10

1 (c) SAVINGS PROVISION.-This Act does not invalidate

2 or diminish any law enforcement commission or other delega

3 tion of authority issued under authority of the Secretary 4 before enactment of this Act.

5

(d) PRESERVATION OF JURISDICTION AND AUTHORI6 TIES. The authorities provided by this Act are in addition 7 to, and not in derogation of, any existing authority. This Act 8 alters neither the civil or criminal jurisdiction of the United 9 States, Indian tribes, States, or other political subdivisions or 10 agencies, nor the law enforcement, investigative, or judicial 11 authorities of any Indian tribe, State, or political subdivision 12 or agency thereof, or of any department, agency, court, or 13 official of the United States other than the Secretary.

14 SEC. 8. UNIFORM ALLOWANCE.

15

Notwithstanding the limitation in section 5901(a) of title

16 5, United States Code, the Secretary may provide a uniform

17 allowance for uniformed law enforcement officers under sec

18 tion 4 of this Act of not more than $400 a year.

19 SEC. 9. SOURCE OF FUNDS.

20

Any expenses incurred by the Secretary under this Act

21 shall be paid from amounts appropriated under the Act of

22 November 2, 1921 (42 Stat. 208; 25 U.S.C. 13).

Passed the House of Representatives May 23, 1989.

Attest:

DONNALD K. ANDERSON,

Clerk.

The CHAIRMAN. Before we proceed with our first panel of witnesses I would like to call upon my colleague, the vice chairman of this committee.

STATEMENT OF HON. JOHN MCCAIN, U.S. SENATOR FROM ARIZONA, VICE CHAIRMAN, SELECT COMMITTEE ON INDIAN AFFAIRS

Senator MCCAIN. Thank you very much, Mr. Chairman.

We are here today to receive testimony on H.R. 498, the Indian Law Enforcement Reform Act, which was referred to our committee on May 31.

I would first like to recognize and acknowledge several of our distinguished witnesses from Arizona: Mr. Stephen McNamee, the U.S. Attorney for the District of Arizona; The Honorable Hilda Manuel, the Chief Judge of the Tohono O'odham Nation; Mr. Herb Yazzie, the Attorney General for the Navajo Nation; and Mr. Ed Reina, the Chief of Police of the Salt River Pima-Maricopa Community. We are very pleased to have all of them here today.

The purpose of H.R. 498 is to provide clear statutory authority for the law enforcement functions of the Bureau of Indian Affairs. The current authorities relied upon by the BIA for BIA law enforcement officers to perform routine law enforcement practices such as carrying firearms, conducting searches and seizures, and even making arrests, are broad authorizations under the Snyder Act and general statutory references to the authority to "maintain law and order" on Indian reservations. These general references do not present explicit statutory authority and could invite challenges to BÌA law enforcement authority in the courts.

Several Indian tribes have voiced concerns regarding section (D)(2) of the bill. This section exempts the Branch of Criminal Investigations from tribal contracting under P.L. 93-638. I am anxious to hear testimony as to whether a blanket prohibition on tribally-contracted criminal investigation programs is necessary and how this prohibition would impact tribal law enforcement programs which currently exercise this authority.

Another tribal concern is the deletion of provisions which would have required Federal law enforcement agencies investigating major crimes on reservations to provide a copy of their case file to tribal law enforcement authorities when an investigation has been terminated or a prosecution declined so that the tribe can pursue a criminal action in tribal court for a violation of tribal law. One can understand the concern of tribal communities to see that criminal offenders who have committed major crimes on the reservation are prosecuted, whether it is in the Federal courts or in their own courts.

Mr. Chairman, as you may remember, I introduced a bill in the 99th Congress, H.R. 4900, which would have granted criminal misdemeanor jurisdiction over non-Indians to the Salt River PimaMaricopa Indian community. The Salt River community and the surrounding communities supported that measure to provide an avenue for the community to prosecute misdemeanors committed on their lands by non-Indians. Over the years the Salt River community has been frustrated by the inability to prosecute these crimes effectively. This created a situation where the violations of

misdemeanor criminal codes for community residents are not applicable to non-Indians, which resulted in a situation where two classes of people live side-by-side and the law enforcement officials can only prosecute the Indian class.

I have heard a similar frustration from tribes regarding the failure to prosecute tribal members who have committed major crimes on Indian reservations. I am considering the possibility of introducing an amendment to this bill similar to the bill I introduced in the 99th Congress in order to address the concerns raised by the Salt River Pima-Maricopa Indian community.

Again, I welcome all our witnesses and look forward to your testimony.

Thank you, Mr. Chairman.

[Prepared statement of Senator McCain appears in appendix.] The CHAIRMAN. Thank you very much, Senator.

We are very fortunate to have the Vice-Chairman with us; he has been in the forefront in this area.

We have four panels this morning. The first panel consists, as pointed out by the Vice-Chairman, of the U.S. Attorney of the District of Arizona, the Honorable Stephen McNamee; the U.S. Attorney for the District of South Dakota, Sioux Falls, the Honorable Philip N. Hogen, and the Acting Deputy Assistant Secretary, Indian Affairs (Operations), Department of the Interior, Mr. Walter R. Mills.

I will call first on the United States Attorney from the District of Arizona, but before you present us with your testimony, because of the immediacy and the urgency of the matter involved, could you just brief us as to what happened in Navajo land, just today?

STATEMENT OF HON. STEPHEN M. McNAMEE, U.S. ATTORNEY, DISTRICT OF ARIZONA, PHOENIX, AZ

Mr. MCNAMEE. Thank you, Mr. Chairman and Mr. Vice Chair

man.

I was in Washington, DC as of yesterday, working on this testimony, and I received a call last night at my hotel from the FBI. I'm not quite sure and clear about the facts. Mr. Donovan is also here from the BIA, but I will attempt to relate the facts as near as I understand them.

We had understood that yesterday there was to be some sort of a rally by various individuals who purportedly-and I use that word advisedly, because I'm receiving all of this second-hand_at_this point who purportedly were supporting the chairman, who is on administrative leave; that is Mr. MacDonald. As most everyone knows, and as is a matter of public record, there has been an ongoing Grand Jury investigation, and I cannot comment further than that.

Senator MCCAIN. May I ask one question?

The CHAIRMAN. Please do.

Senator MCCAIN. Mr. McNamee, I have a fax copy of a document that purportedly states the following. It is under the letterhead of the Navajo Nation. It says, "Executive Order, July 20th, 1989." In the left-hand corner it has "Peter MacDonald, Chairman." It says,

"To William Kellogg, Chief of Police, Division of Public Safety; from Peter MacDonald, Sr., Chairman, Navajo Tribal Council."

It says,

By virtue of the powers vested in me as the Chief Executive Officer of the Navajo Nation, you are hereby directed as follows: One, effective immediately you shall reassume the position of Chief of the Navajo Police. Two, you are ordered to immediately take all actions necessary to reinstate tribal law enforcement officers under your command who were terminated since February, 1989 by order of the interim government. Three, you are further ordered to assist with the orderly restoration and transition of the administration of the Navajo government, which is to take place this 20th day of July, 1989.

There is a signature that says,

Peter MacDonald, Sr., Chairman, Navajo Tribal Council.

In your view is this a legal document?

Mr. MCNAMEE. Again, I'm going to put myself out on a limb. It is my opinion, without involving myself in the internal workings of the Navajo Nation-I believe the Navajo Attorney General is here and is better capable to address the legalities of that document-in my opinion, however, as my office deals with the Navajo Nation, we would not recognize that document. We have no basis for believing that Mr. MacDonald is anything but on administrative leave.

To get back to the position which I think impacts that particular document, Senator, we were informed yesterday that someone was purportedly going to introduce some document to the media which allegedly absolved Mr. MacDonald of any potential criminal wrongdoing and investigation by our office.

We asked for a copy of that. To my knowledge, we have never received it. I don't know whether the media has a copy or not.

We informed the Chief of Police, the Chairman of the tribe, and various media representatives who called our office that in our opinion no such document existed. The person who they claimed had signed this document would not have written such a letter. In our opinion there was no basis to yield control of the Police Department because it is our opinion that the investigation is continuing. As of about 3:00 o'clock yesterday, a meeting between Mr. Kellogg, who was trying to restore order to his Police Department, never came about. At about 3:30-I'm gauging my time frames, now, from what was told to me last night at almost midnight, at our time here in Washington, DC-things were calm. As I said, all of a sudden at midnight I got a call saying that late in the afternoon, the tragic problems which occurred up on the Navajo reservation resulted in those deaths. I was as shocked as anyone and saddened by what has gone on, which is basically an internal civil dispute over control of the government.

But to get back to your basic premise, in our opinion and in our experience in dealing with the Navajo Tribe, we have yielded to the Navajo Tribe's internal workings, that Mr. Haskie is the Chairman, and until proven otherwise, we would not recognize that doc

ument.

Senator MCCAIN. I am anxious to follow up briefly, Mr. Chairman. I appreciate your indulgence.

The CHAIRMAN. Please do.

Senator MCCAIN. In your experience and legal opinion, could a document like this, distributed by a person who does not legally

have the authority to do so-could that action be described as incitement?

Mr. MCNAMEE. There is always that potential. That is the first time that I have seen or even been told of that document, Senator, so we would have to take a look at that to see if that would meet the Federal criminal statutes on incitement to riot. That's a very tricky statute to apply. I'm not trying to beg off on that; we'll always face very tough questions, but when a flash point like this occurs it is always very difficult to make a decision on the spur of the moment. It could further compound the problems that are going on there.

I have talked to Mr. Donovan this morning; as I understand it things have calmed down considerably up there. Again, I would appreciate any information that anyone else has that could help me out here.

Senator MCCAIN. Finally, Mr. McNamee, and I will ask also the Navajo Attorney General who is here, what options do the interim tribal Chairman, Mr. Haskie, and the interim tribal government have to prevent further incidents of violence? In other words, can they call on your office? Can they call on the BIA? Can they call on the FBI? What options do they have?

Mr. MCNAMEE. Senator, there is a mechanism through the Department of Interior that provides-the United States Attorney's Office is not a general law enforcement-keeping operation. That is not our function. However, I must tell you that, quite candidly, we have been working very diligently behind the scenes to try to maintain peace and quiet and defuse the problem up there. I have had numerous attorneys go up there to attend meetings, to talk to people. Many times the people who schedule the meetings don't even show up to honor our commitment for the meeting. We have sent information up there; we have talked to people; our offices have been open; people have called us. We do the best we can; within our framework to do that, but there is a mechanism within the Department of Interior as the situation escalates to enhance the Federal presence up there. But with enhancement of Federal presence in the obtaining of civil law, you get the argument on the other side that people are being denied their civil rights under the First Amendment to petition their government as they see fit. There is a delicate balance there between someone who disapproves of either government, to not be able to espouse their dissatisfaction with the government, either in power or ousted from power. The problem comes when there is a flash point, as there was yesterday, and violence occurs.

It is always easy in retrospect to say how it might have happened or could have happened, but at that point in my opinion there was no basis for an escalated presence by BIA yesterday. Certainly the Department of Interior, who has primary responsibility over this, if they feel they can't handle it can move up to the level of the Marshal Service and ultimately the FBI or what have you. But there is an assessment and a value by the people in charge who look at this on a day-in, day-out basis to assess these problems to see whether a further enhancement of law enforcement presence is necessary.