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National American Indian Court Judges Association
Testimony on Fiscal Year 2001 Interior Appropriations

Submitted by The Honorable Mary T. Wynne, President
National American Indian Court Judges Association (NAICJA)
212 Second Street, North; Okanogan, WA 98840

To the Subcommittee on Interior and Related Agencies
HOUSE APPROPRIATIONS COMMITTEE

April 6, 2000

On behalf of the National American Indian Court Judges Association (NAICJA), I am pleased to submit this testimony on the FY 2001 budget for the Interior Department’s funding for the Indian Tribal Justice Act (Public Law 103-176) and Tribal Courts (under the Tribal Priority Allocations).

The NAICJA is a voluntary national representative membership association (non-profit organization incorporated in 1969) of current and former tribal court judges throughout the United States. NAICJA, which represents more than 350 tribal justice systems nationwide, has a thirty-year track record of providing quality training and technical assistance services for tribal justice systems.

Interior Department Funding Indian Tribal Justice Act and Tribal Courts

Full Funding for Indian Tribal Justice Act: NAICJA strongly supports full funding ($58 million) for the Indian Tribal Justice Act (Public Law 103-176). While NAICJA supports the Interior Department’s FY 2001 budget request of $1.3 million, we strongly support FULL FUNDING of the Act as promised in 1993. NAICJA actually supports funding at a much higher rate since the number of tribal courts and their needs have substantially increased since the Act was made law in 1993 - more than seven (7) years ago.

Tribal Courts (under the Tribal Priority Allocations): NAICJA strongly supports increased funding for Tribal Courts under the Tribal Priority Allocations (TPA). While we support the Interior Department’s FY 2001 budget request of $12, 585,000 (an increase of $1,537,000 over FY 2000 level), this increase represents only a minimal first step towards meeting the vital needs of tribal justice systems. It is important to note that funding has steadily decreased since the passage of the Indian Tribal Justice Act. The needs (as recognized by Congress), however, have only been compounded with the passage of time, the increase in tribal courts, the increase of caseloads, population growth, and rise in crime rate in Indian country.

Native American tribal courts must deal with a wide range of difficult criminal and civil justice problems on a daily basis, including the following:

While the crime rate, especially the violent crime rate, has been declining nationally, it has increased substantially in Indian Country. Tribal court systems are grossly under-funded to deal with these criminal justice problems.
Number/complexity of tribal civil caseloads have also been rapidly expanding.
Congress recognized this need when it enacted the Indian Tribal Justice Act in 1993. Congress specifically found that “tribal justice systems are an essential part of tribal governments and serve as important forums for ensuring public health and safety and the political integrity of tribal governments” and “tribal justice systems are inadequately funded, and the lack of adequate funding impairs their operation.”
While the Indian Tribal Justice Act promised more than $58 million per year in additional funding for tribal court systems starting in FY1994, tribal courts have yet to see ANY funding under this Act.
Since Congress enacted the Indian Tribal Justice Act, the needs of tribal court systems have continued to increase, but there has been no corresponding increase in funding for tribal court systems. In fact, the Bureau of Indian Affairs funding for tribal courts has actually decreased substantially since the Indian Tribal justice Act was enacted in 1993.

As Attorney General Janet Reno stated in testimony before the Senate Indian Affairs Committee on, it is vital to “better enable Indian tribal courts, historically under-funded and under-staffed, to meet the demands of burgeoning case loads.” The Attorney General indicated that the “lack of a system of graduated sanctions through tribal court, that stems from severely inadequate tribal justice support, directly contributes to the escalation of adult and juvenile criminal activity.”

The vast majority of the approximately 350 tribal court systems function in isolated rural communities. These tribal justice systems face many of the same difficulties faced by other isolated rural communities, but these problems are greatly magnified by the many other complex problems that are unique to Indian country. In addition to the previously mentioned problems, tribal justice systems are faced with a lack of jurisdiction over non-Indians, complex jurisdictional relationships with federal and state criminal justice systems, inadequate law enforcement, great distance from the few existing resources, lack of detention staff and facilities, lack of sentencing or disposition alternatives, lack of access to advanced technology, lack of substance abuse testing and treatment options, etc. It should also be noted that in most tribal justice systems, 80-90% of the cases are criminal case and 90% of these cases involve the difficult problems of alcohol and/or substance abuse.

NAICJA has repeatedly testified concerning the needs of tribal justice systems. For example, see the testimony of former NAICJA President (and current NAICJA First Vice President) Jill Shibles before the Senate Committee on Indian Affairs on June 3, 1998 and February 24, 1999. Many of the remarks of Judge Shibles from prior testimony are incorporated below.

Importance of Tribal Courts

“Tribal courts constitute the frontline tribal institutions that most often confront issues of self-determination and sovereignty, while at the same time they are charged with providing reliable and equitable adjudication in the many and increasingly diverse matters that come before them. In addition, they constitute a key tribal entity for advancing and protecting the rights of self-government. . . . Tribal courts are of growing significance in Indian Country.” (Frank Pommersheim, Braid of Feathers: American Indian Law and Contemporary Tribal Law 57 (1995)). Tribal justice systems are the primary and most appropriate institutions for maintaining order in tribal communities. Attorney General Reno acknowledged that, “With adequate resources and training, they are most capable of crime prevention and peacekeeping” (A Federal Commitment to Tribal Justice Systems, 79 Judicature No. 7, November/December 1995, p. 114). It is her view that “fulfilling the federal government’s trust responsibility to Indian nations means not only adequate federal law enforcement in Indian Country, but enhancement of tribal justice systems as well.” Id.

Tribal courts agonize over the very same issues state and federal courts confront in the criminal context, such as, child sexual abuse, alcohol and substance abuse, gang violence and violence against women. These courts, however, while striving to address these complex issues with far fewer financial resources than their federal and state counterparts must also “strive to respond competently and creatively to federal and state pressures coming from the outside, and to cultural values and imperatives from within.” (Pommersheim, “Tribal Courts: Providers of Justice and Protectors of Sovereignty,” 79 Judicature No. 7, November/December 1995, p. 111). Judicial training that addresses the present imperatives posed by the public safety crisis in Indian Country, while also being culturally sensitive, is essential for tribal courts to be effective in deterring crime in their communities.

There is no federally supported institution to provide on-going, accessible tribal judicial training or to develop court resource materials and management tools, similar the Federal Judicial Center, the National Judicial College or the National Center for State Courts. Even though the NAICJA annually sponsors the National Tribal Judicial Conference, the three-day conference cannot provide the in-depth extensive judicial training necessary to make tribal justice systems strong and effective arms of tribal government.

Inadequate Funding of Tribal Justice Systems

There is no question that tribal justice systems are, and historically have been, underfunded. The 1991 United States Civil Rights Commission found that “the failure of the United States Government to provide proper funding for the operation of tribal judicial systems . . . has continued for more than 20 years.” The Indian Civil Rights Act: A Report of the United States Civil Rights Commission, June 1991, p. 71. The Commission also noted that “[f]unding for tribal judicial systems may be further hampered in some instances by the pressures of competing priorities within a tribe.” Moreover, they opined that “If the United States Government is to live up to its trust obligations, it must assist tribal governments in their development . . .” Almost ten years ago, the Commission “strongly support[ed] the pending and proposed congressional initiatives to authorize funding of tribal courts in an amount equal to that of an equivalent State court” and was “hopeful that this increased funding [would] allow for much needed increases in salaries for judges, the retention of law clerks for tribal judges, the funding of public defenders/defense counsel, and increased access to legal authorities.”

As indicated by the Civil Rights Commission, the critical financial need of tribal courts has been well documented and ultimately led to the passage of the Indian Tribal Justice Act, 25 U.S.C. § 3601 et seq. (the “Act”). Congress found that “[T]ribal justice systems are an essential part of tribal governments and serve as important forums for ensuring public health, safety and the political integrity of tribal governments.” 25 U.S.C. § 3601(5). Affirming the findings of the Civil Rights Commission, Congress further found that “tribal justice systems are inadequately funded, and the lack of adequate funding impairs their operation.” 25 U.S.C. § 3601(8). In order to remedy this lack of funding, the Act authorized appropriation base funding support for tribal justice systems in the amount of $50,000,000 for each of the fiscal years 1994 through 2000. 25 U.S.C. § 3621(b). An additional $500,000 for each of the same fiscal years was authorized to be appropriated for the administration of Tribal Judicial Conferences for the “development, enhancement and continuing operation of tribal justice systems . . .” 25 U.S.C. § 3614.

Seven years after the Act was enacted, how much funding has been appropriated? None. Not a single dollar was even requested under the Act for fiscal years 1994, 1995, 1997, 1998 or 1999. Only minimal funds were requested for fiscal year 1996 and 2000. Yet, even these minimal funds were deleted. Even more appalling than the lack of appropriations under the Act is the fact that BIA funding for tribal courts has actually substantially decreased following the enactment of the Indian Tribal Justice Act in 1993.

Conclusion

Tribal justice systems are the primary and most appropriate institutions for maintaining order in tribal communities. They are the keystone to tribal economic development and self-sufficiency. Any serious attempt to fulfill the federal government’s trust responsibility to Indian Nations must include increased funding and enhancement of tribal justice systems.

We welcome the opportunity to comment on the Interior Department’s Budget Request for the Indian Tribal Justice Act and Tribal Courts (under the Tribal Priority Allocations). Thank you very much.