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Associate Attorney General Thomas J. Perrelli Speaks at the Federal Bar Association’s Indian Law Conference
Washington, D.C. ~ Tuesday, November 15, 2011

In his 1997 Harvard Law Review article entitled “Adjudication and Its Discontents:   Coherence and Conciliation in Federal Indian Law,” the late Professor Phil Frickey asked his readers to imagine a world in which the Federal government and an American Indian tribe “viewed each other as sovereigns linked in an ongoing — indeed, perhaps perpetual — relationship of governance.”  

 

And Professor Frickey asked us to imagine tribal counsel and Federal attorneys approaching each problem, each question they face, “as simply one of many important matters for conversation between sovereigns which should be resolved by negotiation in good faith, and with an eye toward accommodating the federal and tribal interests not only on this question, but in a manner that strengthens the long-term relationship as well.”

 

In this imagined world, Professor Frickey explained, Federal Indian law would be, and I quote, “[not] a panglossian source for newly articulated tribal rights so much as a structure that establishes constraints to limit non-Indian exploitation of unequal negotiating power and provides breathing space for the flourishing of tribal institutions free from non-Indian intrusion.”

 

As the members of the Federal Bar Association’s Indian Law Section and the Nation’s leading practitioners of Federal Indian law, you are doing every day exactly what Professor Frickey called for:   helping tribal institutions to flourish.  

 

And we, at the Department of Justice, are trying to hold up our end of the sovereign-to-sovereign conversation that Professor Frickey described.   We negotiate with you and many of your colleagues not only in good-faith, but with an eye toward strengthening the long-term nation-to-nation relationship.  

 

Anyone with even the faintest acquaintance with American history knows that this has not always been the posture of the U.S. Government vis-à-vis the tribes.   But in the last two-and-a-half years, under the leadership of President Obama and Attorney General Holder, we believe we have made a lot of headway.   We still have a very long way to go, but at least we are now on the right path.

 

I’d like to take the next several minutes to give you a flavor of what we’ve done so far and where I hope we’ll be heading, and then we can open up the discussion to questions and answers.

 

The Department of Justice’s involvement in Indian country is broad and deep, extending to both civil and criminal matters.

 

On the civil side, this Administration has been involved in several historic settlements.   After more than 15 years of litigation, the Departments of Justice and the Interior reached a $3.4 billion settlement resolving the Indian trust class-action lawsuit, Cobell v. Salazar.   And just last month, we announced a $380 million settlement to the long-running lawsuit by the Osage Tribe regarding the United States’ accounting and management of the tribe’s trust funds and trust assets.

 

Since 2009, the Department has contributed to five landmark Indian water-rights settlements which, when fully implemented, will resolve complex and contentious water-rights issues in New Mexico, Arizona and Montana.  

 

And our successful settlement negotiations have not been restricted to traditional questions involving the United States’ trust responsibility.   Last October, Attorney General Holder and Secretary of Agriculture Vilsack announced a settlement of the Keepseagle civil-rights class-action lawsuit, ending years of litigation over discrimination complaints filed by Native American ranchers and farmers in the 1980s and 1990s.

 

The Department also has prosecuted civil-rights crimes victimizing Native Americans, including prosecutions for sex trafficking Native American children and adults in South Dakota, for corrections officers’ beating of a Native American detainee in North Carolina, and for hate crimes against Native Americans in New Mexico and Alaska.

 

As significant as the work of our litigating divisions has been the work that we have been doing on public safety in tribal communities.   From our first months in the office, the Attorney General declared that public safety in Indian Country was a top priority; throughout, we have approached this with the philosophy that we both have to improve our own performance and have to build tribal capacity among police, prosecutors, courts, and others if we are to have a long-term impact on the problem.

 

In our first year, the Deputy Attorney General sent the U.S. Attorneys a formal memorandum declaring that “public safety in tribal communities is a top priority for the Department of Justice.”   The memorandum directed each U.S. Attorney’s Office with Indian country in its district to engage at least annually in consultation with the tribes in that district, to develop or update an operational plan addressing public safety.

 

To properly effectuate these district-level operational plans requires adequate personnel.   So the Department added 28 new Assistant U.S. Attorneys dedicated to fighting crime in Indian country, as well as six new FBI agents and 12 new FBI Victim Specialists to work on Indian-country investigations.   Even in this era of tight budgets, we have made a commitment to Indian Country, seeking more FBI agents in the FY 2012 budget and seeking increases in grant programs for tribal nations of almost 50% each year.

 

We also are trying to address the need for more and better training.  We launched the National Indian Country Training Initiative to ensure that Department prosecutors receive the training and support needed to address crime in Indian country.   The Training Initiative is not limited, however, to Federal prosecutors, as we also train state and tribal criminal-justice personnel.

 

Similarly, when we established a Violence Against Women prosecution task-force, its members were drawn equally from the ranks of Federal prosecutors and tribal prosecutors, and the task-force’s mission is to develop best-practices recommendations for both Federal and tribal prosecution.

 

In response to concerns raised by tribal leaders about the complexity and lack of flexibility of our grant-making programs, we launched CTAS, the Coordinated Tribal Assistance Solicitation, which serves as a single application for existing tribal government-specific grant programs administered by the Office of Justice Programs, the Community Oriented Policing Services (or COPS) Office, and the Office on Violence Against Women.   In the last two years , CTAS has encouraged comprehensive planning by tribal nations, while at the same time reducing administrative burdens and redundancies.  The Department has awarded nearly a quarter-billion dollars to more than 150 American Indian tribes and Alaska Native villages to enhance law enforcement, bolster tribal courts, prevent youth substance abuse, serve victims of sexual assault and elder abuse, and support other efforts to combat crime.

 

We have found, however, that some forms of progress in Indian-country public safety can only be achieved with the help of Congress.   That’s why, at the Attorney General’s listening session in St. Paul in late 2009, we reversed course from the prior Administration and endorsed the Tribal Law and Order Act, which was then passed by the House and Senate and signed into law by President Obama in July 2010.

 

And that’s why I have made a major push this year for enactment of new legislation to help Indian tribes combat violence against Native women.   As you well know, violence against Native women has reached epidemic rates.   Tribal leaders, police officers, and prosecutors tell us of an all-too-familiar pattern of escalating violence that goes unaddressed, with beating after beating, each more severe than the last, ultimately leading to death or severe physical injury.

 

For a host of reasons, the current legal structure for prosecuting domestic violence in Indian country is inadequate to prevent or stop this pattern of escalating violence.   Federal law-enforcement resources are often far away and stretched thin.   And Federal law does not provide the tools needed to address the types of domestic or dating violence that elsewhere in the United States might lead to convictions and sentences ranging from approximately six months to five years — precisely the sorts of prosecutions that respond to the early instances of escalating violence against spouses or intimate partners.

 

Tribal governments — police, prosecutors, and courts — should be essential parts of the response to these crimes.   But under current law, they lack the authority to address many of these crimes.   Until recently, no matter how violent the offense, tribal courts could only sentence Indian offenders to one year in prison.   Under the Tribal Law and Order Act of 2010, tribal courts can now sentence Indian offenders for up to three years per offense, provided defendants are given proper procedural protections, including legal counsel.   But tribal courts have no authority at all to prosecute a non-Indian, even if he lives on the reservation and is married to a tribal member.   Tribal police officers who respond to a domestic-violence call, only to discover that the accused is non-Indian and therefore outside the tribe’s criminal jurisdiction, often mistakenly believe they cannot even make an arrest.  

 

Not surprisingly, abusers who are not arrested are more likely to repeat, and escalate, their attacks.   Research shows that law enforcement’s failure to arrest and prosecute abusers both emboldens attackers and deters victims from reporting future incidents.

 

In short, the jurisdictional framework has left many serious acts of domestic violence and dating violence unprosecuted and unpunished.

 

The Department of Justice has consulted extensively with Indian tribes about these issues.   The consensus that emerged from these consultations is the need for greater tribal jurisdiction over domestic-violence cases.   Specifically, tribal leaders expressed concern that the crime-fighting tools currently available to their prosecutors differ vastly, depending on the race of the domestic-violence perpetrator.   If an Indian woman is battered by her Indian husband or boyfriend, then the tribe typically can prosecute him.   But absent an express Act of Congress, the tribe cannot prosecute a violently abusive husband or boyfriend if he is non-Indian.   Tribal leaders repeatedly have told the Department that a tribe’s ability to protect a woman from violent crime should not depend on her husband’s or boyfriend’s race.

 

The concerns raised by tribal leaders and experts led the Department to propose new Federal legislation on July 21 of this year.   The response to the Department’s proposal from persons of all backgrounds and experiences, including state, local and tribal law-enforcement officials, has been overwhelmingly positive.  

 

And just in the last few weeks, Senator Akaka, the Chairman of the Senate Committee on Indian Affairs, and 10 cosponsors have introduced Senate Bill 1763, the Stand Against Violence and Empower Native Women Act, also known as the SAVE Act, which incorporates the Department’s proposal.   The SAVE Act fills three major legal gaps, involving tribal criminal jurisdiction, tribal civil jurisdiction, and Federal criminal offenses.

 

First , the patchwork of Federal, state, and tribal criminal jurisdiction in Indian country has made it difficult for law enforcement and prosecutors to adequately address domestic violence — particularly misdemeanor domestic violence, such as simple assaults and criminal violations of protection orders.   The SAVE Act recognizes certain tribes’ power to exercise concurrent criminal jurisdiction over domestic-violence cases, regardless of whether the defendant is Indian or non-Indian.

 

Second , at least one Federal court has opined that tribes lack civil jurisdiction to issue and enforce protection orders against non-Indians who reside on tribal lands.   That ruling undermines the ability of tribal courts to protect victims.   Accordingly, the SAVE Act confirms that tribal courts have full civil jurisdiction to issue and enforce certain protection orders involving any persons, Indian or non-Indian.

 

Third , Federal prosecutors lack the necessary tools to combat domestic violence in Indian country.   The SAVE Act provides a one-year offense for assaulting a person by striking, beating, or wounding; a five-year offense for assaulting a spouse, intimate partner or dating partner, resulting in substantial bodily injury; and a ten-year offense for assaulting a spouse, intimate partner or dating partner by strangling or suffocating.

 

The tribal-criminal-jurisdiction and Federal-assault-statute sections of the SAVE Act work in tandem, enabling tribal investigators and prosecutors to focus on misdemeanors (including protection-order violations) and low-level felonies, regardless of the perpetrator’s Indian or non-Indian status, while Federal investigators and prosecutors focus on the more dangerous felonies involving strangling, suffocation and substantial bodily injury, again regardless of the perpetrator’s Indian or non-Indian status.  These measures, taken together, have the potential to significantly improve the safety of women in tribal communities and allow Federal and tribal law-enforcement agencies to hold more perpetrators of domestic violence accountable for their crimes.

 

At this point, it is too soon to know whether or when Congress might enact this legislation.   But as I hope my remarks today have made clear, the Department is forging ahead, trying not only to uphold the United States’ trust responsibility to American Indian tribes, but also to ensure that every Native American man, woman and child can thrive in a tribal community that is just as safe as any other community in our great Nation.

 

To make that vision a reality, we will need, as Professor Frickey advised, to seek conciliation, to view each other as sovereigns linked in an ongoing relationship of governance, to negotiate in good faith, to accommodate both Federal and tribal interests, and always, always to strengthen the long-term relationships between the United States Government and the more than 500 Indian tribal governments that, we hope, with your wise counsel, will continue to flourish.

 

Thank you for giving me this opportunity to be with you today, and I look forward to hearing your suggestions, comments, and questions.

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