STATEMENT OF WALTER R. MILLS, ACTING DEPUTY TO THE ASSISTANT SECRETARY INDIAN AFFAIRS (OPERATIONS), DEPARTMENT OF THE INTERIOR, BEFORE THE SELECT COMMITTEE ON INDIAN AFFAIRS, UNITED STATES SENATE, ON H.R. 498, A BILL TO CLARIFY AND STRENGTHEN THE AUTHORITY FOR CERTAIN DEPARTMENT OF THE INTERIOR LAW ENFORCEMENT SERVICES, ACTIVITIES, AND OFFICERS IN INDIAN COUNTRY, AND FOR OTHER PURPOSES.

July 21, 1989

Good morning, Mr. Chairman and members of the Committee. It is a pleasure to be here today to discuss H.R. 498 (in the Senate), a bill to clarify and strengthen the authority for certain Department of the Interior law enforcement services, activities, and officers in Indian country, and for other purposes.

We strongly recommend enactment of H.R. 498 if amended as discussed herein.

During the last year regional hearings on law enforcement were held in Rapid City, South Dakota; Albuquerque, New Mexico; and Phoenix, Arizona. These hearings reiterated the jurisdictional problems facing law enforcement personnel in Indian country because of the sometimes conflicting interests of the various law enforcement agencies involved; and emphasized the need for explicit statutory authority for Bureau of Indian Affairs (BIA) law enforcement personnel and related services.

The BIA employs Special Officers who are assigned to Area and Agency offices. Some of the Special Officers are assigned to agencies where tribes have tribal police and tribal courts. These two forces work together at some locations and, at others, work independently of each other.

Major crimes committed in Indian country involving Indians are Federal offenses and are usually investigated by agents of the Federal Bureau of Investigation (FBI). The FBI agents generally take the lead if the crime is a homicide, serious assault, arson, robbery, kidnapping, and cases requiring accounting expertise. The BIA Special Officers are usually assigned sex crimes, burglary, and certain cases of fraud, robbery and arson. They also

assist the FBI in all other major crimes. Tribal police process crimes of lesser degrees of burglary, robbery, assaults, and tribal code violations.

The different law enforcement agencies try to cooperate with one another but there are concerns at times that can be traced to a misunderstanding of laws governing jurisdiction and legal authority. To overcome possible problems, the BIA, in cooperation with the Federal Law Enforcement Training Center, the International Association of Chiefs of Police (IACP) and the U. S. Attorneys, have combined resources to develop a training package on criminal jurisdiction in their geographic area. The training course is designed to provide off-reservation police with an understanding of the various jurisdictions and laws encountered in Indian country.

Our law enforcement officers not only work with tribal, county, and state agencies, they also work closely with other Federal agencies such as: U.S. Customs Service, U.S. Border Patrol, the Drug Enforcement Administration, Offices of the Inspector General, the Secret Service, and the Bureau of Alcohol, Tobacco and Firearms. Law enforcement in Indian country is very complex when several officers from various agencies must work together to provide law enforcement services to one reservation or location in Indian country. In many areas this complex system works. If the jurisdiction of police officers and their roles are not clear, however, the confusion or uncertainty may effect the service provided.

Cross-deputization of cooperating law enforcement agencies has been found to be an effective and efficient method of providing law enforcement services. We are strong advocates of cross-deputization because it effectively multiplies the law enforcement resources of participating agencies. It not only extends the authority to enforce laws but also requires the same qualification standards for all participating police officers. The uniform qualification standards are most important for the fair and orderly administration of justice under existing Federal law.

The BIA employs approximately 400 law enforcement officers who provide law enforcement services on some 163 Indian reservations or areas in 23 states. In addition, various tribes employ nearly 900 law enforcement officers, about 700 hundred of whom are commissioned by the BIA as Deputy Special Officers.

The BIA and tribal law enforcement personnel receive training similar to the training received by their county and state counterparts. Both BIA and tribal police are required to attend a recognized police academy within the first year of employment and thereafter are to receive at least 40 hours of in-service training each year. Criminal investigators are required to attend an eight-week basic criminal investigator school. They receive advanced training in specialized areas of investigation, e.g., narcotics and child sex abuse at other training institutions.

The authority which BIA relies upon for permitting BIA law enforcement officers to carry firearms, conduct searches, and make arrests, is based on an interpretation of the Act of November 2, 1921, (Stat. 208, 25 USC 13); 18 USC 3055; section 1 of the Act of August 1, 1914 (38 Stat. 586, 25 USC 200); and since 1939, the various Department of the Interior and Related Agencies Appropriations Acts, which have contained language such as: "For maintaining law and order on Indian reservations..." While those laws provide statutory recognition of the BIA's law enforcement functions, they do not provide clearly defined and comprehensive authorities. As a result, BIA law enforcement officers risk having their authority challenged in court and being held liable for "unauthorized" law enforcement actions.

Only four states (Nevada, Oregon, New Mexico, and North Carolina) statutorily confer complete law enforcement on BIA and tribal officers. That is one of

the reasons the enactment of H.R. 498 is of vital interest to us. It is designed to clarify and strengthen the authority for certain BIA law enforcement services, activities, and officers in Indian country.

Under H.R. 498, the Secretary would be authorized to charge an officer or employee of the Department of the Interior with law enforcement responsibilities which may include: (1) carrying firearms; (2) serving warrants issued under the laws of the United States or of an Indian tribe if authorized by the tribe; (3) making certain arrests without a warrant for offenses committed in Indian country; (4) offering and paying a reward for services or information assisting in the detection or investigation of an offense committed in Indian country, or in the arrest of an offender against the United States; (5) administering an oath, affirmation, or affidavit; (6) wearing a prescribed uniform and badge or carrying prescribed credentials; (7) performing other related law enforcement duties; and (8) when requested, assisting a Federal, tribal, state or local law enforcement agency in the enforcement of the laws or regulations they enforce or administer.

H.R. 498 does not alter or reduce the civil or criminal jurisdiction of an Indian tribe, state or political subdivision or agency. It also prohibits the Secretary from using non-federal agency personnel if the tribe who has Jurisdiction over the area has, by resolution, objected to the use of that agency's personnel.

H.R. 498 would authorize the Secretary to enter into agreements for use of the personnel or facilities of a Federal, tribal, state, or other governmental agency, to assist in the enforcement in Indian country of Federal law or of tribal law when that tribe has authorized the Secretary to enforce its laws. Under these agreements, law enforcement officers of such agencies could be authorized to take any action otherwise authorized for BIA law enforcement officers. Agreements involving the enforcement of Federal law would have to meet guidelines established by the Secretary and the Attorney General.

Numerous cross-deputization agreements are now in effect between the BIA and local law enforcement agencies who share a particular geographic area. We believe the sharing of personnel and facilities resulting from such

agreements produce more extensive and efficient law enforcement services. The authorities extended under H.R. 498 would remove any doubts about the BIA's law enforcement authority and its ability to obtain assistance in carrying out that authority through agreements with other agencies.

Amendments

We have concerns with subsection (d) of Section 3 of H.R. 498.

Section 3 (d) provides for the separation of the functions of criminal investigations from routine police duties. It also provides that the Criminal Investigative Branch would not be subject to contracting by Indian tribes under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.). While we recognize that the quality of criminal investigative work is important to the successful prosecution of crimes in Indian country by U.S. Attorneys, a tribe should not be precluded from performing such investigations if the tribes can establish that its program can provide adequate law enforcement protection to a reservation community. 8111 language providing flexibility for contracting criminal investigative work to tribes, if agreed to by the Secretary, in consultation with the Attorney General, would clarify this provision and allow both agencies to consider such measures when appropriate. We would be willing to work with the Committee, tribal governments, and the Department of Justice to develop appropriate language.

This concludes my prepared statement. I will be happy to answer any questions you may have.