2003 Legislative Alert Re: Tribal Jurisdiction:

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STATEMENT OF THOMAS B. HEFFELFINGER

UNITED STATES ATTORNEY FOR THE DISTRICT OF MINNESOTA

BEFORE THE

UNITED STATES SENATE COMMITTEE ON INDIAN AFFAIRS

The Tribal Government Amendments to

the Homeland Security Act of 2002

July 30, 2003

Mr. Chairman, Mr. Vice-Chairman and members of the Committee, my name is Thomas B. Heffelfinger. I am the United States Attorney for the District of Minnesota. I am also the Chairman of the Attorney General Advisory Committee's Native American Issues Subcommittee. The membership of the Native American Issues Subcommittee (NAIS) consists of U.S. Attorneys from across the United States who have significant amounts of Indian country in their districts. The purpose of this body is to develop policies for consideration and approval by the Attorney General pertaining to the establishment and development of effective law enforcement in Indian country. In May of last year, with the Attorney General's agreement, the Native American Issues Subcommittee decided that its top priority in Indian country law enforcement would be addressing terrorism. The NAIS feels that it is important that the United States include Indian country when considering how to protect our nation's borders and critical infrastructure.

The Department of Homeland Security Provisions.

Since September 11, 2001, homeland security has become an area of primary concern for all Americans, including the first Americans who have populated these lands since time immemorial. In October 2002, the National Native American Law Enforcement Association (NNALEA) held a Tribal Lands Homeland Security Summit in Reno, Nevada. I had the privilege of being there to address the Summit and to hear Native American law enforcement officials from throughout the U.S. discuss their thoughts on homeland security in the post 9-11 world. To memorialize the findings and recommendations that resulted from that historic meeting, the NNALEA published a comprehensive Tribal Lands Homeland Security Report. According to this report there are a number of tribes that have land on or near our international borders and shorelines with either Canada or Mexico; these lands comprise a significant amount of our nation's border (1). In addition, there are countless potential terrorist targets within Indian country that represent part of our nation's critical infrastructure. Such critical infrastructure in Indian country includes: dams, oil & gas fields, oil & gas pipelines, railroads, interstate highways, communication facilities, tourist attractions, mines, hydroelectric power generation and power transmission facilities. (2) Due to international borders and critical infrastructure present in Indian country, it is imperative to our national homeland security strategy to include tribes in the planning and provision of services relative to homeland security.

The Homeland Security Act of 2002 defines tribes as "local governments" along with cities and counties organized under state law. U.S. Supreme Court precedent treats tribes as separate sovereign governments. Administration policy affords tribes sovereign status, in accordance with this precedent (3). This unique status has been described by the Supreme Court as "domestic dependent nation" status (4). Tribal governments use their inherent governing authority to provide for public safety in Indian country. On a wide variety of public safety and criminal issues the federal government consistently works directly with the tribes on a government-to-government basis. On November 12, 2001, President George W. Bush stated, "My administration will continue to work with tribal governments on a sovereign-to-sovereign basis. . ."(5) Working directly with the tribes to assist them in obtaining necessary public safety resources and training and to conduct strategic planning for homeland security concerns is not only consistent with Supreme Court precedent and the direction of all recent Presidents, but also enhances the effectiveness of our homeland security preparations in these unique tribal communities. In January 2002, the Department of Justice coordinated the "U.S. Border Patrol-Native American Border Security Conference." Attorney General Ashcroft, in addressing the conference attendees, recognized that, "[m]ore than 25 Indian tribes govern lands that are either adjacent to borders or directly accessible by boat from the border. These tribal lands encompass over 260 miles of international borders . . . This conference offers a unique opportunity to marry local, tribal expertise with federal expertise to enhance the security of our nation's borders."(6) My understanding is that there are efforts to have another conference regarding these issues within the next few months.

As the Department of Justice continues our efforts to reach out to tribes on these issues, I applaud the general goals of S-578 to maximize opportunities for the federal government to work with tribal governments in carrying out the activities needed to protect our nation's homeland. Likewise, the Department of Justice looks forward to working with the Committee to address technical issues raised by the bill.

Section 13 - The Oliphant-Fix

Section 13 of S-578 is a legislative overturn of the Supreme Court's decision in Oliphant v. Suquamish Tribe. Oliphant held that tribal courts do not have criminal jurisdiction over non-Indians. In the view of many, the Oliphant decision has created a gap in Indian country law enforcement and negatively impacts tribes' abilities to respond effectively to terrorist incidents and other crimes which may be committed by non-Indians in Indian country. However, overruling Oliphant in a broad manner could result in complicated legal and practical law enforcement issues such as due process concerns, double jeopardy, and appeal rights. Enacting Section 13, prior to working through these complicated matters, is premature and we do not believe that S-578 provides the best avenue for doing so.

Since 1885, when Congress passed the Major Crimes Act (7), United States Attorneys have had primary responsibility for the prosecution of serious violent crime in Indian country. The Major Crimes Act, coupled with Indian Country Crimes Act (8) (which is also known as the General Crimes Act), gives the United States jurisdiction to prosecute most serious violent offenses which occur in Indian country. Under the Indian Civil Rights Act, tribal courts are limited to misdemeanor punishments. (9) This federal/felony and tribal/misdemeanor dichotomy is important because, generally, state governments have jurisdiction over only those offenses in Indian country in which the victim and the defendant are non-Indian. (10) Law enforcement in Indian country is primarily a federal and tribal function.

In 1978, the United States Supreme Court handed down it's decision in Oliphant v. Suquamish Tribe. (11) In Oliphant, the Supreme Court held tribal courts could no longer exercise criminal jurisdiction over non-Indians. This decision has had a profound effect on law enforcement in Indian country because it limits the authority of what local tribal law enforcement can do in the event a non-Indian is apprehended for a crime committed in Indian country (12). While some tribal law enforcement agencies have obtained "cross-commissions" from state, local, or federal authorities to expand their authority to arrest non-Indian criminal suspects under state or federal law, such cooperative arrangements are not made in many jurisdictions (13) due to various factors including local political issues and concerns over liability. As a result, effective law enforcement over non-Indians who commit crimes in Indian country is not consistent from reservation to reservation.

Since September 11th, America as a whole has been more conscious of public safety in our great nation. As I stated earlier, there are international borders and critical infrastructure in Indian country. In an attempt to address mutual issues of security, the U.S. Border Patrol hosted a Native American Border Security Conference at which Attorney General John Ashcroft recognized "local law enforcement agencies play a crucial role in securing our nation's borders, and tribal law enforcement agencies are no exception." (14) Federal and tribal law enforcement agencies, working together, will continue to play a pivotal role in making our borders safe and secure. Tribal governments have enthusiastically agreed to help ensure the safety of America's borders to the full extent they are able with current resources and under the current jurisdictional scheme.

Given the law enforcement constraints imposed by Oliphant v. Suquamish Tribe, the question becomes, "In light of Oliphant, what can Congress to do improve homeland security in Indian country?" Section 13 of S-578 is an attempt to deal with the Oliphant issue head-on.

In February 2003, the NAIS formed an Oliphant Working Group under the leadership of South Dakota U.S. Attorney James McMahon to review the Oliphant issue and consider options for improving public safety. Some time after March 7th, it was learned The Tribal Government Amendments to the Homeland Security Act of 2002 (S-578) had been introduced and Section 13 of this bill is an Oliphant-fix. In its deliberations, the Oliphant Working Group studied Section 13 extensively. The working group did not develop a position on whether or not they would eventually support an Oliphant-fix proposal; however, the working group did decide Section 13, as currently written, is too broad. (15) The working group identified a number of concerns, including due process issues, that Congress may want to address, which become especially important in the context of tribal jurisdictional expansion such as any Oliphant-fix proposal, including: separation of powers, the provision of indigent defense counsel, jury pools and appellate and habeas corpus relief.

Separation of Powers. While some tribes have distinct and co-equal legislative, executive, and judicial branches, many tribes do not. Tribal governments take a variety of forms including those organized under the Indian Reorganization Act or the Oklahoma Indian Welfare Act (16), those organized on theocratic governmental concepts,(17) and tribal governments operating without the constraints of a tribal constitution. As a result of this diversity of governmental forms, some tribes in effect do not have independent judicial branches. Lack of an independent judiciary creates opportunities for abuse; at a minimum, the provision of due process, as guaranteed by the Indian Civil Rights Act (18), can vary from tribe to tribe. The question of judicial independence, or a mechanism for ensuring expeditious review in the federal courts, should be considered as part of any proposal to significantly expand tribal court jurisdiction (19).

Indigent Defense Counsel. Under the Indian Civil Rights Act, criminal defendants in tribal court have a right to an attorney - however, this is at their own expense (20). This is similar to the situation for persons facing minor charges in federal court. (21) However, if a defendant is facing jail time in such a case in federal court, then he is entitled to free assistance of counsel. Under federal law, there is currently no such requirement in tribal court. The need to tie entitlement to free counsel to any expansion of tribal court jurisdiction, as well as the impact on the tribes of such a requirement, should be considered.

Jury Pools. Criminal defendants in tribal court have a right to a jury trial. However, in some tribal jurisdictions, one must be a tribal member in order to be eligible for jury duty (22). Other tribes require that jury pools be drawn from a fair cross-section of the community - including non-Indians (23).

Appellate and Habeas Corpus Relief. Under current law, federal judicial review of tribal court convictions is limited only to habeas corpus review. (24) Any consideration of expanding tribal jurisdiction should include consideration of expanded appellate relief, such as requiring expedited habeas review or allowing a direct appeal to federal court.

As the working group considered Section 13, specifically, and an Oliphant-fix, generally, it became clear that significantly expanded tribal jurisdiction raised serious issues regarding protections for individual's due process rights. Consideration must be given to issues such as disparate tribal resources, the impact of mandated legal obligations, and the need for training and for additional experienced tribal law enforcement officers. Neither the working group nor the full NAIS have yet been able to identify an Oliphant-fix that strikes the appropriate balance between the need to expand the various tribes' role in the homeland security effort and the significant issues and adverse impact caused by such an expansion of jurisdiction.

Section 13 of S-578 addresses "the authority to enforce and adjudicate violations . . . by any person. . . ." As such, the section expands the jurisdiction of both tribal law enforcement and tribal courts. Furthermore, this expanded jurisdiction shall be "concurrent" with that of the United States. Homeland security concerns are primarily law enforcement concerns, not tribal court concerns. It is the ability of tribal authorities to investigate and arrest suspected terrorists that is at issue, not the ability of tribal courts to prosecute such individuals. (It is highly unlikely that the federal government would defer federal felony prosecution in such cases to tribal court misdemeanor prosecution.) In considering the significant expansion of tribal jurisdiction in Section 13, consideration should be given to whether there are other options that can allow tribal law enforcement to be full partners in providing for a secure homeland while avoiding some of the adverse impact of a significant expansion of tribal jurisdiction. These options include expanded use of "cross-commissions" and of tribal law enforcement's authority to detain individuals suspected of violating state or federal law. (25) While Section 13 might address some of the limitations in these options, the section also raises other issues not fully addressed in the proposed legislation. Therefore, the expansion of tribal jurisdiction reflected in Section 13 should appropriately be considered a part of a comprehensive review of tribal jurisdiction, such as that suggested by the Department of Justice in July 2002. (26)

1) National Native American Law Enforcement Association, Tribal Lands Homeland Security Report, (2003) [hereinafter, NNALEA Report], at 6. See also, Attorney General John Ashcroft, Remarks at the U.S. Border Patrol - Native American Border Security Conference (Jan. 17, 2002). Transcript available at: [hereinafter, Attorney General remarks, Jan. 17, 2002.]

2) NNALEA Report, at 6-7 and 33-34.

3) Presidential Memorandum, Government-to-Government Relations With Native American Tribal Governments 59 FR 22951 (5-4-1994).

4) Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831); see also, at 18, (referencing U.S. Constitution Art. I, § 8, clause 3, as creating distinctions among "foreign Nations," the "several States," and "the Indian Tribes").

5) Presidential Proclamation 7500, 66 FR 57641 (11-15-2001).

6) Attorney General remarks, Jan. 17, 2002.

7) Now codified at 18 U.S.C. § 1153.

8) 18 U.S.C. § 1152.

9) 25 U.S.C. § 1302(7).

10) Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Draper v. United States, 164 U.S. 240 (1896); United States v. McBratney, 104 U.S. 621 (1882).

11) 435 US 191 (1978).

12) The need to address jurisdictional impediments facing tribal law enforcement has been recognized by both the International Association of Chiefs of Police (see, Improving Safety In Indian Country: Recommendations From the IACP 2001 Summit (2001), at 8-9) and by the National Native American Law Enforcement Association (see, NNALEA Report, at 8 & 19).

13) NNALEA Report, at 7-8.

14) Attorney General Ashcroft, remarks, Jan. 17, 2002.

15) The conclusions of the Oliphant Working Group have not yet been considered by the whole NAIS or the Attorney General's Advisory Committee, nor have they been considered by the Attorney General.

16) See, respectively, 25 U.S.C. §§ 461, et seq. and 25 U.S.C. § 503.

17) Such as many of the Pueblo tribes located in New Mexico.

18) 25 U.S.C. § 1302(8).

19) Additionally, the Committee might consider providing for review of tribal determinations regarding Indian Civil Rights Act (ICRA) claims in the federal courts of appeal, which would provide both protections for the rights of individuals and uniformity in the interpretation of ICRA claims.

20) 25 U.S.C. § 1302(6).

21) See, Federal Rule of Criminal Procedure 58(b)(2)(C).

22) In fact, this appears to one of the points of concern raised by the Supreme Court in the Oliphant case. In that case, the Suquamish Tribe only allowed Suquamish tribal members to serve as jurors. Oliphant, 435 U.S., at 194 and footnote 4. In light of the Court's concern, any consideration of an Oliphant-fix should include the issue of jury pools.

23) For example, Navajo Nation law requires that non-Indians be included in jury pools in order to satisfy the concept of providing a jury consisting of a fair cross-section of the community. George v. Navajo Tribe, 2 Navajo Reporter 1 (1979); 7 Navajo Nation Code § 654.

24) Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); 25 U.S.C. § 1303.

25) See, Ortiz-Barraza v. United States, 512 F.2d 1176 (9th Cir. 1975).

26) Statement of United States Attorney Thomas B. Heffelfinger before the United States Senate Committee on Indian Affairs, Hearing on Contemporary Tribal Governments: Challenges in Law Enforcement Related to the Rulings of the United States Supreme Court (July 11, 2002).

Conclusion of STATEMENT OF THOMAS B. HEFFELFINGER,

UNITED STATES ATTORNEY FOR THE DISTRICT OF MINNESOTA

BEFORE THE UNITED STATES SENATE COMMITTEE ON INDIAN AFFAIRS

July 30, 2003

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U.S. GOVERNMENT PRINTING OFFICE, WASHINGTON

81-151 PDF 2002

S. HRG. 107-605

IMPACT OF SUPREME COURT RULINGS ON LAW ENFORCEMENT IN INDIAN COUNTRY

HEARING BEFORE THE COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION

ON

CONTEMPORARY TRIBAL GOVERNMENTS: CHALLENGES IN LAW ENFORCEMENT

RELATED TO THE RULINGS OF THE U.S. SUPREME COURT

JULY 11, 2002

WASHINGTON, DC

~~~~~~~~~~~~~~~~~~~~~~~~~~

COMMITTEE ON INDIAN AFFAIRS

DANIEL K. INOUYE, Hawaii, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman
KENT CONRAD, North Dakota
HARRY REID, Nevada
DANIEL K. AKAKA, Hawaii
PAUL WELLSTONE, Minnesota
BYRON L. DORGAN, North Dakota
TIM JOHNSON, South Dakota
MARIA CANTWELL, Washington
FRANK MURKOWSKI, Alaska
JOHN McCAIN, Arizona,
PETE V. DOMENICI, New Mexico
CRAIG THOMAS, Wyoming
ORRIN G. HATCH, Utah
JAMES M. INHOFE, Oklahoma

PATRICIA M. ZELL, Majority Staff Director/Chief Counsel
PAUL MOOREHEAD, Minority Staff Director/Chief Counsel

(II)

(III)

C O N T E N T S
Page
Statements:

Akaka, Hon. Daniel K., U.S. Senator from Hawaii ....................................... 3
Bengochia, Monty J., tribal chairman, Bishop Reservation .......................... 22
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, vice chairman,
Committee on Indian Affairs .............................................................. 2
Heffelfinger, Thomas B., U.S. Attorney, city of Minneapolis ........................ 9
Hillaire, Darrell, chairman, Lummi Indian Business Council ...................... 4
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman, Committee
on Indian Affairs ............................................................................... 1
James, Gary, chief of police, Lummi Nation .................................................. 5
Pouley, Theresa, chief judge, Lummi Tribal Council .................................... 5
Toulou, Tracy, director, Department of Justice, Office of Tribal Justice ..... 11

APPENDIX
Prepared statements:

Bengochia, Monty J. ......................................................................................... 48
Cypress, Billy, chairman, Miccosukee Tribe of Indians, Florida .................. 54
Heffelfinger, Thomas B. ................................................................................... 35
Hillaire, Darrell ................................................................................................ 27
Toulou, Tracy .................................................................................................... 41
Wellington, Victor, mayor, Metlakatla Indian Community, Annette Islands
Reserve ................................................................................................ 58

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IMPACT OF SUPREME COURT RULINGS ON LAW ENFORCEMENT IN INDIAN COUNTRY

THURSDAY, JULY 11, 2002

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 10:00 a.m. in room 485, Senate Russell Building, Hon. Daniel K. Inouye (chairman of the committee) presiding.
Present: Senators Inouye, Akaka, and Campbell.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. The committee meets this morning to receive testimony on the challenges confronting contemporary tribal governments as they provide for the health, safety and welfare of those who reside on Indian reservations, both Indians and non-Indians. Enforcing the law on Indian reservations has increasingly become frustrated by the complex pattern of jurisdictional authorities that have been engendered by rulings of the U.S. Supreme Court. Today, we will receive testimony on the results of studies conducted by Department of Justice, and we will learn about more recently gathered reports and statistics which are simply shocking. For instance, Justice Department reports indicate that American Indians are victims of violent crime at rates more than twice the national average, far exceeding any other ethnic group in the country.
Nearly one out of every four Native Americans between the ages of 18 and 24 are victims of a violent crime-the highest per capita rate of violence of any racial group considered by age and representing 10 percent of the violent crimes prosecuted by the Justice Department. Other alarming information instructs us that over a 5-year period, American Indian females were victimized by a spouse or intimate partner at rates which greatly exceed the comparable rates for any other ethnic group. Now, consider that the U.S. Supreme Court has ruled that tribal governments have lost their inherent authority to exercise criminal jurisdiction over non-Indians on the grounds that it is inconsistent with the domestic dependent status of Indian Nations and you can begin to understand the extent and nature of the devastating problems we are here to address. The incidents of domestic abuse and domestic violence are high, yet if the abusing spouse is a non-Indian, tribal law enforcement officers are without jurisdiction to intervene. What other law en-

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forcement presence is there on the vast majority of Indian reservations? The answer is none. Tribal law enforcement officers can call upon State or local authorities, but more often than not those enforcement authorities are reluctant to come on the reservation because the rulings of the Supreme Court have also rendered their jurisdiction unclear. Federal law enforcement officers have criminal jurisdiction over felonies and other acts enumerated in the Major Crimes Act, but sadly we know that the Federal law enforcement effort is underfunded, understated, and simply not able to respond in a timely fashion when crimes are in the process of being committed. Add to that the increased burdens placed on all of law enforcement -Federal, State, local, and tribal-in responding to the new climate of terrorism, additional responsibilities associated with homeland security and border security, and one could say that we may well have a crisis in law enforcement in Indian country. It is not widely know, but many Bureau of Indian Affairs police have been drafted to serve as air marshals, and there are no replacements provided for those officers who are no longer providing protection in tribal communities. Some have suggested that the Justices of the Supreme Court knew what impact their rulings are having on the ability of tribal governments to provide for the health, safety and welfare of all their citizens because if they did, they would not have invalidated the intergovernmental agreements that many State and tribal governments have entered into in order to provide a seamless and comprehensive law enforcement framework, as the court did in the Nevada v. Hicks decision handed down last year.
This is just one of many dynamics that we are contending with when the legal experts tell us that the Supreme Court's rulings are having devastating impacts in Indian country. No where else in America does law enforcement jurisdiction depend on a determination of the race or ethnicity of the victim and the perpetrator of a crime. That in and of itself should signal to one and all that we need to bring some sense, some order and some clarity back to law enforcement in Indian country.

Mr. Vice Chairman.

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

Senator CAMPBELL. Thank you, Mr. Chairman. This is the second hearing we have held where we are analyzing the impacts of recent Supreme Court decisions on Indian tribes and residents, both Indian and non-Indian, as you have mentioned. Dealing as it does with matters relating to law enforcement, today's hearing will hopefully shine some light on a very practical problem. I do not want to knock the Supreme Court, but I have to tell you in many cases they live a very insulated lifestyle in an insulated atmosphere, and they are simply not out in the field enough to see how their decisions impact people at the local level. As the Justice Department continues to report to us, on many reservations crime is on the rise, as you mentioned, increasingly particularly violent crime, and that leads to both Indians and non-

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Indians being victimized. High crime on Indian lands also creates the obvious disincentive for different businesses that might come on the reservations to invest or innovate or create jobs and income for depressed economies, in many cases. And the complicated system of jurisdictions-on some reservations there are nine jurisdictions, so there is no question that it complicates prosecutions. And although some innovations like cross-deputization has helped, there are still huge loopholes in the system of trying to bring people to justice as the perpetrators of crime.
Certainly, I think one of the most immediate concerns to me and to the Nation since 9-11 is homeland security and the need to collectively protect our borders and our citizens from people who mean to do us harm. Just as tribal law enforcement offices are often the first, and sometimes the only responders to crimes and other problems on Indian lands, in many areas of our Nation they are the first in the line of defense against those who would harm us. In some places on Indian reservations, there is a lag-time, a delay-time of when you actually call sometimes of one-half hour to an 1 hour of response time. That is not uncommon on reservations, unlike most urban areas where law enforcement has a response time of 5 or 6 minutes. Certainly, tribes are on the front lines in our borders. The Tohono O'odham, the St. Regis Mohawks in Upper New York, the
Blackfeet of Montana, the tribes along the California-Mexico border, and the tribes in the Seattle-Puget Sound area, to name a few. Against this backdrop, the Court has ruled that tribes do not have jurisdiction over non-Indians who commit crimes on Indian lands.
I do not know where that leaves the enterprising terrorist, very frankly, if they infiltrate, come across the border on Indian lands from other countries. Since they are not Indian, that raises the question, do Indian law enforcement people have any control over potential terrorists? It really raises some obvious problems for tribes that are trying to arrest and prosecute offenders on their lands. I believe this is not just a tribal problem. So certainly this is a time of war. We are in this together, and I think the faster we recognize that, the quicker we will try to work on a seamless web of Federal, State and tribal law enforcement.
Thank you, Mr. Chairman.

The CHAIRMAN. Senator Akaka.

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

Senator AKAKA. Thank you very much, Mr. Chairman. I share the concerns of my colleagues this morning regarding the impact of recent U.S. Supreme Court hearings and rulings on tribal sovereignty, specifically as they relate to law enforcement in Indian country and adjudication of cases in tribal courts. Tribal governments face unique challenges in law enforcement due to a number of issues, including inadequate funding and resources. I am disturbed by the statistics which reflect that the highest per capita rates of violence are experienced by residents on Indian reservations. I am even more concerned by reports that in some cases responding to situations in Indian country is considered too low a pri-

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ority to warrant a response by local, State or Federal law enforcement. All of this adversely impacts the health, safety, and the wellbeing of American citizens who deserve to live freely and safe from harm. We are faced with a difficult task of rectifying this situation. In doing so, we must ensure that tribal governments are afforded the right, their sovereign right, to be a part of the solution, to clarify criminal jurisdiction within government-to-government framework. We must be careful to preserve the fundamental authority of tribal governments. I am pleased to learn of efforts within Indian country to unify to protect these rights and I hope you continue to do that.
I therefore, Mr. Chairman, look forward to hearing from our distinguished witnesses this morning, and I look forward to working with all of you to preserve the inherent sovereignty of tribal governments and to address the law enforcement needs in Indian country.
Thank you very much, Mr. Chairman.

The CHAIRMAN. I thank you very much, Senator.
Our first witness is the Chairman of the Lummi Indian Business Council of Bellingham, Washington, Darrell Hillaire. Chairman Hillaire will be accompanied by Judge Theresa Pauley, Chief Judge of the Lummi Nation, and Gary James, Chief of Police, Lummi Nation.

Mr. Chairman, welcome sir.

STATEMENT OF DARRELL HILLAIRE, CHAIRMAN, LUMMI INDIAN BUSINESS COUNCIL

Mr. HILLAIRE. [Statement in native dialect.] Good morning. With me I have the esteemed Chief Judge of the Lummi Court System, Theresa Pauley, and our Chief of Police Gary James. We are really thankful for being given this opportunity to come and speak with you today. We felt at home at Lummi among our people that there seems to be this confusion in this relationship between the U.S. Government and the Lummi Nation. We felt the best way to clear up some of that confusion is to come here and speak with you one-on-one, eye-to-eye, and reiterate our understanding that we would be recognized as a government and respected as a people.
We had this opportunity a couple of weeks ago to meet with one of our Elders. He is 83 years old, World War II veteran, who as a young boy wanted to become the chief of police on our reservation when nobody wanted to come to our reservation. So when he came back from the war, our Elders got together and they voted him in, and he was our chief of police for over 20 years. He was given a badge and a pistol and some handcuffs. And they were from treaty signing in 1855, and he was passing it on to me to keep, to make sure that I remember that we have always provided law and order on our reservation, and in those days for only our people because we were the only ones that lived there. Today, under self-governance, self-determination, we have a law and order office of over 20 sworn officers. We have a court system that is autonomous from the Business Council. We have a relation-

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ship with the county, with inter-local agreements with the Sheriff's Department and the welfare offices. We have a full faith and credit with the State court system and our court system. Though these things are important to us, that we extend ourselves to other local governments and work hard with them to understand one another, it is here that we seem to recognize a lot of confusion. I would like to have Chief Judge Pauley say a few words, and Chief of Police Gary, if they would.

STATEMENT OF THERESA POULEY, CHIEF JUDGE, LUMMI TRIBAL COUNCIL

Ms. POULEY. Good morning, Senators. I am Theresa Pouley. I am the Chief Judge of the Lummi Nation. I am here to talk to you a little bit today about contemporary tribal court and tribal judicial systems. Your honors, tribal judicial systems are poised to join the mosaic of State, local and Federal court systems to help provide solutions to all of the problems that Indian country experiences today, and that all of you have pointed out today. It is these problems that are facing our reservation that make it so important that Congress act.
Tribal courts, tribal nations are looking for respect and recognition of their governments. As part of that, we pledge to be responsible to provide justice for all the people of the reservation.

Chief.

STATEMENT OF GARY JAMES, CHIEF OF POLICE, LUMMI NATION

Mr. JAMES. Thank you. Good morning. My name is Gary James. I am the Chief of Police, Lummi Nation. We want to continue to lead and monitor a fair, just and safe law enforcement system on our reservation. We meet regularly with the Federal Bureau of Investigation [FBI] and other law enforcement agencies in our area. Because of this communication, we have an overwhelming response from tribal and non-tribal citizens wanting us to continue to do the work that we do within the boundaries of our reservation.
Thank you.

Mr. HILLAIRE. The number one priority at Lummi is healthy spirits -healthy spirits for our entire community, especially our children. What we mean by that is that there seems to be an epidemic of substance abuse on our reservation. We know that. We have hired an extra drug detective. We have set up a drug court. We are going to build a treatment center. We have doubled our youth activities -all of this to set a clear path of opportunity for our children, to make sure that the homes they live in are safe and they are healthy.
As was pointed out in opening remarks, it is of great concern to us because we have heard stories of our children where they are born to a tribal member and a non-tribal member. Perhaps the tribal member is gone and the non-tribal member is in care of the abuse of the child. And that is not acceptable to us, to stand there when substance abuse is going on and our children have to be abandoned for perhaps 3 days, and we do not have, as interpreted

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by this Supreme Court, the authority to go in and take care of those kids. We cannot afford that jurisdictional confusion, and that happens on our reservation. So we are going to extend ourselves to work real close with the local governments to make sure we understand one another going forward, but we need your help. We appreciate your help as we continue to work on recognition of each other as government and respect its people. So I thank you for this opportunity and really welcome some questions perhaps or some comments on where we are at, and where we need to go. So ''heishka'' to each and every one of you.

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

The CHAIRMAN. I thank you very much, Mr. Chairman. As noted by you, in order to better understand the problem, we have a few questions. We have been advised that the Lummi Nation and the State of Washington has entered into an agreement where the Lummi Nation will be assuming primary responsibility for areas that were previously assumed by the State pursuant to Public Law 280. Will you describe the responsibilities that you have assumed?

Ms. POULEY. There are a variety of responsibilities that Lummi has assumed and will assume in the very near future. In particular, and it is hard to list because there are so many that have happened recently, Lummi provides virtually all the law enforcement on our reservation. Almost all of our officers are the ones who respond to crime. We are working very closely and carefully with the State to map out ways to enforce child support so that children of the reservation can be supported. We are working with Washington State and the Washington State Supreme Court to establish agreements so that we give full faith and credit to tribal court orders.
We are working in virtually every area for natural resources to have an ability and to work with the State of Washington so that we can provide protection to those resources that are on the reservation. So in virtually every area where the tribe lost jurisdiction under Public Law 280, the State of Washington and Lummi are willing to work and negotiate to give that jurisdiction and that authority back to the tribe.

The CHAIRMAN. May I ask the Chief of Police a few questions? In the year 2001, last year, how many incidents would you say that your police department responded to?

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

The CHAIRMAN. And of these incidents, how many involved non- Indians?

Mr. JAMES. My best guess would be between probably 30 percent to 35 percent of them.

The CHAIRMAN. Would your nation face any civil liability if a non-Indian is injured while being detained or arrested by the Lummi Nation?

Ms. POULEY. That would actually be an issue or question for the court system. We have as part of our jurisdiction the ability to provide due process to all members of the reservation. If a police offi-

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cer in fact was found to have violated some responsibility to a citizen, the tribal court has both the responsibility and the authority to be able to resolve those disputes between non-Indians and tribal police.

The CHAIRMAN. The Vice Chairman spoke of terrorism, and your reservation includes coastline, I believe, of about 12 miles. Do you have any sort of security along that stretch?

Mr. JAMES. The security that we would be able to-the minimum security that we do have is our natural resource enforcement officers who do patrol the waters of Puget Sound and around our areas, and we do cover a majority of a day, as far as security, on the water.

The CHAIRMAN. Do you have any sort of assistance or advice from the Federal Government?

Mr. JAMES. Like I said, we meet with the FBI probably at least once or twice a week, and when issues do come up like that, we do get advice from them and work closely with them to resolve issues that do come up like that.

The CHAIRMAN. We have been advised that there are tribes who have entered into agreements with their respective States just like you have, but ever since the Supreme Court decision in Nevada v. Hicks was decided that they need not honor these agreements. Is that widespread in the United States?

Mr. HILLAIRE. Yes; we have not heard entirely, but it is our intention to go back to these local agencies and sit down with them and really just clarify what we are trying to do here, outside of what is the best way to afford safety for all citizens within the boundaries of our reservation, to make sure that every citizen, Indian and non-Indian can feel that way. That is our intent going forward. We have not gotten anything adverse back from the county government, city governments surrounding our reservation, or the State at this time.

The CHAIRMAN. So the State of Washington is willing to honor the agreement they have entered into with you, notwithstanding the Nevada decision?

Ms. POULEY. At this point in time, the way we have worked out full faith and credit with both the Washington State Supreme Court and the local Whatcom County Court systems, we still are engaged in an ongoing dialog for how to best solve problems in Indian country. The county courts are sort of in the position that local solutions to local problems are better, and that tribal courts are better situated to deal with issues that arise in Indian country. The problem is, as you have so aptly stated in your opening remarks, is that now the Supreme Court says they do not have to do that. While Lummi is very, very fortunate to have good working relationships, lots of other tribes across the United States are not that fortunate. I have heard different individuals and attorneys speak at different gatherings of lawyers in the State of Washington where they believe that the Lummi Nation and all tribal courts may have no jurisdiction over non-Indians on the reservation-what a terrible, terrible message to send at a time when State and local governments really want to work with tribes to become part of the solution to the problems.

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The CHAIRMAN. Thank you very much.

Mr. Vice Chairman.

Senator CAMPBELL. Thank you. You are right. That is a bad message to send because basically it tells the potential bad guys it is open season, you can do what you want-a clearly bad message. You mentioned, Gary, that the natural resources enforcement officers are the ones that really patrol your 12 miles of coastline. Do they have arrest authority and are they armed?

Mr. JAMES. Yes; they do. They have all the authority and have the same training as our regular law enforcement officers and all the officers in the State of Washington have. They have the same training.

Senator CAMPBELL. They do have. Mr. Hillaire, in your opening statement you said you anticipated and expected to be included in the buildup of homeland defense. Have you been, with any State or Federal or local officials?

Mr. HILLAIRE. We did get invited to a meeting with Attorney General Ashcroft earlier in the year, but there has not been any contact since. We feel that is important that we do that. The protection services that we provide now are pertaining to natural resources, but being 15 minutes away from the border, I think we need to be included.

Senator CAMPBELL. So you have not gotten any direction at all, as many local communities have across America, about emergency preparation or anything of that nature that could be related to homeland defense?

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

Senator CAMPBELL. And, last question, your treaty of 1855, when your ancestors entered that treaty, was the withdrawal of any of the tribe's rights to govern or police your own lands included in that?

Mr. HILLAIRE. No; it was not.

Senator CAMPBELL. Thank you, Mr. Chairman.

The CHAIRMAN. Thank you.

Senator Akaka.

Senator AKAKA. Thank you very much, Mr. Chairman. Your testimony requests congressional action, in consultation with the tribal governments. Your request is to address the erosion of tribal sovereignty. Have you developed a specific legislative recommendation and are those ready for the committee's consideration?

Mr. HILLAIRE. We have been working real close with the Tribal Sovereignty Initiative team under NCAI. We have been submitting our position on this legislation through that body, but if requested by you, Senator, we would gladly do that for the committee.

Senator AKAKA. What has happened, what has been the impact of the Hicks decision in terms of real-life situations for law enforcement in the Lummi Nation?

Mr. JAMES. As far as State officers coming onto the reservation and enforcement-is that what you are asking? We have a very, very good relationship with Whatcom County which is the county that our reservation sits in. They respect our court system and

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come in and ask for our court's blessing before they come onto our reservation and serve their orders. They have been really good about doing that, so that has had very little impact on us-just because of the good relationship we do have with Whatcom County.

Ms. POULEY. It does, Senator, if I could respond to that question, it has a huge impact, real-life impact in tribal court. I cannot tell you how heavy my heart is when I have an Indian person who is married to a non-Indian person, come into my court with a black eye and with her tooth knocked out, just to find out that that non- Indian is not a resident of the reservation, so the court does not have any jurisdiction over them. It is extremely difficult for tribal courts to be able to protect not only their own people, but all residents of the reservation. Imagine if coming to Washington, DC if you were going through a 25-mile per hour school zone and every time a Washington, DC officer stopped you, that you said, ''Oh, no, I am a citizen of the State of Washington, so I do not have to slow down.'' In Indian country, you do not have to slow down. So those are sort of the real life problems that I see as a tribal court judge every day.

Senator AKAKA. Thank you for your responses.

Thank you, Mr. Chairman.

The CHAIRMAN. But when you do have someone speeding in Lummi Nation, you can stop him, can't you?

Mr. JAMES. We do have an agreement with Whatcom County Sheriff's Office. We do have civil traffic jurisdiction over non-tribal members, and that process is that we are able to stop and detain and write out a citation and forward it on to the Sheriff's Office where they take action on the citation written by our officers.

The CHAIRMAN. And does the Sheriff's Office follow through and provide justice as it should be done?

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

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

Mr. JAMES. No; that only applies to civil traffic infractions. Anything criminal, we have to actually stop and detain the person and hold them for a Whatcom County deputy to come and respond.

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

Mr. JAMES. Yes; we do.

The CHAIRMAN. I thank you all very much.

Ms. POULEY. Thank you.

The CHAIRMAN. And I can assure you that we are prepared to work with the National Congress of American Indians to come forth with something that should be a response to the Supreme Court.

Our next witness is the U.S. Attorney for the city of Minneapolis, Thomas B. Heffelfinger, and the director of the U.S. Department of Justice, Office of Tribal Justice, Tracy Toulou.

Mr. Heffelfinger.

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

Mr. HEFFELFINGER. Mr. Chairman, Mr. Vice Chairman, members and staff of the committee, my name is Tom Heffelfinger. I am the

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U.S. Attorney for the District of Minnesota, and chairman of the Attorney General's Advisory Committee, Subcommittee on Native American Issues. The purpose of our subcommittee is to develop policies pertaining to effective law enforcement in Indian country, and among the top priorities that we have identified are terrorism and violent crime in Indian country.
The Federal Government bears a unique and crucial responsibility for addressing the problem of violent crime in this Nation's Indian communities. Since 1885, the U.S. attorneys, in collaboration with the various tribal governments have had primary responsibility for the prosecution of serious violent crime in Indian country, and that problem is a very significant one.
As you noted, Mr. Chairman, in your opening remarks, Native Americans are victimized at a rate of 2.5 times the national average in this country. In some areas of Indian country, that victimization is even higher. For example, in my own State of Minnesota, the residents of the Red Lake Indian Nation are currently suffering a rash of violent homicides unprecedented in that community's history. In the past 7 months, there have been 5 homicides in a community of 5,000 people. If one applied that rate to the city of Minneapolis, our State's largest city, Minneapolis would have had 382 homicides in 7 months. In fact, there have been 21.
The U.S. Attorney, the FBI, and the Government of Red Lake are working aggressively to solve this problem, but it is indicative of the fact that in some parts of Indian country violent crime is at an unprecedented high. In our attempts to respond to violent crime, prosecutors and investigators face a confusing and frequently uncertain set of laws and judicial decisions regarding jurisdiction. First, there is confusion regarding who has personal jurisdiction over the subject. If one looks, for example, at a comparison of the Major Crimes Act and the General Crimes Act, under the Major Crimes Act, the United States has jurisdiction to prosecute certain serious offenses. However, that jurisdiction only extends to prosecution of Indians. Under the General Crimes Act, the United States has jurisdiction to prosecute all Federal offenses.
However, that does not apply to Indian on Indian crimes. In addition, there are a variety of statutes and decisions, some of which the chairman and vice chairman have already cited, that address situations such as who has jurisdiction when both the suspect and the victim are non-Indian; whether or not tribal courts have jurisdiction over non-member Indians or non-Indians; whether a person is an Indian for purposes of determination of jurisdiction; and whether or not jurisdiction is delegated to the State under laws such as Public Law 280.
If this seems confusing, let me assure you from a prosecutor's perspective, it is. Even once you get past the question of personal jurisdiction, then one has to address whether or not the crime occurred in Indian country, although that term is defined by statute, I need to assure you that in a particular or individualized case, the resolution of that can and does tie up litigation for months and sometimes years.

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What all this means is that whenever a crime is committed in Indian country, in order to determine jurisdiction prosecutors must assess and investigators must investigate facts that would allow us to determine who has jurisdiction. This involves four factors: Whether the offense occurred within Indian country; whether the suspect is an Indian or a non-Indian; whether the victim is an Indian or a non-Indian; and what is the nature of the offense.
Depending on the answers to these questions, an offense can end up being prosecuted in tribal court, Federal Court, State Court or not at all. And when you have that kind of diversion and disparity, then you can end up with the kind of disparity in sentencing, which is one of the subject of the sentencing commission right now. In addition, only once these questions are answered can prosecutors and investigators turn to the important question of sufficiency of evidence and guilt versus innocence. This confusion generally does not exist in the State system, and this confusion must be remedied.
Confusion over jurisdiction has another detrimental impact which was alluded to by the vice chairman, and that is homeland security. Now more than ever we are reliant upon cooperation between tribal, State and Federal authorities. Indian country is involved in the war on terrorism. More than 25 tribes govern land that is adjacent to borders, either directly or across the water. A conference was held by the border patrol earlier this year at which General Ashcroft ''recognized that local law enforcement agencies play a crucial role in securing our Nation's borders, and tribal law enforcement agencies are no exception.'' Tribal governments have enthusiastically assumed this responsibility and have expressed their desire to work with the United States to provide for that security, but cooperation between local, Federal, and tribal agents is what is necessary in order to assure that protection.
Unfortunately, as the committee has already cited, there have been decisions that have undermined that cooperation in the recent past. The Hicks case, which the committee has already cited, has given law enforcement an opportunity at the local level, at least, to determine that they do not need that cooperation. So after years of coalition-building between State and tribal law enforcement officers, this interpretation has allowed for conflict between the agencies. Now more than ever, members of the committee, we need the jurisdictional clarity in order to allow us to do our multiple functions within the Department of Justice.
Thank you for the opportunity to address the committee.

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

The CHAIRMAN. I thank you very much. May I now recognize Mr. Toulou.

STATEMENT OF TRACY TOULOU, DIRECTOR, DEPARTMENT OF JUSTICE, OFFICE OF TRIBAL JUSTICE

Mr. TOULOU. Thank you. Mr. Chairman, Mr. Vice Chairman, my name is Tracy Toulou and I am the director of the Office of Tribal Justice in the Department of Justice. Thank you for the opportunity to appear before you here today.

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The Office of Tribal Justice spends a significant amount of time studying and addressing issues related to tribal law enforcement. My office serves to coordinate and focus the Department's policies and positions on American Indian and Alaska Native issues, and maintain liaison with federally recognized Indian tribes, particularly in the area of law enforcement.
In addition, we work closely with the U.S. Attorneys' offices that prosecute violent crime in Indian country. We also regularly communicate with tribal police departments, the FBI, the BIA, and other Federal law enforcement agencies operating in and around Indian country. Most recently, we have been working with the U.S. Border Patrol on Native American border security issues. In my experience as an assistant U.S. attorney in the State of Montana, I prosecuted major crimes acts violations on a number of reservations, as well as assisted the Northern Cheyenne Tribe in the development of a comprehensive law enforcement program.
Today, I would like to focus on three issues-first, the problem of violent crime in Indian country; second, the challenges facing tribal law enforcement; and third, issues that may result from Nevada v. Hicks.
First, the Department of Justice Bureau of Justice Statistics reports entitled American Indians and Crime and Violent Victimization and Race reveal that American Indians experience higher rates of violent crime than any other group. In November of last year, Attorney General Ashcroft remarked that these reports show American Indians are victims of violent crime at rates more than twice the national average, far exceeding any other ethnic group. Nearly one out of every four Native Americans between the ages of 18 and 24 is a victim of violent crime-the highest per capita rate of violence of any racial group considered by age. This accounts for nearly 10 percent of the violent crimes prosecuted by the Department of Justice. Indians fall victim to violent crime at about two-times the rates of African Americans, 21/2 times the rates sustained by Caucasians, and 41/2 times that experienced by Asian Americans.
Of particular concern is the problem of domestic violence and crimes against Indian women, which tragically exist to a high degree in Indian country. A recent National Institute of Justice survey revealed that one in three Native women reports being raped in her lifetime. That is one in three. American Indian females were victimized by an intimate partner at rates higher than any other group. That is 23 per 1,000 American Indian females as compared to 11 per 1,000 African American females, 8 per 1,000 white females, and 2 per 1,000 Asian American females-a substantial difference.
Now, I want to turn to Indian country law enforcement. As you know, tribal governments have limited law enforcement resources for addressing the high rates of crime in many reservation communities. Law enforcement in Indian country is generally either provided by local, tribal law enforcement, or BIA. The typical department serves an area the size of the State of Delaware, but with a population of only 10,000. It is often patrolled by no more than three police officers at one time, and sometimes as few as one officer.

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In 1997, the Department reported that Indian country was served by only one-half as many police officers per capita as similarly situated rural communities. This provided the needed impetus for a significant increase in Department of Justice and BIA funding for tribal law enforcement. Since 1999, the Tribal Resources Grant Program within the Community Oriented Policing Services, COPS, program has provided targeted resources for tribal departments to hire officers or acquire critical equipment. Last summer, the Attorney General and the COPS office announced grants totaling $33.7 million which were awarded to 105 police departments in 23 States. The efforts of the Department of Justice and tribal police departments are beginning to show results. Between 1998 and 2001, the number of inmates in custody at tribal facilities grew by 29 percent. The increase in tribal jail population would appear to be closely related to the law enforcement resources made available to tribes through the COPS program.
Finally, I know the committee is interested in the impact of the Supreme Court decision in Nevada v. Hicks on Indian country law enforcement. As with any single decision which moves the state of the law in a new direction, the Hicks decision cannot and does not cover every factual scenario that may be encountered by law enforcement. Until there are additional decisions or statutory clarification, there will be varying interpretations of the scope of this decision.
In the meantime, I am concerned that this ambiguity may become a source of tension between State and tribal law enforcement in some areas. Briefly, in some parts of the country, we have seen State law enforcement officers interpreting this case as a basis to assert jurisdiction over Indians who are on reservation lands. In at least one case, this has resulted in a confrontation between tribal and State law enforcement officers on Indian lands. These types of situations have the potential to become highly charged and obviously should be avoided. Our office works closely with the Department's Community Relations Service to mediate these conflicts.
Further, we advocate and assist in the development of cross-deputization agreements and other types of cooperative agreements to foster better relations between tribal and State law enforcement communities. In short, today's tribal governments face serious challenges in the area of law enforcement. The Department of Justice Office of Tribal Justice is working closely with tribal governments to assist in addressing high violent crime rates, limited law enforcement resources, and the unique challenges of Indian country jurisdiction.
Thank you for the opportunity to appear today. I would be happy to answer any questions you may have.

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

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

Mr. TOULOU. In Nevada v. Hicks? I do not know if at this point in time if I would say a crisis occurred. I think the potential for very serious ramifications exists.

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

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

The CHAIRMAN. Mr. U.S. Attorney, the Lummi Nation has advised us that the local FBI agents recently informed their tribal law enforcement officers that resources that were previously targeted to address organized crime on reservations are now being transferred to address national security matters. How much of the FBI's resources that were devoted to addressing issues in Indian country prior to September 11 are now being reallocated to address national security interests?

Mr. HEFFELFINGER. Mr. Chairman, members of the committee, our committee has met with representatives of the FBI and have been assured by individuals as high as Director Mueller himself that he is maintaining his commitment to Indian country and that staffing levels of agents directed towards violent crime in Indian country will remain static. I commend Director Mueller for that recognition at a time when his resources are being stretched very thin.
However, he also has advised us that there is significant discretion given to each special agent in charge to make permanent or temporary shifts within that special agent in charge's office to address local concerns. Issues of organized crime in Indian country may well, for example, I do not know the Washington situation, but may well be considered resources that are different from those that would be applied to violent crime. However, just looking at the numbers does not adequately address the problem of staffing of FBI agents, in particular BIA agents as well, in Indian country. One needs to also consider the impact of the nature of the work and the frequently remote locations upon those agents. Quite candidly, members of the committee, there is a significant risk of burnout for those agents. If I could use my own reservation at Red Lake as an example, we have in our office determined that Red Lake represents approximately 25 percent of the total cases we receive from the FBI, and yet that work is done on an annual basis by three agents. Those three agents are dealing with murder, sexual assault, and some of the most heart-wrenching cases a law enforcement officer can face.
In addition, those agents have to travel five hours each way to get to court. We are quite frankly facing a serious problem with burn-out. I know in talking with Mr. Ecoffee from BIA that BIA faces the same challenges with agent burn-out. So when we consider staffing, we need to also consider what the impact of the nature of the work is and the need to be able to move those people around to protect, frankly, the mental health of those agents and their ability to do their job. But I do commend the FBI and I do commend BIA for maintaining their commitment to Indian country in this time where resources are diverted to other things.

The CHAIRMAN. From your response, staffing is inadequate. Has your agency made an attempt to increase the funding?

Mr. HEFFELFINGER. Frankly, unfortunately, Senator, the funding issues are not really within my purview. Our committee has fo-

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cused on staffing, which is why we started out first of all to make sure we worked with the FBI to ensure that at least current levels would remain the same. I do know that the SACs around the country within the Bureau, I know that BIA and I know that the director are mindful of whether or not increases in staffing and funding will be necessary, and they may well be. Increases may be necessary in order to ensure that even if we keep the same levels of agents, that we are able to move those agents through there so that they are effectively being utilized, and so that they can be kept on the ground doing investigations instead of driving back and forth to court.

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

Mr. HEFFELFINGER. Mr. Chairman, members of the committee, in our experience an officer will respond to a crime as he or she should, to deal with the immediate public safety issue. However, almost immediately issues of jurisdiction become relevant. Instead of doing a follow-up investigation focus that would focus on issues like sufficiency of the evidence or guilt versus innocence, an agent will find himself focused on questions of whether or not the suspect is a member of the particular band or is an Indian; was the location of the crime within the confines of the reservation. These are not issues that a local law enforcement officer would face in responding to a murder in Minneapolis. So they become a distraction, if not at the initial response, prior to the issuance of an indictment or an information, and it becomes an incredible distraction and delay factor.

The CHAIRMAN. In your experience in Minneapolis, do tribal, State, local and Federal law enforcement officers have the requisite knowledge and expertise to make these types of determinations?

Mr. HEFFELFINGER. Mr. Chairman, members of the committee, within the FBI, yes, clearly the Minneapolis field office has the most agents of any field office assigned to Indian country, as that field office also covers the Dakotas. Minneapolis Police Department definitely not-they rarely deal with Indian communities. They deal frequently with urban Indian communities, but not with reservations. The local police offices that surround Indian country generally do not possess that requisite information. Minnesota is an unusual jurisdiction. We have 11 tribal communities, 9 of which are under Public Law 280, 2 of which are Federal. So in some jurisdictions, the local police simply do not care because they do no need to care. In the Federal jurisdiction areas, the local law enforcement agencies do not care because it is not their responsibility. As we attempt to develop the cooperation necessary to deal with increases in crime, we need to have that cooperation. So we are teaching local police about jurisdictional issues from the ground-floor up. So cooperation is essential at this time. It is why the Hicks case, for example, is so problematic.

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

Mr. HEFFELFINGER. I will go first if you want, Tracy, and then- Mr. Chairman, members of the committee, my comments are that the confusion needs to be addressed, and I would suggest, and my committee is willing to support your committee in any way we can, that your committee undertake a comprehensive review of issues of jurisdiction, as clarification would be extremely important.
Of course, we will assist this committee if all you want to do is look at the Hicks case, but my concern is that just looking at the Hicks case will provide a solution or a fix to one part of the challenge, and not to the comprehensive challenge. There are no easy solutions to this issue because it requires a balancing of the interests of law enforcement, be that State or Federal, and tribal sovereignty, and State sovereignty. These are difficult issues. But what we need is a review of this issue from a comprehensive perspective, and not just an isolated Hicks fix.

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

Mr. HEFFELFINGER. We have not, your honor-I'm sorry-it is my court background-Mr. Chairman, no, we have only as you know been in place for about 9 months now, but we are prepared to address this issue. Clearly, jurisdictional issues are one of our five priorities.

The CHAIRMAN. Mr. Toulou.

Mr. TOULOU. As Mr. Heffelfinger said, it is a very complex issue. We have looked at it within the Department, but I do not think we have reached any agreement as to where things should go. I think what is important preliminarily as we hear from tribal leaders and tribal law enforcement, and understand their perception and where they would like to see to go with this. Obviously, the committee is in a better position to do that than the Department. We do look forward to any comments we get from tribal leaders. We would be happy to help in any way we can and answer any written questions on this issue, but we are still in the formulation basis. It is a very complex and comprehensive issue, but there needs to be clarification, without a doubt.

The CHAIRMAN. On the matter that was brought up by the vice chairman, as a result of Supreme Court decisions, Indian law enforcement officials cannot exercise criminal jurisdiction over non- Indians. Now, the Department of Justice wants Indian law enforcement people to get involved in anti-terrorist activities, and most of the terrorists, I presume, are going to be non-Indians. What can be done to have the Indians play an effective role under those rules?

Mr. HEFFELFINGER. Mr. Chairman, members of the committee, this is an area where joint powers arrangements, cross-deputization and general cooperation are the only solution. One has to respect tribal sovereignty, at the same time there needs to be collaboration between the Border Patrol, the local sheriff's offices, and tribal law enforcement. My expectation is, because I know that the tribal leadership nationwide is committed to this problem, as are members of the Department of Justice and other agencies, as are

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the sheriffs, to the extent that we have impediments to cooperation, and that is the fundamental concern as I see it, to the Hicks case- as long as we have impediments to that, we will have a difficult time achieving effective cooperation.
I cite my own State as an example. I have a tribe, the Grand Portage Band of Ojibwa, which borders the Canadian border. They are a Public Law 280. That requires cooperation between the State and the tribe. I also have the Red Lake Band of Ojibwa, which borders on Canada. That is a Federal reservation. That requires collaboration between the Border Patrol and the tribal police. These are the kinds of diversity of issues that require that we cannot-there is no one single solution, but we have to develop a pattern of cooperation across Indian country and across the United States. The law must foster that.

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

Mr. HEFFELFINGER. Mr. Chairman, members of the committee, as the committee considers solutions to this jurisdictional issue, I am confident that the solutions will address some of those impediments.

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

Senator CAMPBELL. Thank you, Mr. Chairman. Let me start, Mr. Heffelfinger, maybe by asking you somewhat of a loaded question, because I have a pretty strong opinion on it. I live in Colorado, but if I go to California, I cannot vote in California. I do not pay taxes in California, but I am still in California therefore I am subject to California laws. If I go to a different city, I am subject to local ordinances. If I go to a foreign country, same thing. If I go to France I am not French, don't pay taxes, don't do anything there except visit. If I break the law, I am going to be subject to French justice. So it seems to me it is really out of kilter that we should not expect the same kind of framework if non-Indians come onto the reservation. Tribes are pretty much semi-autonomous, as States are and as local jurisdictions are, and everybody knows you cannot go to a different city or a different State and get away with breaking the law. Basically what we have is a system in which the word is out that people can get off the hook, so to speak, if they are not Indian and they do something on Indian land. Are there any other jurisdictions that you know in the United States where the same kind of logic applies? Most jurisdictions are based on geography. They do not care what color you are. You come in that jurisdiction and you break the law, that is it. The only one I know of is Indian reservations, and that is based on racial background more than geographic area. Is there anything other than that, like military bases-are they similar?

Mr. HEFFELFINGER. Mr. Vice Chairman, Mr. Chairman, off the top of my head, no. I cannot think of one. Even on military bases and the like, the statutes and the law are quite clear as to where our jurisdiction lies, and it is based on a geographic assessment of the boundaries and the confines of a military reserve. Mr. Vice Chairman, your question sort of underlies, and some of the parts of your question, underlies some of the challenges faced

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in Indian country, some of the inconsistencies and confusion associated with establishing jurisdiction in Indian country. In part the reason that I urge the committee to seek a solution to this confusion is that the confusion is not doing a service to anybody. It is not doing a service clearly to the tribes, as there is violent crime, and confusion creates a difficulty in solving that problem. It is also not doing any favors to the non-Indians who may wish to visit Indian country, as they have the same interest in safety; 10 days ago I was in the Navajo Nation as a visitor, and I had the same expectations of safety and security as a visitor to that community as did the people who live there. So I think the resolution of the confusion is in the Nation's best interest.

Senator CAMPBELL. If an Indian person from one reservation is visiting another reservation, he can be arrested by the tribal police, I guess, for committing a crime. Is that correct?

Mr. HEFFELFINGER. That is my understanding.

Senator CAMPBELL. Where is the line? For instance, there are some Indian people who are not a federally recognized or State recognized tribe, or they were terminated in the 1950's and they have not been reinstated, or something of that nature. Therefore, they do not have a census number, or they do not have some kind of identifying factor. How is that filtered through?

Mr. HEFFELFINGER. Mr. Vice Chairman, Mr. Chairman, as I indicated in my earlier remarks, one of the issues we have to address is whether or not an individual is considered an Indian for purposes of jurisdiction. That requires us to assess issues such as whether or not the tribe that they are affiliated with is a recognized tribe. These are unique issues we do not face in any other situation.

Senator CAMPBELL. Another question-in most jurisdictions, law enforcement officers, even when they are off duty, they carry an ID, carry a gun, still retain some police authority. How are tribal police treated? Are they the same? I remember one reservation years and years ago-it has been about 20 years ago, it may have changed since then, or 25 years ago-but I was told by one former tribal policeman, he quit because he only had law enforcement authority when he was on duty. He would arrest someone, another tribal member, but when the guy bailed out or got out, he would wait for him when he got off duty, wait for the tribal policeman when he got off duty, and then assault him when he was off duty.

Mr. HEFFELFINGER. Mr. Vice Chairman, Mr. Chairman, boy, you have raised a great question. I wish I had a simple answer for you. Clearly, if you are a post-certified law enforcement officer under State jurisdiction and you are off duty and you come across a crime, you have law enforcement authority. A tribal law enforcement officer on tribal land probably has the same right in tribal land, but I will tell you, I would not have the comfort that that law tribal law enforcement officer, if he or she leaves the reservation and goes into the neighboring community, non-Indian community, would have that same protection. That would be one of the issues one would try to address in a joint powers arrangement.

Senator CAMPBELL. Yes; speaking of homeland security, we have touched on that a couple of times, is there any plan to incorporate tribes into the border security and the so-called ''seamless border''?

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I understand in the case of some tribes like the Tohono O'odham, that they are undermanned because-you know, I used to be a police training officer years ago in a police academy, so I know a little bit about it, a little bit about law enforcement, a little bit about drug movement. I have always been convinced that drugs move to the source of least resistance. If you have an increase of law enforcement, increase of surveillance in one area, they are going to find another place where there is less surveillance. I mean, it is commonsense.
There seems to be a movement now, since we have more increased surveillance along our borders, and not so much on Indian reservations, that people who would elicit drug trafficking have moved more toward coming across Indian reservations where here is less surveillance. Do you have any comments about that? I understand that it is really taxing some tribes, so they are as a result unable to police some of the things they normally would do because they are trying to spend more time on the borders.

Mr. HEFFELFINGER. Mr. Vice Chairman, Mr. Chairman, I know that first of all that experience varies around the country, but I know communities like the Tohono O'odham of which you have cited are facing that very problem. In connection with the seamless border issue, both the subcommittee I chair, but I think even ahead of me, because he has gotten an advance lead on this issue, is Mr. Toulou, the Department of Justice identified this issue very early after the 11th as one that needed addressing. It is one of our committee's priorities, but it is also I know a priority of the larger Department of Justice and of the Office of Tribal Justice. Maybe Mr. Toulou could address that.

Mr. TOULOU. Yes; the Department is mindful of these issues and we consider tribes as we formulate policy. We try to make sure in the short term as policy is being developed that tribes are included in any discussions we have, and as a first matter make sure that they are involved in any communications we have between law enforcement and...

Senator CAMPBELL. Well, you are having some discussion with them, but what direction are you giving them in regards to somebody that they may arrest-potential terrorists, maybe not-who are not Indian?

Mr. TOULOU. It depends on the law enforcement jurisdiction on the given reservation. What we have asked is that the Border Patrol regional office communicate with their local tribes and develop a protocol for use in that area. I believe that has happened in most situation. A number of the tribes do have jurisdiction. In some of the areas we have gone in working with the BIA to ensure that the -officers on duty are cross-deputized under BIA jurisdiction. Of course, that is on an office-by-officer basis and it is not a blanket arrangement. We try to patch the holes in security as we come across them.

Senator CAMPBELL. I see.

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

Senator CAMPBELL. Yes; please.

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

20

forcement officers on issues of terrorism. In those of us who have Indian country that abuts the border, we have included tribal law enforcement in those trainings, and have also included the local sheriffs that may have responsibility in the Public Law 280, for example, areas in that training. But there still is much work that needs to be done, especially where joint powers arrangements or cross- deputization between the Border Patrol and tribal police needs to be completed.

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

Mr. HEFFELFINGER. Thank you.

The CHAIRMAN. Many State law enforcement agencies have concluded as a result of Supreme Court decisions that they no longer need to cooperate with tribal authorities when serving search warrants or arrest warrants in Indian country regarding crimes that took place off-reservation. What States have taken this position?

Mr. HEFFELFINGER. I will let Mr. Toulou respond to that as well in a moment, but let me give you, from my committee's perspective, where we are seeing more of that. I think to some degree the Hicks decision has allowed that issue to become relevant in every State where there is some other irritant in the relationship between local law enforcement and the tribe. Let me use my State as an example, then I will get to the answer to your question more directly.
In Minnesota there is a longstanding history between local law enforcement and tribal law enforcement and as a result we have longstanding cross-deputization and that type of thing. However, we have one reservation, as an example, where there is a dispute going on between the sheriff and the tribal government. The sheriff has canceled the joint powers arrangement and refuses to renegotiate. That is a symptom of a larger problem. My experience has been that the issues that you asked of Mr. Chairman are of greatest prevalence in those parts of the country where there is some other irritant in the relationship between the tribe and the local community.
I do not think it is accidental that it is in California where we are seeing a lot of these issues arise. One must recognize that it is in California where tribal gaming is gaining a foothold for the first time. That does change the fundamental relationship between tribes and surrounding communities. In areas like Minnesota where tribal gaming has been established and is an accepted part of our State structure, these irritants do not exist and the relationships between the tribes and the surrounding governments has not been significantly affected, other than the one experience I mentioned.

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

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

Mr. TOULOU. I am not aware of any specific States that have taken that position. I think it is, as Mr. Heffelfinger said, it is in individual communities with individual law enforcement, usually at the county level, that we have heard about a conflict. If you look at those places that I am aware of, and it is mostly from press ac-

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counts that we are aware of these situations, they are places that have had problems in the past.

The CHAIRMAN. At this hearing, the members of the panels have cited the horrendous statistics on spousal abuse and such. Do you think Congress should delegate criminal jurisdictional authority over non-Indians to tribal governments so that they can address these problems?

Mr. HEFFELFINGER. Mr. Chairman and members of the committee, I think that is clearly an issue that this committee must address. Tribal governments have become much more engaged in the fabric of the States in which they are located, and tribal communities have done so. This means there is greater prevalent of non-Indians or non-tribal members living within tribal communities. It is impossible to address from any kind of comprehensive way, and I use the area of spousal abuse as an example, the need to stop that in order to break the generational cycle of violence. If we are going to address in a comprehensive way questions of violence in Indian country, we must not be hindered by our inability to prosecute one class of individual versus another. I would urge the committee to address this issue as part of a comprehensive solution, and we look forward to working with you on that.

The CHAIRMAN. My final question-as Chairman of this committee and as a member of this committee over many years-24, I believe -I have been honored by several nations with Indian names and honorary citizenship. Nations have the right to bestow citizenship on anyone they so desire, and even today certain nations have blood quantum requirements. What if a nation decided to make me a citizen? Am I looked upon as an Indian under your law?

Mr. HEFFELFINGER. Mr. Chairman, clearly if you were to come under the scrutiny of the Department of Justice and the issue was ''are you an Indian,'' I would have to address that issue. I do not know that that is enough-the honorary membership.

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

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

Mr. Chairman. It is an intriguing one.

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

Mr. HEFFELFINGER. I simply do not know, and I would be happy to provide an answer to you, Mr. Chairman, in a written submission, to the extent that I can.

The CHAIRMAN. Certain tribes have suggested that I become a citizen. That would be interesting, wouldn't it? [Laughter.]

Mr. HEFFELFINGER. It would be very interesting.

Senator CAMPBELL. If I might ask, has that ever happened to your knowledge, or been tested in court? It has probably happened.

Mr. HEFFELFINGER. Mr. Vice Chairman, Mr. Chairman, I know there are many tribes who have bestowed a membership either honorary or otherwise on people for a number of reasons. I do not know that it has been tested. I am not familiar with the case law, but I would be happy to research it, if you would like.

Senator CAMPBELL. If you would, yes, I would be interested in knowing that, too, because some tribes-well, even some tribes enrolled by blood quantum and some by lineal descendence, and so as an example in the Cherokees, you could be 1/160th by blood and still be enrolled as a member of that tribe as a blue-eyed blond or

22

a redhead with freckles. It would be an interesting discussion about whose jurisdiction that redhead with freckles comes under if a law was broken, as a member. I mean, well-whether it is really based just on having a census number. I know people that were from Osage tribes as an example who have inherited head rights that have not-were not born there, their parents were not born there-it just came down through head rights. They could not even find where the Osage live on the map because they live in California, as their fathers and grandfathers and so on had. And yet they still have head rights and an enrollment number. So if they did stumble across the reservation where their ancestors came from, whether they also would be subject to tribal law because they have a census number, when they have never, and their parents and maybe their grandparents have never had any connection with the tribe. There are really huge areas of gray in this whole dialog, isn't there?

Mr. HEFFELFINGER. Mr. Vice Chairman, as I believe this committee is aware, there is increasing attention being given to enrollment, for many, many reasons, including access to gaming dollars and the like. Tribes give great, great importance to that issue. I do believe that issues of enrollment and how that affects jurisdiction will only increase as we aggressively respond to the violent crime problem.
I am going to ask Mr. Toulou, who I think can remedy some of my ignorance with a better understanding of some of the jurisdiction issues and may be able to give some light to your question about membership.

Mr. TOULOU. I would like to respond more fully after I have had a chance to look at it, but I know of situations such, and I am sure you are aware, too, of the Seminole free men who are tribal members, but a number of those individuals do not have, or at least initially when the rolls were put up, were alleged not to have Native American blood, but were nonetheless seen as members of the tribe. Most situations that I am familiar with dealing with, there is some blood quantum involved, and that is usually a requirement of membership. We would be happy to look further into the situation.

Senator CAMPBELL. Well, I am going to recommend to any tribe that gives Senator Inouye full adoption and tribal rights, that he also get dispensation with that membership. [Laughter.]

Senator CAMPBELL. Thank you.

The CHAIRMAN. I thank you very much, sir. We do have questions. May we submit them to you?

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

The CHAIRMAN. Thank you very much. And our final witness is the tribal chairman of the Bishop Reservation of Bishop, CA, Monty J. Bengochia. Welcome, sir.

Mr. BENGOCHIA. Thank you.

The CHAIRMAN. Please proceed.

STATEMENT OF MONTY J. BENGOCHIA, TRIBAL CHAIRMAN,

BISHOP RESERVATION

Mr. BENGOCHIA. Thank you for having me testify. For the record, I am a Northern Paiute, also known as the Potonowit Band of Pai-

23

ute-Hoopa, Paiute-Hoopa-Numa from the Owens Valley, Eastern Central California, a small reservation of Penn-Daw on the map, probably about a 600-plus voting membership with a 1,600-enrollment, headcount.
We got from probably 2 million acres of ancestral homeland, we have been cut down to 875 acres through historical genocide and trauma. That is probably the primary reason why we are kind of helpless in the area of law enforcement, whereas in ancestral times and prehistoric times before our European relatives came over into our country, we took care of our own law enforcement, because we were sober people, honorable people. My ancestors, they worked hard. They knew how to work with nature, live with nature. It is from atrocities of history that have put us into this situation where we have got to be harassed and sometimes beating our women, touched by law officers, and not having the ability to make a change is kind of very disheartening. So I am glad I have got the opportunity to talk about some of that historical background that has put my people, my nation in this predicament, and hopefully find a solution to remedy this condition, not only for my tribe, but us Paiutes, we cover about Arizona, Northern Arizona, Utah, Southern Idaho, Southern Oregon, maybe one-half the State of Nevada, Eastern California, and we have our Mono Nation relatives on the west side of the Sierra Nevada Mountains.

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

The CHAIRMAN. You are here primarily because of a situation that occurred in March of 2000?

Mr. BENGOCHIA. Yes, when the Inyo County District Attorney and Sheriff came into our casino to obtain employee records that belonged to the tribe and proceeded with, I would say at gunpoint, to obtain those records and cut into our filing cabinets and took records not only of the three employees that they had a search warrant, but I think about 80 more that they took. From that result, we filed a lawsuit in the Federal Court, and lost at the District level, but appealed it and won at the Ninth Appellate.

The CHAIRMAN. Before the county sheriff and the county officials entered the casino-cut the bolt and everything else-did they serve you with their warrant? Did they give you a paper?

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

The CHAIRMAN. To search.

Mr. BENGOCHIA. To search? I do not recollect that. I just remember that we were to get-I do not remember if it was paperwork, but I knew that they wanted to come in, and we told them if we get permission from the employees that it would be open. That is our policy that we operate on.

The CHAIRMAN. Did the county officials damage your casino?

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

The CHAIRMAN. Have the county officials taken other actions that infringed upon your sovereignty?

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

The CHAIRMAN. Or any other time?

Mr. BENGOCHIA. I guess in the sense that for the purpose of this hearing that they have-because of Public Law 280, it has been an

24

invasive environment as a result of the county and State law preserves our-you know, physically present. To me, that is an invasion of our sovereignty.

The CHAIRMAN. You have indicated in your testimony that members of your tribe do not do much drinking, and so you have problems with non-Indians who drink and drive and engage in drug abuse. Have your members been injured as a result?

Mr. BENGOCHIA. Have we been injured from the-you said that our testimony is indicative that we do not party?

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

Mr. BENGOCHIA. Have we been injured from that lifestyle, that drug abuse-yes, sir.

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

Mr. BENGOCHIA. No; we did-I would not say it is established. It has been adopted through tribal ordinance, but we do-we have taken complaints from members who have been, who have waged a complaint and we have compiled it, and we did submit that to the State Attorney General Bill Lockyer over 1 year ago, maybe 11/2, and also to the sheriff's department, to the county sheriff. We have not received any kind of response from the county, and we did understand that they were to do an internal investigation and come up with findings of those allegations, and either deny them or discipline the officers or something, but to my knowledge nothing has been done.

The CHAIRMAN. In your prior communication with the committee, you mentioned that there is a very sacred site at Casa Diablo- some rock sites-and they have been vandalized. Have you had Federal law enforcement agencies investigating this sacred site vandalism?

Mr. BENGOCHIA. I believe that particular tract of land is a reservation that was established in 1912 by President Taft and then +revoked in 1932 by another President, by President Hoover. That land is currently under the jurisdiction or control of the Bureau of Land Management. I do believe that they have looked into the matter and are probably doing what they can with their limited financial resources and personnel.

The CHAIRMAN. Thank you very much, Chief.

Mr. Vice Chairman.

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

Mr. BENGOCHIA. Yes; sir.

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

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

Senator CAMPBELL. They just go ahead and respond?

Mr. BENGOCHIA. I would say yes.

Senator CAMPBELL. If they did respond and the people they respond to are non-Indian, do they then have an agreement with the local deputy sheriff through some cross-deputization or something to address the caller's concerns?

Mr. BENGOCHIA. No; on racial-no, sir.

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Senator CAMPBELL. What is the nearest town to the reservation that is not within the boundaries of the reservation?

Mr. BENGOCHIA. Bishop, California is off the reservation. It is not on the reservation. We are probably a couple of miles from the town, from the main street.

Senator CAMPBELL. There are literally thousands of non-Indians that visit Indian reservations every year, and a lot of reservations in fact have a pretty sizable population of non-Indians. I happen to live at Southern Ute, which is a checkerboarded reservation out of the original something like 600,000 acres that they got in the olden days, there were two times the Federal Government opened that reservation to homesteading because the Utes would not comply with some of the dictates of the Federal Government. So after that was open to homesteading, almost one-half of it was lost to private ownership. And so it is checkerboarded. You cannot tell who lives where unless you go into tribal headquarters and look at a map to see what land is owned by the tribe and what is not owned by the tribe. Is your reservation that way, too- checkerboarded?

Mr. BENGOCHIA. No, sir; we are one--

Senator CAMPBELL. You are solid-you own the whole thing, pretty much, yes? Do you happen to know the percent of people that are on the reservation living there that are non-tribal members?

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

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

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

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

The CHAIRMAN. Mr. Chairman, I thank you very much for your assistance today. I would like to thank all of the witnesses who participated in this hearing. We will most certainly study the testimony and we hope to come up with something.

With that, the hearing is adjourned.

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

Link to Testimony and Attachments (PDF File)

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