U.S. Department of Justice Washington, D.C. 20530 STATEMENT OF PHILIP N. HOGEN UNITED STATES ATTORNEY AND STEPHEN M. MCNAMEE BEFORE THE SENATE SELECT COMMITTEE ON INDIAN AFFAIRS CONCERNING H.R. 498, REGARDING BUREAU OF INDIAN AFFAIRS LAW ENFORCEMENT IN INDIAN COUNTRY ON JULY 21, 1989 MY NAME IS PHILIP N. HOGEN. I AM THE UNITED STATES ATTORNEY FOR THE DISTRICT OF SOUTH DAKOTA AND CHAIRMAN OF THE INDIAN AFFAIRS SUBCOMMITTEE OF THE ATTORNEY GENERAL'S ADVISORY COMMITTEE OF UNITED STATES ATTORNEYS. ACCOMPANYING ME IS STEPHEN M. MCNAMEE, THE UNITED STATES ATTORNEY FOR THE DISTRICT OF ARIZONA. HE IS ALSO A MEMBER OF THE INDIAN AFFAIRS SUBCOMMITTEE AND VICE-CHAIRMAN OF THE ADVISORY COMMITTEE. WE APPRECIATE THE OPPORTUNITY OF APPEARING BEFORE YOU TO SHARE THE VIEWS OF THE DEPARTMENT OF JUSTICE AND THE UNITED STATES ATTORNEYS OF DISTRICTS WITH SIGNIFICANT INDIAN COUNTRY ON H.R. 498, THE INDIAN LAW ENFORCEMENT REFORM ACT. WE STRONGLY URGE THIS COMMITTEE TO REPORT FAVORABLY ON THIS BILL, WITH SOME MODIFICATION, TO THE SENATE. H.R. 498 WILL AFFECT THE LAW ENFORCEMENT OPERATIONS OF THE BUREAU OF INDIAN AFFAIRS (BIA), WHICH, AS YOU KNOW, PLAYS A VITAL ROLE IN THE INVESTIGATION OF OFFENSES OCCURRING IN INDIAN 2.. COUNTRY. THOSE FELONIES WHICH ARE COMMITTED BY AND AGAINST INDIANS IN INDIAN COUNTRY ARE PROSECUTED IN THE UNITED STATES DISTRICT COURTS BY MYSELF AND THE OTHER UNITED STATES ATTORNEYS IN DISTRICTS WITH INDIAN COUNTRY, AND OUR ASSISTANTS. JUST AS THE CRIMINAL JURISDICTION SITUATION IN INDIAN COUNTRY IS SOMEWHAT COMPLEX, SO IS THE ROLE AND INVOLVEMENT OF THE SEVERAL LAW ENFORCEMENT AGENCIES WITH WHOM WE UNITED STATES ATTORNEYS WORK. THAT IS, IN INDIAN COUNTRY, THE APPROPRIATE JURISDICTION FOR THE PROSECUTION OF A PARTICULAR OFFENSE MAY DEPEND ON WHERE IT WAS COMMITTED, BY WHOM IT WAS COMMITTED AND AGAINST WHOM IT WAS COMMITTED, AS WELL AS THE NATURE OF THE OFFENSE WHICH WAS COMMITTED. THE FEDERAL GOVERNMENT, THE TRIBAL GOVERNMENT, OR THE STATE GOVERNMENT MAY HAVE JURISDICTION, DEPENDING ON A NUMBER OF CIRCUMSTANCES. THE FEDERAL BUREAU OF INVESTIGATION HAS THE AUTHORITY AND JURISDICTION TO INVESTIGATE CASES FOR PROSECUTION IN THE LIKEWISE AVAILABLE FOR INVESTIGATION ARE THE FEDERAL COURTS. CURRENT RANKS OF BUREAU OF INDIAN AFFAIRS (BIA) AGENCY SPECIAL 3 WITH THE REPORT, AND APPEAR AT GRAND JURY AND AT TRIAL TO PROVIDE EVIDENCE WITH RESPECT TO THE OFFENSE. MANY UNITED STATES ATTORNEYS, INCLUDING MYSELF AND MR. MCNAMEE, HAVE PROMULGATED WRITTEN GUIDELINES WHICH SUGGEST WHICH TYPES OF CASES ARE TO BE INVESTIGATED BY WHICH INVESTIGATIVE AGENCY. WHILE AN EFFORT IS BEING MADE TO BROADEN THE SCOPE OF CASES WHICH ARE HANDLED EXCLUSIVELY BY TRIBAL OR BIA INVESTIGATORS, UNITED STATES ATTORNEYS CONTINUE TO RELY ON SPECIAL AGENTS FROM THE FBI TO INVESTIGATE THE MOST SERIOUS OFFENSES OCCURRING IN INDIAN COUNTRY. BIA LAW ENFORCEMENT IS NOT A NEW CONCEPT. IT HAS DEVELOPED ADMINISTRATIVELY OVER A LONG PERIOD OF TIME, AND ITS FUNCTION AND NEED HAVE BEEN RECOGNIZED BY CONGRESS OVER THE YEARS BY THE MANY SPECIFIC APPROPRIATIONS TO SUPPORT IT. H.R. 498 IS DESIGNED TO CLARIFY AND STRENGTHEN THE AUTHORITY FOR CERTAIN LAW ENFORCEMENT ACTIVITIES OF THE BIA, WE THEREFORE RECOMMEND THE ENACTMENT OF THIS LEGISLATION. Explicit Statutory Authority THE PROPOSED LEGISLATION WILL PROVIDE EXPLICIT STATUTORY AUTHORITY FOR COMMISSIONED LAW ENFORCEMENT OFFICERS OF THE DEPARTMENT OF THE INTERIOR TO CARRY FIREARMS, MAKE ARRESTS, AND CARRY OUT OTHER LAW ENFORCEMENT RESPONSIBILITIES AUTHORIZED BY THE SECRETARY OF THE INTERIOR. AT THE PRESENT TIME, EXCEPT FOR LIQUOR VIOLATIONS FOR WHICH STATUTORY AUTHORITY ALREADY EXISTS, THESE OFFICERS CARRY WEAPONS AND MAKE ARRESTS ON THE BASIS OF AUTHORITY IMPLIED FROM CONGRESSIONAL AUTHORIZATION OF THE DEPARTMENT OF THE INTERIOR TO EXPEND FUNDS FOR LAW ENFORCEMENT, CODIFIED AT 25 U.S.C. 13, AND SIMILAR LANGUAGE IN THE ANNUAL DEPARTMENT OF THE INTERIOR APPROPRIATIONS BILLS. WE AGREE WITH THE DEPARTMENT OF THE INTERIOR THAT RELIANCE ON IMPLIED POWERS MAY PROVOKE UNNECESSARY AND COSTLY CHALLENGES TO THE VALIDITY OF THIS PRACTICE. WE NOTE WITH APPROVAL THAT SECTION 7 (c) OF THE BILL AFFIRMS THAT THE ENACTMENT OF THIS LEGISLATION DOES NOT IMPLY THAT THE EXERCISE OF THESE POWERS ON THE BASIS OF IMPLIED AUTHORITY WAS NOT VALID. WE HOPE THAT THE LEGISLATIVE HISTORY WILL REFLECT THAT AS WELL. Line Authority SINCE ITS INCEPTION, THE INDIAN AFFAIRS SUBCOMMITTEE OF THE ATTORNEY GENERAL'S ADVISORY COMMITTEE OF UNITED STATES ATTORNEYS, HAS RECOGNIZED A NEED FOR "LINE AUTHORITY" WITHIN BIA LAW ENFORCEMENT. UNDER THE PRESENT ARRANGEMENT THERE IS NO "CHAIN OF COMMAND" WITHIN THE BIA CONSISTING SOLELY OF LAW ENFORCEMENT PERSONNEL AND MANAGERS. RATHER, AGENCY SPECIAL OFFICERS, CRIMINAL INVESTIGATORS, AND PATROLMEN AT THE AGENCY (OR INDIVIDUAL RESERVATION) LEVEL REPORT TO THE AGENCY SUPERINTENDENT, WHO IN TURN REPORTS TO AN AREA DIRECTOR. THESE SUPERINTENDENTS AND DIRECTORS NECESSARILY DEAL WITH TRIBAL GOVERNMENTS AND RESERVATION INDIANS IN A LARGE NUMBER OF AREAS, INCLUDING LAW ENFORCEMENT. WE BELIEVE THAT WITH THE INSTITUTION OF LINE AUTHORITY BY H.R. 498 UNDER WHICH INVESTIGATORS WILL REPORT TO THE AREA AND NATIONAL LEVEL THROUGH A LAW ENFORCEMENT CHAIN OF COMMAND, NEEDED LAW ENFORCEMENT INDEPENDENCE WILL RESULT, PROFESSIONALISM WILL BE |