section 2.81 provides that no officer or employee of the 

DOI may give testimony in any administrative or judicial proceeding relating to the business of the government without the permission of the head of the appropriate bureau or his designee. 

So, I mean there is a little bit of holding back. 

The CHAIRMAN. That would imply it is not routine, that they 

have to get special permission in order to testify. 

Mr. FLIES-AWAY. Yes. 

The CHAIRMAN. Mr. Little or Mr. Ragsdale, is that your impression? 

Mr. RAGSDALE. No. I don’t think that is—we routinely testify in 

tribal courts throughout this land. 

The CHAIRMAN. Can we straighten this out? 

Mr. RAGSDALE. I think that he may be referring to an administrative determination. 

Mr. FLIES-AWAY. A judicial proceeding, it is not an administrative one. 

84 

The CHAIRMAN. We need to resolve this, because if a solicitor is 

writing that, that is at odds with your testimony. I mean, this 

shouldn’t be a question for us. We should be able to resolve it. 

Judge Pouley, did you have a response to that? Did you wish to 

comment on it? 

Ms. POULEY. I didn’t in particular wish to comment, except to say 

that I know there have been problems with tribal courts in the 

State of Washington and the Northwest tribal courts to get Bureau 

of Indian Affairs officials to testify in tribal court, and we don’t 

have any ability to enforce it. 

The CHAIRMAN. It shouldn’t be a problem and you should be able 

to enforce it. In fact, the legislation we introduced yesterday will 

solve this problem. In the meantime, before this legislation is enacted, we really should resolve this. 

Mr. LITTLE. I think, Mr. Chairman, we have two different issues 

here. In terms of the officers, they are always required to respond 

to the tribal courts issues and they generally do. In fact, in many 

instances the BIA officer is actually the prosecutor, where you don’t 

have a tribal prosecutor to deal with the case. 

I think what the judge is referring to is that there is a written 

policy, at least from the solicitor’s standpoint, in dealing with other 

Federal employee as witnesses, especially social workers, where 

they are being required to come into the court for different issues. 

Those are the ones that tend to have, I don’t want to call it an exemption, but those are the ones that are saying without proper 

clearance they can’t come before the court. I think it is a different 

issue with law enforcement. 

The CHAIRMAN. We will try to resolve that. We will ask our staff 

to try to figure out what is happening and try to resolve it. As I 

said, our legislation will resolve it for sure. 

Senator Murkowski? 

Senator MURKOWSKI. Thank you, Mr. Chairman. We both have 

had an opportunity to speak a little bit about the legislation, but 

as you point out, it is not enacted into law yet and so we are not 

operating under that. 

But Judge Flies-Away, you mention that it would be a good thing 

to allow for increased sentencing to three years, but if you don’t 

have the detention facilities, then, as you indicated, Ms. Sahneyah, 

you have to be creative in looking at the alternatives. 

But what do you do? The situation that you mentioned was a juvenile and convicted of a homicide. What is your alternative with 

that young person? You don’t have the bed space. You don’t have 

the detention facility. One of the fixes, if you will, in our legislation 

allows for the tribes to send those that have been convicted to the 

U.S. Bureau of Prisons system. Well, that will help down the road, 

but what are you doing now? 

Ms. SAHNEYAH. What we are doing right now is we have sent an 

order, we have requested an order and the judge issued it to our 

Behavioral Health Department, looking at the background of this 

juvenile who has a lot of issues in his growing up years. We have 

gone toward a treatment-type of focus. We asked them to do assessments to see if we could actually place this juvenile into a treatment facility in lieu of detention, hoping that we could go ahead 

and start maybe some process of rehabilitation. 

85 

Now, you know, that is better than nothing. He will be in some 

sort of a confined treatment facility where he would begin to address his issues, things like that. 

Senator MURKOWSKI. What do some of the others of you do? 

Judge Pouley? Judge Duran? What have you had to do as you deal 

with the fact that you simply don’t have the detention spaces available? 

Ms. POULEY. Tulalip has had the opportunity to utilize a couple 

of alternative sentencing mechanisms. So, for example, we can use 

electronic monitoring or home detention. We can exclude people 

from the boundaries of the reservation that pose a danger to our 

communities. Not for the serious, violent offenders, but because of 

the rampant rates of substance abuse in Indian Country, our goal 

really is to address the underlying issue that causes the criminal 

activity. 

So regular meeting with the judges, maybe coming to visit with 

the judge one time a week, to hold that offender immediately accountable, with short-term jail sentences instead of long-term jail 

sentences is really a solution. But there is a lot of sort of creative 

mechanisms, none of them really address the issue where you have 

serious, violent offenders that need to be incarcerated and punished. 

Senator MURKOWSKI. Let me ask you, Mr. Ragsdale, you had 

mentioned in your comments that when it came to the BIA and the 

focus, you mentioned, first, funding, and then technical assistance 

and training. What kind of technical assistance and training to you 

make available to the tribal courts? We recognize that we have a 

serious problem with the funding component, but are there other 

things that you can be doing more of to help assist the tribal courts 

here? 

Mr. RAGSDALE. Allow me to ask Mr. Little to address that because he is directly involved in it. But if I may, I would like to 

come back to the juvenile justice system. I can tell you first-hand 

as a former tribal police officer, the juvenile justice system in 

America is generally inadequate. If you take, first of all, a child 

under 18, if you are going to put them in a lock-down facility, the 

court first has to adjudicate whether or not they are going to be 

treated as an adult or as a juvenile. But there is generally across 

America a lack of adequate bed space and treatment for juveniles 

that have been adjudicated in court, whether it is a tribal court or 

a State court or Federal system. So it is a problem that we all 

share. 

What happens is the police officer, when you have to take a child 

into custody, you are stuck with that child until you can find a facility and have a judge make a facility, and those are very difficult 

instances. I dealt with a homicide perpetrator that in a fit of rage 

accidentally killed his best friend. We adjudicated that child as a 

juvenile, which means he needed to be treated. We farmed him out 

to various facilities throughout the State of Oklahoma because he 

had fully served his sentence and could be placed in a foster home. 

Another instance I dealt with was a very young, an eight-yearold that was a child molester, and had a very troubled background. 

There was absolutely no place to put that child. We finally ended 

86 

up moving him to a treatment center for young juveniles for alcohol 

addiction, because that was the best place that we could find. 

Senator MURKOWSKI. Can you speak a little bit about what technical assistance is available? 

Mr. LITTLE. Yes. In relation to that, currently I have just hired 

a couple more attorneys on staff, and myself when I was working 

in the technical assistance area, a lot of the issues are calls from 

the various tribal courts and the tribes themselves asking for specific help. A good example of this would be two tribes we are working with right now. 

I have an associate up in Blackfeet right now talking to the tribal community and the council. There may be some issues in their 

constitution in terms of amendments to accommodate some of the 

needs within the tribal court system. We are getting ready to go 

down to a tribe in southern New Mexico, hopefully next week, to 

sit down with the judges and some detention facilities in the region 

and help them develop a telephonic arraignment system and maybe 

even a televised arraignment system. And through that technical 

assistance, showing the judges how to do that, as well as maybe 

providing them equipment with which to do it. This way we keep 

the officers on the reservation for longer period of time and they 

are not taking long transport because we detain them in about 

three different facilities down in that area. 

So it is kind of a day-by-day issue on the technical assistance. 

We also help in that process through our court review process 

where we have several current and past tribal and CFR judges on 

contract that go out and do our court reviews. At the same time 

they do the court reviews, they provide technical assistance to that 

court. 

The training is quite new. Back in the 1970s, the Bureau of Indian Affairs actually provided national training to all the judges. 

That was changed over the years and it was felt that the tribal 

courts could select their own training components. So DOJ has basically filled a lot of that gap. They do quite a bit of the training. 

We are just entering into the training area. I have hired an individual that has a lot of experience in legal training. That is why, 

as we indicated in our testimony, that we have opened up discussions with the Judicial College in Reno. We are looking more at filling gaps that DOJ is not performing right now in the sense of more 

on-site training that many judges are asking for. 

If you do the judicial training, you are talking about two or three 

weeks away from the court systems during the training cycle. What 

the judges are somewhat interested in, and especially their clerical 

staff, is something a little more on-site, where we would actually 

go out, send people out to the field and do some on-site training. 

So we are just getting into that arena right now. We don’t really 

have a track record in that regard. It is just more of a project we 

are getting into. But in the interim, I think the Department of Justice provides quite a bit of training in that area. 

Senator MURKOWSKI. Let me ask one last question, and this is 

as it relates to VAWA, the Violence Against Women Act and the 

full faith and credit that is to be extended to all tribal protection 

orders. What is your experience with how that is working? Is the 

87 

full faith and credit extended, then? Are you satisfied with how 

this works? Judge Pouley? Judge Duran? 

Ms. POULEY. I am just lucky sometimes not only to be a tribal 

court judge, but to be on in the State of Washington. Shortly after 

the passage of VAWA, tribal court judges were invited to several 

meetings with the Washington State Supreme Court and State 

court judges. 

I am happy to say that particular provision in VAWA means that 

tribal court protection orders protecting victims of domestic violence are routinely given full faith and credit in Washington State 

court and Washington State court orders are routinely given full 

faith and credit in all tribal courts in the State of Washington. 

Senator MURKOWSKI. Judge Duran? 

Mr. DURAN. Speaking specifically for New Mexico, we have come 

a long way with regards to the Violence Against Women Act. More 

specifically, I don’t know if any of you are aware of the Project 

Passport. That was initiated through the Center for State Courts 

to develop a uniform first-page order of protection. The State of 

New Mexico Supreme Court, I currently serve as a co-chair for the 

Tribal-State Consortium for New Mexico. We have quarterly meetings. We completed three regional meetings, two specifically on 

Project Passport. 

The Supreme Court, by and through a task force on domestic violence, has at this point completed a comment period for the development of a first-page order of protection for the State of New Mexico courts. The Supreme Court is looking at adopting that uniform 

first-page order for protection to apply to all the district courts in 

the State of New Mexico, whereby all the district courts are to recognize that particular format. 

In addition to that, the tribes and pueblos of New Mexico are 

also looking at following suit and using that same or similar form 

to assist law enforcement for enforcement of orders for protection. 

Through this consortium, we have accomplished a lot of things 

throughout the years, especially the Indian Child Welfare Act, notice provisions to the tribes regarding placements of Indian children following State custody. So that is just one example of what 

you are inquiring about. 

Senator MURKOWSKI. It is good to hear that. 

Mr. DURAN. So New Mexico is in the forefront of accomplishing 

the full faith and credit provision under the Violence Against 

Women Act. 

Senator MURKOWSKI. Good. I am pleased to hear that. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Barrasso? 

STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

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

you for holding the hearing, and thank you also for extending the 

kind invitation to Judge John St. Clair, who is our Chief Judge for 

the Shoshone and Arapaho Tribal Court. As you mentioned, he 

wasn’t able to be here due to the storm, but thank you very much 

for including his remarks as part of the record. 

88 

Listening, Judge Pouley, to you talk about your daughter 15 

years old and the fear that she lives in, one in three young women 

and the possibility of rape. I also have a 15-year-old daughter, and 

I know all the members of the Committee join me in thinking that 

no 15-year-old girl in this Nation should live with that fear. We 

want to do everything we can to help you and to help your daughter be raised without that kind of fear every day and every night. 

So I appreciate your comments. 

Mr. Chairman, the Federal Government has a significant role in 

providing the resources for the tribal justice system. The justice 

system runs full circle, and if we don’t have adequate law enforcement, we don’t have order. If we don’t provide our courts with the 

necessary resources, how can justice be served? 

If the Federal Government does not step up, how can we expect 

our tribal courts to do their job? Today, our BIA law enforcement 

officers are dramatically understaffed. I see it in Wyoming. Our 

current resources allow only two officers to patrol 2.2 million acres 

of Indian Country on any given shift in Wyoming. However, according to the Wind River prosecutor, the BIA has allotted 21 law enforcement slots for the Wind River Reservation and has never filled 

them. 

We must also provide the necessary correctional facilities. We 

hear about when there is not a juvenile detention facility, and the 

Wind River Reservation does not have one either. Same problem, 

same issues, and we appreciate your comments. 

We have been in a position before where our judges and prosecutors get calls about releasing prisoners, for a number of reasons. 

We have had it with funding issues, instances where the prison 

heating system goes down, all the problems that you are dealing 

with. 

To all of us, these situations are unacceptable and of a great concern. I do hope we can get the Department of Justice and BIA to 

step up their efforts in assisting our tribes. As we move closer to 

considering the Tribal Law and Order Act, I look forward to improving the justice system in Indian Country. 

We do not, Mr. Chairman, need a Washington one-size-fits-all approach. We just need to provide the appropriate resources. With 

that, I must say that the Wind River courts and specifically Judge 

St. Clair, with their limited resources, do an incredible job with 

carrying out justice. 

Mr. Chairman, I did have several questions for Judge St. Clair, 

and I ask permission to submit those to the judge in writing and 

to include those answers as part of the record. 

The CHAIRMAN. Without objection. 

Senator BARRASSO. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Tester? 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. Thank you, Mr. Chairman. 

I am sorry for being late. This is a critically important issue. I 

think that from a safety standpoint, it speaks for itself. I can’t 

speak for tribes in other parts of the Country, but I can tell you 

tribes in Montana from an economic standpoint, it is tough to get 

89 

people to come and work in a place that is not safe. Those are pretty basic things. 

I have a couple of questions. The first one is for anybody who can 

answer it. The Chairman talked about 50 percent of the murders 

in Indian Country being turned away by the U.S. Attorney, and 76 

percent of rapes being turned away by the U.S. Attorneys. We don’t 

have a U.S. Attorney rep here. Can anybody shed any light as to 

why that is occurring? 

Ms. SAHNEYAH. Some of the reasons that we perceive—I am a 

prosecutor in Arizona for the Hopi Tribe—is that they have very 

high standards in terms of evidence. It is pretty much the attitude 

that the case—they have to be assured that they are going to win. 

So a high level of evidence needs to be received by them. 

Senator TESTER. Excuse me, I don’t mean to interrupt, but is 

that standard consistent with off-reservation crime? 

Mr. RAGSDALE. I believe, so, Senator. She is correct. I have been 

an officer and have sat in Federal grand jury proceedings. There 

is a higher standard of evidence that you must present with a case. 

I think that the U.S. Attorneys by and large that serve Indian 

Country are very diligent in the prosecution of cases. But the Federal system is different. We ask our U.S. Attorneys essentially to 

act like a State prosecutor and the system is not set up that way, 

as I understand it. The U.S. Attorneys could answer that better 

than I can. 

Senator TESTER. Okay. Go ahead, Dorma. You can continue if 

you want. 

Ms. SAHNEYAH. Okay. And some of the other things are the distance. Like, for example, the Hopi reservation is about five hours 

one-way. Them being able to meet with witnesses that are on the 

reservation, meeting with law enforcement officers, sometimes that 

distance presents issues. A lot of the times the law enforcement officers, the criminal investigators, have huge caseloads, and being 

able to get out to interview witnesses presents issues, too. 

So those are some of the reasons. The places where they have to 

send evidence to be analyzed, the homicide case that we have 

scheduled for trial, the reason we have been given for them not 

taking the case has been that they haven’t received analysis back 

from back east somewhere—Virginia?—wherever the location is 

that the U.S. Attorney’s office sends their evidence to be analyzed. 

It takes a large amount of time, so we are just sitting and waiting. 

Our statute of limitations is one year, so in order to get that individual off of the streets on the reservation, we took the case and 

have him in jail so that the family of the victim is at least believing 

that something is happening. 

Senator TESTER. Okay. So if the U.S. Attorney doesn’t take the 

case because of what they perceive as a lack of evidence or a lack 

of a slam-dunk, then it falls into the tribal court’s hands. 

Ms. SAHNEYAH. Right. Well, generally, it is all sent to the prosecutor’s hand. We decide that we are going to go forward with it, 

and then we bring it before the tribal court judge. 

Senator TESTER. And is the tribal court limited—and if you covered this in your testimony, my apologies. Is the tribal court limited as far as the sentences go, to one year? 

Ms. SAHNEYAH. And a $5,000 fine. 

90 

Senator TESTER. And a $5,000 fine if they are convicted of murder. 

Ms. SAHNEYAH. Correct. 

Mr. DURAN. Senator Tester, specifically for Hickory Apache Nation Court, the tribal council legislative body has limited the maximum sentence with the old requirement of the six months incarceration, as opposed to bumping it up to the one year. So for Hickory specifically, they have now made that transition to one year incarceration. 

Senator TESTER. Got you. I know there is a separation of powers 

here, but does this seem right to you, Patrick? 

Mr. RAGSDALE. No, it doesn’t seem right to me that we have an 

appearance of a second-rate justice system in America, one for all 

Americans and one for tribal Americans. That doesn’t seem fair. 

Senator TESTER. How would you recommend we solve it? 

Mr. RAGSDALE. Well, the Department has not taken a position on 

your bill, as you know, but I will tell you, I mean, I commend the 

Committee for the effort. But from a personal standpoint as a 

former law enforcement officer, unless the tribes and the law enforcement providers have the capacity to totally administer a threetiered justice system, it is nice to have provisions to give the tribes 

more flexibility and restore some of the powers that they historically had until the United States took them away from them. But 

without the capacity to do that correctly, it is not going to mean 

a whole lot as far as I am concerned. 

Senator TESTER. Yes. 

Mr. DURAN. Senator Tester? 

Senator TESTER. Yes? 

Mr. DURAN. Also with regard to some of those issues, I had the 

opportunity throughout my judicial career to work with several Assistant U.S. Attorneys over the years. They did express that there 

is a threshold issue when dealing with cases. The major factor, especially with law enforcement, is that the first 24 hours is very 

critical. Oftentimes, law enforcement agencies are not adequately 

serviced or certified to conduct a lot of the investigations that are 

needed as well. And so a lot of the evidence that Ms. Sahneyah has 

pointed out from the prosecutor’s standpoint, there is not enough 

evidence to move forward with the Federal prosecution. 

The bill would address the appointment of special prosecutors 

which would assist in expediting a lot of those cases and moving 

them forward to a probable cause hearing, also for an indictment. 

In addition to that, in NAICJA’s written testimony, we are proposing a similar concept, which would be a cross-deputization of 

tribal court judges as special magistrate judges to handle Federal 

cases for the initial appearance, and also for detention and probable cause hearings. That might also expedite. 

Senator TESTER. Okay. Let’s move to a different topic for a second. I have a ton of questions here, but I just kind of want to go 

off of what Senator Barrasso said about resources. 

Patrick, are you in contact with the tribal courts, yes, the tribal 

courts themselves to find out what they need for resources? 

Mr. RAGSDALE. Mr. Little is more than I am, but yes, I am, when 

I have the occasion to talk to tribal prosecutors, judges, as well as 

law enforcement officers and others. 

91 

Senator TESTER. Can you generally encapsulate what they tell 

you? Do they have enough money? Too much money? Not enough 

money? What do they tell you? 

Mr. RAGSDALE. As I testified, the amount that we provide is a 

very modest amount of financial assistance. If you look in the 

President’s green book budget, there is a shortfall report, at least 

for the self-governance tribes, where the tribes report what—and 

generally what we did at the Cherokee Nation is we put the 

amount the BIA provided us, and then the shortfall was what the 

actual court operation was at the Cherokee Nation. 

Senator TESTER. Got you. So where are they supposed to come 

up with the additional money if they are funded at a nominal level? 

Mr. RAGSDALE. What the tribes do is rely on other Federal grants 

or they provide their own tribal funds to support the justice system, and most tribes do. 

Senator TESTER. Okay. Well, I mean, it seems like kind of a 

crazy system to me. If your job is to fund it at a less than adequate 

level—is that what I heard you say? 

Mr. RAGSDALE. No, sir, that is not what I said. What I will say 

is that tribal courts law enforcement detention, programs that I 

have responsibility for, compete with all of the other deserving programs that are administered by the Bureau of Indian Affairs. 

Senator TESTER. You are talking, like, Indian Health Service? 

Mr. RAGSDALE. For the Department of Interior, I mean, all of us 

compete at the end of the day for the funds that the United States 

appropriates to run the Federal Government. You know, so tribal 

leaders and Federal leaders have to make very hard choices of how 

to balance those disciplines and responsibilities to provide funding 

to because they are all in competition. 

Senator TESTER. Do you think that more funds for the tribal 

court system would result in a safer environment? 

Mr. RAGSDALE. Yes, I do. 

Senator TESTER. Okay. So who does the fighting? This isn’t the 

first time we have asked this question. I may have asked it to you 

before, but there are other people who have been up here. Who gets 

down and gets their knuckles scraped up when it comes to getting 

money? Because the truth is, the truth is, and I can’t speak for this 

whole Committee, but I bet I can speak for a fair number of them, 

that what we want is self-sufficiency in Indian Country. As long as 

the environment is safe, economically they are trashed. It ain’t 

going to happen. It ain’t going to happen. 

So who sits down and gets their knuckles dirty that we make an 

investment earlier, and hopefully it will save us money later because their economic structure will get better and will require less 

Federal dollars? 

Mr. RAGSDALE. Well, in our Federal system, we have one President of the United States, and we have people, and all of us that 

work in the Federal workforce at the end of the day, I think are 

pretty good about advocating our program requirements and responsibilities. At the end of the day, a decision is made as to what 

the allocations are going to be made. I know the Appropriations 

Committees have a similar responsibility in determining what their 

targets are going to be. 

92 

Senator TESTER. Do you think—and this is my last question, I 

don’t want to continue on this—but do you think the Administration cut this by $2.3 million in 2009 because they thought we 

would restore it? 

Mr. RAGSDALE. I can’t answer that, Senator. 

Senator TESTER. Okay. Thank you very much. 

The CHAIRMAN. Mr. Ragsdale, did the BIA going up through the 

budget process recommend at least level funding or more funding 

for the tribal court system? 

Mr. RAGSDALE. I believe so. 

The CHAIRMAN. So that proposal was cut somewhere after it left 

Interior. 

Mr. RAGSDALE. Somewhere. 

The CHAIRMAN. You know, this is a matter of priority, and I do 

think all the evidence suggests that we do need some additional resources. We certainly don’t need a cut in funding. My expectation 

is the Congress will restore, and my hope is we will try to adequately fund this. Part of our issue is to change the law so that 

we make some sense of this system. The system isn’t working. And 

then the second part is to adequately fund some of these issues. 

So we propose changing the law to give the tribal courts some 

more authority, for example, three year sentencing. My understanding is that the Administration and the department oppose 

that. Is that correct? 

Mr. RAGSDALE. We have not taken a position on that, Mr. Chairman. We in the Bureau of Indian Affairs have not. 

The CHAIRMAN. The Department of the Interior has, I believe, on 

June 19 testimony from the Department of Interior is that they oppose that, worried about some constitutional protections. We have 

included in the legislation a requirement for public defenders, a 

whole series of things that we believe offers that constitutional protection. Do you have something else, Mr. Ragsdale? 

Mr. RAGSDALE. No, I was just trying to check to verify that position. I am told that we indicated that we had issues with that as 

a concept, but I don’t think we have taken a formal position on the 

extension of the sentencing. 

I did want to say that on behalf of my Secretary, and I wouldn’t 

say it if it wasn’t true, is Secretary Kempthorne has been very 

much of a champion for us since the day that he first came to office. We briefed him and we are going to have a short time to brief 

him, and he took a couple of hours. It was his initiative to get the 

Safe Indian Communities funding started. I don’t think that we got 

everything we wanted. I know we didn’t get everything that the 

Secretary wanted, but it was his leadership that at least gave us 

a modest increase to our public safety budget. He has been a very 

firm supporter of it. 

The CHAIRMAN. Yes, Secretary Kempthorne is an awfully good 

guy. I have worked with him. He is a colleague of ours in the Senate prior to becoming a Governor and Secretary. So I have great 

respect for him, but he has very little running room, I think. I don’t 

think Secretary Kempthorne is the one who is saying, you know 

what, let’s cut the tribal courts. I think that runs through the Office of Management and Budget and the White House, and they decided to cut the funding for tribal courts when all the evidence sugVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00096 Fmt 6633 Sfmt 6601 S:\DOCS\45126.TXT JACK PsN: JACKF
93 

gests that it is a pretty foolish decision if you want to strengthen 

tribal courts. 

But I understand your point about the Secretary. I think he is— 

but I would say this, however. When he came to town, when he 

was appointed, we had had a two-year vacancy in the Assistant 

Secretary for Indian Affairs, running the BIA. So he came up with 

a candidate and I supported that candidate very strongly. We 

worked very hard to get the nomination complete, and a year later 

he is gone. We are not quite sure of the reasons for all of that. And 

now the position is vacant again. 

It is very hard for an agency that is part of this bureaucracy, and 

the BIA, you know, I feel is unbelievably bureaucratic. It is pretty 

hard for an agency to have good leadership when you don’t have 

someone at the head. You have acting people in this area and that 

area. But I accept your point about the Secretary. I think the Secretary means well and wants to do well. I think he has precious 

little running room to do that, given the Office of Management and 

Budget and the White House. 

Senator Cantwell? 

STATEMENT OF HON. MARIA CANTWELL, 

U.S. SENATOR FROM WASHINGTON 

Senator CANTWELL. Thank you, Mr. Chairman. 

If I could put a statement into the record, I appreciate it. 

The CHAIRMAN. Without objection. 

[The prepared statement of Senator Cantwell follows:] 

PREPARED STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM WASHINGTON

Mr. Chairman, I would like to thank you for your continued leadership of this 

Committee and your dedication to the pressing issue of the administration of justice 

in Indian Country. 

These are issues that are paramount in our nation’s responsibility to our Native 

American neighbors. 

I would like to begin by welcoming the Honorable Theresa M. Pouley Associate 

Judge of the Tulalip Tribal Court, an Associate Justice of the Colville Court of Appeals in Eastern Washington, and the former Chief Judge of the Lummi Tribal 

Court. 

As a Judge for the Northwest Intertribal Court System, she also serves as a trial 

judge and appellate court justice for several other Northwest tribes. 

I thank her for making the 3,000 mile journey to discuss the incredibly important 

issue of justice in Indian country. I also appreciate you sharing your expertise on 

how the proposed reauthorization of tribal court programs and expansion of sentencing authority will allow tribal courts to prosecute more felony crimes. This will 

ultimately improve the safety of those living on reservations. 

In October 2006, the Tulalip Tribal Court’s Alternative Sentencing Program was 

awarded High Honors by the Harvard Honoring Nations Board–one of only seven 

programs to receive this honor. This program uses best practices of drug courts and 

adds a native ‘‘healing’’ philosophy into criminal procedure that focuses on correcting behavior, not just punishing the offender. And it has had promising results. 

Twenty-five percent of the participants in the program do not re-offend. 

The police chief reports violent crime is dropping drastically. 

Cases of resisting arrest are few and far between. 

Gang activity is down. 

And there is a significant decrease in the number of outstanding warrants. 

The program is an example of a culturally appropriate justice system that has 

worked. It is also an example of why tribal courts are the most appropriate venue 

for prosecuting Indian Country crimes within their jurisdiction. 

94 

Unless we give tribes the authority to sentence tribal offenders to longer terms, 

their abilities are limited. Unless we provide funding for tribal court judicial personnel, public defenders, facilities, and other needs of the courts, their abilities are 

limited. And unless we make a commitment to cooperation and a sense of partnership with tribal courts, their abilities are limited. 

And the people that depend on them will suffer. 

To successfully fight the problem of crime in Indian Country, we must provide a 

stable source of funding for tribal justice and other law enforcement and prevention 

programs. 

I have fought for this in the past and I continue this fight today. 

We’ve seen how programs that are culturally aware can serve justice for these 

communities. 

And if we continue to fight for the resources and funding, we can give this kind 

of success story to more Native American tribal courts and communities in America. 

Once again, my thanks to Chairman Dorgan for his dedication to these issues. 

Again, Judge Pouley, thank you for being here with us today. 

Senator CANTWELL. I appreciate you and Senator Murkowski 

holding this hearing. 

I want to welcome Judge Pouley to Washington. Thank you for 

being here. Obviously, the Tulalips have had some success in bringing down the crime rate on the reservation. I know you talked 

about that in your testimony, and talked about using a variety of 

tools to do that—cooperative agreements, increased police presence, 

use of drug courts. So you have used a variety of tools to do that. 

How would the Tribal Justice Support Act help you in furthering 

those efforts to improve the tribal court system? 

Ms. POULEY. In a variety of ways. First of all, of course, stable 

funding is really one of the keys for tribal court systems. The 

Tulalip Tribal Court has been very fortunate to have a very supportive tribal government that funds the $970,000 it takes to run 

a court that hears 1,100 cases, because we only get $30,000 from 

the Bureau of Indian Affairs. 

So the court has been very lucky in having Tulalip sponsor those 

resources as a result of its economic gains. We have also been very 

fortunate in having the tribal court support continued economic 

gains at Tulalip, but of course all of those gains are fragile. They 

are contingent upon Tulalip’s ability to attain stable funding for its 

justice system. 

So prioritizing tribal courts as the place to be able to resolve disputes that happen in Indian Country, funding tribal courts at a 

level that has been recommended, or providing alternative stable 

funding for tribal courts, providing a concerted, coordinated law enforcement effort, which includes all of the services that we think 

of in tribal justice systems. All of those provisions in the bill are 

going to help Tulalip continue to address the violent crime rate on 

our reservation in particular, but in all of Washington State and 

the rest of the Country. 

Senator CANTWELL. Thank you. 

And how would increased tribal sentencing authority from one to 

three years help the Tulalip Tribe in the Northwest in our tribal 

system? 

Ms. POULEY. It is the first step towards giving us the ability to 

actually sentence offenders for murder or rape, to amounts of time 

that are actually proportionate to the crime that they have committed. By removing those offenders from the reservation and from 

95 

the community, we make all of the community members, Indian 

and non-Indian, safer. 

We have the ability by using a three-year sentence to encourage 

offenders to change their behavior, where that is appropriate. It is 

just the first step towards addressing serious crime when the Department of Justice and other agencies can’t. One of the things, 

and no disrespect intended to Mr. Ragsdale, but it is one of the 

things that has been repeated in the testimony before these hearings that somehow tribal courts are not competent to do that. I 

really have to take issue with that. 

Washington State tribal courts and tribal courts in the United 

States absolutely are. The statistics bear it out. If you take a look 

at the number of writs of habeas corpus filed in Federal court, that 

would the time that a tribal court had violated somebody’s due 

process, I have not seen one in any of the courts that I serve. So 

the idea that somehow tribal courts aren’t ready or aren’t competent is just absolutely untrue. 

And given the sentencing authority from one year to three years 

just helps tribal courts develop in their own competency and address the issues that really face their communities. 

Senator CANTWELL. If I could follow up on that, Mr. Chairman, 

have you served as a tribal court judge for rural tribes and urban 

areas, and some of those without reservations? I mean, do you 

think we can achieve this across those various differences of Indian 

Country? 

Ms. POULEY. I think almost all of the experts from Amnesty 

International to Justice Sandra Day O’Connor to Janet Reno to the 

U.S. Commission on Human Rights report in 2003, all say that Indian tribal courts are the best mechanism to be able to address this 

issue. The Amnesty International report in 2007 specifically recommended this kind of coordinated Federal, State and tribal program as the only way to address the absolute rampant violent 

crime rates in Indian Country, and specifically wanted to encourage State and tribal cooperative agreements, as well as making 

sure that tribal courts as institutions are respected and properly 

funded. 

Senator CANTWELL. Well, thank you. 

And thank you, Mr. Chairman. I know that I have talked to our 

Supreme Court justices before when they have visited Washington 

State, and looked at the tribal court system and have been impressed. I am glad you brought that up, as some of those who have 

endorsed having a stronger, robust system. So thank you, Judge, 

for being here. 

Thank you, Mr. Chairman. 

Mr. RAGSDALE. Mr. Chairman? 

The CHAIRMAN. Yes. Mr. Ragsdale? 

Mr. RAGSDALE. Can I just clarify so that it is clear. When I 

talked about capacity, I was not talking about the institution of the 

tribal courts and judicial forums of tribes, which are older than 

America. What I was referring to is if we do not have adequate detention and policing systems to handle additional responsibility, in 

terms of capacity. Not that I think that the tribal courts are less 

than State or Federal courts or anything of that nature, because 

I don’t believe that is so. 

96 

The CHAIRMAN. All right. I have visited the Tulalip Tribe, and 

I understand the aggressive and robust economic development that 

goes on in that tribe, and can only occur if you have a tribal justice 

system for enforcement of contracts, diminished crime and so on. 

So it seems to me that that is a success story, and I appreciate very 

much, Judge Pouley, your being here. Senator Cantwell, of course, 

speaks often and well of what you are doing in the Tulalip Tribe. 

This is a very important issue because if you are not safe, you 

know, a lot of other things in life cannot be accomplished. We talk 

a lot about if you don’t have your health, that is a serious problem. 

So we do a lot on Indian health care. 

Crime, housing, these are the essentials of life, to address these 

issues. Today, we talked about the tribal court system. We appreciate the fact that you make the tribal court system work in many 

cases with far less revenue than you need. 

Again, Judge Flies-Away, I will encourage all of my colleagues to 

read the piece that was done about your work in The Wall Street 

Journal. It just describes a day in the life of a tribal court judge. 

You are someone with a substantial background and have gone 

back to the reservation to try to make the tribal justice system 

work. This Committee deeply admires that, and I hope all of us 

recognize the restrictions under which you work. Inadequate detention facilities, inadequate funding, you know, and yet you are trying to make this system work. So we appreciate that. 

I would say to Judge Duran and Judge Pouley and Prosecutor 

Sahneyah, we thank you very much for your work. 

Mr. Ragsdale and Mr. Little, thank you very much for being here 

today and providing the perspective of the BIA and the Department 

of the Interior. 

This hearing is adjourned. 

[Whereupon, at 11:02 a.m., the Committee was adjourned.] 

(97) 

A P P E N D I X 

PREPARED STATEMENT OF HON. JOHN ST. CLAIR, CHIEF JUDGE, SHOSHONE AND

ARAPAHO TRIBAL COURT

Mr. Chairman and members of the Committee on Indian Affairs, my name is John 

St. Clair and I have been the Chief Judge of the Shoshone and Arapaho Tribal 

Court since its creation in 1988; and prior to that Chief Judge of the Code of Federal 

Regulations (CFR) Court since 1983. 

I wish to thank you for invitation to testify today regarding the Indian Law and 

Order Bill. 

The Wind River Indian Reservation is in west central Wyoming consisting of approximately 2 million acres set aside by the Treaty of Fort Bridger, 1968. The 

Northern Arapaho and Eastern Shoshone (the Tribes) jointly occupy and own it. 

These are about 6,000 enrolled Arapahos and 4,000 enrolled Shoshones, many of 

whom live on the reservation along with non-enrolled Indians and non-Indians. 

Within the exterior boundaries there are about 35,000 people. 

In 2007 the Tribal Court processed 3,939 criminal, traffic and civil cases. The 

Court exerts criminal jurisdiction over all Indians who commit offenses prohibited 

in the Shoshone and Arapaho Law and Order Code and civil jurisdiction over all 

persons who have significant contacts with the reservation. The Court was created 

in 1988 by the Tribes exercising their inherent authority to administer justice that 

derive from their substantive powers of self government which fall within the domain of tribal sovereignty. Budgetary needs for 2007 totaled $490,000. Funding by the Bureau of Indian Af- fairs (BIA) was $137,844 pursuant to a P.L. 93–638 contract, while the Department 

of Justice (DOJ) provided about $170,000 in grants and the Wyoming State Bar 

Foundation awarded an $8,000 grant for criminal defense. When this funding is 

combined, there exists an unmet need of $174,000. Because of this deficiency in 

funding, the court system cannot employ adult probation or sentence accountability 

officers to supervise, monitor and enforce the terms and conditions contained in probation agreements, deferred prosecutions agreements, suspended sentences, temporary releases and restitution orders. This directly affects the courts ability to address Title III Section 304 of ‘‘Tribal Justice Improvement Act’’ where a tribal court 

may require a convicted offender to serve an alternative form of punishment. Since 

grants are not secured funding the court is concerned with the proposed amendment 

of the Indian Civil Rights Act (25 U.S.C. 1302) to replace the present language of 

‘‘. . . at his own expense to have the assistance of counsel for bill defense;’’ with, 

‘‘. . . to deny any person in a criminal proceeding the assistance of defense counsel; ’’. The concern is that tribes may be required to provide for a tribal defender, 

thus creating a financial obligation that did not exist prior to this proposed bill. 

In 1995 the State of Wyoming passed legislation giving full faith and credit to 

civil orders of the Tribal Court and in compliance with the Violence Against Woman 

Act (VAWA) (18 U.S.C. 2265 and 2266) enacted provisions to extend full faith and 

credit and registration of tribal protection orders (W S 35–21–108 and 111). The 

Tribes have in the Shoshone and Arapaho Law and Order Code (SALOC) procedures 

for recognizing foreign judgments from outside jurisdictions at Title I Chapter 9 and 

under rule-making authority of the Chief Judge found at Rule 4–6–17 Rules of 

Criminal Procedure in 1999 Rule CU–109 Recognization and Enforcement of Foreign 

Protection Orders was made to recognize and register outside protection orders. 

The Tribes have operated adult and juvenile drug courts since 2001. The courts 

were created pursuant to the same rule making authority of the chief judge utilized 

to comply with VAWA. An associate judge was assigned to carry out the duties in 

both courts. This has worked well because there is no conflict or competition with 

the existing court since the judge has the authority to sit in either court. The average number of clients in the drug courts are about 50 participants and approximately 10 of these successfully complete the program. 

Law enforcement services are provided by the BIA and there exists a lack of 

enough officers to adequately patrol the reservation. Compared to the state law enVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00101 Fmt 6601 Sfmt 6621 S:\DOCS\45126.TXT JACK PsN: JACKF
98 

forcement system, the Wind River Reservation’s resources are only about 60 percent. 

This impacts not only on how the department is able to deliver services, but knowledge in the communities that response may be inadequate or non existent. As a result many crimes are not investigated or not even reported. 

In conclusion, the goal of providing tools for tribal governments to address public 

safety concerns in Indian Country proposes $35,000,000 for jails and $10,000,000 for 

emergency shelters, but nothing for tribal courts who have vast unmet needs such 

as the Shoshone and Arapaho Tribal Court which totals $350,000 without considering grants. In addition, increased resources for law enforcement will result in a 

corresponding increase in tribal court caseloads which will also increase with the 

proposed increase in sentencing authority from a year and $5,000 to three years and 

$15,000 or both. The impact of increased sentencing authority will be far less federal prosecution and more tribal prosecutions. Should ICRA be amended so that 

tribes must provide legal defense this will be an additional cost to tribal courts. 

Finally ITJA authorized but did not appropriate $50,000,000 base support funding 

each fiscal year for tribal justice systems. I recommend and request that the Tribal 

Justice Improvement Act of 2008 include an appropriation of $50,000,000 each fiscal 

year for 2009 through 2013. 

On behalf of the Shoshone and Arapaho Tribal Court System I want to thank the 

Committee for this opportunity to testify before you and express my support for this 

important legislation. 

99 


724c1.eps
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101 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. JOHN BARRASSO TO HON. 

JOHN ST. CLAIR

Question 1. It is understood that BIA Law Enforcement is severely understaffed. 

How does this affect the unit’s ability to enforce the law? 

Answer. With approximately 40 percent of the officers needed to patrol the 2.3 

million acre reservation, many crimes go uninvestigated while others are not even 

reported because the community is aware of the situation. When more than one 

crime is reported, the department must choose which will take priority and the 

other must wait until someone is available. 

Question 1a. How does this shortcoming affect the tribal court? 

Answer. Police Officers aren’t always able to attend trials or serve court papers 

because calls need to be responded to immediately. Because of speedy trial requirements cases have to be dismissed. Defendants know this and enter a plea of not 


724c3.eps
102 

1 Brent Leonhard is the Deputy Attorney General of the Confederated Tribes of the Umatilla 

Indian Reservation. Cisco Minthorn is a summer law clerk for the Confederated Tribes of the 

guilty knowing that there is a good chance of dismissal. Another reason for non attendance is when an officer just goes off duty. 

Question 1b. What would you recommend to improve this situation? 

Answer. Increased funding to make more officers available or for the tribes to contract law enforcement and become eligible for additional funding outside the Interior 

Department. 

Question 2. The Shoshone and Arapaho Tribal Court cannot afford to employ probation and sentence accountability officers. What effect does this have on the effectiveness of the system? 

Answer. The effect is to undermine the system because defendants know that 

there will be no one to monitor and follow up on the terms of their probations. Any 

accountability is initiated by the judge or criminal clerk on a catch-as-catch-can 

basis which is inconsistent and unfair. This deficiency also inhibits the courts ability 

to collect fines paid on a monthly basis, to supervise a community service program 

and to follow-up orders to pay restitution. 

Question 2a. How does this affect the crime rate? 

Answer. It renders the justice system a ‘‘paper tiger’’ because the public knows 

that once they leave the court, no one is watching. They can forget their obligations 

until they commit another crime. Treatment requirements for drug and alcohol 

abuse and for domestic violence aren’t being met by defendants, and as a result 

their underlying problem is never addressed. These kinds of violations continue and 

increase. 

Question 3. What if BIA would budget properly and fully meet the needs of law 

enforcement and tribal courts? Wouldn’t it be more effective? 

Answer. Yes, the reservation needs to be adequately patrolled, then all calls need 

to be responded to immediately and fully investigated. Full funding would also 

mean that crimes could be fully prosecuted by the attendance at trial of the officer 

who is the complaining witness. Finally notices and subpoenas could be served in 

a timely manner. 

Question 3a. Wouldn’t the rule of law be more consistent? 

Answer. Yes, presently, enforcement is haphazard and inconsistent due to lack of 

funding. There is no follow-up to requirements after conviction. With adequate 

funds these shortcomings could be corrected and the public would respect the justice 

system rather than just to try and find ways to avoid responsibility. This would result in the system having a deterrent effect on crime rather than little or no effect. 

Question 3b. Wouldn’t the people of the Eastern Shoshone and Northern Arapaho 

Tribes have more confidence in their community? 

Answer. Yes, the public needs to feel safe in their homes with the knowledge that 

crimes involving violence, drugs and alcohol will be fully investigated and prosecuted. That’s not the case today. Three young girls were found dead in a housing 

complex June 4, 2008. As of today no information has been released as to the cause 

of death. One parent stated that the BIA police refused to look for her daughter 

when she reported her missing earlier. If this is true, this refusal may be due to 

inadequate services or it may be due to neglect of duty. In any case this did little 

to bolster community confidence. 

Question 4. Is the BIA meeting its obligation to the people of the Eastern Shoshone and Northern Arapaho Tribes? 

Answer. No it is not. Resources for law enforcement and courts have historically 

been woefully inadequate to meet existing needs. Resources have ranged from 25– 

40 percent of need and as a result this reservation has one of the highest rates of 

crime in the nation. A major drug bust in 2005 revealed the existence of a major 

operation with sources out of Mexico. This was ale to develop due to inadequate law 

enforcement presence, lack of authority of tribes to prosecute non Indians, lack of 

sentencing authority of tribes which is limited to one year and a fine of $5,000 and 

to lack of co-ordination and even communication across jurisdictional lines. 

A COMPARISON OF STATE LOW LEVEL FELONY SENTENCING AUTHORITY

by M. Brent Leonhard and Cisco Minthorn 1

The Tribal Law and Order Act of 2008 is a significant step forward in curbing 

crime in Indian Country. Among its provisions is the expansion of tribal sentencing 

103 

Umatilla Indian Reservation, and an enrolled member. He is also a Spring 2009 candidate for 

a dual JD/MUP at the University of Michigan Law School. 

authority from a maximum of 1 year to a maximum of 3 years. While this is laudable, for the reasons set out in this memo it may be more appropriate to permit 

tribes to sentence individuals who commit serious crimes to a maximum of 5 years. 

The 3 year timeframe was initially selected based on the 2002 report of the Committee to the U.S. Sentencing Commission, which showed that the most common 

federally prosecuted crime was assault, and that the most common sentence was 34 

months. However, it may be more relevant to look at how states define their lowest 

level felonies to determine what tribal sentencing authority ought to be. Furthermore, the 3 year time frame fails to take into account that prisoners are often given 

good time, such that the actual sentence served may be significantly less than that 

imposed. 

Most states define felonies by statute, just as the proposed bill will do for Indian 

Country. Rather than basing tribal sentencing authority on a given federal sentence, 

it might be more appropriate to look at how states define their lowest level felonies 

as a guide to determine an appropriate expansion of tribal sentencing authority. 

Furthermore, it stands to reason and fairness that a tribe ought to at least have 

the same sentencing authority as a state does with respect to the state’s lowest level 

felonies. This is particularly true given that a tribe’s use of such enhanced sentencing authority will typically be for very serious crimes that have not been prosecuted through the federal system. Examples include rape, attempted homicide, serious child abuse, and aggravated assault. While it is unlikely that a state would 

include such crimes within their lowest level felonies given the serious nature of the 

offenses we are talking about, tribes ought to at least be able to sentence someone 

committing these crimes up to the maximum allowed by a typical state’s lowest level 

felony. 

In that regard, this memo examines how each state defines its lowest level felony. 

As it turns out, of the states that define felonies, the majority define their lowest 

level felony as having a maximum sentence of 5 years. And most states that define 

low level felonies as less than 5 years categorize aggravated assault (presumably, 

the typical crime to be covered by expanded jurisdiction) as falling within a felony 

class that has at least a 5 year maximum sentence. 

11 states are left out of this calculation because they don’t define a felony and 

we have been unable to find an equivalency. Of the remaining 39 States we have 

found the following: 

25 states define their lowest level felony as carrying a maximum sentence of 5 

years in jail or more (18 of these define the lowest level felony at 5 years.) 4 states 

define the lowest level felony as 4 years, 3 States as 3 years, and 7 as 2 years or 

less. However, 6 of the 7 that have low level felonies defined as 2 years or less actually treat aggravated assaults (the typical type of offense to be covered by expanded 

jurisdiction) as 5 years or more. So, it might be more accurate to say, in regard to 

offenses of concern in Indian Country and the need to expand jurisdiction, at least 

31 of 39 states define their lowest level felony as 5 years or more. 

So, 64 percent define a low level felony as 5 years or more, and if we include relevant felony crimes for Indian Country, it is more like 79 percent. In addition, of 

the 11 states that do not define felonies, 9 sentence aggravated assaults to mare 

than 5 years. As for the other 2 states, 1 sentences aggravated assault to 4 years 

and the other uses a complex sentencing grid for all offenses. So, in regard to offenses of concern in Indian Country, 46 of the 50 states, or 92 percent, allow for 

a sentence of 5 years or more. 

The actual breakdown is as follows: 

10 years: Alabama, Montana, and Texas. 

7 years: New Hampshire and Pennsylvania. 

6 years: Arkansas and Tennessee. 

5 years: Alaska, Connecticut, Florida, Hawaii, Idaho, Iowa, Kentucky, Maine, 

Massachusetts (appears to be), Minnesota, Nebraska, New Jersey (appears to be), 

North Dakota, Oregon, South Carolina, Utah, Virginia and Washington. 

4 years: Michigan, Missouri (note: first degree assault is 15 years), Nevada (note: 

battery with substantial bodily harm is 5 years) and New York (note: first degree 

assault is 25 years). 

3 years: Illinois, Indiana, and Wisconsin (technically 31⁄2 years). 

2 years: Delaware (note: felony assault is 8 years), Oklahoma (note: aggravated 

assault is 5 years), and South Dakota (note: aggravated assault is 15 years). 

18 months: Arizona (note: felony assault is 5 years), Colorado (note: first degree 

assault is 8 years), New Mexico, and Ohio (note: felonious assault is 8 years). 

104 

Not defined: California, Georgia, Kansas, Louisiana, Maryland, Mississippi, North 

Carolina, Rhode Island, Vermont, West Virginia, and Wyoming. 

The following is a list of states along with how and where they define their lowest 

level felony. 

Alabama. In Alabama the lowest level felony is classified as class C, and carries 

a maximum sentence of 10 years. Ala.Code 1975 § 13A–5–6. 

Alaska. AS 12.55.125(e) defines a class C felony, the lowest level felony, as having 

a maximum sentence of 5 years. 

Arizona. In Arizona there is a numbered class system, with 6 being listed as the 

lowest level felony. However, a class 6 felony has a maximum sentence of one year, 

which is what most states consider a gross misdemeanor. The next highest level, 

a class 5, has a maximum sentence of 18 months. A.R.S. § 13–701. However, aggravated assaults involving serious physical injury, use of a deadly weapon or dangerous instrument, or one causing temporary but substantial disfigurement or temporary but substantial loss or impairment of any body organ (including the fracturing of any body part) are sentenced between at the low end (breaking an arm, 

say) at 21⁄2 years to serious bodily injury at 31⁄2 to 5 years.) ARS 13–1204. 

Arkansas. A class D felony is the lowest level in Arkansas and it carries a maximum sentence of 6 years. A.C.A. § 5–4–401. 

California. California does not have a classification system in place for the punishment of felonies. Rather, each felony defined by statute has a specific punishment 

tied to it. Assault with a deadly weapon or force likely to produce great bodily injury 

for instance, carries a maximum prison sentence of four years. West’s Ann.Cal.Penal 

Code § 245. 

Colorado. The lowest level felony in Colorado is a class 6, with a maximum sentence of 18 months. CO 18–1.3–401. Assault in the first degree however, is a class 

3 felony and as such is punishable by a maximum sentence of up to 8 years. 

C.R.S.A. § 18–3–202(2)(b), 18–1.3–401. 

Connecticut. A class D felony is the lowest level in Connecticut, and has a maximum sentence of 5 years. C.G.S.A. 53a–35a. 

Delaware. In Delaware the lowest level felony is a class G, with a maximum sentence of 2 years. 11 Del. C. 4205. However, the lowest level felony assault is a class 

D felony in Delaware and carries a maximum sentence of 8 years. 11 Del. C. 612, 

4205. 

Florida. Florida’s third degree felony is its lowest, and it carries a maximum sentence of 5 years. F.S.A. 775.082. 

Georgia. Georgia does not have classes of felonies. However, aggravated assault 

carries a sentence of up to 20 years. Ga. Code Ann. § 16–5–21. 

Hawaii. A class C felony is Hawaii’s lowest, which caries a maximum sentence 

of 5 years. HRS 706–660. 

Idaho. Every felony that is not otherwise prescribed a different punishment in 

Idaho is punishable by a maximum 5 year sentence. I.C. 18–112. 

Illinois. Class 4 felonies are the lowest level in Illinois and have a maximum sentence of 3 years. 730 ILCS 5/5–8–1. Aggravated assault, depending on the circumstances, can be a class 4 felony or a class 3 felony. 720 ILCS 5/12–2. If it is 

considered a class 3 felony, it can be sentenced to up to 5 years imprisonment. 

Indiana. Class D felonies are Indiana’s lowest level with a maximum sentence of 

3 years. IC 35–50–2–7. Aggravated battery is a class B felony and is punishable by 

a maximum 20 year prison sentence. IC 35–42–2–1.5. 

Iowa. In Iowa the lowest level felony is class D, with a 5 year maximum sentence. 

I.C.A. § 902.9. 

Kansas. Kansas does not define felonies, but appears rather to rely on a sentencing grid. 

Kentucky. The maximum sentence for a class D felony in Kentucky is 5 years, 

which is the lowest level felony in that state. KRS § 532.060. 

Louisiana. While Louisiana does not classify felonies, if punishment is not otherwise defined in a statute, the sentence is left to the discretion of the court up to 

2 years. LSA–R.S. 15:303. However, aggravated battery carries a maximum sentence of 10 years. LSA–R.S. 14:34. 

Maine. Maine makes no distinction between felonies and misdemeanors. ‘‘Crime’’ 

is used as a blanket term. However, class C crimes are the next highest after those 

carrying a maximum sentence of one year (a typical gross misdemeanor) and are 

punishable by a maximum of 5 years. 17–A M.R.S.A. § 1252. 

Maryland. It does not appear that Maryland classifies felonies, but rather gives 

a specific sentence for a given offense. Felony assault is punishable by up to 25 

years in prison. MD Code, Criminal Law, § 3–202. 

105 

Massachusetts. While Massachusetts operates under a sentencing grid, it looks 

like low level felonies are punishable by a maximum sentence of 5 years. See, for 

example, M.G.L.A. 265 § 13A with regard to aggravated assaults. 

Michigan. The default felony in Michigan is punishable by a maximum 4 year sentence. M.C.L.A. 750.503. 

Minnesota. Pursuant to M.S.A. 609.03 the default felony sentence in Minnesota 

carries a maximum sentence of 5 years. 

Mississippi. In Mississippi it appears that punishment is defined by each specific 

crime. Aggravated assault carries a maximum 20 year prison term. Miss. Code Ann. 

§ 97–3–7. 

Missouri. The class D felony is the lowest in Missouri, with a maximum sentence 

of 4 years. V.A.M.S. 558.011. Assault in the first degree without the infliction of serious physical injury is sentenced to a maximum of 15 years imprisonment. 

V.A.M.S. 565.050 

Montana. Montana does not define felonies other than crimes with a sentence 

greater than one year (MCA 45–2–101), but the default punishment is a maximum 

of 10 years. MCA 46–18–213. 

Nebraska. Class 4 felonies are Nebraska’s lowest level felonies, and they carry a 

maximum punishment of 5 years. Neb.Rev.St. § 28–105. 

Nevada. Category E felonies are Nevada’s lowest, with a maximum sentence of 

4 years. N.R.S. 193.130. Battery with substantial bodily harm is sentenced to a 

maximum of 5 years. N.R.S. 200.481. 

New Hampshire. In New Hampshire the lowest level felony, a class B, carries a 

maximum sentence of 7 years. N.H. Rev. Stat. § 651:2. 

New Jersey. New Jersey has four classes of crimes and does not use the term ‘‘felony’’, however, high misdemeanors are designated as class 3 crimes. A class 3 crime 

has a maximum sentence of 5 years, whereas a class 2 has a maximum sentence 

of 10 years. N.J.S.A. 2C:43–1; 2C:43–6. 

New Mexico. 4th degree felonies are New Mexico’s lowest, with a maximum sentence of 18 months. N.M.S.A. 31–18–15. Aggravated battery resulting in great bodily harm, however, is a 3rd felony punishable by up to 3 years imprisonment. 

N.M.S.A. § 31–18–15. 

New York. Class E felonies in New York carry a maximum sentence of 4 years 

and are the state’s lowest level. McKinney’s Penal Law § 70.00. However, assault 

in the first degree is a class B felony and is sentence to a maximum of 25 years 

imprisonment. McKinney’s Penal law § 120.10. 

North Carolina. North Carolina uses a combination of a sentencing grid (See 

N.C.G.S.A. § 15A–1340.17 which incorporates a classification system. To give a better idea of how this state punishes its felons, aggravated assaults can be punished 

by up to 145 months imprisonment. See N.C.G.S.A. § 14–30. 

North Dakota. North Dakota’s lowest level felony is a class C, with a 5 year maximum sentence. N.D.C.C. 12.1–32–01. 

Ohio. A 4th degree felony in Ohio carries a maximum sentence of 18 months. 

While Ohio technically defines a 4th degree felony as a maximum sentence of 1 

year, that is what is otherwise typically referred to as a gross misdemeanor. However, felonious assault (R.C. § 2903.11) is a 2nd degree felony in Ohio, punishable 

by up to 8 years imprisonment. 

Oklahoma. The default penalty for a felony in Oklahoma carries a maximum sentence of 2 years. 21 Okl.St.Ann. § 9. However, an aggravated assault carries a maximum sentence of 5 years. § 681. 

Oregon. In Oregon a class C felony has a maximum sentence of 5 years, and is 

the lowest level felony in the state. ORS 161.605. 

Pennsylvania. 7 years is the maximum sentence for a 3rd degree felony in Pennsylvania, which is the state’s lowest. 18 Pa.C.S.A. § 1103. 

Rhode Island. It doesn’t appear that Rhode Island defines felonies. However, felony assault is punishable by up to 20 years imprisonment. Gen. Laws 1956, § 11– 

5–2. 

South Carolina. A class F felony in South Carolina carries a maximum sentence 

of 5 years, which is its lowest. Code 1976 § 16–1–20. 

South Dakota. Class 6 felonies are the lowest in South Dakota, with a maximum 

sentence of 2 years. SDCL § 22–6–1. However, an aggravated assault is a class 3 

felony with a maximum sentence of 15 years, whereas a 3rd misdemeanor assault 

within 5 years constitutes a class 6 felony. SDCL § 22–18–1.1; 22–18–1. 

Tennessee. A class E felony is Tennessee’s lowest level felony and carries a maximum sentence of 6 years. T.C.A 40–35–111. 

Texas. Texas’ lowest level felony is a 3rd degree felony, which carries a maximum 

sentence of 10 years. Although, in 1993, a lower level felony class was created to 

address non-violent, non-sex offense cases (unlike those likely to be prosecuted in 

106 

Indian Country under expanded jurisdiction), which is called a ‘‘state jail felony’’ 

and carries a maximum sentence of 2 years in an effort to reduce prison overpopulation. V.T.C.A., Penal Code § 12.34; 12.35. 

Utah. A 3rd degree felony is the lowest level in Utah, with a maximum sentence 

of 5 years. U.C.A. 1953 § 76–3–203. 

Vermont. Vermont has no felony classification system; punishment is defined in 

each offense. First degree aggravated domestic assault, for example, carries a maximum sentence of 15 years imprisonment. 13 V.S.A. § 1043. 

Virginia. In Virginia, the lowest level felony is a class 6, carrying a maximum sentence of 5 years. Va. Code Ann. § 18.2–10. 

Washington. A class C felony in Washington carries a maximum penalty of 5 

years, which is the lowest level felony. RCW 9A.20.021. 

West Virginia. West Virginia does not have a felony classification system and the 

maximum punishment is indicated in each offense. West Virginia’s penalty for aggravated assault is up to 10 years imprisonment. See W. Va. Code, § 61–2–9. 

Wisconsin. In Wisconsin a class I felony is the lowest, with a maximum punishment of 3 years and 6 months. W.S.A. 939.50. While battery is a class I felony in 

Wisconsin, if the victim sustains great bodily harm, the battery is considered a class 

H felony and is punishable by up to 6 years imprisonment. W.S.A. 940.19. 

Wyoming. There is no felony classification system in place in Wyoming, as punishment is defined in each offense. For reference, however, aggravated assault and battery is punishable by up to 10 years imprisonment. W.S. 1977 § 6–2–502. 

PREPARED STATEMENT OF HON. MYRA PEARSON, CHAIRWOMAN, SPIRIT LAKE TRIBE

The Spirit Lake Tribal Court has been a functioning tribal court system for more 

than 50 years, adjudicating a number of legal issues for tribal members, non-member Indians and non-Indians. The Spirit Lake Tribal Court is comprised of three divisions: Civil Division, Criminal Division and a Juvenile Division. The Tribal Court 

is staffed with a Chief Judge, Associate Judge, three Clerks of Court and a Receptionist. OF this core staff only the Associate Judge and the Clerks of Court are funded through the 638-contract process. The Tribe funds the Chief Judge, the Tribal 

Prosecutor and the Juvenile Intake Officer positions. The Tribal Court processes 

more than 3000 cases per year including, but not limited to, various civil lawsuits, 

child custody cases, divorce, child deprivation and protection, adoption, juvenile delinquency, and criminal cases. The Tribal Court addresses issues stemming from a 

variety of societal ills such as drug trafficking, substance abuse, child abuse and neglect, domestic violence, sexual violence and other such violent crimes. 

Tribal Courts are tasked with the very same responsibilities as state and federal 

courts and have managed to administer justice on less than a shoestring budget. 

Tribal Court Judges and employees are expected to administer justice with little to 

no access to legal research tools and in many cases with outdated technology. While 

advances are made in courtrooms around the country Tribal Courts are left to piece 

together funding through unreliable grant programs in an effort to cover the very 

basic costs of court operations. Basic funding is lacking for court databases, adequate computers, court recording devices and personnel costs such as bailiffs, court 

process servers, public defenders and probation officers. These are technological resources and personnel resources that state and federal courts are provided as a 

basic need for the administration of justice yet in tribal justice systems many of 

these basic needs are not available due to lack of reliable and ongoing funding. It 

is essential that sustainable funding be made available for tribal courts to meet 

these basic needs. 

When Tribe’s such as Spirit Lake opted to 638 contract the Tribal Court services 

the funding that came along with that contract was not adequate to meet the basic 

needs of the Tribal Court. This fact remains true today. Tribal Courts are not provided the administrative costs that would have been made available to the BIA had 

they continued to operate courts of Indian Offenses. In other words it is expected 

that Tribal Courts do more to administer justice with less money. Even more troublesome is the fact that these very deficiencies I have identified are often used 

against tribes to further reduce tribal sovereignty. Attorneys are constantly making 

arguments that Tribal Courts are not adequate to adjudicate cases and are using 

arguments like lack of access to governmentally funded public defenders to make 

such challenges. 

It has been proven time and again that Tribal Courts are in the best position to 

administer justice in Indian Country in a meaningful and cost-effective way. In fact 

if Tribal Courts ceased to operate the burden for administering justice would simply 

fall to the federal and state systems, a burden which those jurisdictions clearly do 

107 

not want. Innovative Court programs such as the Shunka Wakan Ah Ku (Bringing 

Back the Horse Project) at the Spirit Lake Tribe are the very types of justice based 

programs that will make a long-term difference in our community and it is of the 

utmost importance. Additionally courts such as wellness courts and peacemaking 

courts incorporate methods of traditional dispute resolution that have proven very 

effective in resolving familial disputes and addressing substance abuse problems. 

The Spirit Lake Tribe had a functioning juvenile wellness court that was very helpful to the youth in our community but loss of funding meant the program came to 

an end. It serves little good to the long term betterment of our communities to plan 

and implement such programs only to seem them dissipate due to lack of funds. 

It is for these reasons that direct non-competitive funding is needed to support 

the daily operational courts for tribal courts and technological advancements for 

tribal courts. Through such funding initiatives Tribal Courts will become more effective and efficient at administering justice in tribal communities. Additionally, competitive funding resources such as the many grants administered through the Bureau of Justice Assistance and other Department of Justice Agencies need continued 

funding and need to be flexible enough to enable tribal courts to incorporate their 

culture and traditions into their tribal justice initiatives. 

PREPARED STATEMENT OF ALBERTA IRON CLOUD MILLER, CHIEF PROSECUTOR, 

OGLALA SIOUX TRIBAL COURT

Mr. Chairman: 

My name is Alberta Iron Cloud Miller and I am the Attorney General, our name 

for the Chief Prosecutor, of the Oglala Sioux Tribal Court. Our Oglala Tribal Court 

is facing a serious crisis, and for that reason I would like to thank you for this opportunity to present our concerns. 

BACKGROUND ON OUR COMMUNITY—As you are aware, the Pine Ridge Indian Reservation, located in southwestern South Dakota, is one of the largest in the 

United States. Its’ 4,353 square miles makes it approximately the size of the State 

of Rhode Island. Our Court has an on-reservation service population of approximately 50,000, but that number is misleading low because we also have another 

10,000 people who reside in nearby Rapid City and other communities just off our 

reservation, and many of those people travel on and off of Pine Ridge almost every 

day. As our housing shortage continues to increase, more of our people are forced 

to live off the reservation and commute onto the reservation to work and see their 

families. Unfortunately, once they move off to live, they stop being counted in our 

service population, even though they are on-reservation almost every waking hour 

of the work week. It’s also important to remember that you do not have to live on 

our reservation to be a party to litigation in our Tribal Court and in civil cases, you 

don’t even have to be a member of the Tribe. 

At present, our community suffers from a lack of jobs, a non-existent economy and 

a lack of services. We have an unemployment rate of well over 50 percent, and many 

of those who are working having only seasonal or non-secure jobs. Those who are 

fortunate enough to be employed are often caring for two or three other households, 

as many of the young adults with families have no income or no housing. We have 

a drop out rate of over 60 percent, giving us a serious juvenile problem, and our 

average per capita income is below $7,000 a year. As a result, our court handles 

all of the various types of criminal and civil problems that poverty brings with it. 

ABOUT OUR TRIBAL COURT—Because of the size of our reservation, we are 

forced to operate two separate Tribal Courts, one at Pine Ridge and the other at 

Kyle. These two Courts are over 60 miles apart. Because of our lack of communications equipment and the distance between our two locations, these Courts are often 

forced to operate independent of each other, which is something we are striving 

hard to avoid. 

We also have a Youth and Family Court. This handles child protection orders, juvenile offenders, juveniles in need of care and other youth related matters. Finally, 

our Tribal Supreme Court hears appeals. Because of the volume of domestic violence 

cases we are called upon to decide, and the danger of misjudging the case, we desperately need a Domestic Violence Court, but we have no space to house it and inadequate funds to set it up. We average 20 new domestic violence criminal prosecutions a month and this does not count the equal number of protective orders and 

follow up cases that we are ask to decide each month through our civil court system. 

Currently, our Tribal Court hears approximately 2,470 criminal cases per year 

and a civil case load in excess of 2,000 cases. These numbers are also unrealistically 

low. Because of our current and ever increasing inability to hear criminal cases in 

a timely manner, many of our local law enforcement officers chose to paper a sizable 

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percentage of alcohol related misdemeanors as Public Intoxication offenses. Papering a case as a Public Intoxication offense leads to the automatic release of the prisoner eight hours after arrest and incarceration, rather than into our Tribal Court 

system. Just to show you what our real numbers should be, our police officers made 

a total of 23,000 arrests last year, but we were only able to prosecute 2,470 cases. 

We would also have a sizable increase in civil cases if our members believed that 

our Court could resolve their disputes in a timely manner. But, because our dockets 

have become so backlogged, we have actually had members try to file civil cases in 

non-Indian courts, simply because they feared that we could not resolve their matter 

fast enough to meet their needs. 

Even with this artificially low number of cases, all of our Court staff are seriously 

overworked. In fact, all of the 2,470 criminal cases and 2,000 civil cases I just mentioned are handled by our one Chief Judge, and three Associate Judges and 3 prosecutors and the Attorney General. Remember these individuals are not only handling a ridiculously large case load, they are also forced to serve two separate court 

houses which are 60 miles apart and which have no workable electronic communication with each other. This results in a lot of lost time traveling back and forth and 

shipping documents. We are in the process of installing an electronic filing system, 

however, lack of resources in the form of servers, computers, etc. have delayed the 

installation of this critical system. 

The Judges and Prosecutors also have a totally inadequate number of support 

staff. We currently have only two criminal clerks, two civil clerks and two juvenile 

clerks in Pine Ridge, and 2 clerks total to handle the case load at our Kyle Court. 

This is a nightmare, because we have no case tracking software and inadequate filing capability. This leads to the dismissal of cases because of our inability to meet 

speedy trial requirements, dismissal because of lost or unavailable records, and we 

have even on occasion lost track of prisoners. In one case this year, a young man 

sat in jail from February until July simply because someone misplaced his trial 

record and we have no tracking software to pick up the error. That’s five months 

of a young man’s life. 

OPERATIONAL PROBLEMS—Despite the huge number of cases we are confronted with each year, our Court is so broke that it is forced to operate on old outdated and often broken computers that were purchased at Wal–Mart. To make matters worse, our software is so outdated that it does not even allow us to open many 

of the files we receive from attorneys, and other jurisdictions. Our computers also 

have no virus protection software, no spam blockers, no security firewalls and we 

have no off-site backup for our files, so if a tornado were to hit, as it has done in 

some of our more outlining communities this year, we could lose all of our current 

records. 

Because we have no commercial scanners, inadequate file cabinets and inadequate 

filing space, most of our files, over six years old, are stored in cardboard boxes that 

are stacked in our basement. Because our Court is located in a condemned building, 

which has leaky floors and leaky wall and exposed asbestos, our Court records, especially those stored in these boxes are regularly subjected to mold, mildew, water 

leaks, dust and decay. We also have no computer software to track the whereabouts 

of a particular file. This creates a major problem for those appearing before our 

court and for those seeking to perform background checks for employment. I cannot 

imagine any state judge or prosecutor having to use a hair blow-dryer to make a 

soaked official court record usable in a case, if they can even find the file in time, 

but that is the world in which we work at Pine Ridge. And, this is a federally 

owned, federally funded building! 

I also cannot imagine a federal or state court staff working in an environment 

where the papers that they handle every day are making them sick, but given the 

mold and mildew in our building and our lack of air conditioning in the summer, 

that too is the environment in which our staff is forced to work. Our former Chief 

Judge left her position in large part because she was allergic to the mold and dust 

in our building and because working there was forcing her to seek medical attention 

for respiratory disease on a regular basis. Others get stuffy noses, watery eyes and 

sneezing, and more than one person has been forced to seek another job altogether 

simply because they could not work in our building because of respiratory problems. 

The former clerk of our Supreme Court developed arthritis from the cold and damp 

environment she was working in because her office was in our unheated basement 

and from lifting boxes off the floor. She is now on social security disability for that 

problem. 

Things are no better for our prosecutors who work in the condemned Pine Ridge 

jail. That building loses heat in the winter and air conditioning in the summer and 

it is as damp and dirty as the court house. Our current Supreme Court clerk works 

in two small rooms in our basement. She shares that space with the boxes of court 

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records that we have had to store there. Her office has virtually no heat in the winter and no air conditioning in the summer. The leaks from the wall soaked and 

damaged the carpet so badly that the BIA was finally convinced to tear it out because it was making people sick. Unfortunately, they then failed to replace it, so 

she now has nothing but a concrete floor to work on in the cold of winter. In preparing this testimony, she commented that there were actually times when she was 

glad that her office had no heat during the winter, because the frozen walls were 

the only thing that seemed to stop the leaks that were making her sick and damaging her files and computer and the frozen floor was keeping the smell down on 

the carpet. Again, this is in a federally owned and funded facility! 

Our tribal judges and prosecutors have no law clerks, inadequate funding for new 

law books and publications, and no funding to train the court staff. Westlaw doesn’t 

work; because we can’t afford it, and when we do get some funding to go online, 

our Internet is so bad that we get cut off 4 and 5 times a search, making legal research a nightmare. Additionally, when staff training is available, we regularly lack 

the travel funds to send anyone to the training site. Then, even if we can find the 

travel funds funds, we are so understaffed that we have to decide how much of an 

additional backlog we can accommodate, when deciding if we can afford to send one 

or more of our staff to attend that training. Our Supreme Court Clerk, for example, 

is the only one working in that office. If she is ill, or out for a meeting or training 

session, there is no one there to assist the public. 

While we have a dedicated team of judges, prosecutors and Court staff, we simply 

cannot manage the workload that we are faced with and still afford our people with 

the legal protections they are entitled to. Our case backlog is becoming longer by 

the day. Right now we have at least 1,200 criminal cases from 2007–2008 which 

have been awaiting trial for over 12 months and more are being added to this list 

every day. Our docket is already full through February 2009 and we dare not schedule past that date because we do not know what our funding will be for next year. 

We have been lucky of late that very few of our people have requested jury trials, 

because we simply have no money to pay for them. We don’t even have enough 

funds to cover travel costs or lunch for jurors, even if we could get them to serve 

for nothing. Our lack of funds has also impacted our appellate process, since we 

have limited funds to pay appellate judges or their staff and no space to house them 

when they need to hear a case. 

Mr. Chairman, while we strongly support the increase in tribal court sentencing 

authority that is proposed in your new law enforcement improvement legislation, I 

have to be honest when I tell you that I cannot imagine any tribe in North or South 

Dakota taking advantage of that provision, not because we do not want to, but simply because we cannot afford to pay for jury trials and right to counsel. So, if more 

money is not added to the tribal court budgets, and that provision is enacted into 

law, the only tribal courts operating with expanded sentencing authority will be the 

tribes in states to the far east and far west of us with large successful gaming operations, because they will be the only ones who can afford to supplement their tribal 

courts budgets to provide these legal protections. This will leave the large land 

based treaty tribes in the mid west and southwest with less ability to administer 

justice. I’m sorry, I see your reasoning behind the jury trial and right to counsel 

pre-requisites, but I still think that a person’s right to justice and a tribe’s ability 

to exercise its sovereignty should be based on more than which tribe has money and 

which does not. 

ABOUT YOUR NEW LAW ENFORCEMENT LEGISLATION—As Officers of the 

Oglala Sioux Tribal Court, and as members of the Oglala Sioux Tribe, we are very 

aware of the difficulties facing our tribal police and the dangers our people live with 

because of inadequate law enforcement. Thus, we were thrilled to learn of the introduction of your new law enforcement legislation and of the Senate’s recently past 

increase in law enforcement funding authorizations. While your new bill has many 

positive attributes, we must be honest in saying that we remain only cautiously optimistic. This is because we have seen new authorizations come and go before, but 

we have never seen the funding delivered to implement what is promised by the 

authorizing committees. And that is certainly now because past Authorizing Committee Members did not fight hard for those appropriations. They just lost those 

fights. 

This is also not to say that we do not appreciate the hard work that you and your 

staff are putting in. It’s just that our experiences with the Appropriations and Administrative Budgeting processes have not been good. For example, while your reauthorization of the Indian Tribal Justice Support and Technical & Legal Assistance 

Acts looks wonderful on paper, it very hard for us at the OST Tribal Court to get 

our people really excited about it, because that exact same program did not do much 

for us the last time it was authorized. This is not because of the way the authorizaVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00113 Fmt 6601 Sfmt 6621 S:\DOCS\45126.TXT JACK PsN: JACKF
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tion was written, it was fine, it is because no one ever appropriated the funding necessary to implement that program in the manner intended. Thus, it made some 

minor improvements for a few tribes that have long since deteriorated. The same 

is true for the reauthorization of the Indian Alcohol and Substance Abuse Act. We, 

at Pine Ridge, have a serious alcohol abuse problem. Almost 95 percent of the criminal cases that come before our Tribal Court involve alcohol in one way or another. 

Thus, were so excited when that program was authorized the last time, that we 

spent months putting together a tribal plan, developing our substance abuse task 

force/committee and working with everyone involved. Unfortunately, when we were 

done, we received none of the funding necessary to implement any of the ideas that 

came from all of that hard work, and we, like many other Sioux Tribes, found ourselves worse off than before because we had devoted so much time and money to 

putting that plan together. People’s expectations go up and it’s a big let down when 

nothing positive happens. In 2006 the Judiciary Committee and the justice agencies 

developed a five year strategic plan to reduce crime and enhance community safety, 

however, the plan will remain in paper form due to our lack of resources to implement it. 

Mr. Chairman, you cannot address law enforcement and criminal justice on reservations like ours without adequately addressing alcohol abuse. If a prosecutor or 

a judge has no adequate detoxification or treatment programs to refer a person to, 

they are left with two choices in a criminal case: send an alcoholic to jail to detox 

without medical support, or put them back on the street to be arrested again in a 

few days. It’s a no win situation. 

If you really want to see a difference in the testimony that you are receiving 

today, you need to work towards stable, reoccurring, long term tribal court funding 

from the BIA, which arrives, in some form, on October 1st of each year. Discretionary grants are appreciated, but they are never large enough to complete the task 

at hand, they never reach the program on time, and they often leave us with a huge 

mess when the funding dries up. Let me give you one example. Some years ago, we 

received discretionary funding for a micro fiche machine under a one year grant. We 

got very excited and we used this machine to film all of our old divorce, adoption, 

child placement and a variety of other court records. Then, the grant funding dried 

up, and our BIA funding was inadequate to maintain or replace the machine. Today, 

that machine is still broken, and it is so old that no one can obtain parts. This 

makes all of these old files unusable and we now in need new funding to retrieve 

and revert those files back to paper. This is a real problem for tribes. Because we 

lack the funding to keep up with the changing computer software acquired with 

these one year grants, we often find ourselves with disks and files that our new 

computers, when and if we ever get them, cannot open. Anyone who has a computer 

knows that you cannot upgrade from Word 1998 to Vista Word 2008 unless you 

have installed all of the software upgrade programs in between. 

Mr. Chairman, our courts have to operate 365 days a year, and I cannot shut 

down a case merely because a federal agency decided not to renew a discretionary 

grant or because it has no mechanism of getting the funding out to us at the beginning of the fiscal year. How can I plan a prosecution when I do not know what I 

will have to work with, and if I have no idea of if I will be able to hire and pay 

an expert witness at trial time, or what staff will be available to me on October 1st 

of each year. 

DOJ grants have also created some serious financial problems for the Tribe. 

Under those authorizing statutes, DOJ has traditionally been required to seek a 

match, and they have never paid indirect cost. Thus, the bottom line is that is usually costs the tribe 50 percent of what we receive just to operate one of those programs. DOJ’s inability to pay indirect cost is a real problem for poor tribes without 

large gaming incomes. Assume for a minute that we receive a DOJ grant of 

$200,000 and we have an indirect cost rate of 25 percent. That means that we need 

to come up with $50, 0000 in tribally funded indirect cost dollars, just to operate 

a program that we only applied for because we were broke. Now add a 10 percent 

or a 20 percent match on top of that and you can begin to see our dilemma. If we 

can’t pay that indirect cost out of our own tribal income, the Inspector General simply determines that we have over-recovered on indirect cost from that grant and 

lowers our indirect cost rate for every program that we operate at the next negotiation. 

You can solve a big problem for many of us and make these DOJ grants much 

more helpful and accessible by simply eliminating the DOJ match requirements altogether and requiring DOJ to pay negotiated indirect cost. The match waiver language in your bill is helpful, but why do we need to spend money to prove that we 

have no money. If the match and indirect cost problem is not solved, many tribes 

like Oglala will no long be able to apply for the DOJ grants that you are reauthorVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00114 Fmt 6601 Sfmt 6621 S:\DOCS\45126.TXT JACK PsN: JACKF
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izing because we will not have an indirect cost rate high enough to manage them. 

It’s just that simple! 

The timing of these discretionary grants is also a big problem. In December of 

2007, Congress awarded us a DOJ earmark for our Tribal Court system and we 

added some minor national increases in BIA law enforcement appropriations, but 

this is now July 2008—seven months later—and despite repeated promises, none of 

those dollars have actually reached us at Pine Ridge. I cannot speak about the BIA 

funding, but I can tell you that the delay in the release of the DOJ funding is not 

the fault of anyone at the DOJ COPS office. It is the nature of the discretionary 

grants and the irregular timing of Congressional appropriations. Unlike 638 contracts, which are funded at least in part, even when we have a continuing resolution, DOJ discretionary grants are generally shut down pending the passage of a 

final year long budget. 

Also, when and if some of the additional BIA law enforcement dollars that Congress appropriated do reach Pine Ridge for 2008; they will be used to put more law 

enforcement officers on the street. While this will be a great thing for our community, from our Tribal Court’s perspective it will merely increase our case load, and 

we have no new funds, at the Tribal Court level, to address the additional cases 

that these new officers will bring in. That is why we were gratified to see that your 

bill recognizes that on reservation law enforcement, courts, prosecutors, jails and 

tribal diversion programs all need to be funded in concert in order to address what 

we really face on a day to day basis. Increasing the manpower for law enforcement 

without increasing the funding for judges, prosecutors, probation officers and diversion programs will simple lead to the revolving door of justice that Americans and 

Pine Ridge Tribal members are already complaining about. 

OUR COURT BUILDING—No court which handles the kind of caseload that we 

face can operate properly in the building that we are housed in. Our Pine Ridge 

Tribal Court House is housed in an old un-renovated BIA building that was built 

in the 1800s. It has been condemned for years, yet the BIA has done nothing to 

solve the problem. As I described above, it has a leaky basement and leaky roof, 

exposed asbestos, air quality that is below anything close to OSAH requirements 

and no heat or air conditioning for the basement offices that it houses. It also has 

no storage space, wiring that is inadequate and in some cases dangerous to use because of the leaks. That wiring is also unable to handle modern equipment. In short, 

this building is making everyone who works there sick many days per year. This 

is the federally owned and federally funded building. This is the building we invite 

our people to come to for Justice! 

Over the last ten years, we have lobbied, begged, threatened and tried every other 

method that we can think of to attract the BIA and the DOJ’s attention to this 

building problem, but to no avail. The people we have been meeting with insist that 

they are powerless to help us unless the Congress decides to appropriate the required funds to build new tribal court buildings, because our building simply cannot 

be repaired. And, unlike tribes who are located closer to urban areas, we have no 

place else that we can move to. There are no suitable unoccupied buildings in Pine 

Ridge, nothing to rent nearby, and no money to move if we actually found one. 

Mr. Chairman, I would think that the Administration would be embarrassed by 

these facts, but they don’t seem to care. I am not singling out President Bush. These 

problems have been around for years, but they have clearly become worse in the 

last ten years because of the lack of attention. I know that this Committee and this 

Congress are facing some serious funding problems and a serious backlog in construction needs for tribal schools, hospitals, clinics, and jails, but I implore you not 

to leave tribal courts out of the mix when monies are finally handed out. 

We at the Oglala Sioux Tribal Court have recognized the financial problems facing 

the United States and for that reason, we have worked with our counterparts in Oglala Law Enforcement to support the construction of a new tribal department of justice building which could house our Tribal Court, Tribal Prosecutors, OST Law Enforcement and one of our tribal jails. This would be far cheaper than building three 

or four separate buildings, as it would make it unnecessary to bring utilities to 

three or four different sites, build multiply parking lots and construct multiple access roads. I, therefore, hope that in your new authorizing legislation you will allow 

for funding for multi purpose tribal justice buildings of this nature. It makes great 

sense programmatically and we believe it could lead to a big savings in total construction outlays, where a tribe has a need for a court, a jail and office space for 

its public safety related programs. 

Mr. Chairman, I have attached a serious of photo graphs which will help you understand what we are faced with a Pine Ridge and again thank you for taking on 

this very important problem. 

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PREPARED STATEMENT OF DONNETTE J. PATTERSON, ADMINISTRATOR, YANKTON

SIOUX TRIBAL COURT

Greetings Mr. Chairman and the Senate of Indian Affairs Committee: 

My name is Donnette J. Patterson and I am the Yankton Sioux Tribal Court Administrator, I have held this position since January 24, 2002. I find my job to be 

exciting and a great need for the people of my reservation. The Court helps people 

who have been victims of a crime, children who need support from the non-custodial 

parent, A & N (abused and neglected children) cases and people in need of a guardian or power of attorney. We are facing a serious need here on the Yankton Sioux 

Reservation, and that is funding, or lack thereof. 

We are in the old community building, which is approximately 35 years old and 

in need of a new roof, new plumbing, new heating and cooling and general contracting repairs. The Yankton Sioux Reservation is growing with jobs, housing and 

services offered on the reservation are becoming more and more scarce. The 

Yankton Sioux Tribal Court sees approximately 100 people in criminal court a 

month and 20 to 25 civil cases per month (ranging from child support, child custody, 

mental health hearings, divorces, adoptions, emergency custody and power of attorneys). 

We also have Juvenile Court only once a month and Jury Trials once a month 

due to lack of funding and personnel, to be held on a weekly basis. The court caseload is so overbooked and backlogged that we are approximately three weeks behind, where we should be in juvenile and civil matters. 

With the lack of funding the Yankton Sioux Tribal Court to date has court only 

2 days per week. The Court has one Chief Judge (2 days—1 civil and 1 criminal), 

one Prosecutor (1 day) and 1 Court Administrator/Clerk of Court (40 hour week). 

The Yankton Sioux Tribe has squeezed some funds to be able to have a Deputy 

Clerk of Court for the minimum wage $6.50 per hour. I do know of other court systems which have a Civil Judge, a Criminal Judge, Juvenile Judge and an Emergency Judge for after hour and weekend matters. Some of these courts also have 

a Court Administrator, Civil Clerk, Criminal Clerk, Head Clerk, Deputy Clerk of 

Courts, Juvenile Clerk, Process Servers, Bailiffs and Receptionist/Mail Clerk. 

With the Yankton Sioux Reservation, we have cases that get taken over by the 

Federal Bureau of Investigations on the more serious matters, the Charles Mix 

County Sheriff’s Office for matters with Native Americans within their jurisdiction 

and the Department of Criminal Investigations for the more serious matters within 

their jurisdiction of Native Americans. Not all of the cases the Yankton Sioux Tribal 

Police and Bureau of Indian Affairs Law Enforcement get brought into tribal court, 

due to lack of participation from witnesses and sometimes even the victim due to 

fear of retaliation, because of the small size of our reservation, everybody knows everybody and so on. There are also civil cases that do not get to see their day in court 

due to family and friends hiding out the Respondent, stating to police (who do our 

process service) that they do not know where ‘‘John Doe’’ is or where he is living 

or when he/she will be back. If we had a process server, I do believe that would 

solve some of our problems, just because some people are fearful of law enforcement 

for whatever their reasons are, do not like to talk or even cooperate with them. Lack 

of Law Enforcement is another issue; right now we have a Supervisory Lead Officer/ 

Acting Chief of Police and one BIA Law Enforcement Officer. On the Yankton Sioux 

Tribal Police Department we have 3 Police Officers and 2 Highway Safety Officers. 

They patrol our reservation, trying to keep the peace and protect the people of the 

Yankton Sioux Tribe. I know that if we had sufficient man power there would be 

a little less crime and violence on the Reservation. 

Old, outdated, and lack of computers, software, printers are also a big problem 

in the Yankton Sioux Tribal Court. We do not even have a backup plan in place 

for our records, if we were to have a fire, flood or natural disaster happen to the 

court building, all of the records (civil and criminal) would be a total loss. This 

would include adoption, marriage certificates, divorce decrees, child custody and 

support orders, power of attorney documents and all criminal matters. Our Tribal 

Court is in such a small space that we have to rent a place to store the documents 

and office supplies in and then comes the hassle of having to drive over there and 

go through all the boxes to find the sealed juvenile file, to find an old document 

from when this was a FRC Court. We do have some documents in our filing cabinets 

out there because they are a danger to Court Personnel as the drawers have to be 

hung on to so they do not fall on you while you are searching for a file. I have not 

been in very many state or federal courts that have old, dilapidated, dangerous office equipment, furniture or lack thereof these things. It is such a shame that we 

have to work in such conditions and with such equipment. I feel that we should be 

able to have the same equipment and furniture and funding that is found in WashVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00116 Fmt 6601 Sfmt 6621 S:\DOCS\45126.TXT JACK PsN: JACKF
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ington, DC as we are part of the government also. If we cannot have some of the 

same equipment, furniture or funding the Tribal Court would sure appreciate more 

funding than what is there now. This does not even begin the health and safety 

issues of the Court, with lack of heat in the winter, air conditioning in the summer, 

plumbing problems year round and mold and mildew due to the leaky roof. We have 

to learn to deal with: runny noses, itchy and watery eyes, sneezing and coughing 

all adding up to respiratory problems, and with the limitation of jobs here on the 

reservation, all that can be done is to see the doctor and get a quick fix for those 

health issues. Asbestos being present, because it is such an old building that it was 

never removed. 

The Yankton Sioux Tribal Court has not received an increase in the 638 Budget 

since I have been employed in January of 2002 and now Congress is talking about 

a decrease in the budget for the Tribal Court programs. The Yankton Sioux Tribe 

is aware of the introduction of your new law enforcement legislation and of the Senate’s recently passed increase in law enforcement funding authorizations. We realize 

your bill has positive attributes and can make differences on our reservation, we 

still caution our hopes, due to the actual funds implemented and delivered to the 

Yankton Sioux Tribe for Law Enforcement. The Authorizing Committee Members, 

that were set to task, have not seemed to be as experienced as other AC Members 

while fighting with the Appropriations and Administrative Budgeting processes. 

Due to the previous lack of program assistance from the Indian Tribal Justice Support and Technical Assistance Acts, we will patiently await for assistance, although 

with not a lot of excitement or anticipation, due to past broken promises for help 

with funding many different programs. We have a great need for a Jail/Detention 

Facility on the reservation also, and the funding from Indian Tribal Justice Support 

and Technical Assistance Acts would just be the place to start. We have the building 

partially completed, BUT due to lack of funding we cannot finish the building and 

therefore we do not have a place to house adult and juvenile offenders, they are released to the general public due to lack of space for housing. 

Mr. Chairman I feel that if a few members of Congress and the Senate were to 

come to the Yankton Sioux Reservation to see the need for funding for Tribal Courts 

and Law Enforcement they would realize that we are in dire need for more funding. 

The problem has been around for years and it does not seem to be going away it 

seems to be getting worse. If Congress could take some of the money that has been 

set aside for the war going on (instead of spending millions of dollars destroying a 

country and then millions of dollars rebuilding that country, not to mention the 

young men and women that have given their lives for their country) and offered a 

portion of that for Tribal Courts and Law Enforcement that would be a beginning 

in the healing process of the unfair treatment Native Americans received and are 

still receiving (lack of health care, lack of education, lack of housing, etc. . .). There 

has to be a solution out there and cutting and cutting of funds does not make it 

go away it makes it worse. I am not saying this to embarrass you or the Administration, I am trying to get you to realize it is not a perfect world out there, all is not 

well, nobody has everything and some have nothing. 

Our 638 funding has the basic funding that barely covers the needs of the 

Yankton Sioux Tribal Court and if we were to have an increase in crime, which is 

steadily happening, and a rush of people returning to live on the reservation, we 

might not have the man power in the Court and Law Enforcement to handle such 

an increase. The lack of funding is putting our Court Personnel and Law Enforcement in danger due to lack of man power. When Law Enforcement is not available 

for process service, either the Deputy Clerk or myself the Court Administrator do 

service, which has once proven to be dangerous (for me) and many times for Law 

Enforcement as we can only manage to have one officer per shift and on special occasions have two and they are then working 12 hour shifts. 

In closing Mr. Chairman the Tribal Courts and Law Enforcement do not shut 

down for holidays, for special occasions or for vacations. We work 24/7/365 because 

criminals forgot it’s a holiday, don’t know you are sick or on vacation. Abused and 

Neglected Children cannot help to be on schedule for a beating or such crime. We 

also realize that federal agencies did not renew grant applications due to technicalities or end of fiscal years and have to wait until October 1st of the each year. Indirect Costs also is determined from the grants and sometimes the rate of such can 

be negotiated, but ultimately so much money can be found for the 638 contracts due 

to irregular timing of the Congressional Appropriations Committee. Even with lobbying and begging Congress for additional funding there has not been a way to get 

the BIA and DOJ’s attention to see to this matter. I do hope that you can take the 

time to read the Testimony of the Yankton Sioux Tribal Court to see how we work 

on a daily basis in the dilapidated building with, plumbing problems, leaky roofs, 

shortage of storage cabinets, shortage of other office furniture and having to use a 

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* Response to written questions was not available at the time this hearing went to press. 

garage as the waiting area for Court. I would like to thank you for your time and 

concern in this matter. Any cooperation you can give in additional funding would 

be more appreciated than you can begin to realize. On behalf of a grateful nation 

on the Yankton Sioux Reservation, I thank you, again. 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO HON. JOHN ST. 

CLAIR * 

Question 1. Judge St. Clair, what effective alternatives to incarceration has your 

court system employed? 

Question 2. The Tribal Law and Order Act would permit Tribes to access criminal 

history databases. Does your court system have access to these databases? If not, 

what are the primary barriers? 

WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO HON. JOHN ST. 

CLAIR * 

Question 1. Your written testimony states that your court system cannot employ 

adult probation or sentence accountability officers due to lack of funding. What alternative measures is the court taking to ensure that offenders are complying with 

their sentencing or probation agreements? 

Question 2. The Committee has been informed that in many cases the BIA law 

enforcement officers and Indian Health Service professionals have been reluctant to 

testify in tribal court. How has your court been able to work with these federal employees in securing their testimony before your court? 

Question 3. How will the recent Supreme Court ruling in Plains Commerce Bank 

v. Long Family Land & Cattle affect the cases pending before your courts or the 

ability of tribal members to seek relief against non-Indian parties? 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO DORMA L. 

SAHNEYAH * 

Question 1. Ms. Sahneyah, your written testimony discussed ‘‘restorative justice’’ 

as an alternative to incarceration. You also discussed the significant unmet needs 

to employ such as system. Can you provide us with more details about the use of 

restorative justice in your court system? What is needed to make the system work? 

Question 2. We hear from other tribal prosecutors about the inconsistent coordination or communication from the U.S. Attorneys offices. Some tribal prosecutors have 

to wait a number of months, and some more than a year to receive information on 

a case that is eventually declined. What has been your experience as a prosecutor? 

Does the Law and Order bill address the issue, or should more be done? 

Question 3. The Tribal Law and Order Act would permit Tribes to access criminal 

history databases. Does your court system have access to these databases? If not, 

what are the primary barriers? 

WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO DORMA L. 

SAHNEYAH * 

Question 1. The Violence Against Women Act requires the full faith & credit recognition of tribal court protection orders. What has been your tribe’s experience with 

this full faith & credit requirement? 

Question 2. The lack of detention facilities affects tribal judges’ ability to sentence 

offenders. How has the lack of detention facilities affected the exercise of your prosecutorial discretion? 

Question 3. How will the recent Supreme Court ruling in Plains Commerce Bank 

v. Long Family Land & Cattle affect the cases pending before your courts or the 

ability of tribal members to seek relief against non-Indian parties? 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO HON. THERESA M. 

POULEY * 

Question 1. Judge Pouley, I am a supporter of drug courts both in and out of Indian country. Can you provide us with more on your Healing to Wellness Court, and 

if possible share any information on your recidivism rates? 

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* Response to written questions was not available at the time this hearing went to press. 

Question 2. Incarceration may be a necessary punishment for violent offenders, 

but may not be an option available to tribal judges in imposing sentences for any 

number of reasons, including the lack of space. What effective alternatives to incarceration have you employed? Have these alternatives been successful in reducing recidivism and rehabilitating offenders? 

Question 3. Your written statement mentioned that offenders can appeal their 

convictions in Federal district court. Do you believe that process adequately protects 

the constitutional rights of defendants that go before tribal courts? 

Question 4. The Tribal Law and Order Act would permit Tribes to access criminal 

history databases. Does your court system have access to these databases? If not, 

what are the primary barriers? 

WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO HON. THERESA M. 

POULEY * 

Question 1. Your written testimony states that Congress has a role in authorizing 

an expansion of tribal government taxing authority to raise revenues for tribal justice systems. Can you elaborate on what manner the tribal government authority 

should be expanded? 

Question 2. Your written testimony states that your drug court has received an 

award for excellence in addressing the combined problems of substance abuse and 

crime in the criminal justice system. Can you elaborate on some of the successes 

your drug court has experienced in addressing these problems? 

Question 3. How will the recent Supreme Court ruling in Plains Commerce Bank 

v. Long Family Land & Cattle affect the cases pending before your courts or the 

ability of tribal members to seek relief against non-Indian parties? 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO HON. JOSEPH

THOMAS FLIES-AWAY * 

Question 1. Judge Flies-Away, you made significant points about the need for 

greater cooperation, and the lack of it that you have experienced in dealing with 

the IHS and the BIA. The Tribal Law and Order Act seeks to increase cooperation, 

consultation, and transparency in federal law enforcement. Specifically, Section 603 

would force the hand of cooperation by requiring federal officials to testify in tribal 

court. The bill also requires the United States to notify and register with tribal 

courts and law enforcement officials prior to releasing sex offenders. How do you 

think those provisions in S. 3320 could be strengthened? 

Question 2. Incarceration may be a necessary punishment for violent offenders, 

but may not be an option available to tribal judges in imposing sentences for any 

number of reasons, including the lack of space. What effective alternatives to incarceration have you employed? Have these alternatives been successful in reducing recidivism and rehabilitating offenders? 

Question 3. Regarding juvenile offenders, does your court system have a separate 

juvenile court? If so, can you provide some details on that part of your court system? 

Question 4. The Tribal Law and Order Act would permit Tribes to access criminal 

history databases. Does your court system have access to these databases? If not, 

what are the primary barriers? 

WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO HON. JOSEPH

THOMAS FLIES-AWAY * 

Question 1. Your written testimony mentioned that with further development and 

funding, tribal courts will provide the same necessary components and legal procedures as any state or federal court. In so doing, business entities may become more 

comfortable with tribal courts, laws and processes, particularly for commercial enterprises and economic development. What types of tribal laws and processes has 

your tribe developed to support economic development on your reservation? 

Question 2. How will the recent Supreme Court ruling in Plains Commerce Bank 

v. Long Family Land & Cattle affect the cases pending before your courts or the 

ability of tribal members to seek relief against non-Indian parties? 

116 

* Response to written questions was not available at the time this hearing went to press. 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO HON. ROMAN J. 

DURAN * 

Question 1. Incarceration may be a necessary punishment for violent offenders, 

but may not be an option available to tribal judges in imposing sentences for any 

number of reasons, including the lack of space. What effective alternatives to incarceration have you employed? Have these alternatives been successful in reducing recidivism and rehabilitating offenders? 

Question 2. The Tribal Law and Order Act would permit Tribes to access criminal 

history databases. However, there may be some infrastructure needs that will prevent full access. Does NAICJA have an indication of how many tribal court systems 

have access to such databases? Of the Tribes that do not have access, what are the 

primary barriers? 

Question 3. You described the complete failure in funding for the Tribal Justice 

Support Act. From the National perspective, what is the most vital need for tribal 

court systems to succeed? 

Question 4. What type of technical assistance are the BIA and Justice Department 

providing to help train tribal judicial personnel, and develop tribal codes? 

WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO HON. ROMAN J. 

DURAN * 

Question 1. Can you elaborate on the types of due process protections that tribal 

courts afford to defendants under current law? 

Question 2. The Violence Against Women Act mandated full faith & credit be extended to tribal court protection orders. In general, what kind of full faith & credit 

recognition has been extended to these tribal court orders? 

Question 3. How will the recent Supreme Court ruling in Plains Commerce Bank 

v. Long Family Land & Cattle affect the cases pending before your courts or tribal 

members’ ability to seek relief against non-Indian parties? 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO HON. W. PATRICK

RAGSDALE * 

Question 1. Please provide the Committee with copies of the 40 tribal court reviews that the Tribal Justice Support Division has completed. 

Question 2. As you know, section 304 of S. 3320, the Tribal Law and Order Act 

of 2008, would authorize tribal courts to sentence offenders up to 3 years in jail. 

Tribes must provide a public defender to exercise the additional authority. In addition, defendants may seek habeas review in federal court of their detention or conviction. Your previous testimony indicated that the Department had constitutional 

concerns with this provision. Can you please expand on those concerns? 

Question 3. A number of Tribes in the Great Plains other areas of Indian Country 

rely on the BIA to provide direct law enforcement services. BIA police enforce federal laws, but it’s equally important that they enforce violations of tribal law. Tribal 

courts rely on the BIA’s work to afford basic due process, and the right to confront 

witnesses to defendants before their courts. What is the Department’s policy on BIA 

police testifying in tribal court? Will BIA police respond to a subpoena or order to 

appear to testify issued by a tribal court? 

Question 4. In Fiscal Year 2008, Congress appropriated $23.7 million for the Secretary’s Safe Indian Communities Initiative. The President asked for an additional 

$26 million in Fiscal Year 2009. Please provide the Committee with a spending report to date in FY 2008, and a plan for the remainder of FY 2008 with regard to 

the Department’s use of FY 2008 funding for the Safe Indian Communities Initiative. 

WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO HON. W. PATRICK

RAGSDALE * 

Question 1. The biggest challenge for tribal courts appears to be the lack of funding. The lack of comprehensive data on unmet needs seems to frustrate the problem. 

How can the BIA coordinate with both the Department of Justice and Indian tribes 

to secure solid data supporting adequate funding levels? 

Question 2. The Tribal Law and Order Act of 2008 would expand tribal sentencing 

authority from one year to three years for incarceration. Would the increased senVerDate Aug 31 2005 08:19 Nov 04, 2008 Jkt 045126 PO 00000 Frm 00120 Fmt 6601 Sfmt 6621 S:\DOCS\45126.TXT JACK PsN: JACKF
117 

tencing authority affect the BIA detention facilities or staffing levels of the BIA corrections officers? 

Question 3. Would incarcerating offenders convicted in tribal courts into the Federal Bureau of Prisons system provide some relief to the BIA detention facilities? 

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