Border Security: Partnership Agreements and Enhanced Oversight Could Strengthen Coordination of Efforts on Indian Reservations
Released: 2013-04-05T00:00:00

Letter

Background

The federal government recognizes Indian tribes as distinct, independent political communities with inherent powers of self-government that include enacting substantive law over internal matters and enforcing that law in their own forums. The United States has a trust responsibility to federally recognized Indian tribes and maintains a government-to- government relationship with those tribes. The Bureau of Indian Affairs (BIA) within DOI provides law enforcement on Indian reservations unless tribes opt to assume responsibility for law enforcement or the state in which the reservation is located has criminal jurisdiction. Federal crimes such as illegally crossing the border or drug smuggling across the border fall under the authority of federal law enforcement whether they occur on Indian reservations or not. However, tribal law enforcement generally has the authority to arrest offenders on Indian reservations and detain them until they can be turned over to the proper authorities, even if the tribe itself lacks criminal jurisdiction. Further, tribal law enforcement officers can be cross-deputized to enforce federal laws. For example, ICE designated a tribal law enforcement officer with customs authority and this officer provides intelligence to ICE and assists with ICE investigations.

DHS and its components have established a number of different offices to assist with facilitating tribal coordination on all homeland security issues, including border security. As shown in table 1, these components and offices have a variety of roles in supporting border security efforts on Indian reservations. Fusion centers, while not DHS components or offices, also support border security on Indian reservations by providing information to tribes.

DHS and its components also have strategies, as shown in table 2, that help facilitate coordination between DHS and tribes to address border security on Indian reservations.

DHS Is Coordinating with Tribes on Border Security, but Could Strengthen Efforts by Establishing Agreements and Oversight

DHS and Tribes Use a Variety of Methods to Coordinate on Border Security and Report Positive Aspects of This Coordination

The Border Patrol is coordinating and sharing information with tribes in a number of ways to address border security issues. The Border Patrol and six tribes reported using one or more of the following coordination methods: Operation Stonegarden—a DHS grant program intended to enhance coordination among local, tribal, territorial, state, and federal law enforcement agencies in securing United States borders—task forces such as BESTs and IBETs, fusion centers, tribal and public land liaisons, and joint operations and shared facilities to coordinate on border security. Border Patrol and tribal officials report that they share border security–related information through the BEST and IBET forums, and tribal officials reported receiving border security–related information from fusion centers. In addition, according to Border Patrol and tribal officials, the Border Patrol uses tribal or public lands liaisons to coordinate with tribes on border security. Another way Border Patrol and tribal officials said they coordinate on these issues is by tribal law enforcement using Operation Stonegarden funds to support daily coordination with the Border Patrol, including participating in joint patrols with the Border Patrol. In addition to these methods, the Border Patrol and tribes reported using joint operations, such as patrolling together in the same vehicles and using shared facilities, to coordinate on border security. Table 3 contains more detailed information regarding these coordination methods.

In addition to these mechanisms, tribal and Border Patrol officials reported using other coordination methods, such as agent-to-tribal police officer interaction, meetings, and e-mails to coordinate on border security. For instance, although officials from two of the tribes in our review said their tribes do not use any of the coordination methods described in table 3, both tribes reported using meetings to coordinate as the need arises with the Border Patrol on border security issues. Officials from six of the eight tribes and 4 of the 10 Border Patrol stations we contacted reported that these methods of contact are the most beneficial for coordinating on border security. Officials from one tribe in our review reported that the timely sharing of information via e-mail is the tribe’s most important coordination mechanism with federal agencies. Officials from another tribe explained that leadership from the responsible Border Patrol Sector regularly calls the tribal chairman to discuss border security issues, as well as holding frequent meetings. Officials from four of the eight tribes and 4 of the 10 stations we interviewed also reported that they communicate daily with each other.

Officials from some of the tribes and Border Patrol sectors and stations we contacted reported positive aspects of coordinating to address border security issues. Specifically, officials from five of the eight tribes we contacted reported having a good or effective relationship with the Border Patrol. In particular, officials from two of the tribes we reviewed, as well as the corresponding Border Patrol sectors and stations, reported that there are positive aspects of DHS’s overall coordination with the tribes to address border security threats. For example, officials from one of the tribes explained that tribal law enforcement officers have a good working relationship with the Border Patrol and that the Border Patrol is the best federal agency they have worked with in terms of coordinating with the tribe. Tribal officials cautioned that while the tribe has a good relationship with the Border Patrol, the majority of tribal community members do not want any Border Patrol presence on the reservation and that the tribal community is very mistrusting of nontribal entities, including law enforcement agencies. Border Patrol sector officials—who staff the sector responsible for border security on one of the two reservations—stated that in addition to productive monthly Border Patrol–tribal leadership meetings and daily interaction between Border Patrol agents and tribal law enforcement, the Border Patrol was the first federal law enforcement agency invited to speak at tribal schools and community meetings.

Officials from one of the tribes in our review also reported that DHS and the Border Patrol at both the national and local levels are more sensitive to tribal concerns now than in the past and that the Border Patrol is willing to work with tribal law enforcement in sharing intelligence and keeping the lines of communication open. For instance, tribal officials explained that they have quarterly meetings with the Border Patrol sector during which the Border Patrol shares existing and future border security strategies with the tribe, including the decision of whether to deploy surveillance towers on the reservation. As a result of this interaction, the tribe, according to tribal officials, feels involved in the decision to potentially install towers on the reservation to help monitor and better secure the border. In the past, these types of decisions would have occurred without consulting the tribe, according to tribal officials. Border Patrol sector officials—who staff the sector responsible for border security on the Indian reservation—stated that the sector has never enjoyed a better level of communication or mutual understanding with the tribe and much of this can be attributed to the level of coordination with the tribe, particularly the regular meetings held between Border Patrol agents and tribal officials.

Government-to- Government Agreements Could Assist DHS and Tribes with Improving Their Border Security Partnerships

Although Border Patrol and tribal officials reported positive aspects of coordination, officials from seven of the eight tribes we contacted reported coordination challenges related to border security. According to tribal officials, the Border Patrol does not consistently communicate to the tribes information that would be useful in tribal law enforcement efforts to assist in securing the border. Specifically, officials from five of the eight tribes we reviewed reported coordination challenges related to not receiving notification and information from federal agencies, including the Border Patrol, regarding federal law enforcement activity on their respective reservations. The following examples illustrate these coordination challenges.

Officials from one of the tribes in our review reported that they are not given advance notification of Border Patrol law enforcement actions, such as independently patrolling the reservation or the deployment of undercover surveillance teams, occurring on their reservation. These officials reported that they would be in a better position to support federal agencies with border security efforts if they received information regarding planned federal law enforcement actions in a more timely manner. Border Patrol officials from the sector stated that the Border Patrol notifies tribal law enforcement of its own operations, as well as joint operations, which often involve tribal law enforcement, on the reservation. However, the Border Patrol does not provide detailed information on its patrol schedule and dates and times of operations, among other enforcement activities, to non-law- enforcement entities.

A tribal official from another Indian reservation stated that there are numerous law enforcement agencies with different enforcement objectives working on the reservation and that there have been a few instances in which a tribal law enforcement unit and another federal agency were tracking the same suspects unaware of each other’s presence. These situations, according to tribal officials, were problematic because the agencies were concerned that the overall operation would fail because of the lack of notification by each agency of its respective operations. Although a Border Patrol official with border security responsibilities on this Indian reservation was not aware of the Border Patrol being involved in such incidents, according to tribal officials, when tribal officials and the Border Patrol work together, they can complement each other and act as force multipliers by utilizing their respective resources. We have previously reported on the importance of deconfliction and coordinating to prevent law enforcement entities from unknowingly interrupting each other or duplicating each other’s efforts. Moreover, CBP reports that in some areas along the border, surveillance and response capabilities are limited, so the success of its border security initiatives depends on leveraging intelligence and partnerships with federal, state, local, and tribal governments.

Officials from a third tribe in our review reported that although the tribe provides information to federal agencies, these agencies do not consistently provide information, particularly information related to tribal members, to the tribe. For instance, in 2009, Border Patrol and a county sheriff’s deputy responded to an incident involving two individuals who tried to illegally cross the border on tribal lands. Although the tribe was conducting operations in the area and could have responded to this incident, tribal officials stated that they did not receive information about the illegal crossing from the Border Patrol. Border Patrol officials from the sector with responsibility for this Indian reservation were not able to confirm Border Patrol involvement in this incident.

Further, according to Border Patrol officials, in some cases, coordination challenges with tribes have affected the Border Patrol’s ability to patrol and monitor the border so as to prevent and detect illegal immigration and smuggling. Border Patrol officials from three of the seven Border Patrol sectors and 5 of the 10 stations we contacted reported coordination challenges related to understanding and collaborating with tribes within tribal government rules. Specifically, officials from two sectors that include Indian reservations and corresponding stations reported coordination challenges related to tribal government rules that hindered law enforcement in working together to secure the border.

Border Patrol officials from one of the sectors with border security responsibilities on an Indian reservation in our review stated that the reservation faces border threats and is vulnerable, in part, because the Border Patrol cannot patrol as frequently as it would like to on the reservation. The Border Patrol is limited, because of tribal decisions, in the type of border security enforcement, particularly the implementation of visible countermeasures, such as mobile surveillance systems or integrated fixed towers, it can implement on the reservation, according to these Border Patrol officials. Further, these Border Patrol officials stated that some tribal members are opposed to the Border Patrol’s presence on the reservation, which, because of the potential for volatile protests by these tribal members, impedes the Border Patrol’s ability to patrol certain areas of the reservation, including a road in a major smuggling area. As a result of these issues, Border Patrol officials reported that the Border Patrol cannot apply all of its capabilities, particularly technology, to address border security threats and vulnerabilities on the reservation. Tribal officials from this Indian reservation stated that although the Border Patrol is not permitted to implement border security technologies on the reservation because of tribal community preferences, the Border Patrol is able to implement technologies and checkpoints just off of the reservation. Border Patrol headquarters officials stated that the implementation of these countermeasures off of instead of on the reservation adjacent to the border hampers the Border Patrol’s ability to secure the border.

Border Patrol officials from a sector with an Indian reservation reported that the tribe has negotiated with the Border Patrol via its tribal resolution process and other means to limit the tactical infrastructure the Border Patrol sector uses to support the border security mission on the reservation. For example, the Border Patrol is limited in the deployment of tactical checkpoints and must negotiate regarding the deployment location of vehicle-mounted radar systems.mounted radar system had to be moved to a tactically less According to the Border Patrol, in one case, a vehicle- advantageous position because of tribal concerns over its location on a sacred mountain.

According to the Border Patrol, the tribal resolution process for gaining approval from the tribe to implement border security countermeasures is difficult to navigate, which significantly affects the Border Patrol’s ability to quickly respond to threats, and reduces the Border Patrol’s presence on the border. The tribal resolution process, according to Border Patrol officials, includes several steps for soliciting feedback and approval for all proposed Border Patrol actions from all of the tribe’s districts and communities. Border Patrol sector and station officials expressed concerns about individual community members, including those possibly involved in cross-border crime, being able to prevent passage of the resolution. These officials also stated that the tribe has changed the approval process without communicating these changes to the Border Patrol, which makes it difficult for the Border Patrol to adapt to the changes for both new projects and projects already under consideration by the tribe.

Tribal officials stated that the Border Patrol established temporary camps on its own initiative without gaining approval from the tribal real estate office, so the tribal officials had the Border Patrol remove the However, these officials acknowledged that the resolution camps.process is lengthy and can be tedious for Border Patrol officials, particularly since the Border Patrol has deadlines it must meet to receive funding for projects. They also recognized that some of the tribal districts were not familiar with the steps required by the resolution process. As a result, tribal officials have established a tribal committee to ensure the districts and the Border Patrol better understand the approval process.

Given these coordination challenges, written agreements between the Border Patrol and tribes could provide a mechanism to help resolve coordination issues, such as the tribes’ lack of notification and information from federal agencies regarding law enforcement activity on their reservations, when they emerge. We have previously reported on practices that can enhance and sustain effective collaboration, such as establishing common standards, policies, or procedures to use in collaborative efforts and the development of written agreements to document collaboration. We reported that as agencies bring diverse cultures to the collaborative effort, it is important to address these differences to enable a cohesive working relationship and to create the mutual trust required to enhance and sustain the collaborative effort. Regarding the use of written agreements to document collaborative efforts, we have reported on the utility and benefits of written government- to-government agreements between U.S. government agencies and foreign governments or other sovereign entities to improve cooperation.These agreements, in part, provide a legal framework for improving partnerships, facilitate information exchange, define tasks to be accomplished by each entity, and establish written assurances of each entity’s commitments. A government-to-government agreement could help DHS and tribal governments to come together as partners to establish complementary goals and strategies for achieving shared results in securing the border on tribal lands.

Border Patrol headquarters officials reported that they have considered the potential utility and benefits of written government-to-government agreements with individual tribes to address border security challenges. In addition, DHS has entered into memorandums of agreements (MOA) with individual tribes on other security-related issues, which have benefited DHS and the tribes. For example, DHS entered into MOAs with individual tribes regarding the implementation of the Enhanced Tribal Card, which is a DHS program that allows all federally recognized tribes to work with CBP to produce a card denoting citizenship and identity that can be accepted for entry at the POEs. A DHS official from CBP’s Land Border Integration Project Management Office responsible for negotiating these MOAs with the tribes reported that the MOAs were designed to protect tribal sovereignty, as well as describe the steps the tribes must take to produce a card. These MOAs, according to this official, are binding and protect both the tribes and CBP from expending resources on developing the card without assurances that the card will meet the requirements of the program.

Both Border Patrol and tribal officials reported that a written government- to-government agreement could benefit their border security coordination. Border Patrol sector officials responsible for border security on one of the reservations stated that the establishment of such an agreement explicitly describing the steps required to obtain approval for Border Patrol actions, including the tribe’s resolution process and mechanisms for notifying the Border Patrol when changes are made to the process or approval requirements, could help resolve challenges for the Border Patrol in coordinating with the tribe. Tribal officials also reported that a government-to-government agreement could assist with resolving remaining coordination challenges by supporting overall coordination and ensuring that coordination processes are followed. Officials from another tribe in our review stated that they would also be receptive to an agreement that shows respect for the tribe and its practices, is developed with tribal participation, and involves senior DHS officials with negotiating capabilities. Border Patrol sector officials with responsibility for another of the reservations in our review stated that they considered pursuing an agreement with the tribe, but decided instead to actively engage tribal council officials, law enforcement officers, and community members in resolving issues, a course of action that has, according to Border Patrol officials, been effective in gaining the support of tribal leadership and law enforcement. The Border Patrol sector officials noted, though, that if agreements with tribal officials were pursued, senior DHS officials would need to be involved in the negotiation of any government-to-government agreements because tribal leadership officials do not view the Border Patrol, as a law enforcement agency, as the appropriate federal government representative for negotiating these types of agreements. Officials from both of these tribes emphasized the importance of tribal sovereignty and the need for the federal government to interact with tribes on a government-to-government basis. An assessment of the utility of written, government-to-government agreements between DHS and individual tribal governments to address and mitigate specific coordination challenges, particularly for tribes facing border security threats, could help DHS build on its tribal partnerships. Further, agreements that are tailored to help resolve specific challenges, such as not receiving notification and information from federal agencies regarding federal law enforcement activity on the tribes’ respective reservations could bring greater transparency to tribal government rules for the Border Patrol. Utilizing written agreements to help ensure the partners are working together to secure the borders could better position the Border Patrol and tribes to address their coordination challenges.

Establishment of an Oversight Mechanism Could Enhance DHS’s Border Security Coordination with Tribes

DHS IGA and Tribal Desk officials reported that they have taken various actions to coordinate with tribes on a range of homeland security–related issues, including border security. For instance, DHS components, including the Border Patrol, have tribal liaisons who manage their components’ tribal outreach efforts. The Tribal Desk, which is responsible for coordinating tribal consultation and outreach with the component liaisons, holds monthly teleconferences with these liaisons to discuss tribal issues and programs, according to IGA and Tribal Desk officials. DHS also has a Tribal Consultation Policy that outlines the guiding principles under which DHS engages with the tribal governments. DHS, according to DHS IGA and Tribal Desk officials, disseminated this policy to all federally recognized tribes and presented the policy at national tribal conferences. DHS’s Tribal Desk, according to DHS IGA and Tribal Desk officials, is working with the tribes daily to address tribal issues and improve its tribal partnerships. However, DHS IGA and Tribal Desk officials reported that the Tribal Desk does not have oversight of the components’ tribal outreach efforts, including border security coordination, because their role is one of a coordination mechanism. The Tribal Desk is aware of the components’ outreach to the tribes, but it does not have the authority to track the effectiveness of such outreach to determine if the outreach is occurring and if any changes to outreach efforts are needed. According to DHS IGA and Tribal Desk officials, each component, including CBP, is responsible for conducting its own tribal outreach and is only required to report to the leadership of its respective components and is not required to report to the Tribal Desk on its coordination efforts. As a result, there is no department-wide oversight mechanism for ensuring the effectiveness of components’ border security coordination with the tribes.

According to Standards for Internal Control in the Federal Government, controls should generally be designed to ensure that ongoing monitoring occurs in the course of normal operations and assesses the quality of performance over time. Such monitoring should be performed continually; ingrained in the agency’s operations; and clearly documented in directives, policies, or manuals to help ensure operations are carried out as intended. We have also previously reported that federal agencies can enhance and sustain collaborative efforts by, in part, developing oversight mechanisms—or mechanisms to monitor and evaluate their results—to identify areas for improvement. Oversight mechanisms can assist with reinforcing agency accountability for its collaborative efforts.

DHS, in accordance with a 2009 Presidential Memorandum on tribal consultation, developed an Action Plan and corresponding Progress Report in 2010 that described various action items designed to establish regular and meaningful collaboration with tribal officials, and to monitor at the department level tribal partnerships to protect the safety and security of all people on tribal lands and throughout the nation. The 2009 memorandum requires all federal agencies to submit to OMB a detailed action plan of the steps the agency will take to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications. As DHS was formulating the Action Plan, tribes recommended, among other things, that DHS develop accountability and tracking mechanisms to ensure that the agency is responding to issues that are raised through tribal consultation. The Action Plan and its 2010 Progress Report call for the implementation of various action items designed to monitor and oversee DHS’s tribal coordination efforts at the department level, including appointing a Senior Advisor for tribal affairs to provide policy advice and leadership on tribal issues and determining the feasibility and usefulness of establishing an internal leadership advisory council on tribal affairs. According to the Action Plan, this intra-agency council, staffed by DHS IGA and composed of officials from the department and components, would provide ongoing advice to the Secretary of Homeland Security on issues and policies that affect tribes, including border security, as well as bringing together DHS leadership from across the department’s divisions and components to ensure consistency on policies affecting tribes. According to DHS officials, while DHS took steps to hire a Senior Advisor, the position was ultimately not sustainable because of staff turnover and a lack of funding for the position. DHS officials further noted that the position of Director of Tribal Affairs within the Intergovernmental Affairs office was established to help fulfill this role. Additionally, DHS officials reported that they did not establish an advisory council because of personnel limitations, among other issues. The implementation of such action items, or another oversight and monitoring mechanism, could better position DHS to assess the effectiveness of partnerships with tribes at the department level.

We have identified coordination challenges related to border security since the establishment of the Action Plan by DHS. For example, officials from seven of the eight tribes we contacted reported coordination challenges related to border security, such as the Border Patrol’s lack of consistent communication of border security–related information with the tribes. As DHS was developing its Action Plan, it received feedback from tribes regarding the need to establish accountability and tracking mechanisms to ensure that DHS is responding to issues raised by tribes. For example, in summarizing feedback received from tribes, DHS noted in the Action Plan that tribal leaders expressed frustration regarding the expenditure of significant time and resources engaging with a federal agency only to see very little response or consideration of tribal recommendations. However, DHS does not have a mechanism to monitor and provide accountability for coordination efforts, as suggested by the tribes and the Action Plan, to position DHS to, for example, identify departmental and component coordination successes as well as areas needing improvement, including addressing coordination challenges that have remained since DHS obtained feedback from tribes in developing the plan. An oversight mechanism, such as one or more of those identified in DHS’s Action Plan, could help identify and address these coordination challenges as well as determine which coordination efforts work well. Further, such a mechanism could help DHS enhance its awareness of and accountability for components’ border security coordination efforts with the tribes and better look across the department to determine the progress being made and the improvements needed to more effectively coordinate border security with the tribes.

Conclusions

The nature and complexity of Indian reservations on or near the border, along with the vulnerabilities and threats they face, highlight the importance of DHS and tribes working together to enhance border security. The Border Patrol, in particular, is coordinating and sharing information with tribes in a variety of ways to address border security on Indian reservations. However, these coordination efforts could be strengthened. Government-to-government agreements with tribes to address specific challenges, such as federal agency notification to tribes of law enforcement actions occurring on the reservation, that have emerged between the Border Patrol and individual tribes could help better position the Border Patrol and the tribes to resolve their coordination challenges and better work together to secure the border. Further, DHS does not have a mechanism to monitor and provide oversight for its tribal coordination efforts—including border security—that would allow the agency to hold components accountable for effective coordination and, as a result, is not well positioned to identify areas of coordination needing improvement. We have reported on the importance of monitoring and oversight for sustaining and enhancing collaboration, and DHS’s Action Plan contains action items designed, in part, to assist with its monitoring and oversight of its tribal partnerships. A monitoring and oversight mechanism could yield additional information and insights on the effectiveness of DHS’s coordination with tribes, as well as help reinforce accountability when coordinating to address border security issues.

Recommendations for Executive Action

To enhance DHS-tribal coordination on border security on Indian reservations, including DHS’s monitoring and oversight of these coordination efforts, we recommend that the Secretary of Homeland Security take the following two actions: examine, or direct CBP to examine, as appropriate, the potential benefits of government-to-government written agreements with tribes facing border security threats, and develop and implement a mechanism to monitor DHS’s department- wide border security coordination efforts with tribes.

Agency Comments and Our Evaluation

We provided a draft of this report to DHS, DOJ and DOI for comment. We received written comments from DHS on the draft report, which are summarized below and reproduced in full in appendix I. DHS concurred with both recommendations. DOJ and DOI did not provide written comments to include in this report. DOJ provided technical comments via an e-mail received on December 7, 2012, which we incorporated as appropriate. DOI provided oral technical comments on December 7, 2012, which we incorporated as appropriate.

Regarding the first recommendation, that DHS examine or direct CBP to examine, as appropriate, the potential benefits of government-to- government written agreements with tribes facing border security threats, DHS concurred. DHS stated that more formalized government-to- government agreements between CBP and tribal nations should be developed for substantive issues. DHS further noted that written agreements, subject to legal review prior to signature, will memorialize both the issues and solutions. DHS stated that the DHS Intergovernmental Affairs office will work with CBP in the coming year to determine how the recommendation can be implemented. We will continue to monitor DHS’s efforts.

Regarding the second recommendation, that DHS develop and implement a mechanism to monitor DHS’s department-wide border security coordination with tribes, DHS concurred. DHS agreed that developing an agency-wide program could further enhance the interests of the tribes and the department for border security and many other programs. DHS stated that, in consultation with tribes, it will convene an internal group to discuss the feasibility of establishing a permanent program or an intra-agency oversight committee to address border security and other issues related to interaction and program delivery with tribes. This action, if implemented effectively, should address the intent of the recommendation.

If you or your staff have any questions about this report, please contact me at (202) 512-8777 or gamblerr@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors to this report are listed in appendix II.

Appendix II: GAO Contact and Staff Acknowledgments

GAO Contact

Rebecca Gambler, (202) 512-8777 or gamblerr@gao.gov In addition to the contact named above, Dawn Locke (Assistant Director), David Alexander, Frances Cook, Kevin Copping, Corey Guilmette, Eric Hauswirth, Linda Miller, John Mingus, Robin Nye, Jessica Orr, and Jerry Sandau made key contributions to this report.