Senator MCCAIN. I share your view that it is a great tragedy. I don't know if it could have been prevented or not, but I would suggest that all of us must work together to see that there is not a repetition of this tragedy.

Mr. McNAMEE. I share your concern, Senator. As I said, we had every expectation as of about 3:00 o'clock yesterday, when the meetings did not occur, that the situation had been fairly defused from our point of view. Obviously, it was not.

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

The CHAIRMAN. I thank you.

I noted that during your inquiry, the representative from the Department of Interior was nodding. Would you tell us the role that Department of Interior will play in the event assistance is required?

Mr. MILLS. Thank you, Mr. Chairman.

I was in contact with the Area Director, Mr. Jim Stevens, at the Navajo Area Office at about 10:15 last night. On his report, the tribe did do an excellent job out there as far as law enforcement is concerned. The situation at that time was well under control. There was a group of about 40 individuals still around the Tribal Finance Building. They had broken some windows out there. We do know that there were some shots fired. We know that one individual was killed; a police officer was wounded; two other demonstrators were apparently shot. I think that at this time the Navajo Tribe has everything under control. The two Area Directors from Phoenix and Albuquerque have sent in some uniformed police who are standing by to assist the Navajo Tribe. The Departments of Public Safety from both Arizona and New Mexico are cooperating with the tribe. I think the situation is well under control.

The CHAIRMAN. Mr. McNamee.

Mr. MCNAMEE. With all due respect, Senator Inouye, at this time I would I have comments within the framework that Senator McCain asked to be addressed, but I would like to yield the floor at this point, if I could, to the Chairman of the Indian Affairs Subcommittee, Philip Hogen, to present the basic outline of our testimony at this point because he is the ranking U.S. Attorney on Indian matters. He is also an enrolled member of the Pine Ridge reservation in Sioux Falls, SD. After that I would like to come back and address some of the concerns from the Arizona perspective on the questions that you and Senator McCain have raised on this matter, if I might, please.

The CHAIRMAN. That would be fine.

Mr. Hogen.

[Prepared statement of Messrs. McNamee and Hogen appears in appendix.]

STATEMENT OF PHILIP N. HOGEN, U.S. ATTORNEY, DISTRICT OF SOUTH DAKOTA, SIOUX FALLS, SD

Mr. HOGEN. Thank you, Senator Inouye and Senator McCain. I am Philip Hogen, the U.S. Attorney from the District of South Dakota. I serve as the Chairman of the Indian Affairs Subcommittee of the Attorney General's Advisory Committee, and we have prepared a statement on behalf of the Department of Justice by

Mr. McNamee and myself, and we would ask that that be included in the record.

The CHAIRMAN. Without objection, so ordered.

Mr. HOGEN. To summarize the position that we are taking with respect to this important legislation, we, the United States Attorneys, are responsible for prosecuting violations of Federal law when they occur in our districts, and for those of us with significant amounts of Indian country, a very large share of our caseload is represented by cases that constitute crimes committed by and against Indians in Indian country.

We rely on a number of law enforcement agencies to bring those cases to us so that we can prosecute. The FBI has, for a long time, been responsible for investigation of the most serious offenses that are committed there. Also, in this dichotomy of jurisdictions and offenses, Bureau of Indian Affairs law enforcement officers and tribal officers bring cases to our offices so that we can make prosecutive decisions and take those cases to Federal Grand Juries and the U.S. District Court.

The Bureau of Indian Affairs has served long and faithfully in bringing these cases and in enforcing the law on reservations but, as you know and as you noted in their remarks, they don't have a formal "commission," so to speak, to perform these law enforcement functions. This important legislation that you are considering would give that to them. I don't think there is really any quarrel about that proposition. I think the bill which you have before you is a good vehicle to formalize that law enforcement authority, and we United States Attorneys who have this responsibility to prosecute the cases Federally will certainly be more comfortable when we are working with BIA law enforcement officers, knowing that there can't be some technical-type challenge to their law enforcement authority if this law is enacted.

Likewise, when this law enforcement authority is formalized it will remove some of the questions that have arisen when Bureau of Indian Affairs law enforcement officers have attempted to enter into cooperative and cross-deputization agreements with State and local authorities, because when those agreements are drawncross-deputization and so forth-rightly so, the State and local authorities want to know from whence the law enforcement power of these BIA officers comes. Right now we are not able to point with any specificity to the statute or document that gives them that authority; this legislation will do that.

There are a couple of specific points that I would like to address that are very significant to us, the U.S. Attorneys. One is line authority. For the most part, we take Federal cases into Federal court based on investigations performed by Federal law enforcement agencies, be that the FBI, the Secret Service, the Marshal Service, or the Drug Enforcement Administration. But without exception, those agencies have a law enforcement chain of command. Everybody up and down the line, from the investigative agent or even patrolman to the head of the agency, is a law enforcement professional. In the Bureau of Indian Affairs we find that we have BIA patrol officers; uniformed officers; we have criminal investigators at a particular agency or reservation, and they report to the agency superintendent. The superintendent in turn reports to the

Area Director in the particular BIA area. Superintendents and Area Directors, of course, have a vast amount of responsibility for the many programs that the BIA administers in Indian country.

We have been concerned, and we have seen instances where it is difficult to focus on the important law enforcement responsibilities and to give that the isolation or insulation that it perhaps needs when it is thrown into this kettle of all the other responsibilities. We would like to see law enforcement professionalism, so to speak, by making the lowest patrol officer through the criminal investigator through the head of law enforcement there at the agency level to the area level to the national level be a law enforcement chain of command. We think that this will strengthen law enforcement within the BIA ranks and make it better for us to do our job in prosecuting the violations that occur there.

Another matter that I would like to address is the section that was deleted from the House bill that Senator McCain referred to with respect to turning over the files or reporting declinations or deferrals by U.S. Attorneys when we decide not to prosecute a case that has been brought to us involving a situation in Indian country, when we decide that it is more appropriate for that matter to be handled at the tribal level.

Certainly, we understand that cases can't be prosecuted at the tribal level if they don't know about the case or about the investigation or if they don't know that we at the Federal level are done considering it and want them to act. There have been instances where cases have fallen through the cracks or there has been a breakdown in communication, when a U.S. Attorney's Office gets a report with respect to a crime, considers it, decides that it does not rise to the level of a Federal case and ought to be prosecuted tribally, and that doesn't get communicated. Having heard about those instances, we have taken steps to ensure that not only the local tribal law enforcement agency, whether that be Bureau of Indian Affairs or tribal, is notified, but also that the tribal prosecutors are notified of the fact that we are deferring to tribal authorities the prosecution of cases that we are not going to take Federally.

Now, we will defer those or decline those for a number of reasons. Oftentimes, of course, we will find that there was no offense committed, that this was in effect a false or a misleading allegation of a criminal activity. We don't prosecute those cases. We will inform the people involved in the investigation at the tribal level that there will not be a prosecution of this case, but when it is clearly demonstrated to us that there is no basis to the allegation, we don't believe that it is appropriate to, in effect, give further dissemination to these false allegations by sending a case file, including confidential interviews, that sort of thing, to the tribal prosecutorial level.

There are other instances, of course, where we decide not to prosecute a case because of evidentiary problems. We may be satisfied that the crime was committed; we may even be satisfied that we know who committed the crime, but there may not be enough admissible evidence to take that case into Federal court or tribal court. Again, we will notify the tribal authorities, prosecutors, and law enforcement agencies, of what we have done, but the other agencies that we work with that participate in these investigations,

including the FBI, have a policy that they don't turn over their files in such a situation to State agencies and local agencies, and we don't feel it is appropriate to do that here in this instance with tribal agencies. I agree with that.

In my experience, we have not had serious problems with tribal authorities being unable to prosecute successfully because they haven't been able to get our cooperation. There have been bottlenecks and some problems with communication; I think we've gotten those straightened out. I think it would be a big mistake to put in to Federal law, to make it a statute, that this step would have to be taken. This is being done administratively; it can be done administratively, and it should be monitored. I think an additional step that would be appropriate would be to ensure that we, the U.S. Attorneys, know what has happened to those cases once we have deferred them to the tribal level. We don't always get a report back on whether if, in fact, there was a follow-through on that case. But that is something that we are working on through our Law Enforcement Coordinating Committees, and I think that we will be successful through those efforts.

The last issue I would like to touch on a little bit, and then Mr. McNamee will speak to it further, is that of contracting for the criminal investigation function. As you know, the Bureau of Indian Affairs is responsible for providing law enforcement in Indian country. In the old days, before self-determination, before Public Law 93-638, they did that in all cases directly. All of the law enforcement officers were Federal officers; they wore Federal uniforms; they got a Federal paycheck.

Since the inception of self-determination and 638, they now contract. They enter into contracts with tribes to perform those functions, as well as other functions. In many instances this has worked very well. There are reservations in South Dakota where we are delighted with the level of performance that we see by the tribal criminal investigators, but I am sorry to say that there are also instances where that performance has been less than good. There have been instances where, in my opinion as a Federal prosecutor, something should have been changed-something should have been done to bring the standard of criminal investigation on those reservations back up to the standard that we enjoyed when it was done by the Bureau of Indian Affairs. But for whatever reason, those contracts weren't terminated midstream and BIA didn't go back in; and as a result, victims suffered in Indian country. Law enforcement suffered on those reservations, and you can't go back and solve those problems later on with dollars or otherwise.

So for that reason we were extremely concerned about contracting for criminal investigation. We've had some long, serious discussions with the Department of the Interior in this regard and I believe that we now agree that we ought not tamper with this selfdetermination process, that we ought not to say in a criminal statute that you shouldn't or can't contract for criminal investigation. We think we need to raise the standard when that is done, and if and when that is done I think we will no longer have the concerns that we have.

I would be happy to respond to questions that you might have with respect to my experience as an Indian prosecuting cases in

Federal court and working in this area and what I've learned as Chairman of the Indian Affairs Subcommittee, but I would now like to defer to my colleague from Arizona, who will discuss this further.

Mr. McNAMEE. Thank you.

I would also endorse the concept of line authority within the field because I think it provides a measure of professionalism and a responsive nature by which people can control criminal investigations with little or no outside interference from any individuals or political subdivisions.

I would also like to mention that as far as the 638 contracts go, we have had some very wonderful experiences, professional experiences within Arizona with regard to tribal organizations that have taken over under a 638 contract. So my experience in Arizona has been a very good one. Since the mid-1970s we have encouraged both the tribal organizations and the Bureau of Indian Affairs to take a greater role in the investigative process, recognizing that everyone has limited resources. The FBI certainly cannot respond to the far reaches of all of the reservation countries and respond to all of the activities that are of a Federal nature on them. We have a particular concept in Arizona which we call a team approach, that-unfortunately-there is enough crime to go around for everyone, and therefore the greater the participation, the greater the team effort and the better the prosecution.

I will say that I am concerned about a couple of issues. One is where the political subdivisions or the governing bodies interfere with the functioning of the police department, where some incident occurred as we had yesterday, or on other occasions where it has occurred with the Navajo. Certainly, recently the turmoil on the Tohono O'odham reservation, where they had a tremendous police department down there-they do. They're very professional. Our witnesses are excellent police officers. Our judges like them. Our juries like them. They work well with the prosecutors. It's a very good experience. But what happened was that when the police department had to take on a very delicate case involving a relative of a tribal official, the next thing we know is that the Police Chief has been discharged and the whole investigation is disrupted. That's not an effective way to do that.

So we would ask that the mechanism for certifying tribal organizations under the 638 contract be revised a little bit to ensure the integrity of the police officers in their operations because we think it is fundamental to the protection of the citizens in the presentation of orderly and competent evidence in a court of law, so that you can show that the defendant committed the crime and that they are guilty beyond a reasonable doubt.

I share Mr. Hogen's concerns about turning investigative files over wholesale. In many instances the tribal governments, through the tribal police organizations, often have adequate police information to prosecute the individual, because the Bureau of Indian Affairs and/or the FBI a lot of times incorporate those police records into their own reports. In our district we have a policy where, when a case is declined for prosecution or we defer it back to tribal court, it is incumbent upon the Assistant U.S. Attorney to write a letter outlining the reasons for declination and/or deferral because