[Senate Report 106-219]
[From the U.S. Government Publishing Office]
Calendar No. 409
106th Congress Report
SENATE
1st Session 106-219
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PROVIDING TECHNICAL AND LEGAL ASSISTANCE TO TRIBAL JUSTICE SYSTEMS AND
MEMBERS OF INDIAN TRIBES, AND FOR OTHER PURPOSES
_______
November 8, 1999.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1508]
The Committee on Indian Affairs, to which was referred the
bill (S. 1508) to provide technical and legal assistance to
tribal justice systems and members of Indian tribes, and for
other purposes, having considered the same, reports favorably
thereon with an amendment in the nature of a substitute and
recommends that the bill (as amended) do pass.
The substitute amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Indian Tribal Justice Technical and
Legal Assistance Act of 1999''.
SEC. 2. FINDINGS.
The Congress finds and declares that--
(1) there is a government-to-government relationship between
the United States and Indian tribes;
(2) Indian tribes are sovereign entities and are responsible
for exercising governmental authority over Indian lands;
(3) the rate of violent crime committed in Indian country is
approximately twice the rate of violent crime committed in the
United States as a whole;
(4) in any community, a high rate of violent crime is a major
obstacle to investment, job creation and economic growth;
(5) tribal justice systems are an essential part of tribal
governments and serve as important forums for ensuring the
health and safety and the political integrity of tribal
governments;
(6) Congress and the Federal courts have repeatedly
recognized tribal justice systems as the most appropriate
forums for the adjudication of disputes affecting personal and
property rights on Native lands;
(7) enhancing tribal court systems and improving access to
those systems serves the dual Federal goals of tribal political
self-determination and economic self-sufficiency;
(8) there is both inadequate funding and an inadequate
coordinating mechanism to meet the technical and legal
assistance needs of tribal justice systems and this lack of
adequate technical and legal assistance funding impairs their
operation;
(9) tribal court membership organizations have served a
critical role in providing training and technical assistance
for development and enhancement of tribal justice systems;
(10) Indian legal services programs, as funded partially
through the Legal Services Corporation, have an established
record of providing cost effective legal assistance to Indian
people in tribal court forums, and also contribute
significantly to the development of tribal courts and tribal
jurisprudence; and
(11) the provision of adequate technical assistance to tribal
courts and legal assistance to both individuals and tribal
courts is an essential element in the development of strong
tribal court systems.
SEC. 3. PURPOSES.
The purposes of this Act are as follows:
(1) to carry out the responsibility of the United States to
Indian tribes and members of Indian tribes by ensuring access
to quality technical and legal assistance.
(2) To strengthen and improve the capacity of tribal court
systems that address civil and criminal causes of action under
the jurisdiction of Indian tribes.
(3) To strengthen tribal governments and the economies of
Indian tribes through the enhancement and, where appropriate,
development of tribal court systems for the administration of
justice in Indian country by providing technical and legal
assistance services.
(4) To encourage collaborative efforts between national or
regional membership organizations and associations whose
membership consists of judicial system personnel within tribal
justice systems; non-profit entities which provide legal
assistance services for Indian tribes, members of Indian
tribes, and/or tribal justice systems.
(5) To assist in the development of tribal judicial systems
by supplementing prior Congressional efforts such as the Indian
Tribal Justice Act (Public Law 103-176).
SEC. 4. DEFINITIONS.
For purposes of this Act:
(1) Attorney general.--The term ``Attorney General'' means
the Attorney General of the United States.
(2) Indian lands.--The term ``Indian lands'' shall include
lands within the definition of ``Indian country'', as defined
in 18 U.S.C. 1151; or ``Indian reservations'', as defined in
section 3(d) of the Indian Financing Act of 1974, 25 U.S.C.
1452(d), or section 4(10) of the Indian Child Welfare Act, 25
U.S.C. 1903(10). For purposes of the preceding sentence, such
section 3(d) of the Indian Financing Act shall be applied by
treating the term ``former Indian reservations in Oklahoma'' as
including only lands which are within the jurisdictional area
of an Oklahoma Indian Tribe (as determined by the Secretary of
Interior) and are recognized by such Secretary as eligible for
trust land status under 25 CFR part 151 (as in effect on the
date of enactment of this sentence).
(3) Indian tribe.--The term ``Indian tribe'' means any Indian
tribe, band, nation, pueblo, or other organized group or
community, including any Alaska Native entity, which
administers justice or plans to administer justice under its
inherent authority or the authority of the United States and
which is recognized as eligible for the special programs and
services provided by the United States to Indian tribes because
of their status as Indians.
(4) Judicial personnel.--The term ``judicial personnel''
means any judge, magistrate, court counselor, court clerk,
court administrator, bailiff, probation officer, officer of the
court, dispute resolution facilitator, or other official,
employee, or volunteer within the tribal judicial system.
(5) Non-profit entities.--The term ``non-profit entity'' or
``non-profit entities'' has the meaning given that term in
section 501(c)(3) of the Internal Revenue Code.
(6) Office of tribal justice.--The term ``Office of Tribal
Justice'' means the Office of Tribal Justice in the United
States Department of Justice.
(7) Tribal justice system.--The term ``tribal court'',
``tribal court system'', or ``tribal justice system'' means the
entire judicial branch, and employees thereof, of an Indian
tribe, including, but not limited to, traditional methods and
fora for dispute resolution, trial courts, appellate courts,
including inter-tribal appellate courts, alternative dispute
resolution systems, and circuit rider systems, established by
inherent tribunal authority whether or not they constitute a
court of record.
TITLE I--TRAINING AND TECHNICAL ASSISTANCE, CIVIL AND CRIMINAL LEGAL
ASSISTANCE GRANTS
SEC. 101. TRIBAL JUSTICE TRAINING AND TECHNICAL ASSISTANCE GRANTS.
Subject to the availability of appropriations, the Attorney
General, in consultation with the Office of Tribal Justice, shall award
grants to national or regional membership organizations and
associations whose membership consists of judicial system personnel
within tribal justice systems which submit an application to the
Attorney General in such form and manner as the Attorney General may
prescribe to provide training and technical assistance for the
development, enrichment, enhancement of tribal justice systems, or
other purposes consistent with this Act.
SEC. 102. TRIBAL CIVIL LEGAL ASSISTANCE GRANTS.
Subject to the availability of appropriations, the Attorney
General, in consultation with the Office of Tribal Justice, shall award
grants to non-profit entities, as defined under section 501(c)(3) of
the Internal Revenue Code, which provide legal assistance services for
Indian tribes, members of Indian tribes, or tribal justice systems
pursuant to federal poverty guidelines that submit an application to
the Attorney General in such form and manner as the Attorney General
may prescribe for the provision of civil legal assistance to members of
Indian tribes and tribal justice systems, and/or other purposes
consistent with this Act.
SEC. 103. TRIBAL CRIMINAL ASSISTANCE GRANTS.
Subject to the availability of appropriations, the Attorney
General, in consultation with the Office of Tribal Justice, shall award
grants to non-profit entities, as defined by section 501(c)(3) of the
Internal Revenue Code, which provide legal assistance services for
Indian tribes, members of Indian tribes, or tribal justice systems
pursuant to federal poverty guidelines that submit an application to
the Attorney General in such form and manner as the Attorney General
may prescribe for the provision of criminal legal assistance to members
of Indian tribes and tribal justice systems, and/or other purposes
consistent with this Act. Funding under this title may apply to
programs, procedures, or proceedings involving adult criminal actions,
juvenile delinquency actions, and/or guardian-ad-litem appointments
arising out of criminal or delinquency acts.
SEC. 104. NO OFFSET.
No Federal agency shall offset funds made available pursuant to
this Act for Indian tribal court membership organizations or Indian
legal services organizations against other funds otherwise available
for use in connection with technical or legal assistance to tribal
justice systems or members of Indian tribes.
SEC. 105. TRIBAL AUTHORITY.
Nothing in this Act shall be construed to--
(1) encroach upon or diminish in any way the inherent
sovereign authority of each tribal government to determine the
role of the tribal justice system within the tribal government
or to enact and enforce tribal laws;
(2) diminish in any way the authority of tribal governments
to appoint personnel;
(3) impair the rights of each tribal government to determine
the nature of its own legal system or the appointment of
authority within the tribal government;
(4) alter in any way any tribal traditional dispute
resolution fora;
(5) imply that any tribal justice system is an
instrumentality of the United States; or
(6) diminish the trust responsibility of the United States to
Indian tribal governments and tribal justice systems of such
governments.
SEC. 106. AUTHORIZATION OF APPROPRIATIONS.
For purposes of carrying out the activities under this title, there
are authorized to be appropriated such sums as are necessary for fiscal
years 2000 through 2004.
TITLE II--INDIAN TRIBAL COURTS
SEC. 201. GRANTS.
(a) In General.--The Attorney General may award grants and provide
technical assistance to Indian tribes to enable such tribes to carry
out programs to support--
(1) the development, enhancement, and continuing operation of
tribal justice systems; and
(2) the development and implementation of--
(A) tribal codes and sentencing guidelines;
(B) inter-tribal courts and appellate systems;
(C) tribal probation services, diversion programs,
and alternative sentencing provisions;
(D) tribal juvenile services and multi-disciplinary
protocols for child physical and sexual abuse; and
(E) traditional tribal judicial practices,
traditional tribal justice systems, and traditional
methods of dispute resolution.
(b) Consultation.--In carrying out this section, the Attorney
General may consult with the Office of Tribal Justice and any other
appropriate tribal or Federal officials.
(c) Regulations.--The Attorney General may promulgate such
regulations and guidelines as may be necessary to carry out this title.
(d) Authorization of Appropriations.--For purposes of carrying out
the activities under this section, there are authorized to be
appropriated such sums as are necessary for fiscal years 2000 through
2004.
SEC. 202. TRIBAL JUSTICE SYSTEMS.
Section 201 of the Indian Tribal Justice Act (25 U.S.C. 3621) is
amended--
(1) in subsection (a), by striking ``1994, 1995, 1996, 1997,
1998, 1999, and 2000'' and inserting ``2000 through 2007'';
(2) in subsection (b), by striking ``1994, 1995, 1996, 1997,
1998, 1999, and 2000'' and inserting ``2000 through 2007'';
(3) in subsection (c), by striking ``1994, 1995, 1996, 1997,
1998, 1999, and 2000'' and inserting ``2000 through 2007''; and
(4) in subsection (d), by striking ``1994, 1995, 1996, 1997,
1998, 1999, and 2000'' and inserting ``2000 through 2007''.
Purpose
The purpose of S. 1508, the Indian Tribal Justice Technical
and Legal Assistance Act of 1999, is to authorize the
Department of Justice to use appropriated funds to: (1) award
grants to national and regional organizations whose members are
tribal justice system personnel to provide training and
technical assistance for the development of tribal systems, and
(2) award grants to non-profit legal services providers to
provide civil and criminal legal assistance to tribal members
or judicial systems.
Background
Most Native Americans continue to live in abject poverty
and as with similarly situated groups, crime rates are high and
access to civil legal assistance is poor. Along with other
factors, stable tribal governments and healthy tribal economic
depend on strong and well-ordered tribal courts and judicial
systems. For many Indian communities, Indian Legal Services
(ILS) providers fill the void by providing basic civil legal
assistance to qualifying individuals.
In addition to this assistance, ILS entities assist tribal
governments in developing their justice systems by providing a
variety of services including training court personnel, and
strengthening the capacity of tribal courts to handle both
civil and criminal matters. Together with tribal governments,
ILS organizations work to establish and maintain confidence in
tribal justice systems.
Adequate funding has long been recognized as one of the key
ingredients for the development of effective Indian tribal
justice systems. In 1941 John Collier, then-Commissioner of
Indian Affairs, stated that ``[t]he lack of adequate
appropriations for the support of the courts and for the
maintenance of an adequate police force have handicapped the
administration of justice.'' In its final report issued in
1977, the American Indian Policy Review Commission noted the
importance of tribal justice systems and urged that Congress
provide sufficient funding for the establishment and
development of justice systems.
In 1991, the United States Commission on Civil Rights
issued its report \1\ on the implementation of the Indian Civil
Rights Act of 1968, 25 U.S.C. 1301 et seq., nothing the need
for adequate funding for tribal justice systems. In 1993, the
Indian Tribal Justice Act, 25 U.S.C. 3506 et seq., was enacted
to provide support for Indian tribal courts and for other
purposes, but funding appropriated under the Act has not been
sufficient to meet the needs across Indian country.
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\1\ The Indian Civil Rights Act--A Report of the United States
Commission on Civil Rights, June, 1991.
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a. crime and law Enforcement
For years the Committee on Indian Affairs has focused its
attention on tribal courts, juvenile justice, gang activity,
and law enforcement on Indian lands.\2\ In 1997, the U.S.
Department of Justice published a report showing that while
crime rates generally have fallen throughout the nation,
federal and tribal law enforcement agencies reported that crime
in Indian communities is rising.\3\ In October, 1997, the
Executive Committee for Indian Country Law Enforcement
Improvements issued its Final Report to the Attorney General
and the Secretary of the Interior.\4\
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\2\ See for example the following Committee hearing records Tribal
Courts Act of 1991 and Report of the U.S. Commission on Civil Rights
Entitled ``Indian Civil Rights Act'', S. Hrng. 102-496; Indian Tribal
Justice Act, S. Hrng. 103-76; Tribal Justice Act, S. Hrng. 104-332;
Juvenile Justice in Indian Country, S. Hrng. 105-140; Criminal Gangs in
Indian Country, S. Hrng. 105-341; and Department of Justice/Department
of the Interior Tribal Justice Initiatives, S. Hrng. 105-705.
\3\ See also American Indians and Crime, U.S. Department of
Justice, Office of Justice Programs, Bureau of Justice Statistics,
February, 1999, NCJ 173386.
\4\ See Report of the Executive Committee For Indian Country Law
Enforcement Improvements--Final Report to the Attorney General and the
Secretary of the Interior, October 31, 1997.
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In response to these reports, the Administration proposed
its ``Law Enforcement Initiative for Indian Country'' stressed
the need for more law enforcement and justice resources. In
1997 through the current fiscal year, Congress responded by
increasing funding to provide for additional FBI agents, tribal
law enforcement officers, juvenile detention centers and tribal
courts. The funding request for the Initiative for FY2000 is
$124 million, with the bulk of funds slated for Department of
Justice (DoJ) law enforcement purposes, $5 million for DoJ's
tribal courts initiative and $10 million for the Bureau of
Indian Affairs (BIA) for tribal courts.
b. civil legal matters
Every year, Indian tribal courts and courts personnel
handle large caseloads: the Navajo Nation court system
processed over 25,000 cases; the Gila River Indian Community
(AZ) handled more than 3,000; the Colville Tribal Court (WA)
dealt with nearly 2,000 cases; and the Ft. Peck Tribe (MT)
processed over 3,100 cases in 1997. Though the 1993 Indian
Tribal Justice Act authorized nearly $50 million dollars to
support tribal justice systems, adequate funding under the Act
has not been requested or appropriated. Stepping into this
breach, civil legal assistance to individuals and other forms
of legal aid are often provided by non-profit ILS
organizations, which receive their funding from the federal
Legal Services Corporation (LSC).\5\
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\5\ See Legal Needs and Services in Indian Country--1998 Report to
the Legal Services Corporation.
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c. united states ``rule of law assistance'' to foreign nations
Since 1945, the United States has spent billions of dollars
in overseas assistance to boost foreign economics and cultivate
democracy around the world. These funds have included
assistance for physical infrastructure, education, health care
and private sector development.
The U.S. has also recognized the importance of well-
functioning justice systems. A major component of the U.S.
foreign development strategy is ``Rule of Law Assistance''
provided to assist in the development of foreign judicial and
justice systems.
The General Accounting Office (GAO) reports that from 1993
to 1998, Congress appropriated $970 million for foreign ``rule
of law programs'', with $75 million slated for foreign courts.
Funding made available under this program is for legal,
judicial, and law enforcement purposes in both the civil and
criminal contexts.\6\
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\6\ See Rule of Law Funding Worldwide: FY 1993-1998, GAO/NSIAD-99-
158, June 1999.
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D. S. 1508 and building strong tribal justice systems
The Indian Tribal Justice Technical and Legal Assistance
Act of 1999 is intended to complement existing efforts to
support tribal courts, such as the 1993 Indian Tribal Justice
Act which is ``housed'' in the Department of Interior. The bill
is not intended to supplant the 1993 Act or other authority
such as the Snyder Act of 1921, 25 U.S.C. Sec. 13.
S. 1508 authorizes the Department of Justice to award
grants to legal services and non-profit organizations to help
build the capacity of tribal courts and justice systems, and
provides a 4-year authorization of appropriations with grant
amounts subject to the availability of annual appropriations.
S. 1508 authorizes the Attorney General, in consultation with
the Office of Tribal Justice (OTJ) in the Department of
Justice, to provide funding for 3 categories of activities:
1. Training and Technical Assistance: Section 101
authorizes grants to national or regional organizations
whose members are tribal justice system personnel to
provide training and technical assistance for the
development, enrichment and enhancement of tribal
justice systems;
2. Civil Legal Assistance: Section 102 authorizes
grants to non-profit legal services providers to
provide civil legal services to tribal members or
tribal justice systems; and
3. Criminal Legal Assistance: Section 103 authorizes
grants to non-profit tribal legal services provider to
provide criminal legal assistance to tribal members of
tribal justice systems.
Amendment in the Nature of a Substitute to S. 1508
The amendment in the nature of a substitute to S. 1508
makes two changes to the bill as introduced. The first
amendment, deals with funding for activities related to the
administration of tribal justice and tribal courts by
Department of Justice (DoJ) pursuant to the Joint Department of
Interior-Department of Justice Law Enforcement Initiative begun
in 1997. As part of the FY 2000 Commerce, Justice and State
(CJS) Appropriations bill, the House subcommittee refused to
provide funding for these activities because, in the opinion of
the House subcommittee, they lacked authorization. The
amendment to S. 1508 is proposed to eliminate any confusion
over the authorization for the DoJ to fund and carry out these
programs and activities.
The second amendment authorizes appropriations under the
1993 Indian Tribal Justice Act, from FY2001 through FY2007. The
current authorization for appropriations under the 1993 Act
will expire with the end of fiscal year 2000.
Legislative History
S. 1508, the Indian Tribal Justice System Legal and
Technical Assistance Act of 1999, was introduced on August 5,
1999 by Senator Campbell, and was referred to the Committee on
Indian Affairs where a hearing was held on September 29, 1999.
Committee Recommendation and Tabulation of Vote
On October 12, 1999 the Committee on Indian Affairs, in an
open business session, adopted an amendment in the nature of a
substitute to S. 1508 by a unanimous vote of the members
present and ordered the bill, as amended, reported favorably to
the Senate.
Section-by-Section Analysis
Section 1. Short title
This section provides that the Act may be cited as the
``Indian Tribal Justice Technical and Legal Assistance Act of
1999.''
Section 2. Findings
This section contains eleven findings and declaration,
including: a recognition of the government-to-government
relationship between the United States and Indian tribes; that
Indian tribes are responsible for exercising governmental
authority over Indian lands; that the rate of violent crime in
Indian country is twice the national rate and poses an obstacle
to investment, job creation and economic growth; that tribal
justice systems are essential for ensuring the health, safety
and political integrity of tribal governments and have been
repeatedly recognized by the federal government as the most
appropriate forums for the resolution of disputes over personal
and property rights on Indian lands; enhancing tribal justice
systems and improving access to them advances the federal
policies of self-determination and economic self-sufficiency;
tribal court personnel membership organizations have served a
critical role in providing necessary training and technical
assistance for tribal justice systems; and Indian legal
services programs have provided cost effective legal assistance
to Indian people and contribute to the development of tribal
justice systems and tribal jurisprudence.
Section 3. Purposes
This section sets forth five purposes for the Act,
including: to carry out the responsibility of the United States
to Indian tribes and members of Indian tribes to ensure access
to quality technical and legal assistance; to strengthen and
improve the capacity of tribal justice systems; to strengthen
tribal governments and tribal economies; to encourage
collaborative efforts between organizations of tribal justice
system personnel and non-profit entities which provide legal
assistance for Indian tribes, their members and tribal justice
systems; and, to assist in the development of tribal justice
systems by complementing prior Congressional efforts such as
the Indian Tribal Justice Act.
Section 4. Definitions
This section sets forth definitions for the following
terms: Attorney General, Indian Lands (including Indian
reservations and former Indian reservations in Oklahoma),
Indian tribe, judicial personnel, non-profit entities, Office
of Tribal Justice and Tribal Justice System.
TITLE I--TRAINING AND TECHNICAL ASSISTANCE, CIVIL AND CRIMINAL LEGAL
ASSISTANCE PROGRAMS
Section 101
Tribal Justice Training and Technical Assistance Grants.
This section provides authorization for the Attorney General to
make grant awards to national or regional judicial system
personnel membership organizations and associations to provide
training and technical assistance for the development,
enhancement and enrichment of tribal justice systems, subject
to the availability of appropriations and in consultation with
the Office of Tribal Justice.
Section 102. Tribal civil legal assistance grants
This section provides authorization for the Attorney
General to make grant awards to non-profit entities which
provide civil legal assistance services for Indian tribes,
members of Indian tribes or tribal justice systems, subject to
the availability of appropriations and in consultation with the
Office of Tribal Justice.
Section 103. Tribal criminal assistance grants
This section provides authorization for the Attorney
General to make grant awards to non-profit entities which
provide criminal legal assistance services for Indian tribes,
members of Indian tribes or tribal justice systems, subject to
the availability of appropriations and in consultation with the
Office of Tribal Justice.
Section 104. No offset
This section prohibits any federal agency from using funds
provided to Indian tribal justice system organizations or
Indian legal services organizations pursuant to this Act as an
offset to funds otherwise available for use in connection with
technical or legal assistance to tribal justice systems or
members of Indian tribes.
Section 105. Tribal authority
This section provides that nothing in this Act shall be
construed to: diminish the inherent sovereign authority of an
Indian tribe to determine the role of its tribal justice system
in its tribal government, the authority the tribal government
to appoint personnel or the apportionment of authority within
the tribal government; alter traditional tribal dispute
resolution fora; or, imply that a tribal justice system is an
instrumentality of the United States or diminish the trust
responsibility of the United States.
Section 106. Authorization of appropriations
This section authorizes the appropriation of such sums as
may be necessary for fiscal years 2000 through 2004.
TITLE II--INDIAN TRIBAL COURTS
Section 201. Grants
This section provides that the Attorney General may award
grants and provide technical assistance to Indian tribes for
the development, enhancement and continuing operation of tribal
justice systems including: code development; the development of
inter-tribal courts and appellate systems; probation services,
sentencing and alternative sentencing and diversion programs;
juvenile justice services and multi-disciplinary protocols for
child physical and sexual abuse; and, traditional tribal
justice practices and dispute resolution methods. The Attorney
General may consult with the Office of Tribal Justice or other
appropriate federal officials and promulgate regulations to
carry out this Title of the Act. Such sums as may be necessary
are authorized to be appropriated for fiscal years 2000 through
2004.
Section 202. Tribal justice systems
This section amends 25 U.S.C. Sec. 3621 (P.L. 103-176,
Section 201) to extend the authorization for appropriations
from fiscal year 2000 to fiscal year 2000 through 2007 for the
Office of Tribal Justice Support and the annual update of the
survey of tribal justice systems, base support funding for
tribal justice systems, the administrative expenses for Tribal
Judicial Conferences.
Congressional Budget Office Estimate
The cost estimate for S. 1508 as calculated by the
Congressional Budget Office is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 25, 1999.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1508, the Indian
Tribal Justice Technical and Legal Assistance Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
S. 1508--Indian Tribal Justice Technical and Legal Assistance Act of
1999
Summary: S. 1508 would authorize funding for programs that
support tribal justice systems. The bill would authorize the
appropriation of $464 million over the 2000-2007 period,
including $58 million already authorized for 2000, for the
Secretary of the Interior to carry out certain provisions of
the Indian Tribal Justice Act. S. 1508 also would authorize the
Attorney General to make grants to organizations to develop and
strengthen tribal justice systems. CBO estimates this effort
would cost about $5 million annually, assuming appropriation of
that amount. In 1999, neither the Department of the Interior
(DOI) nor the Department of Justice (DOJ) received any
appropriations to implement programs that would be authorized
by S. 1508.
Based on information from DOI and DOJ, CBO estimates that
implementing S. 1508 would cost $232 million over the 2000-2004
period, assuming appropriation of the authorized amounts. The
bill would not affect direct spending or receipts; therefore,
pay-as-you-go procedures would not apply. S. 1508 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
Estimated cost to the Federal Government: For purposes of
this estimate, CBO assumes that S. 1508 will be enacted early
in fiscal year 2000 and that the authorized amounts will be
provided for each year. Estimates of outlays are based on
historical spending patterns for similar programs. The
estimated budgetary impact of S. 1508 is shown in the following
table. The costs of this legislation fall within budget
functions 450 (community and regional development) and 750
(administration of justice).
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By fiscal years, in millions of dollars--
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2000 2001 2002 2003 2004
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SPENDING SUBJECT TO APPROPRIATION
Spending on Tribal Justice Systems Under Current Law:
Authorization Level \1\........................................ 58 0 0 0 0
Estimated Outlays.............................................. 41 13 2 0 0
Proposed Changes:
Estimated Authorization Level.................................. 5 63 63 63 63
Estimated Outlays.............................................. 5 46 59 61 61
Spending on Tribal Justice Systems Under S. 1508:
Estimated Authorization Level.................................. 63 63 63 63 63
Estimated Outlays.............................................. 46 59 61 61 61
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\1\ The 2000 level is the amount authorized under current law. Thus far, no appropriations have been provided
for 2000.
Basis of estimate: S. 1508 would authorize the
appropriation of $58 million a year for fiscal years 2000
through 2007 for the Secretary of the Interior to establish and
operate the Office of Tribal Justice Support. Under current
law, $58 million is already authorized in 2000 for this work,
but no funds have been appropriated thus far. The purpose of
the office would be to develop, operate, and enhance tribal
justice systems and traditional judicial practices of tribal
governments. Based on information from DOI, CBO estimates that
implementing this provision would cost $207 million over the
2000-2004 period, assuming annual appropriation of the
authorized amount.
S. 1508 also would authorize the Attorney General to make
grants to organizations representing personnel of tribal
judicial systems and to nonprofit organizations providing legal
services to tribes. The Attorney General would provide grants
and technical assistance to tribes to assist them in developing
and operating tribal justice systems and related programs.
Based on information from DOJ, CBO estimates that implementing
these provisions would require an annual appropriation of $5
million, and would result in spending of $25 million over the
2000-2004 period.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: S. 1508
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Megan Carroll.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill to
evaluate the regulatory paperwork impact that would be incurred
in implementing the legislation. The Committee has concluded
that enactment of S. 1508 will create only de minimis
regulatory or paper work burdens.
Executive Communications
At the hearing on S. 1508 on September 29, 1999, the
President of the Legal Services Corporation, John McKay and
Mark Van Norman, Director of the Office of Tribal Justice in
the Department of Justice, appeared and testified before the
Committee in support of S. 1508. In addition Kevin Gover,
Assistant Secretary for Indian Affairs in the Department of the
Interior submitted a written statement for the record of the
hearing, also in support of S. 1508. The statements of
President McKay, Director Van Norman and Assistant Secretary
Gover follow:
Statement of John McKay, President, Legal Services Corporation
Good morning, Chairman Campbell and distinguished members
of the Senate Indian Affairs Committee. Thank you very much for
the opportunity to testify on S. 1508, the Indian Tribal
Justice System Technical and Legal Assistance Act of 1999. The
Legal Services Corporation (``LSC'' or ``the Corporation'')
appreciates your invitation to offer our comments on this
legislation.
Because this opportunity to appear before the Senate Indian
Affairs Committee is a unique opportunity for the Corporation,
let me provide the Committee with some background on LSC.
The Legal Services Corporation is a private, non-profit
corporation established by Congress in 1974 to seek to ensure
equal access to justice under the law for all Americans. Our
mission is to promote access to our system of justice to
improve opportunities for low-income people throughout the
United States by providing high quality civil legal
representation to those who would otherwise be unable to afford
it. The Corporation provides grants to local legal services
programs to address critical legal problems for eligible
clients and their families in every state and county in the
United States.
LSC is headed by an 11-member Board of Directors appointed
by the President and confirmed by the Senate. By law, the Board
is bipartisan: no more than six members may be of the same
political party. Local programs are governed by their own
Boards of Directors, which set priorities and determine the
types of cases that will be handled by the program, subject to
restrictions set by Congress. A majority of each local Board is
appointed by local bar associations. One-third of each local
Board is composed of client representatives appointed by client
groups. Programs may supplement their LSC grants with
additional funds from state and local governments, IOLTA
(Interest on Lawyer Trust Accounts) programs, other federal
agencies, bar associations, United Way and other charitable
organizations, foundations and corporations, and individual
donors. They further leverage federal funds by involving
private attorneys in the delivery of legal services for the
poor, mostly through volunteer pro bono work. LSC-funded
programs do not handle criminal cases, nor do they accept fee-
generating cases that private attorneys are willing to accept
on a contingency basis.
I should note that, pursuant to congressional direction in
1996, LSC funded programs are prohibited from engaging in class
actions, challenges to welfare reform, collection of court-
awarded attorneys' fees, many types of lobbying, litigation on
behalf of prisoners, and representation of undocumented and
other categories of aliens.
The Legal Services Corporation strongly supports S. 1508,
legislation recently introduced by Chairman Campbell. This bill
would authorize the Attorney General to award grants to
national or regional tribal justice system organizations or
non-profit entities that provide legal assistance services for
tribes and tribal members for the purpose of improving tribal
judicial systems through training, technical assistance, and
civil legal and criminal assistance. LSC appreciates that the
thirty Indian Legal Services (ILS) programs that receive LSC
funding are specifically included as eligible entities to whom
the Attorney General may award grants for civil legal and
criminal assistance programs under Sections 102 and 103 of the
bill.
Since 1968, ILS programs have been performing essential
capacity building services to many tribal courts across the
country, and have provided representation of Indian individuals
in those courts. ILS programs have assisted tribes in such
activities as the development of tribal courts, development of
written tribal codes, and training of tribal judges and lay
advocates, as well as provided legal representations to
individual Native people and, in some cases, where permitted
under the LSC Act and governing regulations, to tribal
governments themselves.
An important theme of the Senate Indian Affairs Committee
this year has been the facilitation and enhancement of strong
tribal government, reservation infrastructure and economic
opportunities for American Indians, Alaska Natives and Native
Hawaiians. Just as the staggering poverty and unemployment
statistics of many tribal reservations are an anomaly to the
glowing reports of the economic health of America, so too the
lack of equal access to the courts for many poor, small, rural
and/or tribal communities undermines the overall level of
confidence in our justice system. Without the full
participation of the individuals in these communities and all
others who must rely on our justice system to access the rights
guaranteed to them through the Constitution, our nation's
promise of ``equal justice under law'' is illusory.
Whether greater confidence in tribal courts is achieved
through the provision of training or through technical or civil
legal assistance, the broad goal of ensuring equal access to
justice through equipping tribal justice system personnel with
additional skills and tools will benefit individuals, local
businesses, contractors of various services, school districts,
and local governments--in short, these steps will benefit
entire communities, Native and non-Native.
The legislation's goal is also consistent with the intent
of the Committee in a number of bills it has considered this
year to maximize resources and to encourage partnerships. LSC
recognizes that its funding alone is not sufficient to meet the
vast unmet legal needs of low-income people in this nation,
particularly in the Native American community. Any additional
sources of funding can only benefit the ability of ILS programs
to serve eligible Indian tribes and individuals who cannot
afford legal assistance. LSC views the additional direct tie
between LSC Indian Legal Services programs and the Department
of Justice that would be authorized under this Act as an
exciting opportunity to strengthen legal assistance to Native
Americans.
On behalf of LSC, thank you for this opportunity to comment
on S. 1508. The Corporation supports this initiative, and urges
the Committee to take favorable action on the bill in the near
future.
------
Statement of Mark C. Van Norman, Director, Office of Tribal Justice
Good morning, Mr. Chairman and Members of the Committee. I
am Mark Van Norman, Director, Office of Tribal Justice,
Department of Justice. Thank you for inviting me to testify on
S. 1508, the Indian Tribal Justice Technical and Legal
Assistance Act of 1999.
In our view, S. 1508 would complement the joint Justice-
Interior Indian Law Enforcement Improvement Initiative. The
bill would promote the development of sound tribal justice
systems by increasing resources for training and technical
assistance. In addition, the bill would provide adjunct civil
legal assistance to impoverished tribal members which would be
significant in relation to civil rights, child custody matters,
housing, social services, and other areas. Tribal members are
often underserved in these areas. The bill would enhance
criminal legal assistance to indigent Indian defendants and
impoverished families and young people in the tribal justice
systems, which, in addition to being desperately needed now,
seems only fair in view of the increases in funding for tribal
law enforcement. In our view, improving assistance to Indian
communities in these areas would improve the administration of
justice in tribal courts and enhance our overall efforts to
improve tribal law enforcement and justice systems.
I. Government-to-government relations
Let me begin by emphasizing the fundamental principles that
guide the work of the Department of Justice with Indian tribes,
before discussing the problems of violent crime among American
Indians, and our current efforts to assist tribal courts and
justice systems.
Congress and the Executive Branch acknowledge the
importance of working with Indian tribes within the framework
of government-to-government relations when tribal self-
government, tribal land and resources, treaty rights, or other
tribal rights are concerned. Federal Government-to-government
relations with tribal governments are rooted in historical
treaty relations and the ongoing trust responsibility of the
United States. President Clinton recently affirmed that:
Since the formation of the Union, the United States
has recognized Indian tribes as domestic dependent
nations under its protection. In treaties, our Nation
has guaranteed the right of Indian tribes to self-
government. As domestic dependent nations, Indian
tribes exercise inherent sovereign powers over their
members and territory.\1\
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\1\ Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments (1998); 63 Fed. Reg. 27655 (1998).
Similarly, Congress has declared that the Federal trust
responsibility ``includes the protection of the sovereignty of
each tribal government.'' \2\
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\2\ 25 U.S.C. sec. 3601.
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II. Violent crime and law enforcement in Indian country
In addition to the Federal Government's trust relationship
with Indian tribes, the United States' basic responsibility to
preserve public safety for residents of Indian communities
derives from federal statutes, such as the Indian Major Crimes
Act and the General Crimes Act,\3\ that provide for federal
jurisdiction over felony crimes, such as murder, rape, robbery,
and serious assaults by or against Indians in Indian country.
The U.S. Attorneys prosecute such felony crimes in most of
Indian country. Tribal police and law enforcement agencies
serve as first responders to Indian country crimes and assist
the FBI and the BIA in responding to and investigating felony
crimes. Tribal courts and prosecutors try and punish
misdemeanor Indian crimes. Thus, an effective tribal criminal
justice system is an essential adjunct to effective Federal law
enforcement in Indian country.\4\
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\3\ 18 U.S.C. secs. 1152 and 1153.
\4\ Under Public Law No. 83-280, the Congress delegated to some
states criminal jurisdiction overs Indians in Indian country, and in
those states, Indian tribes retain inherent authority over misdemeanor
crimes by Indian offenders and often serve as the first responders to
Indian country crime.
---------------------------------------------------------------------------
While crime rates have fallen throughout the Nation,
federal and tribal law enforcement agencies report that violent
crime in Indian country is rising. The Bureau of Justice
Statistics (B.J.S.) explained in its report, American Indians
and Crime (1999), that American Indians have the highest
violent crime victimization rates of any group in the Nation.
From 1992-1996, the violent victimization rate for American
Indians (124 violent crimes per 1,000) was more than twice the
rate for the Nation as a whole (50 per 1,000).\5\ Violence
against American Indian women is severe.\6\ American Indians
suffer 7 rapes or sexual assaults per 1,000 compared to 3 per
1,000 among Blacks, 2 per 1,000 among whites, and 1 per 1,000
among Asians. Child abuse and neglect are also serious problems
among American Indians. The National Child Abuse and Neglect
Data System of the Department of Health and Human Services
reports that the rate of substantiated child abuse and neglect
among American Indian children was the highest of any group in
1995 (the most recent year for which statistics were
available).\7\
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\5\ Alcohol use is strongly associated with crime among American
Indians. In 55% of violent crimes against American Indians, the victims
report that the offender was under the influence of alcohol, drugs, or
both. In addition, the 1996 arrest rate for alcohol related offenses
(driving under the influence, liquor violations, etc.) among American
Indians and Alaska Natives was more than double that of the general
population.
\6\ The BJS report details violence among victims age 12 and over.
In addition, BJS statistics are derived from American Indian households
throughout the Nation, in reservation and off-reservation settings.
Reports from the FBI, BIA, and tribal law enforcement agencies indicate
that the violent crime problems on many of the large western Indian
reservations may be worse than these overall national rates.
\7\ Rates were calculated on the number of children age 14 or
younger because they account for at least 80% of the victims of child
abuse and neglect.
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Violent crime by juvenile offenders and Indian youth gangs
is on the rise in many Indian communities. The number of Indian
youth in Bureau of Prisons (BOP) custody has increased by 50%
since 1994. Demographics contribute to the growing problem of
juvenile delinquency and violence in Indian country. throughout
the Nation, the median age of American Indians is 24.2 years
compared with 32.9 years of other Americans. On many Indian
reservations, roughly half of the population is under 18 years
of age.
In 1997, recognizing the severity of violent crime problems
in Indian country, the President directed the Attorney General
and the Secretary of the Interior to develop a plan to improve
public safety and criminal justice in Indian communities. The
DOJ/DOI Executive Committee on Indian Country Law Enforcement
Improvements found that tribal police and criminal justice
systems face severe shortages among police, criminal
investigators, detention, and court staff and resources. Tribal
law enforcement agencies also lack basic communications and
information equipment and technology. The Navajo Nation, the
largest land based Indian tribe with 17 million acres of land,
has 0.9 police officers per 1,000 compared with 2.3 officer per
1,000 in off-reservation communities. the Attorney General and
the Secretary approved the Executive Committee's findings and
recommendation to increase law enforcement assistance to tribal
governments. In response, the Administration established the
Indian Law Enforcement Improvement Initiative. In Fiscal Year
1999, Congress appropriated $89 million for the Justice
Department for grants to Indian tribes for tribal law
enforcement officers, equipment, detention centers, juvenile
justice programs, and tribal courts, and for more FBI agents in
Indian country. For Fiscal Year 2000, the Administration has
requested $124 million for the Justice Department for the
Indian Law Enforcement Improvement Initiative, including $5
million for tribal courts.
III. Tribal courts, criminal and civil justice
Under the longstanding Federal policy promoting self-
government for Indian tribes, the United States has
consistently promoted the development of tribal courts. Under
the Indian Reorganization Act of 1934, for example, Congress
encouraged Indian tribes to develop and ratify written
constitutions and in assisting Indian tribes under the Act, the
Secretary of the Interior encouraged tribal governments to
develop tribal courts.\8\ Similarly, the Indian Civil Rights
Act affirms tribal court jurisdiction over crimes by Indians in
tribal territory.\9\ Tribal courts also have recognized
authority over civil matters, such as dometic relations,\10\
probate,\11\ torts,\12\ housing,\13\ debt, collection,\14\
environmental regulation,\15\ business activities on Indian
lands,\16\ management of Indian lands and natural
resources,\17\ and other matters. Congress has declared that
tribal courts are ``appropriate forums for the adjudication of
disputes affecting personal and property rights'' and ``for
ensuring public health and safety and the political integrity
of tribal governments.'' \18\
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\8\ 25 U.S.C. sec. 476. For example, the Constitution of the Hopi
Tribe provides that the Hopi Tribal Council shall have the power to:
``set up courts for the settlement of claims and disputes, and for the
trial and punishment of Indians within the jurisdiction charged with
offenses against [tribal] ordinances.'' Hopi Tribe Const. Art. VI, sec.
1(g). Before the Indian Reorganization Act a few Indian tribes had
established tribal courts based on the Anglo-American model, see Talton
v. Mayes, 163 U.S. 376 (1896) (determinations as to the meaning of
Cherokee law on grand jury proceedings ``were matters solely within the
jurisdiction of the courts of that nation''), while other Indian tribes
had Courts of Indian Offenses operated by the Department of the
Interior, 25 C.F.R. part 11, or traditional dispute resolution systems.
K. Llewelyn & E. Hoebel, The Cheyenne Way (1987) at 111-113 (describing
traditional Cheyenne law).
\9\ 25 U.S.C. sec. 1301 (`` `powers of self-government' means and
includes all governmental powers possessed by an Indian tribe,
executive, legislative, and judicial [including] the inherent power of
Indian tribes to * * * exercise criminal jurisdiction over all
Indians'').
\10\ Fisher v. District Court, 424 U.S. 382 (1976); United States
v. Quiver, 241 U.S. 602, 603 (1916); cf. John v. Baker, 982 P.2d 738
(Ak 1999) (Although Alaska Native Claims Settlement Act lands are not
``Indian country'' for 18 U.S.C. sec. 1151 purposes, Alaska Native
villages are federally recognized Indian tribes with concurrent
jurisdiction over tribal members).
\11\ 25 U.S.C sec. 2205.
\12\ Gesinger v. Gesinger, 531 N.W.2d 17(SD 1995).
\13\ Northwest Production Credit Association v. Smith, 784 F.2d 323
(1986).
\14\ Williams v. Lee, 358 U.S. 217 (1959).
\15\ Montana v. EPA, 137 F.3d 1135 (9th Cir.) cert. denied, 119 S.
Ct. 275 (1998).
\16\ Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); Kerr-
McGee v. Navajo Tribe, 471 U.S. 195 (1985).
\17\ New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).
\18\ 25 U.S.C. sec. 3601.
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Recognizing the evolving role of tribal courts within our
Federalist system, the Honorable Sandra Day O'Connor, Associate
Justice of the United States Supreme Court, has written:
Today, in the United States we have three types of
sovereign entities--the Federal government, the States,
and the Indian tribes. Each of the three sovereigns has
its own judicial system, and each plays an important
role in the administration of justice in this country.
* * * The role of tribal courts continues to expand,
and these courts have an increasingly important role to
play in the administration of the laws of our
nation.\19\
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\19\ Hon. Sandra Day O'Connor, Associate Justice, U.S. Supreme
Court, ``Lessons from the Third Sovereign: Indian Tribal Courts,'' The
Tribal Court Record (1996) at 12, 14.
Under the Indian Self-Determination Policy, tribal court
systems have been rapidly expanding to serve their communities.
In 1978, there were ``71 tribal courts, 32 CFR courts, and 16
traditional courts.'' \20\ Today, there are over 250 tribal
courts, including intertribal court systems like the Nevada
Intertribal Court of Appeals, which serves 24 Indian tribes.
Tribal court dockets are increasing dramatically. In 1996, the
Honorable William C. Canby, Jr., Senior Circuit Judge, United
States Court of Appeals wrote that:
---------------------------------------------------------------------------
\20\ U.S. Civil Rights Commission, The Indian Civil Rights Act
(1991) at 29.
The tribal courts are doing a huge business, and we
in the federal and state judiciary could not do without
them. The courts of the Navajo Nation this year will
decide about 25,000 civil and criminal cases, and this
figure does not include traffic offenses, juvenile
matters, alternative traditional court proceedings, or
appeals. The smaller Gila River Indian Community Court
decided 3,200 cases last year. A disappearance of the
tribal court system would be a major disaster, not just
for the tribes and their courts, but for our whole
national system of civil and criminal justice.\21\
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\21\ Hon. W.C. Canby, Jr., ``Tribal Courts, Viewed From A Federal
Judge's Perspective,'' The tribal Court Record (1996 at 16-17.
In our policy on government-to-government relations with
Indian tribes, the Justice Department has pledged to ``support
and assist Indian tribes in the development of their law
enforcement systems, tribal courts, and traditional justice
systems.'' See 61 Fed. Reg. 29424 (1996). In 1995, the Justice
Department helped to coordinate an academic conference and an
articles symposium on tribal courts, and the Attorney General
explained:
While the federal government has a significant
responsibility for law enforcement in much of Indian
country, tribal justice systems are ultimately the most
appropriate institutions for maintaining order in
tribal communities. They are local institutions,
closest to the people they serve. With adequate
resources and training, they are most capable of crime
prevention and peace keeping. * * *
Tribal courts are essential mechanisms for resolving
civil disputes that arise on the reservation or
otherwise affect the interests of the tribe or its
members. * * * The integrity of and respect for tribal
courts are critical for encouraging economic
development and investment on the reservation by
Indians and non-Indians alike.
Tribal courts are also important vehicles for helping
to resolve family problems. They can bring families
together and hold parents and children accountable to
themselves, each other, and the community.\22\
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\22\ Hon. J. Reno, Attorney General of the United States, ``A
federal commitment to tribal justice systems,'' 79 Judicature 113, 114
(1995).
The Justice Department supports the BIA's efforts to provide
assistance to tribal courts, and with our departmental mission
of strengthening and assisting state, local, and tribal law
enforcement and justice systems, we have begun complementary
efforts to support and assist tribal courts and justice systems
throughout the Nation. The Justice Department is working to
promote cooperation between the Federal, tribal, and state
court systems. For example, the Justice Department has
sponsored Federal-Tribal judicial training on child sexual
abuse cases, and the Office for Victims of Crime (OVC) is
working with the University of North Dakota to fund
scholarships for tribal judges to attend OVC training workshops
on other issues related to crime victims. The National Judicial
College, which provides training courses for Federal and state
judges, is developing a special curriculum for tribal court
judges under a Justice Department grant. Similarly, recognizing
the significance of traditional tribal justice systems, the
Office of Juvenile Justice and Delinquency Prevention will
sponsor a workshop on traditional tribal justice at the
Mississippi Band of Choctaw's tribal headquarters in November
1999.
The Justice Department has also included a number of tribal
courts in grant programs generally available to state, local,
and tribal justice systems, like the Drug Courts Program (DCP).
For example, the Hualapai Tribal Court of Arizona used a DCP
grant to establish a ``Wellness Court'' to assist tribal
members who are chronically involved in the criminal justice
system due to non-violent alcohol-related offenses. Several
Alaska Native villages, which suffer from high levels of
alcohol abuse, have initiated similar DCP efforts. For Fiscal
Year 1999, the Drug Courts Program has made 7 planning grants
and 2 implementation grants to Indian tribes, totaling $506,448
out of its $40 million national program.\23\
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\23\ In Fiscal Year 1998, DCP awarded Indian tribes 13 planning
grants and 8 implementation grants totaling $2,321,000 out of a $30
million national program, and in Fiscal year 1997, DCP awarded Indian
tribes 13 planning grants and 9 implementation grants totaling
$1,000,000 out of a $30 million national program.
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In addition, when planning the Indian Law Enforcement
Improvement Initiative, tribal courts were facing rapidly
increasing caseloads and we recognized that the influx of
funding for tribal police officers would inevitably increase
tribal court caseloads further. So, the Justice Department
included a tribal court program as an essential part of the
overall initiative to fight violent crime and promote public
safety. For Fiscal Year 1999, Congress appropriated $5 million
under the Justice Department Tribal Court program ``to assist
tribal governments in the development, enhancement, and
continuing operations of tribal justice systems.''
Demonstrating the high level of need for this program, 181
Indian tribes submitted applications for funding under this
program. From among these applications, on behalf of the Office
of Justice Programs, the Bureau of Justice Assistance (BJA) is
awarding 15 large tribal court enhancement grants ranging up to
$100,000, 15 small tribal court enhancement grants ranging up
to $50,000, and a number of tribal court planning grants of up
to $30,000. In addition, BJA will award substantial tribal
court technical assistance grants and one or more tribal court
technical assistance providers.
As noted above, for Fiscal Year 2000, the Justice
Department has requested $5,000,000 for the Tribal Court
Program. We recognize that ``tribal courts play a vital role in
tribal self-government,'' \24\ and we view the Department's
Tribal Court program as a very significant component of the
overall joint Justice-Interior initiative to improve tribal law
enforcement and justice systems to address violent crime in
Indian communities.
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\24\ Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987).
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The Bureau of Indian Affairs provides baseline funding for
tribal courts through the Indian Self-Determination Act. In FY
1999, the BIA had just over $11 million for tribal courts
through this program and the Administration has requested
nearly $14 million for FY 2000.\25\
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\25\ Due to program cuts and reprogramming, BIA funding for Tribal
Courts has declined from just over $15 million in FY 1995 to just over
$11 million in FY 1999.
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IV. S. 1508, the Indian Tribal Justice Technical and Legal Assistance
Act of 1999
As noted above, in our view, S. 1508, the Indian Tribal
Justice Technical and Legal Assistance Act of 1999, would
complement the joint Justice-Interior Indian Law Enforcement
Improvement Initiative, and we have several specific comments
in relation to the provisions of the bill.
In regard to the findings, we suggest that finding (3) be
redrafted as follows: ``the rate of violent crime
victimizations committed againist American Indians is more than
twice the national rate of violent crime victimizations.'' This
will ensure that the finding better reflects the results of the
BJS Report on American Indians and Crime (1999). In regard to
tribal self-sufficiency, we recognize that many Indian tribes
suffer high unemployment rates and economic deprivation and
sound tribal court systems are an essential part of the tribal
governmental infrastructure necessary to attract business to
Indian communities. Addressing the White House Conference on
Building Economic Self-Determination in Indian Communities on
August 5, 1998, the Attorney General said: ``[I]t is important
* * * to focus attention on tribal courts and * * * to give
them the resources necessary to do the job.''
In regard to Section 101, Tribal Justice Training and
Technical Assistance Grants, we recommend that Indian tribes be
among the membership of national or regional membership
organizations and associations receiving grants hereunder. For
example, the National Congress of American Indians (NCAI) is a
national membership organiation consisting of Indian tribes,
and NCAI may well be an appropriate technical assistance
provider for tribal justice training.
In regard to Section 102, we recommend inserting Indian
tribes as eligible grantees because some Indian tribes are
developing legal advocacy offices for tribal members in the
area of violence against women and other areas. Consistent with
the principle of government-to-government relations, Indian
tribes should also be included to provide governmental and
community services to Indian communities under their
jurisdiction. In addition, to avoid duplication in the
provision of services to Indian communities, we recommend that
non-profit entities be required to submit a statement of
support from the tribal government with jurisdication over the
Indian community or communities to be served, or a statement
demonstrating that there is no duplication of or conflict with
existing tribal government services in the area.
In regard to Section 103, similar changes should be made to
promote consistency with the principle of government-to-
government relations and to avoid duplication of services.
Moreover, where there is funding for the public defense of
indigent defendants in the Federal courts under the Criminal
Justice Act, tribal courts are not receiving funding under that
Act. Accordingly, it would be appropriate to ensure that
funding under this section is primarily directed to enhancing
the public defense of indigent defendants in tribal courts. We
are available to work with the Committee's staff on these
issues, if that would be of assistance.
V. Conclusion
In conclusion, American Indian communities face serious
problems of rising violent crime, including violence against
women, gang activity, juvenile deliniquency, and child abuse.
Federal and tribal law enforcment officials in the field report
that poverty and alcohol abuse are substantial contributing
factors to these problems. Justice and Interior have undertaken
the Indian Law Enforcmenet Improvement Initiative to address
these crime problems. S. 1508 would complement our overall
inititative.
Tribal courts are also an important part of the tribal
governmental infrastructure necessary to build economic self-
sufficiency in Indian communities. This bill would enhance the
development of strong tribal courts, and thereby, promote the
long-term goal of economic self-sufficiency for Indian
communities.
Office of the Attorney General,
Washington, DC.
Department of Justice Policy on Indian Sovereignty and Government-to-
Government Relations With Indian Tribes
Purpose: to reaffirm the Department's recognition of the
sovereign status of federally recognized Indian tribes as
domestic dependent nations and to reaffirm adherence to the
principles of government-to-government relations; to inform
Department personnel, other federal agencies, federally
recognized Indian tribes, and the public of the Department's
working relationships with federally recognized Indian tribes;
and to guide the Department in its work in the field of Indian
affairs.
i. introduction
From its earliest days, the United States has recognized
the sovereign status of Indian tribes as ``domestic dependent
nations.'' Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17
(1831). Our Constitution recognizes Indian sovereignty by
classing Indian treaties among the ``supreme Law of the land,''
and establishes Indian affairs as a unique area of federal
concern. In early Indian treaties, the United States pledged to
``protect'' Indian tribes, thereby establishing one of the
bases for the federal trust responsibility in our government-
to-government relations with Indian tribes. These principles
continue to guide our national policy towards Indian tribes.
A. The executive memorandum on government-to-government relations
between the United States and Indian tribes
On April 29, 1994, at a historic meeting with the heads of
tribal governments, President Clinton reaffirmed the United
States' ``unique legal relationship with Native American tribal
governments'' and issued a directive to all executive
departments and agencies of the Federal government that:
As executive departments and agencies undertake
activities affecting Native American tribal rights or
trust resources, such activities should be implemented
in a knowledgeable, sensitive manner respectful of
tribal sovereignty.
President Clinton's directive requires that in all
activities relating to or affecting the government or treaty
rights of Indian tribes, the executive branch shall:
(1) operate within a government-to-government
relationship with federally recognized Indian tribes;
(2) consult, to the greatest extent practicable and
permitted by law, with Indian tribal governments before
taking actions that affect federally recognized Indian
tribes;
(3) assess the impact of agency activities on tribal
trust resources and assure that tribal interests are
considered before the activities are undertaken;
(4) remove procedural impediments to working directly
with tribal governments on activities that affect trust
property or governmental rights of the tribes; and
(5) work cooperatively with other agencies to
accomplish these goals established by the President.
The Department of Justice is reviewing programs and
procedures to ensure that we adhere to principles of respect
for Indian tribal governments and honor our Nation's trust
responsibility to Indian tribes. Within the Department, the
Office of Tribal Justice has been formed to coordinate policy
towards Indian tribes both within the Department and with other
agencies of the Federal Government, and to assist Indian tribes
as domestic dependent nations within the federal system.
B. Federal Indian self-determination policy
President Clinton's executive memorandum builds on the
firmly established federal policy of self-determination for
Indian tribes. Working together with Congress, previous
Presidents affirmed the fundamental policy of federal respect
for tribal self-government. President Johnson recognized ``the
right of the first Americans * * * to freedom of choice and
self-determination.'' President Nixon strongly encouraged
``self-determination'' among the Indian people. President
Reagan pledged ``to pursue the policy of self-government
basis'' for dealing with Indian tribes. President Bush
recognized that the Federal Government's ``efforts to increase
tribal self-governance have brought a renewed sense of pride
and empowerment to this country's native peoples.''
ii. principles of indian sovereignty and the trust responsibility
Though generalizations are difficult, a few basic
principles provide important guidance in the field of Indian
affairs: (1) the Constitution vests Congress with plenary power
over Indian affairs; (2) Indian tribes retain important
sovereign powers over ``their members and their territory,''
subject to the plenary power of Congress; and (3) the United
States has a trust responsibility to Indian tribes, which
guides and limits the Federal Government in dealings with
Indian tribes. Thus, federal and tribal law generally have
primacy over Indian affairs in Indian country, except where
congress has provided otherwise.
iii. department of justice recognition of indian sovereignty and the
federal trust responsibility
The Department resolves that the following principles will
guide its interactions with the Indian tribes.
A. The sovereignty of Indian tribes
The Department recognizes that Indian tribes as domestic
dependent nations retain sovereign powers, except as divested
by the Untied States, and further recognizes that the United
States has the authority to restore federal recognition of
Indian sovereignty in order to strengthen tribal self-
governance.
The Department shall be guided by principles of respect for
Indian tribes and their sovereign authority and the United
States' trust responsibility in the many ways in which the
Department takes action on matters affecting Indian tribes. For
example, the Department reviews proposed legislation,
administers funds that are available to tribes to build their
capacity to address crime and crime-related problems in Indian
country, and in conjunction with the Bureau of Indian Affairs
and tribal police, provides essential law enforcement in Indian
country. The Department represents the United States, in
coordination with other federal agencies, the litigation
brought for the benefit of Indian tribes and individuals, as
well as in litigation by Indian tribes or individuals against
the United States or its agencies. In litigation as in other
matters, the Department may take actions and positions
affecting Indian tribes with which one or more tribes may
disagree. In all situations, the Department will carry out its
responsibilities consistent with the law and this policy
statement.
B. Government-to-government relationships with Indian tribes
In accord with the status of Indian tribes as domestic
dependent nations, the Department is committed to operating on
the basis of government-to-government relations with Indian
tribes.
Consistent with federal law and other Departmental duties,
the Department will consult with tribal leaders in its
decisions that relate to or affect the sovereignty, rights,
resources or lands of Indian tribes. Each component will
conduct such consolation in light of its mission. In addition,
the Department has initiated national and regional listening
conferences and has created the Office of Tribal Justice to
improve communications with Indian tribes. In the Offices of
the United States Attorneys with substantial areas of Indian
country within their purview, the Department encourages
designation of Assistant U.S. Attorneys to serve as tribal
liaisons.
In order to fulfill its mission, the Department of Justice
endeavors to forge strong partnerships between the Indian
tribal governments and the Department. These partnerships will
enable the Department to better serve the needs of Indian
tribes, Indian people, and the public at large.
C. Self-determination and self-governance
The Department is committed to strengthening and assisting
Indian tribal governments in their development and to promoting
Indian self-governance. Consistent with federal law and
Departmental responsibilities, the Department will consult with
tribal governments concerning law enforcement priorities in
Indian country, support duly recognized tribal governments,
defend the lawful exercise of tribal governmental powers in
coordination with the Department of the Interior and other
federal agencies, investigate government corruption when
necessary, and support and assist Indian tribes in the
development of their law enforcement systems, tribal courts,
and traditional justice systems.
D. Trust responsibility
The Department acknowledges the federal trust
responsibility arising from Indian treaties, statutes,
executive orders, and the historical relations between the
United States and Indian tribes. In a broad sense, the trust
responsibility relates to the Untied States' unique legal and
political relationship with Indian tribes. Congress, with
plenary power over Indian affairs, plays a primary role in
defining the trust responsibility, and Congress recently
declared that the trust responsibility ``includes the
protection of the sovereignty of each tribal government.'' 25
U.S.C. Sec. 3601.
The term ``trust responsibility'' is also used in a
narrower sense to define the precise legal duties of the United
States in managing property and resources of Indian tribes and,
at times, of individual Indians.
The trust responsibility, in both senses, will guide the
Department in litigation, enforcement, policymaking and
proposals for legislation affecting Indian country, when
appropriate to the circumstances. As used in its narrower
sense, the federal trust responsibility may be justifiable in
some circumstances, while in its broader sense the definition
and implementation of the trust responsibility is committed to
Congress and the Executive Branch.
E. Protection of civil rights
Federal law prohibits discrimination based on race or
nation origin by the federal, state and local governments, or
individuals against American Indians in such areas as voting,
education, housing, credit, public accommodations and
facilities, employment, and in certain federally funded
programs and facilities. Various federal criminal civil rights
statutes also preserve personal liberties and safety. The
existence of the federal trust responsibility towards Indian
tribes does not diminish the obligation of state and local
governments to respect the civil rights of Indian people.
Through the Indian Civil Rights Act, Congress selectively
has derived essential civil rights protections from the Bill of
Rights and applied them to Indian tribes. 25 U.S.C. Sec. 1301.
The Indian Civil Rights Act is to be interpreted with the
respect for Indian sovereignty. The primary responsibility for
enforcement of the Act is invested in the tribal courts and
other tribal fora. In the criminal law context, federal courts
have authority to decide habeas corpus petitions after tribal
remedies are exhausted.
The Department of Justice is fully committed to
safeguarding the constitutional and statutory rights of
American Indians, as well as all other Americans.
F. Protection of tribal religion and culture
The mandate to protect religious liberty is deeply rooted
in this Nation's constitutional heritage. The Department seeks
to ensure that American Indians are protected in the observance
of their faiths. Decisions regarding the activities of the
Department that have the potential to substantially interfere
with the exercise of Indian religious will be guided by the
First Amendment of the United States Constitution, as well as
by statutes which protect the exercise of religion such as the
Religious Freedom Restoration Act, the American Indian
Religious Freedom Act, the Native American Graves Protection
and Repatriation Act, and the National Historic Preservation
Act.
The Department also recognizes the significant federal
interest in aiding tribes in the preservation of their tribal
customs and traditions. In performing its duties in Indian
country, the Department will respect and seek to preserve
tribal cultures.
iv. directive to all components of the department of justice
The principles set out here must be interpreted by each
component of the Department of Justice in light of its
respective mission. Therefore, each component head shall make
all reasonable efforts to ensure that the component's
activities are consistent with the above sovereignty and trust
principles. The component heads shall circulate this policy to
all attorneys in the Department to inform them of their
responsibilities. Where the activities and internal procedures
of the components can be reformed to ensure greater consistency
with this Policy, the components head shall undertake to do so.
If tensions arise between these principles and other principles
which guide the component in carrying out its mission,
components will develop, as necessary, a mechanism for
resolving such tensions to ensure that tribal interests are
given due consideration. Finally, component heads will appoint
a contact person to work with the Office of Tribal Justice in
addressing Indian issues within the component.
v. disclaimer
This policy is intended only to improve the internal
management of the Department and is not intended to create any
right enforceable in any cause of action by any party against
the United States, its agencies, officers, or any person.
Janet Reno,
Attorney General.
------
Statement of Kevin Gover, Assistant Secretary for Indian Affairs
Mr. Chairman and members of the Committee, I am pleased to
submit the following statement for the record concerning S.
1508, the Indian Tribal Justice Technical and Legal Assistance
Act of 1999. The Department of the Interior supports S. 1508. I
have outlined a few issues for your consideration within my
statement.
introduction
Tribal justice systems are an essential component of tribal
governments. They provide the means to enforce public safety
laws in Indian Country, provide for the welfare and safety of
Indian children and other tribal community members; and
safeguard the political integrity of tribal governments. The
tribal justice systems also ensure that economic development
and self-determination efforts of a particular tribe are viable
and trustworthy. In today's modern society with the need to
promote tribal self-sufficiency while preserving cultural
values, the tribal justice systems help bridge the gap between
what are sometimes seen as competing interests and provide the
balance that is part of the historical and traditional concepts
of a tribal lifestyle through peacemaking efforts and
alternative dispute resolution notions. However, the resources
to assist tribes in the development of these concepts is solely
lacking.
Currently, there are over 250 tribal courts throughout
Indian Country. The Bureau of Indian Affairs (BIA) has received
inquiries from other tribes and tribal consortiums who want to
establish new court systems or improve existing justice
systems. Although the BIA provides base funding to all of these
tribal justice systems, it is clear that tribal justice systems
still need to reach the degree of competence and sophistication
necessary to handle the types of cases currently being brought
in Indian Country.
current criminal environment in indian country
Violent crime is increasing in Indian Country at an
alarming rate. In February of this year the Department of
Justice, Bureau of Justice Statistics released the results of a
survey of crime in Indian Country and found that American
Indians are victimized by violent crime at a rate of more than
twice the general population in America. Violence against
Indian women is especially appalling where seven out of every
1,000 American Indian women are raped or sexually assaulted
each year. This number is over three times the sexual assaults
suffered by white women in this country and two times the
number suffered by black women. This statistic is even more
appalling when you consider that the 2.3 million American
Indian population of the United States represents just under
one percent of the total population of this country. The BIA
Annual Law Enforcement Report also indicates an increase in
forcible rape cases from 1997 to 1998 of 19 percent and an
overall increase of violent crime in Indian Country of 56
percent. Although the Major Crimes Act mandates that most
violent crimes are characterized as felonies and are to be
handled in federal court by the United States Attorneys Office;
tribal communities must still be on the forefront of addressing
causes and explore solutions for this type of behavior. The
prevalent of violent crime presents obstacles to job creation,
investment and economic growth in tribal communities and the
stated purpose of the Act to strengthen and improve the
capacity of tribal court systems that address civil and
criminal causes of action under the jurisdiction of Indians
will certainly assist tribal communities through their justice
systems to take affirmative steps to deter this type of
activity from occurring in their communities.
Alcohol and substance abuse related criminal activity is
also up in Indian Country and has been the bane of Indian
existence since its introduction into tribal communities.
According to the Bureau of Justice Statistics, 55 percent of
the violent crimes committed against American Indians were
committed by an offender who was under the influence of
alcohol, drugs or both. The report includes data on an increase
in DWI cases of 56.8 percent from 1997 to 1998 in Indian
Country, with 10,180 DWI offenses in 1997 and 15,967 DWI cases
in 1998. Tribal justice systems are the natural conduit for
monitoring this type of activity within the communities and for
the coordination of efforts among the various community service
providers who professionally address this type of behavior.
Juvenile crime and delinquency is on the rise as well as
child abuse and neglect cases in Indian Country. The National
Child Abuse and Neglect Data System of the Department of Health
and Human Services reports that between the years 1992 to 1995,
American Indian children were subjected to abuse and neglect an
average of 3 times that among Asians. These two ethnic groups
experienced increases in child abuse and neglect cases for
children under the age of 15. Gang related activities on Indian
reservations are on the increase and reports from the FBI, BIA
and tribal law enforcement agencies indicate that overall
violent crime on many Indian reservations are worse than the
national average.
analysis of s. 1508
Section 2: Findings. We are in complete agreement with the
Congressional findings. These findings have been relevant and
applicable since the development of tribal justice systems.
Tribes have used BIA base funding for all tribal governments,
special funds for tribal court projects, and funds from other
federal agencies that offer tribal justice funding on a
competitive grant basis to fund their Tribal courts over the
years.
Section 101: Tribal Justice Training and Technical
Assistance Grants. The BIA supports the award of grants
described in this section to national or regional membership
organizations whose membership consists of judicial system
personnel. These organizations will most likely consist of
tribal court judges and other tribal justice personnel who will
have knowledge of the current issues facing tribal systems and
will be in an excellent position to develop the type of
specialized training and technical assistance that will enrich,
improve and enhance tribal justice systems.
Section 102: Tribal Civil Legal Assistance Grant, and
Section 103: Tribal Criminal Assistance Grants. These two
sections will help to promote the concept of equal and fair
justice in Indian Country by promoting grant awards to non-
profit organizations that provide legal services to Indian
tribes, members of tribes tribal justice systems as provided in
Sections 102 and 103 of the bill. The notion of basing
accessibility on these services pursuant to federal poverty
guidelines will address the need for competent representation
for people who cannot otherwise afford legal representation.
Section 104: No Offset and Section 105: Tribal Authority.
The BIA is in full support of these sections. Section 105, in
particular, tracks the mission statement of the Department and
the BIA's obligations to Indian Tribes. It also clearly
recognizes the unique status of Indian tribal governments and
the desire of the Federal Government to support ongoing tribal
efforts to improve their existing tribal justice systems.
recommendations
Last year, the Department of Justice, as part of the
President's Initiative on Law Enforcement in Indian Country,
offered two types of grant awards to tribal courts. These
awards totaled $5 million. These awards were designed to
address the areas of development and enhancement of Tribal
Courts; providing technical assistance for tribal courts and
the development of a national tribal court resource center. Any
non-profit organization, unit of government, tribal government,
court, tribal judicial system or academic institution could
apply for these awards. The awards are based on grant periods
from 18 to 24 months and range from a minimum of $50,000 for
continuing operation and enhancement grants to a maximum of
$500,000 for the creation of a national tribal court resource
center. Tribes are eager to be funded through these grants.
With the anticipated increase in criminal caseloads in
tribal courts resulting from the President's Initiative on Law
Enforcement in Indian Country, the proposed legislation will
help Tribes in meeting the increased caseloads to develop and
fund programs designed to address the causes of criminal
behavior and develop solutions to prevent such activity from
occurring in Indian communities. We recommended the inclusion
of Tribal Justice systems as eligible applicants for receipt of
awards to non-profit organizations. Tribal Justice system
should be on the forefront of the list of eligible grantees
since they are not only confronting the issues facing their
communities, but are struggling to develop solutions to address
these issues.
conclusion
The BIA has been working in a cooperative effort with DOJ
since the President's Initiative on Law Enforcement in Indian
Country to assist tribes in obtaining law enforcement equipment
and personnel. The BIA has also provided technical assistance
to tribal justice systems through DOJ's Office of Tribal
Justice by providing tribal court program reviews and follow up
where necessary as well as providing assistance in the
development of criteria for the grant award process for both
the tribal court and juvenile initiatives sponsored through
DOJ. The BIA will continue to provide this type of technical
assistance to DOJ and welcomes the additional challenge of
working with other federal agencies or non-governmental offices
in their efforts to assist tribal justice systems.
Thank you, Mr. Chairman, for the opportunity to provide
this statement on S. 1508. I look forward to working with you
and the Committee on further discussions concerning this
important piece of legislation for Indian Tribal Justice
systems.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes to existing law made by
the bill are required to be set out in the accompanying
Committee report. The Committee finds that enactment of S. 1508
will result in the following changes in existing law. The
matter to be deleted is indicated in brackets [] and bold face
type. The matter to be inserted is indicated in italic.
25 U.S.C. Sec. 3621. Tribal Justice Systems
(a) Office.--There is authorized to be appropriated to
carry out the provisions of Section 3611 and Section 3612 of
this Chapter, $7,000,000 in each of the fiscal years [1994,
1996, 1997, 1998, 1999 and] 2000, 2001, 2002, 2003, 2004, 2005,
2006 and 2007. None of the funds provided under this subsection
may be used for the administrative expenses of the Office.
(b) Base Support Funding for Tribal Justice Systems.--There
is authorized to be appropriated to carry out the provisions of
Section 3613 of this Chapter, $50,000,000 in each of the fiscal
years [1994, 1996, 1997, 1998, 1999 and] 2000, 2001, 2002,
2003, 2004, 2005, 2006 and 2007.
(c) Administrative Expenses for Office.--There is
authorized to be appropriated, for the administrative expenses
of the Office, $500,000 in each of the fiscal years [1994,
1996, 1997, 1998, 1999 and] 2000, 2001, 2002, 2003, 2004, 2005,
2006 and 2007.
(d) Administrative Expenses for Tribal Judicial
Conferences.--There is authorized to be appropriated, for the
administrative expenses of tribal judicial conferences,
$500,000 in each of the fiscal years [1994, 1996, 1997, 1998,
1999 and] 2000, 2001, 2002, 2003, 2004, 2005, 2006 and 2007.