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Bill's tribal jurisdiction provisions contested
Thursday, July 31, 2003

The chief backer of a bill that would beef up Indian Country's homeland security efforts said on Wednesday he was "encouraged" despite seeing opposition to a controversial provision that affirms tribal sovereignty.

Blasting what he called "inflammatory rhetoric," Sen. Daniel Inouye (D-Hawaii) defended his proposal at a Senate Indian Affairs Committee hearing. Critics, he said, were making outlandish claims that equate Native Americans to terrorists.

"I would remind one and all that in all the military actions in which this nation has been engaged in," he told the crowded room, "more Native people of the United State on a per capita basis have gone to serve in the armed forces of our nation and placed themselves in harm's way than an other group of Americans."

"So to suggest that tribal governments are terrorists, or that citizens of this country are subject to attack by Native people is to make one of the most outrageous assertions I've ever heard," he added.

Inouye was referring to the Citizens Equal Rights Alliance, a national group whose members have spoken out against the bill. In letters to the committee and in news publications, CERA contends it will unlawfully expand tribal jurisdiction over non-Indians.

Inouye and other tribal leaders disputed the characterization, saying that S.578, amendments to the Homeland Security Act of 2002, strengthens law enforcement on reservations. They are arguing that the bill only authorizes tribes to arrest and detain those who commit terrorist attacks. The federal government, they add, will retain ultimate authority to prosecute and try criminals.

"If they read the legislation, it's pretty straightforward -- it's limited to [acts] of terrorism," said National Congress of American Indians (NCAI) President Tex Hall. "I think radicals are jumping to conclusions."

But a U.S. Attorney from Minnesota with Indian law experience said the provision will overturn the Supreme Court's Oliphant v. Suquamish Tribe decision, which held that tribal courts lack criminal jurisdiction over non-Indians. Thomas B. Heffelfinger, a Bush appointee, said the Department of Justice is opposed to the language as it currently stands.

"Overruling Oliphant in a broad and isolated manner could result in complicated legal and practical law enforcement issues such as those of due process concerns, double jeopardy, resources and appellate rights," he told the committee.

Heffelfinger, who heads a DOJ subcommittee on Indian Country issues, said government attorneys have developed a working group to address the 1978 Oliphant decision. He said it is possible to improve reservation law enforcement without expanding tribal court jurisdiction over non-Indians.

Nevertheless, the Bush administration supports the inclusion of tribal governments in homeland security planning, he testified. There are "potential terrorist targets" on the 54 million acres of Indian law that need protection, he said.

The language on jurisdiction is just a small part of the entire package, which seeks to treat tribes as sovereigns under the Department of Homeland Security. When Congress passed the bill creating the agency, tribes were defined as local governments, forcing them to compete with counties and municipalities for terrorism funding.

Section 13, however, is the most substantive and reads: "For the purpose of this Act, Congress affirms and declares that the inherent sovereign authority of an Indian tribal government includes the authority to enforce and adjudicate violations of applicable criminal, civil, and regulatory laws committed by any person on land under the jurisdiction of the Indian tribal government," except where limited by treaty and existing law.

The rest of the bill is mostly technical corrections to the 2002 act, adding tribes where necessary to ensure equitable treatment with states.

Inouye said he will work with the administration and tribes to make improvements to the bill.

Get the Bill:
Tribal Government Amendments to the Homeland Security Act of 2002 (S.578)

Relevant Documents:
Witness List (July 30, 2003)

Relevant Links:
Citizens Equal Rights Alliance - http://www.citizensalliance.org
Department of Homeland Security - http://www.dhs.gov
National Native Law Enforcement Association - http://www.nnalea.org