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[110 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:41590.wais]
S. Hrg. 110-408
LAW AND ORDER IN INDIAN COUNTRY
=======================================================================
FIELD HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
MARCH 17, 2008
__________
Printed for the use of the Committee on Indian Affairs
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41-590 PDF WASHINGTON DC: 2008
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COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota TOM COBURN, M.D., Oklahoma
DANIEL K. AKAKA, Hawaii JOHN BARRASSO, Wyoming
TIM JOHNSON, South Dakota PETE V. DOMENICI, New Mexico
MARIA CANTWELL, Washington GORDON H. SMITH, Oregon
CLAIRE McCASKILL, Missouri RICHARD BURR, North Carolina
JON TESTER, Montana
Allison C. Binney, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on March 17, 2008................................... 1
Statement of Senator Dorgan...................................... 1
Statement of Senator Kyl......................................... 5
Prepared statement........................................... 6
Witnesses
Cowboy, Samson, Public Safety Director, Navajo Nation............ 15
Enas, Eldred, Vice Chairman, Colorado River Indian Tribes........ 18
Enos, Hon. Diane, President, Salt River Pima-Maricopa Indian
Community...................................................... 8
Prepared statement........................................... 10
Gordon, Hon. Phil, Mayor, City of Phoenix........................ 31
Prepared statement........................................... 33
Humetewa, Hon. Diane, U.S. Attorney, District of Arizona......... 25
Prepared statement........................................... 28
Mendoza, Rod, Chief of Police, Town of Parker, Arizona........... 35
Prepared statement........................................... 37
Appendix
Artman, Carl J., Assistant Secretary, Indian Affairs, Department
of the Interior, prepared statement with attachments........... 59
Eddy, Jr., Hon. Daniel, Tribal Chairman, Colorado River Indian
Tribes, prepared statement..................................... 57
Response to written questions submitted by Hon. Byron L. Dorgan
to Hon. Diane Humetewa......................................... 70
Rhodes, William R., Governor, Gila River Indian Community,
prepared statement............................................. 67
Shirley, Jr., Hon. Joe, President, Navajo Nation, prepared
statement...................................................... 49
LAW AND ORDER IN INDIAN COUNTRY
----------
MONDAY, MARCH 17, 2008
U.S. Senate,
Committee on Indian Affairs,
Scottsdale, AZ
The Committee met, pursuant to notice, at 1:30 p.m. at the
Salt River Pima-Maricopa Indian Community Center, Scottsdale,
Arizona, Hon. Byron L. Dorgan, Chairman of the Committee,
presiding.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. Good afternoon. I'm Senator Byron Dorgan. I'm
Chairman of the Indian Affairs Committee of the United States
Senate.
I'm joined by Senator Jon Kyl, the Senator from the State
of Arizona, and I'm very pleased to be here on this Reservation
and with my friend, Senator Kyl.
This is a hearing of the Indian Affairs Committee, and this
hearing is on the subject of law enforcement.
And it's a very complicated, controversial issue but one
that I think is absolutely necessary that we deal with and
attempt to understand and attempt to solve some of the problems
that exist with respect to law enforcement on Indian
Reservations.
Before we begin the hearing, I'd like to call on the Chief
Judge of our host tribe, Delbert Ray, to offer a traditional
prayer. Mr. Ray?
[Prayer held.]
The Chairman. Let me say, first of all, I'm honored to be
here on the Salt River Pima-Maricopa Indian Reservation, to be
a part of your community today, and convene this hearing.
I want to make a couple of comments, then give an opening
statement, then call on my colleague, Senator Kyl, for an
opening statement, after which we will hear from witnesses and
ask questions.
First, I want you to know that when I became Chairman of
the Indian Affairs Committee, I made it the highest priority of
my work to try to move the Indian Healthcare Improvement Act.
It has been 18 years since that was dealt with on the floor
of the United States Senate and approved, and I'm proud to tell
you that at long last, at long, long last, the United States
Senate has passed the Indian Healthcare Improvement Act within
the last three weeks, and that is I think a significant
victory.
The Committee considers it its top priority. We will now
work to go to Congress with the U.S. House when they have
completed their bill, which we expect in the next several
weeks, and we are going to get this done.
Law enforcement is a serious issue. So, too, is the issue
of Indian healthcare, and I tell you about that progress
because, No. 1, I'm very proud of it and, No. 2, Senator Kyl
played a significant role in it.
Senator Kyl and I met last November and then talked again
in December and developed a strategy and a plan.
And Senator Reed, to his credit, allowed us to get to the
floor of the United States Senate and stay there until we got
it done.
Senator Kyl played a pivotal role in helping me limit
amendments and getting the votes, and so I'm proud to be here
in his state to be able to come and thank you for making some
very significant progress. So Senator Kyl, thank you very much.
I do want to make an opening statement and then call on
Senator Kyl for his opening statement. Perhaps before opening
statements, let me do one other thing.
We have some staff with us today, and I want to identify
them for you because they do a lot of work on all of these
issues. They were also instrumental in allowing us to get the
Indian Healthcare Improvement Act completed.
The Staff Director of the Indian Affairs Committee is
Allison Binney. Allison, would you identify yourself? Stand up.
The Policy Director is John Harte. John is behind us. They
are both really skilled attorneys and terrific staff members of
this Committee.
Senator Murkowski's staff director on the Indian Affairs
Committee is David Mullon, and David has done a great job and
served in that position with Senator McCain as well when he was
Chairman of this Committee, and Ryan Smith is here with Senator
Kyl.
Senator Kyl, before you make a statement, did you have any
comments?
Senator Kyl. That's okay.
The Chairman. Let me make an opening statement that
describes why we're here, and it's a couple pages in length.
But I think we need to set the stage, so I want to tell you
what we are trying to do.
This is the fourth hearing that we have held to examine the
issue of law and order in Indian Country. We have in our
previous three hearings I think discovered that there is a very
severe public safety crisis in Indian Country.
Today's hearing is going to focus on what are the proposed
reforms and changes; but before we discuss the reforms, I want
to talk about what we have been learning.
There is a long-standing, and I think in some cases, life-
threatening crisis with respect to the issue of law enforcement
on Indian Reservations.
One cause and the most obvious cause for me to understand
is just the lack of law enforcement officials. I mean, we have
about 40 percent fewer law enforcement officials than we ought
to have to deal with the sheer size of the territory.
I mean, I know of circumstances where someone calls in a
crime being committed and urgent need for a response, and the
law enforcement person on duty responds as fast as they can
immediately, and it takes them an hour and a quarter to get
there.
Now that's on one of my Reservations. I mean, you could
understand when you have got a million acres or more and one or
two people on duty, you can understand the circumstances.
Tribal detention facilities and jails are in shambles. I
have a couple of photos you will see of things dripping from
the ceiling. If you have toured any of these facilities, you
know exactly what I'm talking about.
The lack of detention space means that in many cases it's a
catch and release system for those who commit crimes, with only
the most violent offenders ultimately being incarcerated and
other offenders released to offend again.
Domestic violence and sexual assaults have reached epidemic
proportions on some Reservations. Two out of every five Native
women will be victims of domestic violence, we are told, in
their lifetimes; and one in three will be a victim of a sexual
assault in their lifetime. Now those are stark, difficult
numbers just to comprehend.
We have heard testimony that some tribal police are forced
to prioritize their rape cases and take only those that will
come with a confession. In other cases, they are just not dealt
with.
Teen suicide on Reservations is twice the national average
in the Northern Great Plains. In some areas, teen suicide is
ten times the national average.
Methamphetamine has plagued a lot of tribes and
communities, and the addiction rate is astronomical. We have
evidence that we have meth dealers moving from reservation to
reservation trying to addict Native Americans and making
certain that Native Americans are not in possession of the
meth, if there is an arrest, because they feel that if they are
non-Indian on the Reservation and are holding meth, they cannot
be arrested.
We had a tribal chair last year testify that of 25 pregnant
women on her Reservation--she is the tribal chair. Twenty-four
of 25 pregnant women tested positive for methamphetamine. That
is a crisis.
Now, I could go on and on about the bad news. The question
is: What kind of good news can we create. How do we address
this.
On November 7, 2007, we released a concept paper. I asked
John Harte, a very skilled attorney, has a lot of experience on
all of these issues, he comes from a tribe in New Mexico. I
asked John Harte to go around the country and consult with
tribes, and he did.
One of the things on this Committee that's very important
to me is that we don't do anything without consultation with
tribes.
So we released a concept paper on law enforcement. This
isn't a paper we are trying to say, ``Here it is, take it or
leave it, here's what I believe.''
It's a paper that addresses a whole series of concepts that
might or might not work, but things that we think would be
helpful, some very controversial because this gets into areas
of sovereignty and jurisdiction and so on.
We need to find a way to weld together the combined efforts
of state government, local government, the Federal Government,
and tribal government to try to deal with law enforcement.
Tribes have limited authority at the local level to deal
with violent crimes. They can sentence offenders to no more
than one year incarceration. That's limited authority.
As a result, victims in Indian Country, they rely on the
Federal Government, specifically the FBI and the United States
Attorney's Office, to investigate and prosecute and, often, the
cases there are declined.
We don't have the declination rate, but we understand
it's--very often it is not the top of the agenda for the U.S.
Attorney's Office.
I'm not tarnishing the U.S. Attorney's offices here. Many
of them do a remarkable job; some not. But in any event, the
tribal government is certainly not in control of this because
they don't have the capability.
The issue of tribal/state cooperative agreements is an
important issue, the issue of local tribal authority.
Tribal police, for example, often don't have the authority
and the tools to effectively secure tribal communities and so
federal laws make it difficult for officers to access federal
criminal history databases.
Now think of that. A tribal police officer making an arrest
has difficulty accessing the national criminal history
databases.
They don't know who they are dealing with. They can't
access that as a law enforcement official. So these are just
some of the things we need to fix.
The jurisdictional questions are real and serious. We are
talking about tribal jurisdictions. Those are always
controversial issues.
Current law fails to provide the local tribal government
control over crimes in their community because, you know, the
fact is many misdemeanor crimes, domestic violence, simple
assault, and so on simply go unpunished because the resources
don't exist to handle it.
Or a non-Indian coming on the Reservation--by the way, 70
percent of the crimes against Indian women on Reservations are
committed by non-Indians, and the law enforcement on
Reservations has no jurisdiction to make that arrest and
prosecute.
And so those are the issues. There are a lot of them. They
are controversial and difficult, but the fact is I'm here
because we need to fix it. We need to find a way to fix it.
I'm interested in your ideas. What are the nuggets of ideas
that you think could advance the interest of improving law
enforcement on Indian Reservations?
Who should do it? What's the Federal Government's
responsibilities? What's the State Government's
responsibilities, local government?
And what can we do to consider things like cross-
deputization and other things that some feel are controversial
issues, but I feel in many ways are going to be necessary to
really put this together.
So that's why I'm here, and that's a short speech. I won't
give another speech today because I'm here to listen.
But as I said, I'm very pleased that our colleague, Senator
Kyl, from your home state of Arizona is here, and I'm pleased
with the role that he has played on Indian healthcare
especially and his interests because Senator Kyl came to me and
asked if we could hold a hearing on law enforcement here in
Arizona.
I'm pleased at his interest in this issue as well because
it's hard to find good help in the United States Senate, and
Jon Kyl is good help. So maybe together he and I can effect
some changes that will save lives and make life much, much
better on Indian Reservations.
Senator Kyl.
STATEMENT OF HON. JON KYL,
U.S. SENATOR FROM ARIZONA
Senator Kyl. Thank you, Mr. Chairman. Welcome to Arizona,
and thank you for all that you have done for the people in
Indian Country throughout your chairmanship, especially holding
this hearing on this important issue.
It was ten years ago almost to the week that I held a
hearing--actually it was in Phoenix--and some of you in this
room I think were at that hearing on the same subject, and it's
sad to say we have not made much progress in the meantime.
I also want to commend you again for the Indian health
legislation. Without Senator Dorgan's long, hard work on the
issue, that would not be reality.
And he's right, that several times he had to go to a
majority leader and say: Don't think we can't get this done.
Please schedule it for the hearing. Believe me, we can make it
happen.
And through his hard work and cooperation with a lot of
people on both sides of the political aisle, it was possible to
get it done. So I really appreciate his leadership and his
interest in this important subject.
I also want to thank President Enos and the Salt River
Pima-Maricopa Indian Community for hosting this event and to
congratulate Diane Humetewa, our United States Attorney for the
District of Arizona, the first Hopi woman ever to be, and in
fact I believe the first Native American woman ever to be a
United States Attorney, and we are very proud of that fact here
in the state of Arizona and we look forward to hearing from her
later.
Arizona is the home to more than twenty Indian tribes, and
they all face unique enforcement issues.
One challenge common to all of them is the lack of federal
funding to meet their basic needs, stemming primarily from the
fact that they are stretched so thin because of the large land
area involved.
The United States Government has a trust responsibility to
provide public safety in Indian Country, and that means helping
provide the resources that are necessary, and yet the Federal
Government has consistently fallen short in meeting that
obligation.
The picture that Senator Dorgan had on the screen a little
while ago of leaks in the roof of the Tuba City jail right
there, I was there.
In fact, I was invited to come--I'm sure they arranged
this, Byron. But I arrived on a Saturday night and it was
raining, so I saw firsthand that, yep, it leaks.
But more than that, the facilities are not adequate either
in the sense of their quality or in numbers to take care of the
people involved.
In fact, I'm told in one case, and there are many such
cases, last year where a woman from Chinle on the Navajo Indian
Reservation was beaten severely.
Her assailant had twice been arrested for similar
violations, but there simply wasn't any space to hold him. He
was released and he beat her again so badly that she had to be
hospitalized.
And this happens over and over and over again, and it's
that failure to meet our responsibility that causes us to be
here today.
Of course this is true throughout the country, this lack of
resources to prosecute or to arrest and prosecute and detain
criminals, but as a result a public safety crisis exists in
Indian Country. And it's exacerbated, as Senator Dorgan said,
by the complex Indian criminal jurisdiction maze.
The proposals being discussed today are the first step in
addressing conditions that threaten law and order in Indian
Country.
While some of the proposals need to be considered more
carefully, it's important that we at least begin a dialogue,
and that starts with getting the ideas from all the folks who
live on the Reservations here and are impacted firsthand.
One area that I hope is highlighted during the hearing are
the detention facilities because that's clearly an area where
the need has been established and we should be able to get
resources for it fairly quickly.
Mr. Chairman, I have got a much more lengthy statement I'd
like to put in the record, but I think it's important for us to
hear from the witnesses now so, again, I thank all of you who
are present, and I thank you again for conducting this
important hearing.
[The prepared statement of Senator Kyl follows:]
Prepared Statement of Hon. Jon Kyl, U.S. Senator from Arizona
Mr. Chairman and members of the Committee, thank you for holding
this hearing on this important issue. I also want to thank President
Enos and the Salt River Pima-Maricopa Indian Community for hosting this
hearing.
Arizona is home to more than 20 tribes, all of which face their own
unique set of law enforcement issues. One challenge common to nearly
every tribe in Arizona is a lack of federal funding to meet basic law
enforcement needs. The United States has a trust responsibility to
provide public safety for Indian country. The Federal Government,
however, consistently falls short of meeting this obligation. Indeed,
tribes throughout the United States lack staff and resources to arrest,
prosecute, and detain criminals. As a result, a public safety crisis
exists in Indian country. This crisis is often exacerbated by the
complex Indian criminal jurisdiction maze.
The proposals being discussed today are the first step in
addressing the conditions that threaten law and order in Indian
Country. While some of the proposals need to be considered more
carefully, it is important that we, at least, begin a serious dialogue
on these issues.
One area that I hope is highlighted during this hearing is Indian
detention facilities. According to a Justice Department study, American
Indians experience violent crime at a rate more than twice the national
average, yet tribal detention facilities have been grossly under-funded
and are in an appalling state of disrepair. A 2004 report by the
Inspector General confirms that Indian detention facilitates are
``Neither Safe Nor Secure.'' The report states that ``it became
abundantly clear that some facilities we visited were egregiously
unsafe, unsanitary, and a hazard to both inmates and staff alike. BIA's
detention program is riddled with problems . . . and is a national
disgrace.''
I have visited Indian detention facilities in Arizona and have
witnessed firsthand their deplorable and unsafe conditions. The state
of these facilities has negatively affected many of the Indian tribes
in Arizona. Take, for example, the Navajo Nation. Itis approximately
the size of West Virginia and has a population of more than 170,000.
Because a number of the Nation's detention facilities have been closed
for health and safety reasons, it only has bed space for 103 inmates.
This incredibly low number, which represents only a fraction of its
needs, leads to severe overcrowding.
The Navajo Nation has stated that overcrowded jails cause the
majority of tribal court judges to defer or reduce sentences. In many
cases, the Nation has no choice but to release and return serious
offenders to their community in a matter of hours.
Unfortunately, this sometimes leads to tragic results.
For instance, according to the Chinle Police Department, in early
2007, a Navajo man was arrested for the third time for domestic
violence and aggravated assault of his wife. Due to a lack of jail
space, the offender was released to make room for new arrestees. The
offender immediately returned home and beat his wife so brutally she
had to be hospitalized.
These problems are not unique to the Navajo Nation. Indeed, many
other tribes in Arizona are facing similar problems and are forced to
release offenders prematurely.
When offenders are released, it is nearly impossible for tribes to
protect their communities and enforce the rule of law. As the Nation
has pointed out, the current system creates a revolving door for
offenders, which leads to a complete lack of respect and disregard for
the tribal criminal justice system. More important, it results in
unsafe communities in and around Indian country.
The Bureau of Indian Affairs and Justice Department can take a
number of actions to improve the conditions of tribal detention
facilities, though whether these conditions improve largely depends on
the level of federal funding for tribal jails.
Consequently, I have advocated increased funding for tribal
detention facilities in Arizona. Thankfully, the appropriations
committees have recently recognized the deplorable conditions of Indian
detention facilities and recommended increased funding for Indian
jails. The Administration, however, must also make this issue a
priority and include sufficient funding in its budget to address this
crisis in Indian country. If immediate action is not taken, crime rates
on the reservation will continue to remain high and the communities in
and around the reservations will be neither safe nor secure.
Once again, I commend the Chairman and members of the Committee for
focusing their attention on Indian law enforcement. I hope that the
hearing today will help underscore the issues that I have discussed and
will bring about thoughtful change to address this public safety crisis
in Indian country.
The Chairman. Senator Kyl, thank you very much. We are
going to hear from two panels of witnesses today, and we will
include the formal statements in their entirety offered by the
witnesses, and we will ask each of the witnesses to simply
summarize their testimony.
The first panel is going to be the Honorable Diane Enos,
the President of the Salt River Pima-Maricopa Indian Community
and, again, we appreciate her hosting us today, Madam Chair.
Second would be the Honorable Vice-Chairman Eldred Enas,
the President of the Navajo Nation of Window Rock, Arizona, who
may come forward.
And third, the Honorable Samson Cowboy. And Mr. Cowboy, I
don't have your title. Mr. Cowboy, you are with the Navajo
Nation, the Navajo Public Safety Director.
Let me say that the second panel will be the new U.S.
Attorney of Arizona, the Mayor of the City of Phoenix, and then
the Chief of Police of the Town of Parker.
So we are trying to get perspectives from a lot of
different areas and levels here, and I think this will be an
interesting opportunity to learn.
Madam Chairwoman, thank you very much for hosting us. Why
don't you proceed. And if you want to pull those microphones
down just a bit, I think they are probably already on.
STATEMENT OF HON. DIANE ENOS, PRESIDENT, SALT RIVER PIMA-
MARICOPA INDIAN COMMUNITY
Ms. Enos. Good afternoon. My name is Diane Enos. I am the
President of the Salt River Pima-Maricopa Indian Community.
I would like to welcome you to the community on behalf of
the people of the community, and I want to thank you also, Mr.
Chairman, Senator Dorgan; the Senate Committee on Indian
Affairs; and members of the Committee for scheduling this
meeting here at Salt River.
I would also like to thank Senator Jon Kyl for his presence
here today. Both of your presence speaks highly of your
commitment to law enforcement issues in Indian Country.
For the record, I have submitted a copy of my testimony
which describes in detail our issues and recommendations
regarding law enforcement in Indian Country.
I would like to thank the Committee for your exemplary work
on the law enforcement concept paper, and today I will focus my
comments on the jurisdictional component of your paper.
We strongly urge Congress to restore criminal jurisdiction
on a government-to-government basis, and the criminal
jurisdiction over non-Indians should be tribal government.
The viciousness and frequency of crimes committed today by
both non-Indians and Indians has increased greatly since the
Oliphant, Wheeler and Duro Era.
Weapons have become more prevalent and easily accessible,
and society has become more mobile. If you recall, Salt River
was the site of the Duro versus Reina case which called for a
Congressional act to fill a jurisdictional void over nonmember
Indians. The void exists with regard to non-Indians.
An example of this is the increasing frequency of drive-by
shootings. In January of 2008 alone, there were 12 drive-by
shootings of residences, and in February there were 5 drive-by
shootings which included that on a church. Legislation to make
drive-by shootings a federal crime should be introduced with
commensurate punishment.
The Salt River Pima-Maricopa Indian Community is located
within the Phoenix metropolitan area that has a population of
approximately three million people with three major freeways.
Two of those freeways are within the Salt River Pima-
Maricopa Indian Community. The freeways bring traffic levels in
excess of 175,000 vehicles and 100,000 people and more, each
day throughout our community.
A dialogue has begun regarding the need for tribes to have
criminal jurisdiction over non-Indians. It is not a matter of
solely wanting to exercise sovereign authority over our own
territory, although that should be understood and appreciated.
Rather, to me, it is the most basic matter of maintaining the
peace, protecting people and their futures.
An example of some of the issues that we face here at Salt
River can be borne out in some of the statistics. These are
included in my record--in my testimony record.
For example, in the first quarter year, October of 2007 to
December 2007, there were 18,220 calls for the Salt River
Police Department.
There were 5,041 reports. There were 105 DUI arrests, 2,222
citations, and 18 narcotics arrests. Keep in mind, this is only
from October to December. Two months.
During that period of time, Salt River detectives seized--
there were on call 65 times and they seized 1,728 items of
evidence.
There was 20 firearms seized of all types--rifles, AK-47s,
SKSs, shotguns, pistols, etc. There were 28,423 telephone calls
to the Salt River Police Department in that short two month
period.
Now as far as the Indian and non-Indian arrests, I have
some statistics. I presented these statistics to the National
Congress of American Indians when the hearing was held about
two to three weeks ago in D.C.
And just to pull out some of the significant numbers in
those, for the calendar year of 2007, in February of 2007,
there were 142 Native arrests and there were 215 non-Native
arrests in Salt River.
Another example. More times than not, the number of Native
arrests surpassed the number of non-Native arrests.
For instance, in May of 2007, there were 228 Native arrests
and 152 non-Natives. Now take that to October of last year.
There were 165 Native arrests, but for that same month there
were 245 non-Native arrests by the police department.
In November, there were 160 Native arrests in Salt River.
That same month, there were 242 non-Native arrests. In
December, 183 Native arrests as opposed to 301 non-Native
arrests in Salt River.
Our statistics also bear out that every 19 hours, there is
a crime of domestic violence. Every 71 hours, there is a crime
against a child for abuse, neglect, or molestation.
There is an accident, traffic, that occurs every 7 hours.
Last calendar year in 2006, there was 1,281; in 2007, I believe
there was 1,090. I give you these statistics as an indication
of the law enforcement issues facing the police officers daily.
We have 117 sworn officers. Our population is approximately
on the Reservation 5,000 members--total membership is 8,500. A
lot of those live off the Reservation.
Compounding the issue is the imposition of legislation such
as the almost unfunded mandates of the Adam Walsh Act and the
Violence Against Women mandate. Tribes must create a sex
offender registry, yet tribes do not have the authority to
arrest or detain non-Indians.
In addition, not all tribes have access to the National
Crime Information Center which provides law enforcement
agencies with access to nationwide criminal data.
We propose that a pilot project be considered and funded
for a certain number of tribes to exercise criminal
jurisdiction over non-Indians.
In my testimony we outline the purpose, need, scope,
duration, criteria, evaluation, retrocession, and termination
of such a pilot project. I would like to highlight the
criteria.
The first point is that a tribe must demonstrate capability
to provide adequate law enforcement services. I mentioned that
our community has a 117 sworn law officers, peace officers.
Another criteria is that they must enter into
intergovernmental agreements.
Third criteria, have existing Special Law Enforcement
Commission Cards; and the fourth criteria is that they have an
above average record for past seven years in providing police
services.
The evaluation tools and schedules will be developed and
implemented on a regularly scheduled basis. At the very least,
in one-year intervals a process would be established to allow a
tribe to retrocede jurisdiction to the Federal Government.
A criteria for termination would be established to
determine when a tribe is no longer able to consistently do the
project.
As a side note here, we also recommend that legislation be
introduced making drive-bys a federal crime with punishment
commensurate with attempted homicide. In Salt River alone, we
have had 12 drive-by shootings in 2008 in January.
Thank you again for the opportunity to testify on such a
critical matter that involves the health, safety, and peace not
only of our community members but the lives of all those
guests, customers, visitors, through our community. I look
forward to answering any questions that you may have regarding
my testimony.
[The prepared statement of Ms. Enos follows:]
Prepared Statement of Hon. Diane Enos, President, Salt River Pima-
Maricopa Indian Community
Good afternoon! My name is President Diane Enos of the Salt River
Pima-Maricopa Indian Community (SRPMIC). I would like to thank Chairman
Byron Dorgan of the Senate Committee on Indian Affairs and members of
the Committee for scheduling this hearing and I would also like to
thank Senator Jon Kyl for his presence here today. What you've proposed
through your Indian Country Law Enforcement Concept Paper is the first
step and we look forward to its introduction, approval by the United
States Congress and becoming law upon the President signature for this
critical piece of legislation.
Background
The Salt River Pima-Maricopa Indian Community was established by
Executive Order on June 14, 1879 by President Rutherford B. Hayes and
is located in Maricopa County, aside the boundaries of the City of
Mesa, Tempe, Scottsdale, Fountain Hills, and our neighbors to the east
is the Fort McDowell Yavapai Nation. The population of the SRPMIC is
approximately 8,000 with a land base of 53,600 acres and we maintain
19,000 acres as a natural preserve.
Snapshot of SRPMIC Law Enforcement Personnel
The SRPMIC is currently staffed by one hundred and seventeen (117)
Police Officers with eleven more in the State Police Academy. In
addition, we have thirty-nine (39) Civilian positions that provide
staff support to our Police Officers. Due to the surrounding municipal
governments of Scottsdale, Mesa, Tempe and Fountain Hills we have
approximately one hundred thousand (100,000) persons and one hundred
seventy-five thousand (175,000) vehicles that travel daily throughout
the SRPMIC.
Law Enforcement Concept Paper
I would like to address several components of your Concept Paper
and I will also address our unique situation.
1. Jurisdiction
<bullet> Restore criminal jurisdiction on a government-to-government
basis.
Criminal jurisdiction over non-Indians should be restored to
Indian Tribal governments. The intent in the passage of the
Adam Walsh Act and the Violence Against Women Act both
recognize tribal involvement and mandate tribes to comply with
certain requirements, such as maintaining a sex offender
registry of all offenders, yet tribes do not have the authority
arrest/detain non-Indians. Major freeway systems and traffic
congestion bring non-tribal members through our Community in
large volumes. We need to equip our Police Officers with the
necessary laws, tools, and protection to do their job in
protecting our Community members.
Recommendation--Jurisdiction
1. To create a law making drive-by shoots a federal crime with
commensurate sentencing.
2. To share Indian Crime Data Reporting with states and other
tribes.
3. To establish and fund a Law Enforcement Pilot Project.
Indian Country Law Enforcement Pilot Project
The viciousness and frequency of crimes committed today, by both
non-Indians and Indians has increased greatly since the Oliphant,
Wheeler and Duro Era. Weapons have become more sophisticated and
available; drug and alcohol use has become more prevalent and easily
accessible; and society has become more mobile.
The intensity and repetition of crime and its after affects has hit
hard in Indian Country and the Salt River Pima-Maricopa Indian
Community (SRPMIC) is no exception. In fact, because the SRPMIC, is
located within the Phoenix Metropolitan area that has a population of
over three (3) million persons with three major freeways within the
SRPMIC that bring traffic levels in excess of one hundred seventy-five
thousand (175,000) vehicles and one hundred-fifty thousand (150,000)
persons a day, we experience even more crime committed by non-Indians.
Tribes are scrambling to provide adequate law enforcement services to
the community as a whole. The glaring gap in those protections is the
lack of criminal jurisdiction over non-Indians who are free to enter
the SRPMIC and who have become aware of the lack of criminal
jurisdiction.
In earlier times, the common thought was that ``Indian Country is
no-man's land; Indian people seek haven on the reservation.'' Now, the
tables have turned: Indian Country is perceived as a safe haven by non-
Indian criminals.
Compounding the issue is the imposition of legislation such as the
(almost-unfunded) Mandates of the Violence Against Women Act (VAWA) and
the Adam Walsh Act (AWA). Tribes are placed in a position of having to
police non-Indian activity without having enforcement authority. There
are still the ``less serious'' crimes that pose safety, health and
peace concerns.
A lack of criminal jurisdiction over the non-Indian criminal
segment of the population places the lives and property of the SRPMIC
and its members in jeopardy as well as the non-Indian population who
are here as visitors, employees, residents, students and customers. The
Scottsdale Community College is located within the boundary of the
(SRPMIC). It also sends a clear message to the non-Indian criminal
element: the morass of jurisdictional lines complicates, and frequently
obstructs, adequate enforcement of law.
A dialogue has begun regarding the need for Indian tribes to have
criminal jurisdiction over non-Indians. It is not a matter of wanting
to take a political stance and exercise sovereignty. Rather, it is the
most basic matter of maintaining the peace, protecting people and their
future.
While many tribes may not want, or are in no position to exercise
such jurisdiction, there are some tribes that feel the need more than
the desire to exercise criminal jurisdiction over non-Indians.
Towards that end, the Salt River Pima-Maricopa Indian Community
proposes that a pilot project be considered for a certain number of
tribes to exercise criminal jurisdiction over non-Indians. Criteria
would be established on a government-to-government basis similar to
self-governance statutes and regulations.
Pilot Project Purpose
The Purpose of the Pilot Project is:
<bullet> To enhance the safety of SRPMIC members, visitors,
employees, non-SRPMIC member residents and law enforcement
staff; and
<bullet> To keep the peace within the boundaries of the SRPMIC.
<bullet> To protect the lives and property of SRPMIC and its members.
<bullet> To provide a continuum of law enforcement services with
adjacent jurisdictions.
Pilot Project Need
The following examples provide for you a snapshot of gaps in Law
Enforcement Authority over non-Indians:
<bullet> Domestic Violence--Non-Indian (suspect) assaults American
Indian victim who are or were in a relationship (standard
domestic violence), the suspect cannot be charged with State
crime of domestic violence since the victim is American Indian;
even though all Salt River Police Officers are State Certified
Police Officers. The suspect may be charged with a Federal
Crime since all Salt River Police Officers now have the Special
Law Enforcement Commission Cards (SLEC), but only if the
injuries are very substantial. The suspect may now only charged
with only disorderly conduct.
<bullet> Assault--A non-Indian suspect assaults an American Indian
victim and the suspect cannot be charged with State crime of
assault because the victim is American Indian; even though all
Salt River Police Officers. The suspect may be charged with a
Federal Crime since all Salt River Police Officers now have the
Special Law Enforcement Commission Cards (SLEC), but only if
the injuries are very substantial in nature. If not, the
suspect may be charged with only disorderly conduct.
<bullet> Burglary--A non-Indian suspect burglarized an American
Indian residence and the suspect cannot be charged with a State
crime of burglary because the victim is American Indian; even
though all Salt River Police Officers are State Certified
Police Officers and the all of our Officers are federally
certified with the SLEC cards, the Federal charges would not
apply. The suspect may only be charged with trespass.
<bullet> Stolen Vehicles--A non-Indian suspect steals an American
Indian's vehicle, the suspect cannot be charged with a State
Crime of Vehicle Theft (if apprehended within the SRPMIC)
because the victim is an American Indian, even though all Salt
River Police Officers are State Certified Police Officers and
all of our Police Officers are federally certified with the
SLEC cards. In the SRPMIC experience, federal charges would not
apply. The suspect may not be charged with any crime.
All of the examples are compounded by the Salt River Police
Department statistics and data, which include the following:
SRPMIC Police Department Reports
In 2007 a total of one hundred two thousand and six hundred seven
(102,607) police reports have been filed. Based upon our 2007 Salt
River Uniform Crime Reports (UCR), we know that domestic violence
occurs every nineteen hours (19) for a total of four hundred fifty-one
(451) crimes, Criminal damage occurs every nineteen (19) hours with
four hundred fifty-two 452 crimes, a crime against a child occurs every
seventy-one (71) hours for one hundred-twenty four (124) crimes and one
accident occurs every seven hours (7) hours for one thousand two
hundred eighty-one (1,281) accidents/crashes.
SRPMIC Domestic Violence
2008: Thirty-two (32) crimes for January
2007: Four hundred fifty-one (451) crimes
2006: Four hundred ninety-six crimes
Once case of interstate domestic violence VAWA was successfully
prosecuted by the United States U.S. Attorney's Office (USAO) The Salt
River Police obtained a Federal arrest warrant and located the suspect
within seventy-two (72) hours and made an arrest. Subsequently, the
defendant in the case was sentenced to thirty (30) months in the
Federal Bureau of Prisons (BOP). The Salt River Police Department also
provides Arizona Law Enforcement Academy (ALEA) Police Academy
Instructors on domestic violence for full faith and credit. Part of our
internal process is to send an Officer to the victim to Notify Upon
Release of the perpetrator. We also require twenty-four (24) hour
incarceration in our Salt River Department of Corrections (SRDOC).
Violent Crimes 2006-2007
In calendar year 2006 we had fifty-five (55) drive-by shootings and
in 2007 we had a total of twenty-nine (29) drive by shootings of which
eight (8) arrests were made and two (2) of these cases involved serious
injuries.
SRPMIC Violent Crimes 2008
So far this year we've had twelve (12) drive-by shootings and one
(1) walk up shooting occurred where the suspect was apprehended. In
February 2008 a total of six (6) drive-by shootings occurred within one
(1) hour on a Sunday morning. Fortunately, there were no fatal
injuries. On this same day two (2) shots were fired at our Police
Officers. Some of the firearms confiscated from the drive-by shootings
include high powered rifles, AK-47, SKS, shotguns and pistols.
Statistics for FY 2007-2008 Fiscal Year (October 2007-December 2007)
<bullet> Eighteen thousand two hundred-twenty (18,220) calls for
service.
<bullet> Five thousand forty-one (5,041) Police reports.
<bullet> Average response time for life threatening calls is three
minutes (3) and fifty (50) seconds.
<bullet> Average response time for priority two, which is in
progress, is four (4) minutes and ten (10) seconds.
<bullet> Eight thousand nine hundred-ninety (8,990) hours of
training.
<bullet> Two hundred ninety-four (294) Accidents/Crashes.
<bullet> Two thousand two hundred-twenty-two (2,222) Citations were
issues.
<bullet> One hundred-five (105) DUI arrests.
<bullet> Eighteen (18) Narcotic arrests.
<bullet> Detectives and Crime Scene Specialists were called out
sixty-five (65) times.
<bullet> One thousand seven hundred twenty-eight (1,728) items of
evidence were impounded for the quarter.
<bullet> Twenty (20) fire arms seized.
<bullet> Twenty eight thousand four hundred twenty-three (28,423)
calls were received by the Salt River Police Department
Communications Center. Three Thousand two hundred ninety eight
(3,298) were 911 calls for service.
<bullet> One hundred fifty-one (1510 alarm signals received by the
Salt River Police Department Communications Center.
Pilot Project Scope
Jurisdiction would be over non-Indians who commit an offense within
the exterior boundaries of the SRPMIC and for whom, had they been a
Community member or non-Community member Indian, the SRPMIC would have
criminal jurisdiction.
Pilot Project Duration
The Pilot Project would be in place for a three-year period, after
which time it would be evaluated and determined whether it should
continue.A report, including the outcomes of such evaluations shall be
reported to the United States Congress annually.
Pilot Project Criteria
Criteria would be established on a government-to-government basis.
a. Demonstrate Capability to Provide Adequate Law Enforcement
Services.
b. Enter into Intergovernmental Agreements.
c. Have existing Special Law Enforcement Commission Cards
(SLEC).
d. Have above average record for past seven (7) years in
providing police services.
Pilot Project Evaluation
Evaluation tools and schedules will be developed and implemented on
a regularly scheduled basis, at the least, in one-year intervals.
Pilot Project Retrocession
A process would be established to allow a tribe to retrocede
jurisdiction to the federal government, it may do so.
Pilot Project Termination
Criteria would be established to determine when a tribe is no
longer able to participate in the Project.
2. Financial
<bullet> Restore Funding for Crime Labs.
FBI discontinued $450,000 funding to Arizona Dept. of Public
Safety for processing tribal and state case evidence. This
decision created an inability for Arizona Tribal Police
Departments to effectively process and prosecute cases due to
the absence of funding. Arguably, this federal trust
responsibility was previously met for years and for reasons
unknown, has since been abandoned. SRPMIC had to enter into a
costly Intergovernmental Agreement one hundred fifty thousand
dollar ($153,000) Agreement with the City Scottsdale in order
to ensure that law enforcement services would continue. We
recognize that not all tribes have that close proximity, or the
finances available. We would request funding be made available
to assume cost for lab cost(s). The Federal Bureau of
Investigation's response is ``It's a budgetary matter.''
<bullet> Increase and make permanent adequate funding for law
enforcement services.
The SRPMIC is fortunate to have the necessary resources and
partnerships to support our law enforcement personnel and
programs. However, other tribes are in desperate need of
revenue.
<bullet> Increase funding for Detention Centers, but more
importantly, for Operations and Maintenance for both adult and
juvenile facilities.
The SRPMIC is fortunate to have our own newly built adult and
juvenile Correctional facility, however, maintenance costs is
still needed to Ensure we provide upkeep to our facility.
<bullet> Clarify and strengthen review of declinations from the US
Attorney's Office.
Working hand in hand with the U.S. Attorney for the District of
Arizona, Funding for training of Officers and ways to secure
and maintain evidence is critical for victims who often times
have no voice.
3. Education
<bullet> Federal staff should be educated on the trust responsibility
and the various levels of jurisdiction throughout Indian
Country. In negotiating agreements with federal agencies, it
can take extra time to try to get federal representatives to
understand that the relationship of the tribe to the federal
government differs. For example, the BIA Manual does not apply
to tribes that have entered into a self-governance compact.
4. Intergovernmental Relations
<bullet> Special Law Enforcement Commissions cards.
For years, some tribes have held such commissions without need
for an IGA. The Agreements developed were imposed on tribes who
have taken on a federal responsibility, and have successfully
fulfilled the responsibility. Yet, the Agreements did not
totally meet the needs, nor were they ``negotiated''. SRPMIC
began ``negotiating'' in Fall 2003 and finalized our
negotiations in Winter 2007 with the Bureau of Indian Affairs
to enter into an Agreement that meets the needs of our
community and follows the terms of the Compact. Six years is
much too long a timeframe to wait for Special Law Enforcement
Cards (SLEC) when our people and law enforcement personnel are
being violated.
<bullet> Since 1994, the SRPMIC currently has Intergovernmental
Agreements and Contracts with the Arizona Department of Public
Safety (AZDPS) Highway patrol. AZDPS is the primary law
enforcement investigator of motor vehicle collisions involving
non-Indians that occur on the freeways within the SRPMIC. These
include SR Loop 101, SR 202 and SR 287 Beeline. If SRPMIC
members or Indians are involved, the SRPMIC Police department
will investigate the incident. We also contract with the City
of Scottsdale Police Department Crime Lab to process our
evidence. This after the Federal Bureau of Investigation (FBI)
refused to continue this service for Arizona tribes. Indian
Country evidence is now processed in Quanitco, Virginia.
<bullet> Since 1995 we've had a contract with the City of Mesa Police
Department, Center Against Family Violence (sexual assault and
domestic violence assaults).
<bullet> Consultation--Not done in Adam Walsh Act
The Act, specifically the sections which affect Indian Country,
were done without consultation with Indian Tribes. Tribes were
also given a unilateral choice to comply by opting in to
develop and coordinate a registry, or have state law imposed.
Tribes under PL 280 jurisdiction were not even given an option.
<bullet> Lack of Communication of Matters
From time to time changes in personnel and programming require
notification to the tribal government leaders and Police
personnel.
5. Homeland Security
<bullet> An overarching principle is that Indian tribes have
throughout the years, practiced ``Homeland Security'' both
amongst the tribes and currently through development of
governments, legislation and the judicial system.
<bullet> The United States political borders are not always the same
as tribal cultural borders, yet we are bound and current
practices are now being thwarted, by such legislation as the
Patriots Act and the REAL ID Act.
<bullet> Tribes should be exempted, or at least allowed to opt-out of
legislation aimed
<bullet> at advancing national security and fighting terrorism
against the Untied States.
6. Passage of the Indian Health Care Improvement Act
The physical and mental health of individuals is a crucial
component to reducing recidivism. We are grateful for the
Senate Committee On Indian Affairs and your efforts to ensure
the passage of the IHCIA. We look forward to its passage on the
House side and being signed into law by the President.
Thank You for the opportunity to testify on such a critical matter
that involves the health, safety and peace of not only our Community
members but the lives all those who are not members of the SRPMIC. We
look forward to success passage and implementation of this legislation
and I commend the Senate Committee on Indian Affairs for your exemplary
work and commitment towards restoring the federal responsibility in
Indian Country.
The Chairman. President Enos, thank you very much for your
testimony. We appreciate you being here and we appreciate your
hosting us.
Ms. Enos. You're welcome.
The Chairman. Next we will hear from Mr. Samson Cowboy, a
Navajo Public Safety Director of the Navajo Nation of Window
Rock, Arizona.
Mr. Cowboy, you may proceed.
STATEMENT OF SAMSON COWBOY, PUBLIC SAFETY DIRECTOR, NAVAJO
NATION
Mr. Cowboy. Thank you, sir. Good afternoon. Chairman Dorgan
and Senator Kyl and your staff, thank you for being here.
This is an honor. I come from a detention law enforcement
and police service and correction--or detention background.
I have walked many miles on those concrete surfaces that
you have shown there in the detention facility way back when in
1983.
Then I became a police officer, and I drove many miles on
dirt roads, and I made many arrests and some that had ended on
the dirt, and I have been shot at and I have requested for
backup which was two hours away.
I have experienced all that, and I have worn many hats
being a criminal investigator. One day I would be a social
worker. The next day I would be a fire marshal. There are weeks
I would be a coroner. Then finally a month later, I would be
back in my old job as a criminal investigator.
I have experience, and I have been in the shoes of our
people that are in law enforcement. My people that I oversee as
a Division Director of Public Safety, I have great respect for
them, and that's the reason why it's a great honor to be here.
Again, my name is Samson Cowboy. I am Division Director,
and I'm representing President Joe Shirley, Jr. Unfortunately,
he couldn't be here today for other emergency issues that he
had to tend to. Nonetheless, I will summarize some of his
remarks.
The Navajo Nation is 21,000 square miles, and we cover
three states. And you all have different needs, different
jurisdictional issues, different types of statutes that we have
to deal with when it comes to State.
We have to deal with the different type of way the
management is and the different United States Attorney's
Office. However, as partners with the States and with the
Federal Government, I think we are in good standing. We have
been working diligently side by side on a lot of meth issues,
bootlegging issues, and prosecuting some of the crimes on the
Navajo Nation.
However, there are some still discrepancy that still exists
within the three states. I think with this hearing, that might
be one of the issues that need to be looked at at how we can
uniform one jurisdiction on the Navajo Nation with regard to
Federal.
And the State we have cross-jurisdiction that we have
implemented. We have MOUs that we have put in place with the
sheriffs, and that's working.
The other issue that we deal with is the non-Indians. As
you know, when you look at the map, Navajo Nation is like a big
hole there when you see the Nation out in the boundary
outlines.
We have a haven for criminals that are coming on to the
Nation, particularly those that are trafficking drugs.
We have a high crime of drug trafficking, and we also or
have encountered domestic violence by non-Navajos which is also
an issue when it comes to jurisdiction.
Our law enforcement responds to over a quarter of a million
calls a year, and those calls are for all types of services,
and the law enforcement are our first responder on the Navajo
Nation.
We had 174 police officers in 2003, and we had increased it
to 350 or 73 and now we are back to 347 because of the
surrounding agency are recruiting our people. These are some of
the areas that we are competing with over manpower because of
salary and that funding issue.
The criminal investigators that we have are very capable of
providing the service. However, when we had the Safe Show Task
Force that was in place with the FBI, it was very effective.
That's another area of our concern, if we can with
assistance from your Committee, maybe that can be recommended
and we can get back together on that and work with the Safe
Show Task Force as it was before.
The detention facility. You have shown that picture with
the ceiling that's cracking. That facility has since been
closed, and we also closed another facility which is Chinle.
The only facility that is open is Tuba City, Crown Point--
not Tuba City--Shiprock, Crown Point, and Window Rock. Those
are the only three facilities.
And we have 20 bed space with the BIA in McKinley County,
so we have a total of 83 bed space a year ago, but now we have
53 bed space. So that's a dire need for us, a facility.
In order for us to satisfy some of these sentencing, some
of the prosecutor's work that need to be recognized, the
courts, a facility is the only thing that's going to resolve
our issue.
We can have all the manpower. We are just going to increase
the arrests, we are going to respond to high numbers of calls,
but we will not solve the problem.
The problem that we have, the basic problem that we have is
facility. If we can get a facility, even at least one regional
facility, I think that would be sufficient for us as we move
along for a long-term solution in building more facilities.
I think one area that I personally would like to see is
better coordination between BIA and Navajo Nation in order to
build at least one facility.
I know Senator Domenici has been working on some proposal,
but that hasn't come to a reality. And we are looking forward
to that. I think there needs to be some support on Domenici's
initiative on the New Mexico side.
The other concern that we have is the cross-deputization,
as it was brought up. We have submitted our documents, and it's
not being approved by BIA.
We need to get that deputization so we can protect our
people. Our police officers respond to calls, and they get
assaulted or they get shot at and the offenders are only
charged as--the officers are not considered within the--under
the color of law. They are considered as civilian victims so
they are not--the individuals are not prosecuted to the
fullest. That's the reason why we need the deputization put
back in place.
The other area that we are concerned about is with high
numbers of calls. I have 46 dispatchers that work throughout
the Navajo Nation, and these dispatchers have been with us for
a number of years.
However, we are losing them because of retirement. In the
Navajo Nation, it was unheard of, retirement for dispatchers,
but we are at that stage now and I'm ready to see at least five
more dispatchers retire.
I already had four of them retire, and their salary is just
a little bit above minimum wage. These are some of the concerns
that we have. In order to have an effective law enforcement, I
think the support needs to be there.
The other lacking issues that we have is in 911. We don't
have the 911. We don't have a telephone service.
The vastness of the land is another issue, and the
prosecutor can do their job but without facility, again, that's
where we come back to.
And then with the facility, there is no treatment. There is
no treatment that comes with it. I think there's got to be some
type of treatment that needs to be incorporated when we build
these facilities.
All in all, I think this comes down to funding. We can talk
about solution, but I think funding is a big issue.
We have a budget of 19 million, but that's shared between
three law enforcement programs which is corrections, criminal
investigation, and law enforcement. And when the pie is broken
down, it's very minimal for our people to realize how much is
missing when it comes to budget.
The other thing about the budget is that we had never had
an increase in the last four years. So these are other areas of
our concern.
With that, sir, I think it's an honor, again, for you to
come out here and for us to be here in Arizona, and it was a
short trip for me, and thank you very much.
The Chairman. Mr. Cowboy, thank you very much for your
testimony. We appreciate your being here. We appreciate your
long service in law enforcement.
The Honorable Eldred Enas is the Vice Chairman of the
Colorado River Indian Tribes.
Mr. Enas, you may proceed.
STATEMENT OF ELDRED ENAS, VICE CHAIRMAN, COLORADO RIVER INDIAN
TRIBES
Mr. Enas. Good afternoon, Chairman Dorgan and Senator Kyl,
honorable tribal leaders, and guests. I want to thank you this
afternoon for the opportunity here to appear before you and to
discuss law enforcement issues in Indian Country.
I will highlight some of the law enforcement problems that
we face in our Reservation. I can assure you that our problems
are not unlike those faced by others in Indian Country.
Law enforcement issues are of increasing importance to all
tribes, and we are grateful for the Committee that has
dedicated its time and resources to invest in discussions of
our concerns and needs.
The Colorado River Indian Tribes, CRIT, is facing the same
dilemma as many Indian tribes across the nation.
Its tribal justice system is severely underfunded by the
Federal Government. Through P.L. 93-638 contracts, the Bureau
of Indian Affairs funds a mere 30 percent of the cost needed to
operate the CRIT's law enforcement and detention programs,
leaving CRIT to absorb the remaining 70 percent. CRIT has
repeatedly objected to this shortfall.
Further, even though CRIT did not renew its P.L. 93-638
contract for juvenile detention, the BIA has not fulfilled its
obligation to transport and detain juvenile offenders.
Despite the fact that the program is now the responsibility
of the BIA, CRIT continues to incur substantial costs related
to the detention and transport of all juvenile offenders.
The issues facing CRIT's three law enforcement programs--
juvenile detention, adult detention, and uniformed police--will
be discussed in detail.
No. 1, juvenile detention. In May of 2004, the BIA removed
all CRIT juveniles from the CRIT juvenile detention facility on
the Reservation.
The juveniles were removed because CRIT's juvenile
detention facility was connected to the adult detention
facility and did not meet the Department of Justice
requirements for sight and sound separation between adult and
juvenile detainees.
CRIT's juveniles are currently housed at the Gila County
Juvenile Detention Center in Globe, Arizona, 5 hours and 250
miles away from the Reservation.
This is a violation of the National Institute of Correction
regulations which mandate that no individual subject to
incarceration under the Federal system and Federal guidelines
can be incarcerated in a facility of no more than 250 miles
from his or her home.
Unfortunately, the families of these juveniles are unable
to physically visit their detained children.
Even a trip to Globe is unattainable for those families
with little or no income and no means of transportation. This
means it makes it even more difficult for juvenile detainees to
reintegrate themselves into their families and their community.
It is very difficult for CRIT to deliver mental health and
substance abuse services to the juvenile detainees who are
housed 250 miles away from their Reservation. Therefore, CRIT
juveniles are not receiving these much needed services.
If these services were on or closer to their Reservation,
CRIT's behavioral health services and alcohol and abuse
programs as well as the juvenile detention--probation
department would be able to adequately serve these children.
Having the BIA assume these transportation duties has led to
another grave problem. CRIT juveniles are not being transported
back to the Reservation in a timely manner.
For example, in December a juvenile detainee was not
transported back to the Reservation until 13 days after her
tribal court release date. The transportation of this juvenile
detainee occurred only after a formal letter from the CRIT
chairman was sent to the BIA supervisory corrections officer in
Phoenix.
Further, until they are transported to Globe, juvenile
detainees are held in a CRIT juvenile temporary holding
facility.
CRIT receives no funding, BIA funding, for this operation
and maintenance of this facility or for the temporary holding
of juveniles who are awaiting adjudication or transportation to
Globe. The juvenile temporary holding facility is only for
holding juveniles for this purpose and a short period of time.
However, since the BIA is unable to fulfill its obligation
to transport juvenile detainees, children remain in the CRIT
temporary housing facility up to several months.
To date, CRIT is holding five juveniles that are awaiting
transport from the BIA. The longest stay period has been over
three months for one of these juvenile offenders.
Initially the BIA picked up these children within 48 hours
of the transport order. Due to overcrowding and safety
concerns, CRIT has repeatedly been forced to release juvenile
detainees before the end of their sentence because the
temporary holding facility is not appropriate for holding long-
term detention. This has resulted in an increase in juvenile
recidivism on the Reservation.
To make things worse, CRIT expended approximately $680,000
of its own funds from 2005 to 2007 to house and transport
juvenile detainees.
CRIT was forced to pay these costs after the BIA failed to
uphold its obligations after closing the juvenile--tribal
juvenile detention facility in 2004.
After a long, exhaustive fight with the BIA, which went way
up to the Assistant Secretary for Indian Affairs and Director
of Law Enforcement, CRIT has only been reimbursed only 250,000
out of the 680,000 owed.
Currently CRIT bears the entire cost of the juvenile
facility. This cost the tribes approximately 240,000 annually.
The second portion is the adult detention. The BIA's
proposed base funding for the P.L. 93-638 contract for adult
detention is 270,000 for Fiscal Year 2008. The program costs
approximately 760,000 each fiscal year.
CRIT has repeatedly objected to this shortfall in funding.
The proposed BIA funding covers approximately 36 percent of the
cost to operate this program, while CRIT absorbs the remaining
64 percent.
In 2007, as a result of the shortfall, CRIT Tribal Council
took action not to recontract the adult detention program.
In late April, in reliance on a promise of additional
funding from the BIA, the Tribal Council took action to extend
the adult detention P.L. 638 contract through September 30,
2007.
This extension was agreed to in reliance of the following
additional funds available to CRIT: An increase of funding by
180,000 and the restoration of approximately 30,000 in 10
percent hold-back funds. These funds were to carry the program
to the end of the fiscal year on September 30, 2007.
The BIA later asked the tribe to extend the 2006 adult
detention 638 contract to December 31, 2007. CRIT reluctantly
agreed, although the tribe received no additional funding.
Law enforcement. The BIA proposed base funding for the P.L.
638 contract for uniformed police for the 2008 fiscal year is
$673,000.
The total projected program cost is approximately
$2,115,000 annually. Thus, the BIA funding only covers
approximately 32 percent of the total cost and CRIT absorbed 68
percent.
CRIT has been very conservative with the uniformed police
budget due to the extreme shortfall in funding.
Unfortunately, our conservative spending puts our police
department at a disadvantage because our neighboring
jurisdictions pay their officers at a more competitive rate and
provide a more competitive benefits package.
As a result, CRIT's turnover rate for uniformed police is
alarmingly high, around 50 percent for 2006 and 2007. As a
consequence of the high turnover rate, CRIT police officers
work exceedingly long hours to ensure adequate police coverage
on the Reservation.
And in conclusion, it is evident that the BIA is failing in
its fiduciary and other obligations to CRIT.
The shortfall in law enforcement and detention funding
exposes CRIT to a very serious problem such as a diminished
public safety presence on the Reservation.
Moreover, even when the BIA assumes responsibility for
programs such as juvenile detention, it fails to follow
through.
Congress should work to ensure adequate funding for Indian
Country law enforcement and improved responsiveness of the BIA
to the needs of tribal programs.
I just want to add that, myself, I'm an ex-officer, had
about twelve years with the Tribal Police and eight years with
the County as a County Deputy.
And they say once it gets in your blood, it's always there.
Even though I'm the Vice Chairman for the tribe, this is one of
my interests and I would like to follow this through and see
what turns up at the end of day. Thank you.
The Chairman. Mr. Enas, thank you very much for your
testimony. I'm going to ask just a couple of questions before I
will call on Senator Kyl.
I think all of you have given some extensive analysis of
what you consider to be the shortcomings on Reservation law
enforcement and lack of resources, the jurisdictional issues,
and so on.
President Enos, in your testimony you describe, for
example, domestic violence, quoting your testimony: A non-
Indian suspect assaults an American Indian victim, who perhaps
was in a relationship, is standard domestic violence. A suspect
cannot be charged with a State crime of domestic violence since
the victim is American Indian. The suspect may be charged with
a Federal crime since all Salt River police officers now have a
Special Law Enforcement Commission Card, but only if the
injuries are very substantial.
You see a burglary. A non-Indian suspect burglarizes an
American Indian residence, and the suspect cannot be charged
with a State crime of burglary because the victim is an
American Indian. You say in that case Federal charges would not
apply.
Stolen vehicles. A non-Indian suspect steals an American
Indian's vehicle. The suspect cannot be charged with a State
crime of vehicle theft if apprehended within the boundaries of
the Reservation because the victim is an American Indian.
Federal charges would not apply.
I guess that's news to me. You are saying a non-Indian
suspect comes on the Reservation, steals an American Indian's
vehicle, and the suspect can't be charged with a State crime of
vehicle theft because it happens on the Reservation and it's
the theft of the vehicle of an American Indian; is that
correct?
Ms. Enos. Let me respond to that. My analysis is of a
practical nature, for instance, if you have a situation where a
non-Indian is presumed to be the suspect. Suppose you catch
them in the act, so to speak.
What has to be done is our officers can detain such an
individual once they go through the determination that it's a
non-Indian. They can detain, they can call the State Police,
and they can refer the case.
The difference in practicality if we had jurisdiction over
that individual would be that our officers could take that
individual into custody, take him before the Court, prosecute,
file charges--the prosecutor would file charges.
The case could go before a tribal jury, and we understand
that there are considerations for non-Indian possibilities of
them serving in the jury. If given a sentence, they would serve
that sentence in the jail. That's the practical analysis of
that.
Sure, if a non-Indian comes out here and is caught red-
handed, they are going to call the State Police.
And if the State Police are available, if the crime is of a
serious enough nature, more likely than not charges could be
filed. But, again, that's an intrusion of State laws into the
Reservation.
The Chairman. All right. Let me ask the three of you. Let's
assume that there is a domestic violence on your Reservation
today. A non-Indian commits an act of serious violence against
a spouse who is an American Indian.
What is likely to happen this afternoon in Federal prison
on your Reservation?
Ms. Enos. In Salt River, the police would call and notify
the FBI, for one thing, if it's a serious enough injury because
it would fall under a Federal statute presumably.
They would also contact the State Police officers, probably
the Department of Public Safety or Sheriff's Office and, again,
if they are available and if they are willing to come out, our
officers would have to investigate and process all evidence.
The Chairman. What's the likelihood of the prosecution in a
case like that, arrest and prosecution?
Ms. Enos. Again, I think that depends on the seriousness of
the injury, unfortunately. If you slap your girlfriend around
or your spouse around, the chances of prosecution decrease.
I guess the alarm here is that do Indian women have to be
seriously maimed before somebody comes in and prosecutes them?
The Chairman. Mr. Cowboy, on your Reservation, what's the
likelihood of an arrest and a prosecution?
Mr. Cowboy. It depends. The reason why I say it depends is
we have to work with the FBI. It depends on the nature of the
injury, what the young lady described here.
If it falls under the major crime act, then, yes, the
individual would be prosecuted; but if it's a domestic that
falls a little short or there is a lot of gray area. You have
to understand that.
And if it falls under that, then we have to rely on the
FBI's position, if they are going to move forward to
investigate it, and the U.S. Attorney's position.
So we rely on these two agencies to make the determination
if it's going to be prosecuted. A lot of times they are not
prosecuted so we are just standing there and we have to let the
individual go.
The Chairman. Mr. Enas?
Mr. Enas. It's very much the same. It relies on the
offense, whether it's a misdemeanor or a major felony.
The BIA comes in after the investigation of the Tribal
Police, and most likely I would say it wouldn't be prosecuted
in the State Court so--we have been successful in working with
the State Courts.
The Chairman. The reason I ask the question is it in many
ways summarizes the problems. We have people telling us from
around the country on Indian Reservations that even in cases of
rape that it is not all that certain that there is going to be
a prosecution when the perpetrator is known.
It kind of depends on a whole series of circumstances. In
many cases, there are areas where if you take someone to a
health clinic, there is no rape kit available to gather
evidence and a whole list of circumstances where there are a
lot of--in this case with this question--Indian women who
believe that there are those who are not brought to justice as
a result of crimes against women. That's just one area. But----
Ms. Enos. I have to say, Senator, also there is the
position, too, that the State has no jurisdiction on a
reservation where a victim is an Indian.
The Chairman. I understand that. Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman. Let me just follow
along in that line of questioning to Mr. Cowboy.
You have been involved in law enforcement on the largest
Reservation in our country. Is your experience that there is a
need for resources all the way from the beginning to the end?
In other words, from the number of officers, the vehicles
you have, all the way to the charging officers, the detention
facilities, the judges, the prosecutors, the defenders, the
crime labs?
Does that exist throughout the entire system with your
Indian Affairs?
Mr. Cowboy. Sir, I think you hit it right on the spot in
one word, crime lab. There is a big gap there right now.
With any case that we investigate, even an expert requires
another expert to testify on their behalf. If we don't have a
crime lab, you know, where a lot of times our cases are
dismissed. That's one area.
The other thing is I think when we talk about the whole
system, yes, we do need support at every level in order to be
successful. It's all the way to the Court. I think we need to
develop our--strengthen our own justice system. I think that's
where it's at, and I think that's where we need a lot of
support.
Senator Kyl. In your experience, is there much difference
between the prosecution of crimes by the tribal government
against members of the tribe or other Indians on the one hand
and the Federal Government's prosecution of crimes committed by
non-Indians on the Reservation?
Mr. Cowboy. I work in three states and they all have a
different position. I think like in New Mexico, if it's a
victimless crime, the State will handle it, meaning if it's a
burglary or vehicle, somebody takes an item out of the vehicle
or takes a vehicle, if it's not a person involved, the State
will handle it on the New Mexico side.
Now when it goes to Utah, they won't accept any cases. And
when you go to Arizona, you know, there's some cases that, you
know, the counties will handle it but, again, it goes through
the layers again. We have to rely on the U.S. Attorney and the
FBI.
Senator Kyl. And with respect to the serious crimes, since
we are talking about serious domestic violence crime against
women and so on, with regard to those more serious crimes where
the State would not be involved, is there much difference in
your experience between the prosecutions by the tribal
prosecutors versus those that are handled by the FBI and the
U.S. Attorney's Office?
Mr. Cowboy. I think our tribal prosecutors are very
aggressive going after the case and, again, it falls back into
the facility. When it goes into the Federal cases, then it
depends on opinion, you know, what opinion we are going to get
back.
Senator Kyl. Let me ask you, the other two gentlemen talked
a lot about resources, and I noticed you didn't testify much
about resources. And you heard me talk about the entire
criminal justice system here.
Could you indicate what your community situation is with
respect to resources brought against the investigation and
prosecution of these crimes?
Ms. Enos. Certainly. The community has to put a significant
amount of its budget into the law enforcement issues.
We just completed a state-of-the-art facility where the
Federal Government funded approximately half of a $21 million
facility that's going to house both juvenile and adult
offenders.
As I indicated, we have 117 sworn officers and a
significant amount of support staff goes with that as well.
The community has had to enter into a contract with the
City of Scottsdale for more than $300,000 just to process
evidence because the BIA cut the funding for evidence last
year. So the community stands ready and willing to commit
resources, not insignificant resources, to the problems
associated with law enforcement.
Senator Kyl. Would that include the necessary resources to
prosecute the crimes against non-Indians that would be not
prosecuted by the Federal Government?
Ms. Enos. We would. As I indicated in my testimony or my
comments earlier about state jurisdiction over non-Indians,
there are a variety of states that have, as this gentleman
indicated, different interpretations of application of state
law.
As far as the non-Indian that would be in our estimation,
we discussed that an example of a possible pilot project would
be jurisdiction over non-Indian domestic partners.
To give you an example, in Salt River in 2008 there were 32
crimes in January alone with domestic violence.
In the whole of 2007, there were 451 domestic violence
crimes; in 2006, 496 domestic violence crimes.
We have these statistics by virtue of the fact that we have
the equipment to keep statistics, the officers to investigate
those crimes, the technicians to process evidence so they tell
stories.
Senator Kyl. And my question is, since obviously the whole
point of this is the lack of resources primarily committed by
the Federal Government, you are saying that you would make the
resources available to make up for this difference and if you
were given the jurisdiction that you could prosecute the crimes
that you mentioned?
Ms. Enos. Yes. We have committed the resources. Let me say
also that one of the unique things about all of the tribes, one
of the unique things about Salt River is not only our physical
location but the fact that we are one of the successful gaming
tribes in Arizona.
Now, we could not do what we do, I dare say, without the
resources available to us through gaming, and the fact that we
committed a significant amount of those resources towards law
enforcement says a lot about our intentions for the future.
Senator Kyl. Mr. Chairman, I have got a lot of other
questions. I take it you'd like to move on to the next panel
here? Or do you want to just keep rotating back and forth?
The Chairman. I have a series of questions as well. What
I'd like to do is submit questions to you for the record
because we are trying to get some analysis of the proposals
that exist out there, and I want to go to the second panel.
Just in the interest of time.
So I want to thank the three of you for your statements,
and we will submit written questions to you and ask if you
would submit for the record.
We intend to hold the record open for two weeks and ask for
submissions not only by the three of you but by others who did
not testify but wish to submit questions for the Committee.
Ms. Enos. We also ask leave to supplement our testimony.
The Chairman. Thank you. Next we will hear from the
Honorable Phil Gordon, the Mayor of the City of Phoenix; the
Honorable Diane Humetewa, who is the U.S. Attorney for the
District of Arizona here in Phoenix, Arizona; and Mr. Rod
Mendoza, the chief of police of the Town of Parker Police
Department in Parker, Arizona.
Let me thank all three of you for being here. Mr. Mayor, I
landed in your city today. Phoenix looks like it's doing well--
and Senator Kyl knew Mayor Gordon long before he became Mayor--
and I appreciate the work that you are doing, Mr. Mayor.
Mr. Gordon. Thank you.
The Chairman. If I may call on the U.S. Attorney first and
say I was one of those who submitted a letter on your behalf,
enormously proud that you are serving as the U.S. Attorney, and
we will ask once again the three of you to summarize your
testimony. But let's begin with you. You no doubt have heard a
lot about the issue of the U.S. Attorney's responsibilities on
these Indian Reservation law enforcement issues. It's
complicated, difficult, controversial, but we very much
appreciate your work and your being here. You may proceed.
STATEMENT OF HON. DIANE HUMETEWA,
U.S. ATTORNEY, DISTRICT OF ARIZONA
Ms. Humetewa. Thank you. The Department of Justice
appreciates the opportunity to testify on its efforts to
address Indian Country crime.
I am Diane Humetewa, the U.S. Attorney for the District of
Arizona. I wish to also thank the Salt River Pima-Maricopa
Indian Community, and in particular President Enos for
welcoming us here today.
The Department knows that the needs of the Indian tribal
governments in responding to crime and violence continues to be
great, and the President and the Attorney General are committed
to working with Federal, tribal, state, and local law
enforcement to do what it can to provide safety and security in
Indian country.
In fact, I was privileged to accompany Attorney General
Mukasey on January 14th to the Navajo Nation where he met with
President Shirley, the Attorney General, members of the Navajo
Nation Tribal Council, and the Supreme Court Justice.
He also toured the detention facility in Window Rock. He
spoke with tribal prosecutors, defenders, and social service
providers.
Also on February 20, the Attorney General met privately
with representatives of the NCAI, the National American Indian
Court Judges Association, and the Indian Law Section of the
Federal Bar Association to discuss justice related issues in
Indian Country.
The Department's efforts in Indian Country are led by the
law enforcement agencies and the United States Attorneys. The
FBI is heavily involved in investigating major crime act
violations and the DEA drug trafficking offenses in Indian
Country, and the U.S. Attorney's Office is daily prosecuting
Federal offenses arising on Indian land.
The Department's Office of Tribal Justice, Office on
Violence Against Women, Office of Justice Programs among others
support these efforts.
Of the 94 U.S. Attorney districts, 29 have some Indian
Country jurisdiction. Along with the AUSA, each of these
districts has a tribal liaison who is responsible for
coordinating Indian Country relations in their district.
Currently 44 AUSAs serve as tribal liaisons nationwide, and
I would like to acknowledge Vincent Kirby and is also the
tribal liaison from my district who is here in the audience
today.
In Arizona, due to our vast Indian Country, in addition to
our tribal liaison, each AUSA has some responsibility for
handling Indian Country crimes.
Also each AUSA in our violent crime section is assigned to
a specific tribe and tribal multi-disciplinary team for child
abuse cases in order to establish relationships with the tribal
police and prosecutors.
We have been doing this for over ten years. In our
Flagstaff office, two AUSAs take cases from the northern area
Indian tribes. This greatly reduces the travel and overtime
previously impacting tribal police department budgets as they
no longer have to come to Phoenix to participate in the initial
stages of the federal prosecution.
Moreover, it provides Northern Arizona federal crime
victims better ability to participate in the preliminary stages
of the federal criminal case.
Regarding federal law enforcement efforts, the FBI has
worked in coordination with tribal and local law enforcement to
ensure that the investigation of crimes in Indian Country is
performed in an effective manner.
Even with the heightened demands from terrorism
investigations, Indian Country law enforcement remains a high
priority for the FBI. In fact, the FBI has increased the number
of special agents working in Indian Country crimes by 7 percent
since the tragedy of 9/11.
In addition, during the past few years, the DEA has made
significant gains with tribal police by providing training,
evidence analysis, and developing strategies to address drug
smuggling and drug abuse problems in Indian Country.
For example, in 2007, approximately 31.4 tons of marijuana
was seized on the Tohono O'odham Nation, which is often used as
a major Mexican drug smuggling corridor.
And since 2005, locally the DEA, BIA, FBI, and some tribal
police departments, along with my office, participated in a
methamphetamine eradication initiative to remove
methamphetamine dealers from Arizona's Indian Country.
Let me now turn to an issue that you have expressed an
interest in, declination rates. The Department understands that
tribal members may feel frustrated when they do not know why or
how a particular case was handled after being referred for
federal prosecution.
First I want to assure tribal members and this Committee
that my office and the offices of my colleagues take very
seriously every case referred to us for prosecution.
Second, we caution that the declination rate does not give
a full picture of what occurs in a given case.
A decision not to prosecute federally does not necessarily
mean the end of a case, and for this reason federal declination
figures cannot give a complete picture of how Indian Country
crimes are handled.
For example, the case that is initially declined may still
be charged after further investigation. The Department is also
concerned about publicizing declination reports which are
generally not public and the information therein often
statutorily protected from public disclosure.
Therefore, the U.S. Attorney's Office works closely with
our state, tribal, and local partners to ensure that each
alleged crime is effectively and appropriately handled.
Next, let me turn to the Congress' ability to create tribal
court jurisdiction over misdemeanor crimes committed by non-
Indians in Indian Country.
First, I wish to address the misunderstanding often
perpetuated about a jurisdictional gap in Indian Country. It is
important to understand that for every crime in Indian Country,
there is a court of justice, be it tribal, state, or federal.
For every criminal who commits an offense in Indian
Country, there is a venue for justice. In some cases, there are
in fact multiple courts with jurisdictions over the matter.
If Congress is considering legislation in this area, it
should be aware of significant constitutional concerns. As this
the Committee knows, the Supreme Court in Oliphant versus
Suquamish Indian Tribe 435 U.S. 191 (1978) held that tribal
Courts do not have jurisdiction over non-Indians.
Since that case, the executive and legislative branches
have considered proposals that would give Indian tribes
criminal jurisdiction over non-Indians.
Because DOJ has not been presented with specific
legislative proposals on the subject, the Department cannot
opine at this time on precisely the type of constitutional
concerns a particular proposal would raise.
At a minimum, the Department believes that any legislative
proposal must ensure the defendants are granted the due process
and other rights provided by the United States Constitution.
Additionally, any attempt to expand tribal court
jurisdiction to non-Indians must be evaluated to determine
whether it could provide recourse to federal courts to
appellate review, including clarifying the scope of that
judicial review.
In addition, some tribes do not permit non-Indians to
participate in the tribal government process or in jury pools
which may raise equal protection issues.
Let me conclude by highlighting our efforts in our district
to foster cooperation and coordination between tribes, states,
and Federal Government.
As the Committee knows, law enforcement in Indian Country
has been hampered by the lack of state, local, and tribal law
enforcement authority to investigate federal crimes.
Since last year, through our cross-deputization training
program, my office's AUSAs trained over 100 state and tribal
police officers on federal criminal law and procedure.
This prepared them to take an examination which, if passed,
qualifies them for a special law enforcement commission through
the BIA.
The SLEC card gives the officer authority to enforce
federal law and to investigate federal crimes in Indian
Country. This cross-deputization program is a force multiplier
which allows tribal and state police to increase law
enforcement efforts in Indian Country.
I am proud of the work that the United States Attorney's
office in Arizona has accomplished in this regard and with
regard to all other efforts aimed at addressing violent crime
in Arizona's Indian Country.
In closing, I want to thank you, thank the Committee, for
the opportunity to discuss these important issues. We are
committed to working with you to improve the safety and
security of those who live in Indian Country. Thank you.
[The prepared statement of Ms. Humetewa follows:]
Prepared Statement of Hon. Diane Humetewa, U.S. Attorney, District of
Arizona
Chairman Dorgan, Vice-Chairman Murkowski, and Members of the
Committee: The Department of Justice (``the Department'' or ``DOJ'')
appreciates the opportunity to testify before the Committee regarding
the Department's efforts to combat crime in Indian Country. I am Diane
Humetewa, United States Attorney for the District of Arizona. I welcome
you all to the great State of Arizona, and I am pleased to talk to this
Committee about DOJ efforts to ensure that the rule of law prevails in
Indian Country.
We at the Department of Justice know well that the needs of Indian
tribal governments in combating crime and violence continue to be
great. We appreciate these challenges, and the President and the
Attorney General are committed to working with tribal, state and local
law enforcement, the Department of the Interior, and others to do what
it can to provide safety and security in Indian Country.
In fact, one of the first extended trips by Attorney General
Mukasey was to Indian Country. On January 14th, the Attorney General
visited the Navajo Nation's seat of government in Window Rock, Arizona.
While here, he met with the Navajo Nation's Tribal President, Attorney
General, members of the Tribal Council, and the Chief Justice of their
Supreme Court. He also toured a justice center, including the jail and
tribal courts, and met with prosecutors, defense attorneys, and
behavioral health employees. Furthermore, on February 20th, the
Attorney General had a private meeting with representatives of the
National Congress of American Indians (NCAI); the National American
Indian Court Judges Association (NAICJA) and the Indian Law Section of
the Federal Bar Association (FBA) to discuss justice related issues
impacting Indian Country.
In general, the Department's efforts in Indian Country are led by
the federal law enforcement agencies and the United States Attorneys.
The Federal Bureau of Investigation (FBI) is critical to bringing the
perpetrators of serious crimes in Indian Country to justice, and
investigating major crimes, while the Drug Enforcement Administration
(DEA) takes the lead on combating drug trafficking on Indian lands. The
U.S. Attorneys daily prosecute federal offenses on Indian lands to the
fullest extent of the law. The Department's Office of Tribal Justice,
Office on Violence Against Women, Civil Rights Division, Office of
Justice Programs, Community Relations Services, and Environment and
Natural Resources Division, among others, provide support or supplement
these efforts.
First, let me speak about U.S. Attorneys efforts. Of the 94 federal
U.S. Attorney districts, 29 have Indian Country jurisdiction. Each of
these districts has at least one tribal liaison, an Assistant United
States Attorney (AUSA) who is responsible for coordinating Indian
Country relations and prosecutions. While many more AUSAs have
responsibility in Indian Country, there are currently 44 AUSAs serving
as tribal liaisons nationwide. In Arizona, along with the tribal
liaison, every AUSA in our violent crime section has some
responsibility to prosecute crimes in Indian Country. Each AUSA in the
group is assigned to a specific tribe and to a tribal Multi-
Disciplinary Team in order to establish routine working relationships
with the tribal law enforcement and prosecutors. We have been doing
this for more than 10 years. Furthermore, in our northern Arizona
office, we have assigned two AUSAs to triage cases from the northern-
most Indian reservations. This has greatly benefitted the Northern
Arizona Indian tribes because it enables them to bring their cases for
initial review in Flagstaff, rather than having to travel all the way
to Phoenix. This has saved the tribes a substantial amount of overtime
and travel-time pay for their employees, and enables victims of crimes
to have greater access to the preliminary state of a Federal court
proceeding.
Nationwide, we dedicate significant prosecutorial resources in
Indian Country. For example, approximately 25 percent of all violent
crimes handled by U.S. Attorneys' Offices occur in Indian Country.
These efforts are leading to many successes. In Fiscal Year 2006, the
Department's efforts in Indian Country were above average across the
board. The Department filed nearly 5 percent more cases than the
average since 1994. Almost 14 percent more cases went to trial than the
average since 1994, while our conviction rate rose to 89.4 percent from
the 86.2 percent average since 1994. Eighty percent of those guilty of
violent crimes were sentenced to prison, and the number of defendants
convicted of violent crimes receiving sentences greater than five years
increased from 31 percent on average since 1994 to 36 percent.
On the law enforcement side, the FBI has worked very hard to
improve lives in Indian Country. FBI Indian Country activities are
coordinated by the Indian Country/Special Crimes Unit. This Unit
develops and implements strategies to address identified criminal
problems in Indian Country, and supports the efforts of all law
enforcement personnel working in Indian Country. This includes managing
manpower resources, addressing budgetary and resource issues, providing
training, procuring services and specialized equipment, and providing
assistance to FBI Special Agents assigned to Indian Country, BIA
criminal investigators, and law enforcement officers from tribal police
departments. These strategies ensure that the investigation of crimes
in Indian Country is performed in a manner that will provide the most
effective law enforcement services to American Indian people.
These efforts have paid off. Even with the heightened demands from
terrorism investigations, Indian Country law enforcement has remained a
high priority for the FBI. Contrary to some claims, the FBI has
increased the number of Special Agents working Indian Country cases by
7 percent since the 9/11 terrorist attacks.
Additionally, DEA field offices work with state, local, and tribal
law enforcement to address issues of drug trafficking in Indian
Country. During the past few years, the DEA has made significant gains
with the Indian law enforcement community and has coordinated efforts
to come up with strategies and solutions to tribal smuggling,
distribution and abuse problems. For example, DEA's strategy now
includes the increased use of Title III wire tapping as an
investigative tool in dealing with the unique problems associated with
addressing drug trafficking on Indian lands.
Again, these efforts have paid off. Here, in Arizona, the Tohono
O'odham Indian Reservation is the second largest reservation in the
United States, sharing approximately 70 miles of border with Mexico.
The reservation is believed to be used as a primary corridor for the
movement of illegal drugs by Mexican drug trafficking organizations. In
2007, approximately 31.4 tons of marijuana were seized on the
reservation.
Much of this success can be ascribed to the Safe Trails Task Forces
initiative. The FBI, in conjunction with the DEA and our partners at
the Bureau of Indian Affairs (BIA), started the initiative to form
interagency partnerships composed of federal, tribal, state, and local
law enforcement officers operating throughout Indian Country. The
purpose of the Task Forces is to benefit Indian Country law enforcement
by leveraging scarce resources in the fight against methamphetamine and
other drugs. In 2002, we had six STTFs up and running. Today, we have
expanded the program to include eighteen Safe Trails Task Forces
nationwide. During Fiscal Year 2007, the STTFs obtained 106
indictments, arrested and/or located 129 subjects, obtained 144
convictions, and disrupted two drug trafficking organizations.
The Department's Office of Justice Programs (OJP) has developed a
close working relationship with many American Indian and Native Alaskan
tribes and remains committed to helping tribal communities meet the
unique challenges they face in the areas of law enforcement and
criminal justice. In September 2007, OJP implemented a new Tribal
Grants Policy, which will help Native communities seeking OJP resources
through its competitive grant solicitation process. OJP has hosted
several interdepartmental Tribal Consultations and Training & Technical
Assistance (T&TA) sessions. OJP also coordinates the Department of
Justice's Tribal Website, www.tribaljusticeandsafety.gov, which is used
to keep Indian Country informed on all of our tribal initiatives,
grants, activities, training and events. This site has grown in
popularity since it was launched in 2006. We recognize that the
successful STTF efforts impact other components of the tribal, state,
and federal justice system and support services, such as meeting
confinement needs, placement of drug endangered children, substance
abuse treatment, probation, community re-entry, and recidivism. We are
collaborating with other federal agencies to address law enforcement
and safety in a comprehensive fashion.
Let me now turn to an issue that I know the Committee has expressed
some interest in-declination rates. First, I want to say that I
understand the frustration that many tribal members may feel when they
do not know how and why a particular case was handled the way it was.
But I want to assure those tribal members and the members of this
Committee that my office and the offices of my colleagues take very
seriously every case referred to us. We investigate each case and work
to prosecute, to the fullest extent of the law, as facts and
circumstances warrant. Second, I want to caution that declination rates
do not show the full picture on the Department's actions in a given
case and the Department has some concerns about publicizing declination
reports. As this Committee knows, U.S. Attorneys' Offices share
jurisdiction with state and tribal prosecutors in many Indian Country
cases, working closely with our partners such as the BIA to ensure that
each alleged crime is effectively and appropriately handled. A decision
not to prosecute federally does not mean the end of the case, and for
this reason, federal declination figures cannot give a complete picture
of how Indian Country crimes are prosecuted. Where federal courts have
exclusive jurisdiction--in cases falling under the Major Crimes Act--a
case that is initially declined may still be returned for prosecution
after further investigation. Additionally, some cases do not fall
within federal jurisdiction at all and may be declined after being
erroneously referred to a U.S. Attorney's Office.
In some cases, we are restricted by statute from providing
declination reports. For example, where Indian tribes have entered into
confidentiality agreements with the U.S. Attorney's office, as with
Multi-Disciplinary Teams (MDTs) for child sexual abuse cases,
information about cases is routinely shared between the federal and
tribal agencies. But MDTs are also governed by federal statute, and
penalties can apply to those who breach the confidentiality of the
investigation and a victim's right to privacy. In other instances, a
declination may occur because there is an on-going investigation that
requires the law enforcement agency to protect the investigation. For
example, if a grand jury investigation has been convened, law
enforcement officers and prosecutors can be subject to criminal
liability for improper disclosure of information.
Furthermore, in my experience, we have seen declination reports
getting into the wrong hands, jeopardizing investigations and the
safety and privacy of witnesses and victims. This is particularly a
concern for districts with small tribal populations, in which even
reports that have personally identifying information redacted could
still be linked to victims.
Next, let me turn to the issue of Congress' ability to create
tribal court jurisdiction over misdemeanor crimes committed by non-
Indians in Indian Country. Let me start addressing a misunderstanding
often perpetuated about a ``jurisdictional gap'' in Indian Country. I
want to state clearly-for every crime in Indian Country, there is a
court of justice, be it tribal, state, or federal. For every criminal
who commits an offense in Indian Country, there is a venue for justice.
In many cases, there are multiple courts with jurisdiction over the
matter.
If Congress is considering legislation in this area, it should be
aware of significant constitutional concerns. As the Committee knows,
the Supreme Court in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191
(1978), held that tribal courts do not have jurisdiction over non-
Indians. Since that case, the Executive and Legislative branches have
considered proposals that would give the tribes jurisdiction over non-
Indians. Because DOJ has not yet been presented with a specific
legislative proposal on the subject, the Department cannot opine at
this time on precisely what kind of magnitude of constitutional
concerns a particular proposal would raise. At a minimum, however, the
Department believes Congress must consider the type of constitutional
concerns identified below.
First, any federal legislation on criminal matters must comport
with the due process and other rights guaranteed to criminal defendants
by the Constitution and federal law. For example, the Indian Civil
Rights Act (ICRA) only guarantees counsel in a criminal prosecution at
the defendant's own expense and does not provide for court-appointed
counsel. Any grant of tribal court authority over non-Indians,
especially in felony cases, would need to address the issue of counsel
for indigent defendants, including the process for appointment and
compensation of counsel for indigent defendants.
Currently under the ICRA, the only means of federal court review is
by means of habeas corpus petitions, which is generally a collateral
review involving some form of incarceration. As with state criminal
cases, direct review of tribal court determinations by a federal court
may be both desirable and necessary. For example, serious misdemeanors
that do not lead to imprisonment can significantly impact a defendant
even without incarceration. Accordingly, any attempt to expand tribal
court jurisdiction to non-Indians must be evaluated to determine
whether it could provide recourse to federal courts for appellate
review, including clarification of the scope of that judicial review
(i.e., whether the review is focused exclusively on constitutional due
process or on the application of the given body of law by the tribal
court).
Some tribal courts assemble juries from pools composed only of
tribal members, and the criminal law and procedure that governs
proceedings in tribal courts can be the product of tribal government
decisionmaking in which non-Indian and/or non-tribal members and their
interest are not represented. The lack of representation by non-Indian
or non-tribal members of a tribal community in the tribal governmental
process and specifically in jury selection for criminal cases raises
equal protection and due process questions that must be considered in
deciding whether it is possible to extend tribal criminal law and
tribal criminal court procedure and jury selection to non-tribal
members.
Finally, let me conclude by highlighting one of many success
stories fostering cooperation and coordination between tribal, state,
local, and the Federal Government-that is our cross-deputization
program. We have improved the ability of state, local and tribal law
enforcement to fully investigate federal crimes and to make arrests
under federal law in Indian Country. Under our cross-deputization
program, we work with our partners in the BIA to train tribal, state,
and local officers, about federal law and give them an opportunity to
take an examination and if successful, receive federal Special Law
Enforcement Commissions (SLECs) through the BIA.
SLECs assist the Federal Government in combating crime in Indian
Country and, in turn, are entitled to the same immunities as other
federal law enforcement officers. SLECs allow tribal law enforcement
officers to enforce Federal law, to investigate Federal crimes, and to
protect the rights of people in Indian country, particularly against
crimes perpetrated by non-Indians against tribal members. Most
significantly, cross-deputized officers are empowered to make arrests
on federal charges in Indian Country, including misdemeanor and felony
violations of federal law. In essence, cross-deputizing tribal, state,
and local law enforcement is a force multiplier, allowing tribal and
state police officers to increase the law enforcement efforts within
Indian Country.
Once cross-deputized, these law enforcement officers receive the
same protections as federal employees under the Federal Tort Claims Act
(FTCA). Thus, if such an officer is sued for state common law torts
committed while acting within the scope of the federal deputation, the
Department would certify that the individual is a federal employee
acting within the scope of employment and move to substitute the United
States in his or her stead for the common law torts. The result of
substitution is that the officer would be immune from liability for the
common law claims as the FTCA provides the exclusive remedy in tort. As
with all federal employees, however, coverage is limited to non-
constitutional claims. If the deputized tribal officer is sued for a
constitutional violation under the Supreme Court's decision in Bivens
v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971) (which recognized
an implied cause of action for deprivation of a constitutional right by
a federal officer), the suit would proceed against the individual for
that claim, just as it would proceed against any federal officer who is
sued on a Bivens theory.
I am proud of the work that the Arizona U.S. Attorney's Office and
the BIA have done in recruiting tribal and state police officers to
earn federal enforcement authority in Indian Country. Just last month,
AUSAs from my office trained and tested more than 40 tribal police and
Arizona Department of Public Safety officers for SLECs. Those who
passed the SLEC test received a certificate granting them federal law
enforcement authority in Indian Country. This was the third time that
the BIA and the U.S. Attorney's Office in Arizona have teamed up to
give the training over the past year, with approximately 100 tribal and
state police officers certified through the program. Those officers are
making a real difference in tribal communities. The Department is
committed to supporting further training sessions such as the one held
in Arizona last month. I want to thank the Committee for the
opportunity to discuss these issues today. We stand ready to work with
the Committee to improve the safety and security of all those who live
in Indian Country. Thank you.
The Chairman. Thank you very much for your testimony. We
appreciate you being here.
Mayor Gordon, thank you very much for being here, and you
may proceed.
STATEMENT OF HON. PHIL GORDON, MAYOR, CITY OF PHOENIX
Mr. Gordon. Thank you very much, Chairman Dorgan and
Senator Kyl. I also want to thank the Salt River Pima-Maricopa
Indian Community president for hosting this hearing today.
One may ask why is the ``Mayor of Phoenix'' testifying at a
hearing devoted to Native American criminal justice issues? Let
me share a few facts.
Phoenix is the largest city in Arizona, a state with 22
tribes and several of the largest Reservations in the country.
We are the financial, legal, governmental, and economic
center for the region, which has three recognized tribes: Salt
River Pima-Maricopa Indian Community, Ft. McDowell Yavapai
Nation, and the Gila River Indian Community.
In fact, we share 22 miles of our southern border with the
Gila River Indian Community, the largest Indian community
border in the Valley and one of the largest city borders in the
state.
In addition, Phoenix has the third most Native Americans
living within its boundaries of any American city.
Of the ten largest U.S. cities, Phoenix has the highest
percentage of Native American residents. That means we work
closely with both tribal governments and community-based non-
profit agencies on issues as varied as cultural and
archeological preservation, affordable housing, transportation,
and public safety.
One of my priorities as Mayor has been to facilitate
regional action on a whole range of issues, specifically public
safety.
Crime and the criminals who commit crime know no
boundaries. As a responsible City leader, it is imperative that
I foster state, tribal, and municipal agencies so that we can
all make our residents safer, whether they live in the City of
Phoenix, on a tribal reservation, or in another part of the
Valley.
Senator Dorgan and Senator Kyl, as I believe you both know,
our enforcement agencies in this Valley work together on all
levels in a cooperative spirit unlike anywhere else in the
Nation.
Our efforts of coordination are renowned as was
demonstrated most recently by Superbowl 42 held here just two
months ago, which is now viewed as a law enforcement model for
national events.
Included in the participation of public safety were many
public safety officials from our Native American communities.
There are several areas of collaboration between the City
of Phoenix and tribal governments that may be of interest to
this Committee. The Phoenix Police Department has several
cooperative-use agreements in place with the Gila River Indian
Community on a variety of issues.
Specifically we have agreement spelled out in detail on the
protocol for dealing with fresh pursuits, apprehensions, and
investigations that may occur between the City of Phoenix and
Gila River.
We also have a cooperative-use agreement to share radio
communications facilities and provide microwave links for the
public safety radio network.
We have also provided radio equipment under a Department of
Justice program that has facilitated better interoperable
communications, and our Phoenix police personnel have met with
Gila River staff to work on interoperable issues between the
Phoenix South Mountain Police Precinct and Gila River.
In short, the Gila River Division of Public Safety has been
a good partner with the Phoenix Police Department, and we have
been happy to work cooperatively to assist them with their
public safety needs.
Also we have reached out to the Salt River Pima-Maricopa
Indian Community and the Ft. McDowell Yavapai Nation on
communications initiatives being led by the Phoenix Urban Areas
Security Initiative, otherwise known as UASI.
Phoenix law enforcement has met with Salt River Pima-
Maricopa Indian Community on several occasions and will be
providing equipment for them to use for interoperable
communications in the region.
We are working with them on a possibility of a long-term
agreement to join the Valley's regional communications network.
We look forward to continuing that effort and finalizing an
agreement that will help protect all Salt River and Ft.
McDowell residents and residents throughout the Valley.
We support a number of the concepts contained in the
Committee's white paper that is under discussion.
Let me point to three specific areas that would be helpful
to regional efforts to prevent crime and improve collaboration
between local law enforcement agencies and tribal agencies.
First, the facilitation of cross-deputization agreements
between local police agencies and tribal law enforcement.
We support a program within the Department of Justice to
encourage and provide technical and other assistance to tribal,
state, and local enforcement agencies that have completed or in
the process of entering cooperative law enforcement agreements
to combat crime on Indian lands.
Second, increase federal support for hiring and training
more tribal police officers. That doesn't only help Reservation
residents; it helps the entire region by putting more police
officers on the ground who are available to investigate and
fight crime across jurisdictional boundaries.
And, finally, as part of the reauthorization of the Indian
Alcohol and Substance Abuse Act, include more programs for off-
Reservation treatment programs and youth assistance so agencies
like Native American Connections and the Phoenix Indian Center
can continue and expand their collaboration with tribes and
their work to help tribal members who may have relocated to
urban centers and don't have access to Reservation-based
programs.
I appreciate this opportunity to share some of the success
stories we have had working with Phoenix-area tribes and
encourage the Committee to continue its work to strengthen law
enforcement collaboration among and between tribes and federal,
state, and local governments.
On behalf of our chief of police, Jack Harris, I would like
to thank all--and I emphasize all the tribes for the
communication they have given the Phoenix Police officers in
protecting our city.
[The prepared statement of Mr. Gordon follows:]
Prepared Statement of Hon. Phil Gordon, Mayor, City of Phoenix
Background
Why is the Mayor of Phoenix testifying at a hearing devoted to
Native American criminal justice issues?
Let me share a few facts.
Phoenix is the largest city in Arizona, a state with 22 tribes and
several of the largest reservations in the country. We are the
financial, legal, governmental, and economic center for the state, and
more specifically, Maricopa County, which has three recognized tribes,
Salt River Pima-Maricopa Indian Community, Fort McDowell Yavapai
Nation, and the Gila River Indian Community. In fact, we share 22 miles
of our southern border with the Gila River Indian Community, one of the
largest Indian communities in the state.
In addition, Phoenix has the third most Native Americans living
within its boundaries of any U.S. city. Of the 10 largest U.S. cities,
Phoenix has the highest percentage of Native American residents. That
means we work closely with a variety of organizations, both tribal
governments and community-based non-profit agencies, on issues as
varied as cultural and archaeological preservation, affordable housing,
transportation, and public safety.
One of my priorities as Mayor has been to facilitate regional
action on a whole range of issues, including public safety. Crime and
the criminals who commit crime know no boundaries. As a responsible
City leader, it is imperative that I help foster cooperation among
state, tribal, and municipal agencies so that we can make all our
residents safer, whether they live in the City of Phoenix, on a tribal
reservation, or in another part of the Valley.
Current Coordination and Collaboration Between the City of Phoenix and
Local Tribal Governments
There are several areas of collaboration between the City of
Phoenix and local tribal governments that may be of interest to the
Committee. For example, the Phoenix Police Department has several
cooperative-use agreements in place with the Gila River Indian
Community on a variety of issues. Specifically:
<bullet> We have an agreement spelled out in some detail in a police
operations order on the protocol for dealing with fresh
pursuits, apprehensions, and investigations that may occur
between the City of Phoenix and Gila River.
<bullet> We have a cooperative-use agreement to share radio
communications facilities and provide some microwave links for
them for their public safety radio network.
<bullet> We have also provided radio equipment under a Department of
Justice program that has facilitated better inter-operable
communications, and our Phoenix Police personnel have met with
Gila River staff to work on interoperable communications issues
between the Phoenix South Mountain Police Precinct and Gila
River.
In short, the Gila River Community Division of Public Safety has
been a good partner with the City of Phoenix Police Department and we
have been happy to work collaboratively to assist them with their
public safety needs.
Also, we have reached out to Salt River Pima-Maricopa Indian
Community and Fort McDowell Yavapai Nation on communications
initiatives being led by the Phoenix Urban Areas Security Initiative,
otherwise known as UASI, the Homeland Security Department initiative
that supports the unique planning, equipment, training, and exercise
needs of high-threat, high-density urban areas.
Although there are no specific agreements in place, Phoenix law
enforcement has met with SRPMIC on several occasions and will be
providing equipment for them to use for inter-operable communications
in the region. We are working with them on the possibility of a long-
term agreement to join our regional communications network. We look
forward to continuing that effort and finalizing an agreement that will
help protect all Salt River and Fort McDowell residents and residents
throughout the Valley.
Proposals for Improving Cooperation Between Local Law Enforcement
Agencies and Tribal Agencies
We support a number of the concepts contained in the Committee's
white paper that is under discussion. Let me point to three specific
areas that would be helpful to regional efforts to prevent crime and
improve collaboration between local law enforcement agencies and tribal
agencies.
<bullet> The facilitation of cross-deputation agreements between
local police agencies and tribal law enforcement. We support a
program within the Department of Justice to encourage and
provide technical and other assistance to tribal, state, and
local law enforcement agencies that have completed or are in
the process of entering cooperative law enforcement agreements
to combat crime on Indian lands.
<bullet> Increase federal support for hiring and training more tribal
police officers. That doesn't only help reservation residents,
it helps the entire region by putting more boots on the ground
who are available to investigate and fight crime across
jurisdictional boundaries.
<bullet> As part of the reauthorization of the Indian Alcohol and
Substance Abuse Act, include more programs for off-reservation
treatment programs and youth assistance so agencies like Native
American Connections and the Phoenix Indian Center can continue
and expand their collaboration with tribes and their work to
help tribal members who may have relocated to the urban centers
and don't have access to reservation based programs.
I appreciate the opportunity to share some of the success stories
we have had working with Phoenix-area tribes, and encourage the
Committee to continue its work to strengthen law enforcement
collaboration among and between tribes and federal, state, and local
governments.
The Chairman. Mr. Mayor, thank you very much. Finally we
will hear from Mr. Mendoza. Mr. Rod Mendoza is Chief of Police
from the Town of Parker in Parker, Arizona. Mr. Mendoza, you
may proceed.
STATEMENT OF ROD MENDOZA, CHIEF OF POLICE, TOWN OF PARKER,
ARIZONA
Mr. Mendoza. Senator Dorgan, Senator Kyl, it's an honor to
be here. Thank you very much for this opportunity.
Let me state, I'm Rod Mendoza. I am the Chief of Police for
the Town of Parker, Arizona. The Town of Parker is a unique
situation. My testimony is going to include a summary of the
1990 agreement between the Colorado River Indian Reservation
and the Town of Parker.
This agreement had been the result of a 1989 Strand
decision. Parker recently celebrated our 100 year township. In
1989, under the U.S. District Court, Judge Strand ruled that
the Town of Parker was an Indian Country. It was located within
the external boundaries of the Colorado Indian Reservation.
The courts holding that the Town of Parker is in Indian
Country results in the Town having no legal jurisdiction over
tribal land within the Parker town limits or any state or
criminal jurisdiction over tribal members. Or any activities
that take place in the town of Parker.
Consequently, tribal members accused of crimes in the town
of Parker are subject only to tribal and federal law, not state
or local law.
Recognizing this need, the Town and CRIT entered into an
agreement that was designed to coordinate law enforcement
activities. This agreement is limited to the Town of Parker and
is relevant only to law enforcement agencies.
The summary of one of the sections, Section 5, states--
Arrest of Indian Subjects, states: That the Town agrees that
CRIT will make all arrests of Indians in the town of Parker and
Parker Police will notify CRIT Police of an Indian involved in
any activity, criminal activity.
There is nothing in this language that states that Parker
Police cannot detain an Indian suspected of criminal behavior,
nor does it state that the Parker Police cannot detain or
arrest anyone suspected of criminal activity until the tribal
status is known.
So, in other words, if a tribal member comes into the town
of Parker and spray paints a non-tribal member's wall, Parker
Police arrives on the scene, we cannot arrest that individual.
We can try to detain that individual until CRIT police officers
arrive.
If a tribal member comes in and smashes a store window, we
cannot arrest that individual, we can only try to detain that
individual.
In cases where a subject is a tribal member, CRIT will
immediately be notified. Currently the Parker and CRIT police
officers work well together on the street and both can be
depended upon to assist each other.
With this 1990 agreement with CRIT, we have made great
gains. It shows that we can work together. We are working
together. Even though there are some problems with this
situation, we are working those things out.
Part of the problem is getting the word out to the
community that this agreement is in fact the Strand decision,
stating that we cannot arrest tribal members so the non-tribal
citizens who live within the town of Parker understand the
situation.
With that, in July of 2006, we made a press release with
the CRIT chief of police. CRIT and the Parker Police chiefs met
and confirmed concerning methods of developing and approving
police services to our communities.
Among our concerns were to ensure that those who commit
crimes in our communities are held accountable and victims of
these crimes are kept well informed of the progress of the
investigation.
Parker Police and CRIT police officers both attend police
academies and are recognized as state certified police
officers.
CRIT police officers can enforce state laws and may book
violators into the county detention facility or issue citations
to appear in the town or county court.
However, CRIT officers cannot arrest non-Native Americans--
may arrest Native--let me back up. CRIT officers may arrest
non-tribal members but they must be booked into the county
facility. They cannot be booked into a CRIT facility.
This is how we are working together. The CRIT Police
Department will be notified every time a tribal member is
suspected of committing a crime in the town of Parker.
The Parker P.D. will investigate all crimes involving non-
Native Americans, CRIT P.D. and Parker P.D. officers will make
the determination the suspect is Native American.
Whenever there is not enough evidence to believe the
suspect is Native American, Parker P.D. will assume control of
the investigation. Parker P.D. will not arrest--again, this is
important to understand--will not arrest Native Americans who
are involved in criminal activity.
Parker P.D. may detain Native Americans who are committing
or have committed a major felony or violent crime or if the
activity will seriously create a life-threatening situation.
In other words, the one time that Parker Police Department
will detain a tribal member is if a major crime has occurred or
someone is going to be seriously injured.
We do not want to detain a tribal member for a misdemeanor
where the use of force may have to be involved, so our policy
is that we will not detain, we will only try to remain in close
contact until the CRIT Police Department can arrive.
If use of force is applied to a Native American by a Parker
police officer, the Parker Police chief and the CRIT police
chief will meet and discuss the situation within two business
days. A copy of the report will be given to the CRIT police
chief.
Parker and CRIT police agencies are committed to work
together to meet the needs and concerns of the community, even
though we are in a unique situation which is viably important
that all community members are aware of the agreement,
especially the Strand decision and how we are working together.
The investigation of criminal activity and the arrest of
tribal suspects is only the beginning of the criminal justice
process. An area of major concern among citizens, especially
crime victims, is whether tribal criminal offenders are held
accountable.
It is not uncommon to see offenders back into the community
the very next day as if they were never arrested or charged
with the offense. I believe you used the word ``catch and
release.'' This creates mistrust between tribal members and
non-tribal members within our community. There is a double
standard based on tribal status.
During the four years I have been the Parker Police Chief,
I have seen a vast improvement in the cooperation between law
enforcement agencies.
However, the lack of tribal resources to confine,
prosecute, and monitor offenders needs to be corrected.
Juveniles who are arrested for crimes must be transported
by bus five to six hours after the hearings to be held in an
approved juvenile facility. Transporting these juveniles is
costing thousands of dollars to the tribal community.
If the juveniles are not lodged and transported, they are
immediately released back into the community without being held
accountable for their actions. This empowers the juveniles to
continue with their criminal activity.
In conclusion, federal funding is needed for tribal
community justice resources, and it should be of the highest
priority to ensure that the rights and safety of all are
equally protected.
And I also would like to thank Senator Kyl and Ryan Smith
for their help during the last year, for whenever I had
questions, I was able to call their office and they were able
to direct me in the right direction with some good answers.
And I appreciate the opportunity to be here, and I would
also like to say that Colorado Indian tribes and the Town of
Parker are effectively working together to solve this problem,
but a lot of this comes down to federal funding for criminal
justice resources.
If the Colorado River Indian Tribe had the resources and a
place to detain these people, the non-tribal members in Parker
would not be blaming the CRIT police officers for not doing
their job, because they are doing their job. Thank you.
[The prepared statement of Mr. Mendoza follows:]
Prepared Statement of Rod Mendoza, Chief of Police, Town of Parker,
Arizona
My testimony will include a summary the 1990 agreement between the
Colorado River Indian Reservation (Law Enforcement Agreement 1990) and
the Town of Parker. The agreement may have been the result of the 1989
``Strand'' decision (Colorado River Indian Tribes V. Town of Parker 705
F. Supp. 473).
Summary of the ``Strand'' Decision
The U. S. District Court, Judge Strand, ruled that the Town of
Parker was ``Indian Country,'' located within the boundaries of the
Colorado River Indian Tribes reservation, (18 U.S.C.A. 1151) and
therefore the Town of Parker did not have legal regulatory authority
over building activities on lands within the Town that are owned by the
Tribes. The Town's regulatory authority extended only to the privately
owned fee lands within the Town. The Court noted that the Tribes own
approximately one-third of the lands within Parker and that the Town is
prohibited from preventing the provision of electrical and water
utility services that the Town of Parker exercises direct or indirect
control over.
The Court's holding that the Town of Parker is ``Indian Country''
results in the Town having no legal jurisdiction over tribal land
within the Parker town limits or over tribal members' activities that
take place anywhere within the boundaries of the Town. Consequently,
CRIT members accused of crimes in the Town of Parker are subject only
to tribal and federal law, not State or local law, (Seymour v.
Superintendent of Washington State Penitentiary, 368 U.S. 351, 82 S.
Ct. 424, 7 L. Ed. 2nd 346 (1962)).
In April 1978, Senator DeConcini of Arizona introduced a bill (S.
2854) for the purpose of granting the State of Arizona (Parker Police)
criminal and civil jurisdiction over all activities and persons within
the Town of Parker pursuant to Public Law 280, (CRIT Ex. 24). DeConcini
recognized that without this legislation Parker was subject to a
complicated patchwork of state, federal and tribal jurisdiction.
The bill S. 2854 was introduced as an amendment to 18 U.S.C. sec.
1162(a) and 28 U.S.C. sec. 1360(a), which would have added Parker to
the list of areas in Indian Country wherein states are conferred civil
and criminal jurisdiction (as in California). The Senate failed to pass
Bill S. 2854.
Summary of the 1990 Law Enforcement Agreement Between CRIT and the Town
of Parker
Recognizing the need, the Town and CRIT entered into an agreement
that was designed to coordinate law enforcement activities. This
agreement is limited to the one square mile within the Town of Parker
and is relevant only to law enforcement agencies. A summary of Section
5, Arrest of Indian Subjects: states the Town agrees that CRIT will
make all arrests of Indians in the Town of Parker and the Parker Police
will notify CRIT Police of an Indian involved in any activity. There is
nothing in this language that states the Parker Police cannot detain an
Indian suspected of criminal behavior nor does it state that Parker
Police cannot detain or arrest anyone suspected of criminal activity
until the tribal status of the person(s) is obtained.
In cases where we suspect a person(s) is a tribal member, CRIT will
be immediately notified for assistance. Currently, the Parker and CRIT
police officers work well together on the street and both can be
depended upon to assist one another.
The Parker Police policy is in conformance with the 1990 agreement
with CRIT. If Parker police becomes aware a person(s) is a Tribal
member we will not arrest nor will we detain as long as no one is at
risk of injury, death or loss of substantial property. The Parker
Police Department will not place officers in a position where the use
of force may have to be used against a Tribal member. Every effort will
be made to notify CRIT and ask for assistance.
The five most common criminal activities concerning Tribal members
in the Town of Parker are:
1. Disorderly conduct,
2. Thefts,
3. Assaults,
4. Public Intoxication, and
5. Possession of dangerous drugs.
According to the 2005 International Chiefs of Police Indian County
Law Enforcement Section; nationally, 1 in 4 cases of violent crime
investigated by the Untied States Attorneys are from Indian Country. 75
percent of federal investigations of Indian Country suspects are for
violent crimes.
Town of Parker--July 31, 2006 Press Release, ``Local Law Enforcement
Agencies Meet and Confer to Enhance Police Services''
On July 7, 2006 the Police Chiefs and patrol supervisors of CRIT
Police and the Town of Parker Police Departments conducted a symposium
at the Parker Police Department.
CRIT and Parker Police Chiefs met and conferred concerning methods
of developing and improving police services to our communities. Among
our concerns were to ensure that those who commit crimes in our
communities are held accountable and victims of these crimes are kept
well informed of the progress of the investigation. We will not turn a
blind eye to criminal activity. Injustice anywhere is a threat to
justice everywhere. Our citizens must feel secure in their homes and be
free from the fear of crime in their neighborhood.
Our first agenda item focused on the Town of Parker. As previously
mentioned, the Parker Police department does not have civil or State
criminal jurisdiction over tribal members in Indian Country. (Colorado
River Indian Tribes v. Town of Parker; The Judge Strand decision). The
jurisdiction responsibility belongs to the CRIT Police Department for
all State criminal misdemeanor violations, (Seymour v. Superintendent
of Washington State Penitentiary, 1962).
Federal law enforcement agencies, the Bureau of Indian Affairs
(BIA) and the Federal Bureau of Investigation (FBI) have jurisdiction
in all felony criminal violations and misdemeanor violations concerning
non-Native Americans who commit crimes against Native Americans, (18
U.S.C. 1153).
Parker and CRIT police officers attend a police academy and are
recognized as State certified police officers. CRIT police officers can
enforce State laws and may book violators into the county detention
facility or issue citations to appear in the town or county court.
CRIT officers who arrest a non-Native American cannot book them
into the CRIT detention facility. CRIT court has no criminal
jurisdiction over non-Native Americans. However, CRIT may issue Federal
misdemeanor citations to non-Native Americans who commit crimes against
Native Americans, citing them to appear in federal court in Flagstaff
or in Phoenix, Arizona.
Equipped with the above information the police agencies will
continue to improve upon and enhance their joint patrol services and
investigation procedures within the Town of Parker.
1. The CRIT police department will be notified and will respond
to assist Parker P.D. whenever the possibility of a Native
American is involved as either a victim or a suspect.
2. The Parker P.D. will investigate all crimes involving non-
Native Americans. CRIT P.D. and Parker P.D. officers will make
the determination if the suspect is Native American. Whenever
there is not enough evidence to believe the suspect is Native
American, Parker P.D. will assume control of the investigation.
3. Parker P.D. may interview Native American witnesses and
victims but will not interview Native American suspects. These
interviews will be conducted by CRIT P.D.
4. All victims of a crime will be contacted by an officer and
given an update of the status of their case prior to leaving
the scene of the crime. If the victim is unavailable the
officer's business card will be left for the victim.
5. The victim will be given the name of the investigating
officer along with a contact phone number and will be kept
apprised of the status of their case.
6. Parker will notify CRIT P.D. whenever they are in pursuit of
criminal suspects who flee into Tribal Housing areas, i.e.,
Desert Sun Housing or Blue Water Park.
7. Parker P.D. will notify CRIT P.D. prior to interviewing
Native or non-Native Americans who reside or are visiting in
Tribal Housing.
8. If a suspect is involved in criminal activity and their
tribal status is unknown, he or she will be handled as a non-
Native American.
9. Parker P.D. will not arrest Native Americans who are
involved in criminal activity. Parker P.D. will detain Native
Americans who are committing or have committed a major felony
or a violent crime, or the activity will seriously create a
life threatening situation, i.e., use of weapons, serious
bodily injuries, attempting to drive when seriously impaired.
If the decision is made to detain, the officer will notify CRIT
P.D. and inform them or our actions and the reason for the
detention. We will not detain for misdemeanors. We will provide
CRIT P.D. with the information and wait upon their arrival.
10. If use of force is applied to a Native American by a Parker
police officer, the Parker police chief and CRIT police chief
will meet and discuss the situation within two business days. A
copy of the report will also be given to the CRIT P.D. chief.
11. Whenever Parker police officers stop a vehicle for a
traffic violation and the occupants are discovered to be Native
Americans, the officers will not issue a citation, nor search
the vehicle or run warrant or registration information. If
necessary, the officer will call for CRIT P.D. for assistance
and they will take the necessary action.
12. Parker P.D. will immediately respond to any location that
CRIT P.D. has requested help or assistance.
13. CRIT and Parker P.D. will maintain a united front and will
publicly support each agency. If concerns arise, they will be
immediately addressed by the Chiefs of each agency.
14. CRIT P.D. is currently in discussion for their officers to
issue federal misdemeanor citations to non-Native Americans who
commit crimes against Native Americans.
15. The two police agencies will conduct joint meetings or
training sessions quarterly.
The Parker and CRIT police agencies are committed to work together
to meet the needs and concerns of our communities. The quality of life
that we enjoy in Parker needs to be unsurpassed. Our families can go
out together for walks during the hours of darkness; our children can
walk or ride their bikes to school without the fear of becoming a
victim to random acts of violence as other families do in communities
across our Nation.
The criminal problems we face in Parker are committed by a small
percentage of our population. CRIT Police Chief and I are both united
in our concerns and commitment to provide excellent police service and
response to your concerns.
If you have questions or concerns please contact the Colorado River
Indian Tribal Police Department or me at the Parker Police Department.
Additional Concerns
The investigation of criminal activity and the arrest of tribal
suspects is only the beginning of the criminal justice process. An area
of major concern among citizens, especially crime victims is the
whether tribal criminal offenders are held accountable. It is not
uncommon to see offenders back in the community the next day as if they
were never arrested or charged for the committed offense.
During the four years I have been the Parker Police Chief, I have
seen a vast improvement in the cooperation between law enforcement
agencies. However, the lack of tribal resources to confine, prosecute
and monitor offenders needs to be corrected. Juveniles who are arrested
for crimes must be transported by bus for six hours after their hearing
to be held in an approved juvenile facility. Transporting these
juveniles is costing thousands of dollars to the tribal community. If
the juveniles are not lodged and transported they are immediately
released back into the community without being held accountable for
their actions. This empowers the juveniles to continue with their
criminal activity.
Funding for tribal criminal justice resources should be of the
highest priority to ensure the rights and safety of all are equally
protected.
References
International Chiefs of Police Indian County Law Enforcement
Section
Elaine Deck, Section Liaison, Telephone 800-843-4227 ext. 262
Power point presentation ``New Challenges for BIA-OLES,'' 2005
annual meeting.
Seymour v. Superintendent of Washington State Penitentiary, 368
U.S. 351, 82 S. Ct. 427, 7 L. Ed. 2nd 346 (1962).
United States District Court, D. Arizona.
Colorado River Indian Tribes, an Indian Tribe, Plaintiff, v. Town
of Parker, a Municipal Corporation, et al., Defendants
No.CIV-83-2359-PHX-R6S. January 17, 1989. Judge Strand.
18 U.S.C.-1151(a). Indian country & Dawes act/general allotment
act.
The Chairman. Mr. Mendoza, thank you very much. Mayor
Gordon, let me ask you. You talked about the agreement that you
have with the Gila River Reservation and the Tribal Council.
Is there any cross-deputization between the two law
enforcement agencies of Phoenix and the Gila River?
Mr. Gordon. Actually our commander is knowledgeable on the
issue, with your permission, to answer that.
The Chairman. There is another question that goes with
that, and that is because you share a 22 mile border, I would
ask: If there is hot pursuit, for example, that crosses the
border from Phoenix into the Gila River Reservation, can the
Phoenix Police Department continue that hot pursuit?
Mr. Smith. There is no cross-deputization. We did pursue
it. We have--Mr. Chairman, Alan Smith with the Phoenix Police
Department. There is no cross-deputization, that we have kind
of an understanding of what each other's roles are but, like I
say, there is no cross-deputization.
The Chairman. If you are engaged in a hot pursuit of a
vehicle that has done something you think is significant and it
crosses into the Gila River Reservation, the Phoenix Police
Department is in hot pursuit?
Mr. Smith. Yes, that is correct. We will continue it.
The Chairman. And your relationship with the Gila River law
enforcement is such when you continue that pursuit and arrest
the perpetrator, if it's someone from the Reservation, you then
would hand that person over to the Gila River law enforcement?
Mr. Smith. That's correct. What we would need do is arrest
if it's a non-Native Indian or detain that person. So depending
upon the circumstances.
The Chairman. Thank you very much. I appreciate your help.
It's an interesting situation in Colorado because in Arizona
you have a pretty substantial population of Native Americans
and a good number of Reservations and coterminous with cities.
Parker is a different situation. How many people live in
Parker?
Mr. Mendoza. 3,500.
The Chairman. And you are surrounded completely by Indian
Reservation; is that correct?
Mr. Mendoza. Yes, that is correct.
The Chairman. I'm asking. Let me go to the U.S. Attorney's
Office. One of the things that we have talked about is FBI
presence.
The FBI presence in Indian Country has dropped sharply
since 2001, and in 1998 and in 2000, early 2000, we included
money specifically to increase 30 new FBI agents who had
focused solely on Indian Reservation crimes so we will have
added 30 FBI agents for that specific purpose, and now post 9/
11, 18 of those new FBI agents are gone. They are working on
terrorism. So we lost a fair amount of the FBI presence that we
had funded.
Funding for U.S. Attorney's Offices has nearly doubled
since 1998, but the federal Indian Country prosecutions have
fallen in the last five years, right about 26 percent.
There was an investigative story by the Denver Post that
showed over the past ten years they have declined to prosecute
two-thirds of Indian Country cases nationally.
I don't know the veracity of those numbers except that the
anecdotal information from tribes themselves tell me that
there's still some problems here, and at least it looks to me
like the FBI resources, the additional FBI resources we tended
to put into Indian law enforcement did not get there.
I want to ask you a question about due process because you
raised, properly I think, a question about due process if the
tribal courts would ever be given jurisdiction to prosecute
non-Indians.
You are concerned about the due process.
Should we be concerned about due process with respect to
tribal courts and the prosecution of Indians. Is there a due
process issue, do you think, on Indian Reservations?
Ms. Humetewa. I cannot speak blanketly as the Senator--as
both Senators Kyl and as you know, there are over 562 federally
recognized tribes and each has a unique tribal criminal justice
system, and so I couldn't answer that generally.
But I think because the Department does not have particular
language, particular legislative language before it, we just
raised that as an issue that just generally due process should
be addressed in any proposal.
The Chairman. It's a fair point, and I would agree with it,
that if we have a certain status where a tribal court has
jurisdiction over non-Indians, we have to make certain that all
of the constitutions are guaranteed, due process and so on
would be certain there.
You indicate in your testimony something that I was
surprised by. You seem to indicate that there is no gap with
respect to jurisdiction, and I think most testimony tells us
there is in fact a gap.
There is substantial declination. There is a problem
certainly in enforcement but also in jurisdiction. Are you
telling us that there is no gap in jurisdiction here?
Ms. Humetewa. For every crime that is committed, for
example as was pointed out by President Enos, if someone
commits a crime here in the community, either tribal government
will have jurisdiction, the state county attorney's office,
Maricopa County for this particular area, can have jurisdiction
dependent upon the particular circumstance of the crime, or if
it falls into a major crime act violation, the U.S. Attorney's
Office would address that prosecution, or if it's a non-Indian
and it rises to a particular level of felony offense or even in
some circumstances not, then the U.S. Attorney's Office would
then look at it for potential felony crime jurisdiction under
18 U.S.C. 1152 so there is a court to address those offenses.
That's what I meant by that.
The Chairman. But on the enforcement side, the same article
that I referenced, which was really I think an interesting
article, which quoted one U.S. attorney not by name but quoted
a U.S. attorney who said my gun cases have to compete, my white
collar cases have to compete. One criteria that's never on the
list of what I need to be doing are Indian Country cases.
And we had testimony before our Committee of a former U.S.
Attorney in Minnesota who said, you know, frankly, I was
criticized by the Department because I was spending too much
time on Indian law enforcement.
And what that gets to is the question is there appropriate
enforcement? And that gets back to the question of declination.
You describe why declination is probably something that's
very hard to get at, but I think most people feel that a
substantial amount of enforcement is not pursued very
aggressively. Your response?
Ms. Humetewa. Chairman Dorgan, your question is two-fold,
if not three-fold. First, on the issue of declination, let me
clarify that every case that is submitted to our office by a
federal investigative agency is reviewed to determine whether
or not it meets the elements of a particular federal offense.
In other words, is there sufficient evidence to prove
beyond a reasonable doubt if we had to go to trial whether we
had physical evidence, eye witness testimony, and the like that
we could bring that individual to justice if a trial were ever
to be conducted. So we look at the particular circumstances of
each and every case.
The statement about declination reports or referrals is
problematic to me in that, as I mentioned in my testimony, both
in my oral statement and written testimony, so long as the
statute of limitations has not run on a particular offense, be
it homicide, assault, child sexual abuse, we have the
opportunity to review fresh evidence, new eye witness accounts
to reconsider whether or not we now today have sufficient
evidence to go forward on a case that may have been declined
two months ago.
So to issue a report on declinations today would create a
problematic, I think, accounting of what actually is occurring
on a day-to-day basis in any prosecutor's office.
The Chairman. My question is not about your role as U.S.
Attorney because, as I said, I was proud to support your
nomination. But just give me your observation of the Department
of Justice statistics that suggest 27 percent--nearly a 30
percent decline in FBI investigated activity since September
2001.
We all know that from the September 2001 terrorist attack,
a lot of resources moved in that direction, but since that time
nearly 30 percent reduction in FBI investigative activity at a
time when the crime rates, I think from most evidence I have,
is increasing.
Give me your observation about that. Isn't that a
disconnect in terms of whether we are moving toward this issue?
Ms. Humetewa. I do recall reading the Denver Post article
that you referred to----
The Chairman. This didn't come from the Denver Post. This
is DOJ data.
Ms. Humetewa. I have to say, Chairman Dorgan, that I have
not read or looked at the particular study that you are
mentioning in preparation for this testimony, we did provide to
the Committee that there has been a 7 percent increase in
special agents in Indian Country in the FBI since 9/11 so that
seems to be contrary to the information that you have, and I
would be happy to go back and look at that.
I can say in terms of my experience not just as the United
States Attorney but also as a former tribal liaison for the
U.S. Attorney's Office and as a former U.S. Attorney
prosecuting violent crimes of the Indian Reservations in
Arizona that there is a very strong commitment by not just
those in the federal law enforcement family, but in addition
the individual criminal investigators and police officers in
Indian Country to go after these individuals who are committing
these offenses, in addition to my colleagues in the U.S.
Attorney's Office addressing and looking at the particular case
referrals that come in on a case-by-case basis to make sure
that justice is delivered in Indian Country.
The Chairman. Mr. Mendoza, finally, the Town of Parker and
the surrounding Reservation, have you talked about cross-
deputizing?
Have you had discussions with the Reservation officials
about whether they would like to cross-deputize?
Mr. Mendoza. We have talked about that, and a few of our
officers have attended the Academy, but we have not been cross-
deputized.
Ours is a unique situation, as I explained, with Parker
being part of a Reservation. What we are trying to avoid is any
type of conflict between the tribal member and Parker Police
Department.
What I mean by that is the last thing we want to do is have
a relationship destroyed based upon reports that we had used
force on a tribal member on a Reservation, and that's what we
are trying to avoid at all costs, and I think we are successful
in that endeavor by going with the current agreement that we
have. So, the answer to your question is no, we have not cross-
deputized on the Reservation.
The Chairman. Finally, Mayor Gordon, do the Phoenix law
enforcement officers do cross-training with Gila and other law
enforcement agencies in the state?
Mr. Gordon. We have done cross-training, Senator, and we
welcome that opportunity both ways.
The Chairman. The interoperability for radio transmission I
thought was interesting. When was that initiated?
Mr. Gordon. Actually the concept of interoperability I
think Phoenix started before 9/11 with the Native American
communities and the state about four years ago. And Senator
Kyl, Senator McCain, and yourself helped actually implement
that interoperability agreement.
The Chairman. Senator Kyl?
Senator Kyl. Thank you. I would like to thank all three
witnesses for being here. First of all, Mr. Mendoza, as I
distill what you said, as the primary problem the fact that you
will have primarily juveniles but members of the tribe who
engage in misdemeanor activity or nonthreatening activity which
results not in their arrest or their detention if they are not
willing to be detained voluntarily, I gather you don't use
force to detain them.
Isn't the problem that the kids know that now and they kind
of thumb their nose at it and say ``you can't hold me'' and
they take off? Is that the issue?
Mr. Mendoza. I would agree with that issue a hundred
percent. The tribes are only able to arrest these juveniles.
They have nowhere to put them, but the juveniles that and they
know that Parker Police Department cannot detain, cannot arrest
or do anything to them. So when they are released back into the
community, usually an hour after being arrested by CRIT, they
are back in the community.
The community looks at this and they are blaming the tribal
community for not caring about them, not caring about their
property or----
Senator Kyl. You are persuaded that if they had the
detention facility, the Reservations, that problem could
largely go away?
Mr. Mendoza. If they had the resources, I'm sure of it.
Senator Kyl. I could get into that in a closing statement,
Mr. Chairman. Let me ask our U.S. Attorney a couple of
questions here.
First of all, I think Senator Dorgan really put his finger
on the question and we really don't have the answer here today.
The real question, I guess, is why declination.
In other words, you have pointed out that there are a lot
of reasons why any prosecuting office would decline to take a
case at least at that time, and there may be some additional
factors that relate to the unique situations regarding Indian
Country.
But the question is if you account for all of those reasons
why a case may not be taken, is one of the reasons also that
there is simply a lack of resources which cause you to have to
prioritize with the result that you take more serious cases and
simply don't have the resources, whether it's the FBI
investigating or your office to prosecute?
Ms. Humetewa. Senator, in my experience, again, as a
prosecutor, as a trained prosecutor, I have to look at every
individual case and the evidence behind it to determine whether
or not in the first instance we have probable cause to charge
an individual.
And I have to say that in this district and, again, I
understand that this may be the exception rather than the rule.
We work with very well-trained and well-qualified and well-
experienced criminal investigators such as comes out of
Director Cowboy's office on a Navajo Nation, the Gila River
Indian Community, the Salt River Community.
These individuals have gone through an extensive level of
training not just through our cross-deputization program but
also the Arizona Department of Public Safety Program. They have
Arizona Post certification so that provides them additional
authority within their communities.
Now, it's fair to say that from time to time we do have
issues with respect to gathering of evidence, gathering of
witness statements, items that may turn stale and may then
hamper our ability to go forward on a particular prosecution,
but I suspect that the U.S. Attorney's Office and the various
counties and cities and states that's not--not un-unique I
should say. It's not a unique problem for us. I think
prosecutor's offices throughout the nation experience that same
type of situation.
Certainly I have to say, again, that many of the tribes in
Arizona do have the expertise and they have been investigating
these types of cases for a long time, and quality product may
vary from time to time, but we do what we can with what we have
and we have to, again, consider each case on a case-by-case
basis to determine whether or not it meets the elements of an
offense before we can charge an individual.
Senator Kyl. There is great criticism of the U.S.
Attorney's Offices, particularly in the Southwest and even in
Arizona by--it's not criticism. It's frustration, I guess I
will express it that way, that the U.S. Attorney's Office can't
take a lot of the so-called smaller drug cases involving border
crossing that the U.S. Attorney's Office has a fairly high
threshold and the county attorneys are relegated to taking the
smaller cases and that you take the more major cases. That's a
matter of prioritization, and I think we all understand that.
Given the fact that the federal jurisdiction over non-
Indians on a Reservation relates to major crimes, I gather from
what you are saying here, you give that a high priority and
your primary restraint is not a matter of lack of resources as
a result of which you can't prosecute the cases, but simply the
usual constraints that any prosecutor's office would have in
marshalling the evidence and making decisions of whether to
prosecute or not. Is that a fair statement?
Ms. Humetewa. Absolutely. We take our responsibility to
prosecute major act violations very seriously.
Senator Kyl. I'm going to make a statement. If you can't
comment on it, fine, but you are not a member of the bench yet
and maybe it's unfair, but you raised an issue in your
testimony there are--as a matter of law, the United States
Constitution does not protect non-Indian constitutional rights
or all non-Indian constitutional rights on the Reservation.
And the question is whether or not a constitutional right
could be protected by statute rather than the means by which
constitutional rights are traditionally protected, which can be
by statute but go beyond statute, habeas corpus being one of
the ways.
Is that part of the reason for the concern that you
expressed in your testimony?
Ms. Humetewa. The Department has that concern along with
other concerns that rise to the level of constitutional and due
process rights, yes, Senator.
Senator Kyl. I would like to make a bit of a closing
statement, but should I just go ahead and do that now?
I really appreciate and, again, I want to thank you for
holding this hearing. It's evident that Congress needs to do a
lot more than it has, and I suspect the administration as well,
and I do want to submit some questions to some of you.
One of the things that I'd like to ask all of you, and this
applies to other Indian tribes in the State of Arizona--we will
try to get this question out to everybody.
And this is the basic question. Chairman Enos testified to
the rather fortunate situation where because of the
circumstances of the community here, most if not all of the
resources necessary for the criminal justice system including
detention can be satisfied in tribal resources.
The question is, what extent is that true on your
Reservation, the other Reservations, and to what extent do you
need the Federal Government to step in with Federal funding?
And I'd really like to get very explicit answers to that if
we could, both in terms of amounts and also the types of things
from helping with officers, to vehicles, to detention
facilities, to judges, defenders, the whole gamut--courtrooms
even.
I have always thought for example, Mr. Chairman, that the
COPS Program, which was supposed to be temporary when we first
adopted it--and I was one of Republicans in the House that
supported it, with some political blow-back, I might add. But I
supported it because it was supposed to be temporary, but there
is a part of it, it seems to me, that doesn't need to be
temporary.
There is a Federal nexus or a Federal responsibility to
provide law enforcement on Federal Reservations, meaning
military Reservation, Indian Reservations, Indian land.
I look at the Tohono O'odham which has a very large part of
their border with the country of Mexico and are impacted with
the drug trade and so on.
And it seems to me that with the controversy with the COPS
Program, something that every member of Congress ought to be
able to agree on, is that at least as to the Federal nexus
here, we ought to be all to fully fund law enforcement
officials on those Reservations.
So it's a program that already exists. It's a program we
found money for in the past, and it seems to me there is a
perfect justification to take more of that, given the fact that
there is not sufficient money spent by the Federal Government
on enforcement on the Reservations.
But the last point I want to make is I'm well aware that
that's only the first step. You have to find the resources for
all of the other parts of the criminal justice system in
addition to that, and I'd really like to get an explicit answer
from each of the tribes as to what they think their needs are
so that we can begin to get a handle on the magnitude of the
problem, and certainly this hearing will help us take the
evidence back to Washington to justify the requests that I
suspect we'll be making.
The Chairman. Senator Kyl, thank you very much. I think
that it is the case, notwithstanding the jurisdictional issues
and other issues, that we are desperately short of funding for
a wide range of issues.
There is a report that has been done, a report that was
contracted for by the BIA. It's now awaiting release. It has to
go through the Office of Management and Budget.
I asked that it be released. It's the position of retention
facilities and jails and so on on Indian Reservations. The
taxpayers have paid for that report, but we don't have access
to it at this point, despite the fact it's been done for some
while.
I think the reason we are not given access to it is it's
going to show a desperate situation. I have walked into
detention facilities and seen a teenage boy laying on the floor
intoxicated in a facility that housed adults and a facility in
disrepair. That can't continue. It can't happen.
Much of the testimony we heard today was about the lack of
detention facilities, and when you do decide you have to detain
them, you put them on a bus for four or five or six hours--or
transport them, rather, for four to six hours away from their
family, away from their Reservation.
So we just have a lot of challenges to deal with. The
facilities is one. The court system is another. Adequate
financing for all of these issues.
But just at the starting line, if you are 40 percent short
of the number of law enforcement officials you need to provide
adequate law enforcement on Indian lands in the country, you
start with the disadvantage that you can never overcome. And
that's just a fact.
So we have got to try to put this together in a way that
works. Some of it's going to require additional funding. Some
of it's going to require some innovative approaches, and the
Committee is anxious to work with all of the Indian
Reservations and consult with you. We appreciate the testimony
that's been provided at this hearing. I will submit some
additional questions to the witnesses.
Mr. Mayor, thank you for being with us today as well. And
Senator Kyl, again, thanks for your work. Senator Kyl and I and
Senator Murkowski and other members of the Indian Affairs
Committee will be continuing to work on this and a wide range
of other Indian issues, and we ask for your cooperation as we
proceed. This hearing is adjourned.
[Whereupon, at 3:35 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Joe Shirley, Jr., President, Navajo Nation
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Prepared Statement of Hon. Daniel Eddy, Jr., Tribal Chairman, Colorado
River Indian Tribes
Introduction
Mr. Chairmen, Members of the Committee, Senator Kyl and guests. I
want to thank you for this opportunity to appear before your committee
today to discuss law enforcement issues in Indian Country. I am Dan
Eddy, Jr., Chairman of the Colorado River Indian Tribal Council and
today I will highlight some of the law enforcement problems that we
face on our reservation today. I can assure you that our problems are
not unlike many others in Indian Country. This is an issue of
increasing importance to all of us and we are grateful that the
Committee has dedicated this time and these resources to advance the
discussion of our concerns and needs.
The Colorado River Indian Tribes (``CRIT'') is facing the same
dilemma as many Indian tribes across the nation with its Tribal Justice
System where it is severely under-funded by the Federal Government. The
BIA funds approximately 30 percent of the cost needed to operate law
enforcement and detention programs and CRIT is left with the burden to
absorb the rest of the costs. CRIT Uniformed Police and Adult Detention
Programs are severely under-funded and CRIT has repeatedly objected to
the shortfall in funding.
Further, even though CRIT has retroceded its P.L. 93-638 Contract
for Juvenile Detention, the BIA has not fulfilled its obligations by
failing to transport CRIT juvenile offenders in a timely manner. The
most alarming of these incidents was when a Minor was not transported
back to the reservation until thirteen (13) days after her scheduled
release time. To-date, CRIT is holding five (5) juveniles that are
awaiting transport from the BIA. The longest stay period has been over
three (3) months for one of these juvenile offenders. CRIT is now
forced to release these juvenile offenders because the Temporary
Holding Facility is not appropriate for long-term detention. Not
surprisingly, juvenile recidivism on the reservation is very high.
Further, CRIT was reimbursed only $250,000 out of the $680,000 owed by
the BIA in April, 2007. To date, eleven (11) months later, CRIT has not
seen any additional payment.
CRIT's three (3) programs (Juvenile Detention, Adult Detention, and
Uniformed Police) will be discussed below in detail.
I. Juvenile Detention
In May of 2004, the BIA removed all CRIT juveniles from the CRIT
Juvenile Detention Facility on the reservation. The reason that the
juveniles were removed was because the youth facility was connected to
the adult detention facility and did not meet the Department of Justice
requirements for sight and sound separation between the adult and
juvenile detainees.
CRIT juveniles are now housed at the Gila County Juvenile Detention
Center in Globe, Arizona, five (5) hours or 250 miles away from the
reservation. However, the National Institute of Corrections has a
regulation that mandates that no individual subject to incarceration
under the Federal system and Federal guidelines can be incarcerated at
a facility more than 200 miles from his/her home. The BIA is currently
violating this regulation.
Unfortunately, the many families of these juveniles are unable to
physically visit with the detainees. Even a trip to Globe is
unattainable for those families with little to no income and no means
of transportation.
With our present situation, it is very difficult to deliver mental
health and substance abuse services to the juvenile detainees in Globe;
therefore, CRIT juveniles are not receiving any of these much needed
services. If these juveniles were on or closer to the Reservation, CRIT
Behavior Health Services and the Alcohol and Substance Abuse Program as
well as the Juvenile Probation Department, would be able to adequately
serve these children.
Having the BIA assume this transporting duty has lead to another
grave problem--CRIT juveniles were not being transported back to the
reservation in a timely manner pursuant to CRIT court orders for
release or hearings. The most alarming of these incidents was the non
compliance of transport by the BIA on a Release Order issued by CRIT
Juvenile Court; the Minor was not transported back to the reservation
until thirteen (13) days after her scheduled release time. The
transport of these juveniles occurred only after a formal letter from
the CRIT Chairman was sent to the BIA Supervisory Corrections Officer
in Phoenix.
Further, until they are transported to Globe, CRIT juveniles are
being held at CRIT Temporary Holding Facility, which under its current
condition, is only appropriate to hold juveniles on a temporary basis.
However, since the BIA cannot locate available facilities to take
juvenile offenders, these children remain at CRIT Temporary Holding
Facility up to several months. To-date, CRIT is holding five (5)
juveniles that are awaiting transport from the BIA. The longest stay
period has been over three (3) months by one of these juvenile
offenders. Initially, the BIA picked up these children within forty-
eight (48) hours of a transport order. CRIT is now forced to release
these juvenile offenders because the Temporary Holding Facility is not
appropriate for long-term detention. Not surprisingly, juvenile
recidivism on the reservation is very high.
To make matters worse, CRIT expended approximately $680,000 of its
own funds from 2005-2007 in the performance of BIA transport duties
alone for these juvenile offenders, without factoring in management and
housing costs when BIA fails to relocate them to an appropriate
detention center; these additional costs are approximately another
$250,000 conservatively. After a long and exhaustive engagement with
the BIA, which went all the way up to the Director of Law Enforcement,
CRIT has been reimbursed only $250,000 out of the $680,000 owed as of
April, 2007. To date, eleven (11) months later, CRIT has not seen any
additional payment.
Currently, CRIT Juvenile Detention Program costs the Tribes
approximately $240,000 annually.
II. Adult Detention
The BIA's proposed base-funding for the P.L. 93-638 Contract for
Adult Detention is $270,000 for the 2008 fiscal year. The total
projected program cost is approximately $760,000 each fiscal year.
Since the beginning of 2007, the Tribe has complained about the
shortfall in funding. The projected BIA funding only covers
approximately 36 percent of the cost to operate this program; CRIT
absorbs 64 percent of the cost.
In 2007, as a result of the shortfall, CRIT Tribal Council took
action not to re-contract the adult detention program. In late April,
in reliance on a promise of additional funding from the BIA, the Tribal
Council took action to extend the 2006 Adult Detention P.L. 93-638
Contract to June 30, 2007. This extension was made in reliance on the
following additional funds being made available to CRIT: (1) an
increase in funding by $180,000 and (2) the restoration of
approximately $30,000 in 10 percent hold-back funds. These funds were
to carry the program to the end of the federal fiscal year on September
30, 2007.
In June, the BIA asked the Tribe to extend the 2006 Adult Detention
P.L. 93-638 Contract to December 31, 2007. CRIT asked the BIA to
retract the request, as it was our understanding the additional funding
the BIA agreed to provide was only intended to carry the program to the
end of the federal fiscal year (September 30) not the end of the
calendar year (December 31). However, BIA did not retract the letter
and the Tribal Council Chairman agreed to extend the 2006 P.L. 93-638
Contract to December 31, 2007.
III. Law Enforcement
The BIA's proposed base-funding for the P.L. 93-638 Contract for
Uniformed Police (Law Enforcement) for the 2008 fiscal year is
$673,000. The total projected program cost is approximately $2,115,000
annually. Thus, the BIA funding only covers approximately 32 percent of
the total cost and CRIT absorbs 68 percent of the cost.
CRIT has been very conservative with the Uniformed Police budget
due to the extreme shortfall in funding. Unfortunately, our
conservative spending puts our Police Department at a disadvantage
because neighboring cities pay at a more competitive rate with a more
competitive benefit package. Hence, CRIT's turnover rate for Uniformed
Police is alarmingly high, around 50 percent between 2006 and 2007.
As a consequence of the high turn over rate, CRIT Officers are
placed in a compromising position where they work long hours to
compensate for the lack of adequate staffing. This leads to both
physical and mental health issues for the Officers and safety issues
for the Reservation.
Conclusion
It is evident from that the BIA is failing in its fiduciary and
other legal obligations to CRIT. The shortfall in law enforcement and
detention funding is exposing CRIT to very serious foundational
problems such as a lack of safety and order on the Reservation.
Moreover, even when the BIA assumes the responsibility such as the
holding of juvenile detainees, it even fails to do so. Additionally,
CRIT needs to be reimbursed by the BIA for the outstanding balance of
approximately $500,000 for the costs of services provided. To-date,
eleven (11) months later, CRIT has not heard a word from the BIA
regarding this amount owed.
______
Prepared Statement of Carl J. Artman, Assistant Secretary, Indian
Affairs, Department of the Interior
Mr. Chairman and Members of the Committee, I am pleased to provide
this statement for the record on behalf of the Department of the
Interior regarding Law and Order in Indian Country. The Bureau of
Indian Affairs (BIA) has a service population of about 1.6 million
American Indians and Alaska Natives who belong to 562 federally
recognized tribes. The BIA supports 191 law enforcement programs with
42 BIA-operated programs and 149 tribally-operated programs.
Approximately 78 percent of the total BIA Office of Justice Services'
(OJS) programs are outsourced to Tribes.
The OJS provides a wide range of justice services to Indian
country, including police services, criminal investigation, detention
facilities, tribal courts, and officer training by the Indian Police
Academy.
Indian country law enforcement provides services to a population
that is predominantly under the age of 25 and experiences high
unemployment rates, and lacks municipal infrastructure. Indian lands
range from remote wilderness to urban settings. The close proximity of
a number of reservations to the international borders of Mexico and
Canada make these locations the perfect targets for drug trafficking
and other smuggling operations. Recent reports and news articles
outline the challenges faced by criminal justice systems in Indian
country. Crime rates on most reservations are unacceptably high.
The Indian Law Enforcement Act of 1990 (25 USC 2801) and the
regulations contained in Title 25 of the Federal Code of Regulations
provides the statutory and regulatory authority for the BIA. Under this
statute, the BIA provides basic police and corrections services while
other federal agencies such as the Department of Justice (DOJ), the
Federal Bureau of Investigations (FBI), the Drug Enforcement
Administration (DEA), and the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) also have responsibilities to investigate crimes in
Indian country.
Strengthen Tribal Justice Systems and Recruitment/Retention Efforts
The Department of Interior's BIA provides several programs designed
to strengthen Tribal justice systems. For example, the BIA operates the
Indian Police Academy (IPA), which provides basic police training (16
weeks) and a variety of other police, jail and radio dispatch courses
for tribal and BIA law enforcement and corrections officers. The IPA is
co-located with the Department of Homeland Security's Federal Law
Enforcement Training Center (FLETC) at Artesia, New Mexico. The IPA
staff provide basic coursework in policing, criminal investigations,
and detention. In addition, the IPA offers numerous advanced training
courses such as child abuse investigation procedures, domestic violence
training, community policing, drug investigation, use of force,
firearms instruction, archeological resource protection, police
management and supervision, crime scene processing, detention, and
dispatcher training.
Our training partnership has proven to be very cost effective
because we share trainers and facilities. The BIA and tribal criminal
investigators receive specialized advanced training at the main FLETC
facility in Glynco, Georgia. Select BIA and tribal law enforcement
managers also participate in the FBI's National Academy in Quantico,
Virginia. Many tribal communities choose to use respective state Peace
Officer Standards and Training courses to supplement training of their
police.
Upon completion and graduation, the officers have the requisite
Federal credentials to be commissioned to serve their communities. The
training programs are unique to Indian country policing and are similar
to other Federal policing and corrections training required by other
Federal law enforcement agencies serving the Federal Government.
Additionally, the OJS provides training for tribal court personnel,
which is sponsored by the OJS Office of Tribal Justice Support and by
the Tribes themselves. It is the BIA's goal to ensure all training
programs are offering the best possible training to tribal and BIA law
enforcement, corrections, and tribal court staff. For the Committee's
information, please find attached Table A, which outlines the number of
training classes offered and the number of officers trained in FY 2007.
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In addition to the BIA's efforts to strengthen tribal justice
systems, the BIA has centralized its law enforcement, corrections and
tribal courts programs within one program management area titled, the
Office of Justice Services (OJS). This organization allows for a
centralized focus of the administration and management of basic justice
services as well as lending to a cohesive approach to program
implementation that allows for unity and cooperation throughout
programs.
In an effort to improve recruitment and hiring within all service
areas, the OJS is implementing a Recruitment Plan that includes task
items for short, intermediate, and long term planning efforts. These
efforts include, but are not limited to, increasing the personnel staff
available to process and track status on OJS personnel actions;
implementing age waivers; awarding a contract to improve recruitment
efforts at colleges and the military to obtain better qualified
applicants; improving and streamlining the process for background
checks; and investigating the use of other manpower resources from
other qualified law enforcement providers.
Crime Rate Data Collection
The BIA's crime data are collected by the OJS through monthly crime
reports that are submitted by Indian Country jurisdictions (tribes and
BIA law enforcement). The method currently used by OJS is as follows:
crime reports that are collected are entered into an automated database
tool that gathers law enforcement statistics at the lowest level. Crime
data are entered at the field from the individual law enforcement
agencies that are implementing policing programs. Tribal policing
programs without direct access to the BIA's automated database tool
submit hard copy information to their respective districts for input
into the system. Crime data information submitted for entry into the
system is verified by the agency and then is reviewed a second time at
the District Commander level. The District Commander must then provide
final approval before the crime data are used at the Headquarters
Office for quarterly performance reporting and the development of other
statistical reports. It should be noted that internet restrictions
hinder the timely collection of crime data. For the Committee's
information, please find attached Table B, which outlines the FY 2007
crime statistics.
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In its effort to provide technical assistance to Tribes to
establish management information systems for tribal collection of crime
data, the OJS is considering the feasibility of the Incident Management
Analysis and Reporting System (IMARS), which is a Department-wide
information collection, analysis, and reporting system initiative.
IMARS was proposed by the National Park Service in 2003 and is
currently in Phase II of development. The concept behind IMARS is to
provide a common information sharing capability across all
participating functional areas within DOI for capturing and reporting
law enforcement, emergency management, and security incident
information. Once IMARS is available Department-wide, the OJS will
determine the feasibility of providing an opportunity for tribal
collection of crime data using IMARS.
Special Law Enforcement Commission (SLEC) Training and Certification
In an effort to make special commissions available to tribal,
state, and local law enforcement, the BIA encourages cross-
commissioning so that Federal, tribal, and state authorities can make
arrests for each jurisdiction. For instance, BIA offers qualified
tribal and state law enforcement officers Federal Special Law
Enforcement Commissions (SLEC) so they can enforce federal law. This
closes loopholes and allows police to focus on investigating the crime
instead of sorting out jurisdictional details, which can be done later
with the assistance of legal counsel.
Supplemental training is provided by the BIA and, more recently,
through the offices of the United States Attorneys to utilize both
tribal and state law enforcement officers in Federal and tribal
policing as authorized under the Law Enforcement Reform Act. The Office
of the Solicitor and the United States Department of Justice offices
determine extension of Federal Tort Claim coverage as authorized under
the Reform Act. For the Committee's information, please find attached
Table C, which illustrates the SLEC count for all District Locations.
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Tribal Court Jurisdiction
The Department's view is that Congress, consistent with the
constitution, has the authority to establish tribal court jurisdiction
over crimes committed by non-Indians. Though most felonies and serious
misdemeanors committed by non-Indians are subject to prosecution at the
Federal level, there is no effective way for tribes to address the more
numerous misdemeanor crimes committed by non-Indians. The Federal
Government has jurisdiction over the criminal acts of non-Indians in
Indian country under the Assimilated Crimes Act. When a non-Indian
commits an offense in Indian country, including a misdemeanor, State
law covering the offense is assimilated into federal law and can be
charged by the United States Attorney. Providing tribes with increased
authority and jurisdiction to arrest and adjudicate non-Indians for
crimes committed within Indian country would require additional study
of each tribe's capacity to take on the added jurisdictional
responsibility to do so effectively.
Tribal Sentencing Authority
Current Federal law provides a ceiling on tribal court penal
authority to sentence of no longer than one year and up to a $5,000
fine for each offense. Some tribes currently sentence tribal offenders
concurrently for more than one offense which, in the aggregate, can
total more than one year. There are at least two major challenges faced
by BIA and tribal corrections programs with the care of inmates subject
to long term sentences for non-Federal felony crimes committed in
Indian country:
1.) There is limited detention space on or near most Indian
communities. There are also limited funds to contract for
detention bed space in a non-tribal or non-BIA facilities.
Extending sentences for longer than one year will result in
increased costs to both the BIA and tribal governments.
2.) Not all tribal courts have an effective appellate process.
Thus, a defined, effective, consistent, and transparent
appellate process is important to ensure civil rights are
protected and the tribes are not unduly subjected to habeas
corpus claims in Federal court.
Mr. Chairman and members of the Committee, I thank you for
providing the Department of Interior's Bureau of Indian Affairs the
opportunity to comment on the specific issues related to Law and Order
in Indian Country. We will continue to work closely with the Committee
and your staff, tribal leaders, and our Federal partners. The Bureau of
Indian Affairs will be happy to answer any further questions you may
have.
______
Prepared Statement of William R. Rhodes, Governor, Gila River Indian
Community
I. Background
The Gila River Indian Community (``the Community'') is located in
Maricopa and Pinal Counties in Arizona. The Community shares its
borders with the City of Phoenix, Chandler, Coolidge, Casa Grande,
Maricopa and Queen Creek. The Community has entered into mutual aid law
enforcement agreements with some of these communities to address the
unique conditions of the Community. The Community's total enrollment is
19,000 members. The jurisdiction of the Community extends over
approximately 600 square miles of Reservation land. Interstate 10 cuts
across the Reservation. The Community has a fully developed criminal
justice system which employs over 250 people and includes the Community
Court, Law Office, Police Department, Probation Department and
Detention Facilities. The following is a brief background on each
Community department:
A. Community Court. There are a total of eight (8) Community
Court Judges. In 2003, the Community Court moved into a new
state of the art court building with six (6) courtrooms that
include video monitoring and recording systems. The Court has
the space to accommodate jury trials and appellate hearings.
The Community Court building is 31,450 square feet. The 2007
operating budget for the Court was $5.2 million dollars,
including $37,000 dollars from two (2) state grants. The Court
does not receive federal funding.
B. Law Office--Criminal Division. The Law Office-Criminal
Division employs ten (10) licensed attorneys as prosecutors and
ten (10) support staff to represent the Community in
prosecuting crime, civil code enforcement, child dependency
cases and delinquency cases in the Community's Courts.
C. Police Department. Until 1998, the Community relied on the
Bureau of Indian Affairs (BIA) for law enforcement services.
Since then, the Community has entered into a 638 contract for
law enforcement services and the Gila River Police Department
has grown. It now employs 90 sworn police officers. Gila River
Police officers: (1) are commissioned to enforce the laws of
the Gila River Indian Community; (2) are Arizona post certified
officers; and (3) are Special Law Enforcement Certified by the
BIA law enforcement. Thus Gila River Police Officers can
enforce tribal, federal and state laws. The operating budget
for the Police Department in 2007 was $13.0 million dollars
with a federal contribution of $3 million dollars.
D. Probation Department. The Probation Department employs
nineteen (19) probation officers and is comprised of three (3)
divisions: adult, juvenile and diversion probation programs. In
addition to the regular probation programs, the Probation
department administers diversion programs for juveniles,
including teen mentoring, teen court and drug court programs.
E. Detention Facilities. The Department of Rehabilitation and
Supervision manages two (2) detention facilities located within
the Reservation. The adult detention facility is 97,000 square
feet, employs 97 staff members and can house 224 inmates. The
Juvenile Detention facility is 35,000 square feet, employs 56
staff members and can house 106 juveniles. Both detention
facilities were constructed in 2001. The construction cost for
both facilities was $37.8 million dollars, with a federal
contribution of $9.8 million. In 2007, the operating budget for
both facilities was $9.0 million dollars, including a federal
contribution of $3.1 million dollars.
II. Tribal Justice Issues
The following sections will address the Community's concerns
regarding tribal justice issues.
A. Federal Accountability--Indian country statistics should
hold more weight in Assistant United States Attorney (AUSA)
evaluations. AUSA's should not solely be evaluated on the
number of successful prosecutions--instead, the number of cases
they prosecute and the cases they decline should also be
considered. The Special United States Attorney (SAUSA) Program
should also be re-examined. At one time, this program allowed
tribal attorneys to prosecute cases in federal court. If re-
instituted, the program needs to provide training to tribal
attorneys and perhaps funding.
B. Jurisdictional Issues--Jurisdiction is always a complex
problem in Indian Country. Indian or non-Indian status of both
the victim and the offender determine whether a crime falls
under tribal, state or federal jurisdiction. Crimes committed
by non-Indians that do not rise to the level of federal
prosecution, like sexual assault and domestic violence, are
rarely prosecuted. While technically there may exist a court of
justice for every crime committed in Indian country, the
reality is non-Indian offenders almost always go unpunished.
Further, for crimes committed by Indian offenders, tribes are
limited by the Indian Civil Rights Act which restricts
punishment to one (1) year for any offense. The Community
proposes two (2) potential solutions to protect victims from
domestic violence and sexual assault when committed by a non-
Indian. First, the Indian Civil Rights Act needs to be amended
so that tribal courts may punish more than one year for an
offense. Second, the Community urges Congress to consider
allowing Indian tribes to exercise personal jurisdiction over
non-Indians and subject matter jurisdiction over these specific
crimes because of the urgent need to protect victims.
C. Detention Facilities--In general, detention facilities in
Indian Country need to be evaluated. The Community has invested
substantial tribal resources in both a juvenile and adult
facility, however, problems still remain. The Community faces a
severe problem with housing serious offenders and/or gang
members with less serious offenders. Housing serious offenders
with misdemeanor offenders often facilitates criminal contacts,
increases crime and strains already limited detention facility
staff. A regional detention facility for more serious offenders
in Indian Country should be established. Additionally, funding
for adequate staff and medical services is much needed. The
Community provided most of the funding for the creation of its
detention facilities and provides most of the funding for its
continued support, but increasing crime strains tribal
resources and hinders adequate services.
D. Law Enforcement--There are numerous law enforcement
challenges in Indian Country including lack of funding and
resources. The Community employs approximately 90 sworn
officers. About 20 officers are on duty per shift for the
entire 600 square miles of the Reservation. With the increase
in crime in Indian Country the need for support from the
Federal Bureau of Investigation (FBI) is increasingly
important. Although the Gila River Police Department works
cooperatively with FBI Agents on the investigation of Major
Crimes, the reduction of FBI Agents greatly hinders the
investigations, thereby affecting the number of cases that are
federally prosecuted. As an alternative, if the presence of FBI
Agents in Indian Country continues to decrease, there should be
an increase in advance training and resources to tribal police
departments.
In addition, the Community along with many other Indian tribes
is experiencing an increase of gang activity within their
reservations. Indian tribes struggle to deal with the criminal
conduct and drug activities that often accompany gang presence.
Tribal law enforcement departments investigate drive by
shootings involving gang members. The crime of drive by
shooting is not included as an enumerated offense under the
Major Crimes Act. The fact that the drive by shooting is not a
federal offense frustrates law enforcement and tribes because
the penalty under tribal law is minimal when weighed against
the criminal conduct that often impact whole Indian families.
Therefore, the Community encourages Congress to amend the Major
Crimes Act to include the crime of drive by shooting.
E. Drug Trafficking and Illegal Immigration--Drug trafficking
and illegal immigration are serious crimes that affect the
Community, however cooperative relationships and investigations
with federal agencies, such as the Drug Enforcement Agency
(DEA) and the Immigration and Customs Enforcement (ICE)
departments to combat these problems is lacking. Tribal law
enforcement departments are expected to investigate large drug
cases without federal support or assistance, which often
results in the U.S. Attorney denying the prosecution of these
cases because of high threshold amounts or the manner in which
the investigation was conducted was inconsistent with the
federal standards. These cases are left to be handled by tribal
prosecutors who can only prosecute Indian defendants and
request punishment for only 365 days of detention and/or a
$5,000 dollar fine. Non-Indians transporting and/or selling
drugs in Indian Country take full advantage of the
jurisdictional issues and nominal consequences.
The Community faces problems with illegal immigration that tax
Community resources. Tribal ranger resources are expended to
deal with considerable illegal dumping and trespassing.
Additionally, when tribal law enforcement encounters illegal
immigrants, sometimes they must wait substantial amounts of
time for ICE to respond. Therefore, the need for joint
operations and cooperation between tribal law enforcement and
federal agencies is imperative to prevent Indian tribes from
further expending their already scarce resources and also in
the interest of tribal, local and federal homeland security
goals.
F. Data Collection/Technology. As a response to the Adam Walsh
Act passed by Congress in 2006, the Community passed an
ordinance mandating sex offenders located within the
Reservation to register with the Gila River Police Department.
In addition, the Police Department was also selected by the
Department of Justice for an Amber Alert in Indian Country
pilot project. It is evident from the increase of
responsibilities placed upon tribal police departments that the
need for technology and access to databases and the accurate
collection of crime statistics is imperative to the ability of
tribal law enforcement to respond to crime in Indian Country.
Tribal law enforcement departments lack basic access to the
national and/or state database systems that track important
information such as warrants, investigative leads, and stolen
information. This inability to access and obtain information
compromises officer safety and hinders an accurate response to
crime in Indian Country. In response to this problem, the Gila
River Police Department has entered into mutual aid agreements
for inoperability and access to these databases. However,
inadequate technological support, in the form of computer aided
dispatch systems, prevents law enforcement from fully
maximizing these databases.
Funding is also desperately needed for the collection and
examination of evidence. The Community, like many tribes, lacks
a facility for processing evidence like fingerprints and DNA
evidence. A lack of funding prevents law enforcement from
sending all but the most important evidence to state and
federal labs. Tribal prosecutions are hindered and frequently
dismissed by the lack of access to these resources.
III. Conclusion
The Community commends the Committee for focusing attention on the
issue of law enforcement in Indian Country. We look forward to working
with the United States Senate to support the legislative changes
necessary to successfully combat crime in Indian Country.
Thank you for this opportunity to submit a written statement on
behalf of the Community.
______
Response to Written Questions Submitted by Hon. Byron L. Dorgan to
Hon. Diane Humetewa
Question 1. Your testimony states that there are no jurisdictional
gaps in Indian Country, and that ``for every crime in Indian Country,
there is a court of justice.'' Do you believe that there are gaps in
enforcement? Please discuss the Department's efforts to prosecute
reservation-based misdemeanor crimes committed by non-Indians with
Indian victims.
Answer. The Department takes seriously all crimes committed in
Indian Country and recognizes the obligation to appropriately prosecute
those crimes. The cases the Department prosecutes in Indian Country
represent some of our most significant and challenging work.
Approximately 25 percent of all violent crimes that U.S. Attorneys
investigate nationally occur in Indian Country. In addition, in FY
2006, the Department's efforts in Indian Country increased across the
board. For example, in FY 2006, the Department filed 606 cases against
688 defendants in Indian Country, which is nearly 5 percent higher than
the average since 1994. In FY 2006, 82 cases went to trial, 13.8
percent more than the average of cases each year since 1994. The
conviction rate for Indian Country prosecutions in FY 2006 was 89.4
percent, slightly higher than the 86.2 percent average since 1994.
Eighty percent of those guilty of violent crime in Indian Country were
sentenced to prison in FY 2006. The number of defendants convicted of
violent crimes receiving sentences greater than 61 months has also
increased from 31 percent on average to 36 percent in FY 2006.
While several agencies have law enforcement responsibility in
Indian country, they continue to work together to fight crime. For
example, first responders may consist of state, local or tribal law
enforcement officers. Those officers often secure crime scenes, while
assisting victims of crime and restoring order to volatile situations.
If the crime is a major crime, those first responders will often
transfer the crime scene to federal agents upon their arrival at the
scene. Those federal agents then collect and maintain any evidence
while completing any required additional investigation in preparation
for prosecution by the appropriate United States Attorney's Office.
Question 2. Your testimony indicates significant constitutional
concerns regarding tribal court jurisdiction over non-Indian
defendants. Please provide the Department's views or concerns, if any,
with constitutional rights afforded to Indian defendants in tribal
courts.
Answer. The Department's testimony did not address the general
issue of constitutional rights afforded to Indian defendants in tribal
courts, but rather described particular concerns that might arise,
depending on the specific legislative proposal, with respect to
legislation that would give tribal courts jurisdiction over non-
Indians.
The constitutional rights afforded to Indian defendants in tribal
courts are implemented by the Indian Civil Rights Act of 1968
(``ICRA''), 25 U.S.C. Sec. Sec. 1301-1303. Congress enacted ICRA to
provide individual Indians with most of the protections guaranteed by
the Bill of Rights while also promoting self-government by federally
recognized Indian tribes. See Santa Clara Pueblo v. Martinez, 436 U.S.
49, 57, 60-63 (1978). The rights guaranteed by ICRA include the Fourth
Amendment's protection against unlawful search and seizure; the Fifth
Amendment rights not to be placed in double jeopardy or required to be
a witness against oneself; the Sixth Amendment rights to be informed of
the nature of the accusation, to confront witnesses, and to be tried by
jury; the Eighth Amendment protections against excessive bail, fines,
or cruel and unusual punishment; and the Fourteenth Amendment rights to
equal protection and due process of law. However, ICRA guarantees
assistance of counsel only at a defendant's own expense (though many
tribes apparently do provide appointed counsel). See 25 U.S.C.
Sec. 1302. ICRA also provides that habeas corpus review is available to
any person detained by an Indian tribe. See id. Sec. 1303.
Tribal courts have retained their sovereign authority to prosecute
criminal offenses committed by Indians within their territory. See 25
U.S.C. Sec. 1302(7); United States v. Wheeler, 435 U.S. 313, 323-325
(1978). In 1990, Congress amended ICRA to ``recognize[] and affirm[]''
``the inherent power of Indian tribes . . . to exercise criminal
jurisdiction over all Indians.'' 25 U.S.C. Sec. 1301(2). A tribal court
thus has jurisdiction not only over the tribe's members, but also over
members of other federally recognized tribes who commit crimes within
its territory. See 25 U.S.C. Sec. 1301(4) (defining ``Indian'' as any
person subject to federal jurisdiction as an Indian under the Major
Crimes Act, 18 U.S.C. Sec. 1153); United States v. Antelope, 430 U.S.
641, 646-647 & n.7 (1977) (federal criminal jurisdiction under the
Major Crimes Act does not apply to ``many individuals who are racially
to be classified as `Indians,' '' but rather to enrolled members of
tribes whose official status has not been terminated). The Supreme
Court has upheld Congress' constitutional authority ``to permit tribes,
as an exercise of their inherent tribal authority, to prosecute
nonmember Indians.'' United States v. Lara, 541 U.S. 193, 210 (2004).
It is important to note that the current framework for tribal
jurisdiction is premised on the limitation of a statutory maximum
punishment of one year of incarceration.
Question 3. What percentage of Indian Country criminal cases were
declined by U.S. Attorneys offices nationwide in 2006 and 2007? Please
indicate the general reasons for declinations, and if possible
attribute percentages to those reasons. What in your opinion needs to
be done to reduce the number of declinations?
Answer. Law enforcement in Indian Country creates unique
challenges. The cases presented are as diverse as the tribes located in
Indian Country. Criminal cases arising in Indian Country are most often
reactive cases. Reactive cases are those cases in which a crime has
occurred and the investigation is in response to the criminal activity
and generally requires immediate action by law enforcement officials.
The typical federal case involves a proactive investigation. A
proactive investigation is an investigation in which various law
enforcement tools may be used, such as: wiretaps, search warrants,
grand jury proceedings, cooperating informants, and undercover
operations; to successfully build a case over time. As such, Indian
Country prosecutions are more closely related to the types of cases
handled by state and local prosecutors.
The Department is committed to improving data collection and
analysis in Indian Country and increasing transparency. At this time we
do not have statistics that we believe accurately reflect the rate of
declinations in Indian Country. Case closures occur for a number of
reasons. For example, a case may be closed after it has been prosecuted
by tribal or state officials, a case may be closed while waiting for
additional investigative matters to occur or case closure may occur
when there is no prosecutable violation under federal law. The
Department is working to develop improved data regarding the ultimate
disposition of cases including case declinations and case closures.
Question 4. Do U.S. Attorneys offices have a consistent policy on
how they accept criminal cases? For example, does every office accept
cases or investigations filed by tribal police officers?
Answer. Department of Justice policy does not mandate or restrict
the intake of cases from a tribal agency. Many offices currently accept
cases directly from tribal law enforcement officers. As you know,
tribes come in a variety of sizes and cultures; but the police agencies
within those tribes reflect that same diversity. Each U.S. Attorney's
Office is in a unique position to observe and best evaluate the
appropriate method of intake from state, local, and tribal law
enforcement partners.
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