WASHINGTON - On the heels of a devastating critique of criminal detention
facilities in Indian country, Sen. Max Baucus has offered a bill that would
permit tribes to offer tax-free bonds as financing for new facilities.
Baucus, a Montana Democrat, quickly won support from Sen. Tom Daschle,
D-S.D., the Senate Minority Leader. Daschle noted that of 19 jails found to
be operating at 150 percent or more of capacity, three are in the state he
represents: Pine Ridge's Medicine Root Detention Center on the Pine Ridge
reservation operates at 250 percent capacity; Crow Creek's Fort Thompson
Jail operates at 242 percent capacity; and the Pine Ridge (village)
Correctional Facility operates "at a staggering 400 percent of its
capacity," the senator said.
In Montana, the Fort Belknap, Fort Peck, Northern Cheyenne, Blackfeet and
Rocky Boys detention facilities all furnished horror stories in the Office
of Inspector General report, issued in September, or in related testimony
before the Senate Finance Committee on Sept. 21. The final report followed
the OIG's interim testimony on its findings before the Senate Committee on
Indian Affairs on June 23.
The Baucus proposal, introduced from the Senate floor on Oct. 7, came only
five days before the chamber adjourned to the Nov. 2 election campaigns.
With so little time to build support, the bill isn't a candidate for
passage until 2005 at the earliest. Baucus emphasized that the bill is not
a cure-all in any case. But he noted that it would provide tribes with
immediate means to finance construction of their own facilities. Federally
recognized tribes would issue tax-free bonds for the construction of
detention facilities. Private investors would put up funding in return for
tax credits from the Treasury Department. Tribes without the resources to
back the bond offering with a revenue stream would plow the money into
government bonds that would produce a return for investors.
Since the interim OIG report, a number of tribal leaders have maintained
that federal funding shortfalls have made it impossible for tribes and the
BIA to keep pace with basic maintenance and other functions at detention
facilities, much less implement needed reforms. Funding for detention
facility construction has fallen dramatically over the past two fiscal
years, by almost 90 percent to under $2 million in fiscal year 2004.
There are 74 detention facilities in Indian country; only eight of them run
by tribes. Twenty are BIA-operated and 46 receive BIA funds under "638
contracts." The OIG report, "Neither Safe Nor Secure: An Assessment of
Indian Detention Facilities," followed a one-year investigation covering a
three-year period. During that year, OIG inspectors visited 27 facilities,
seven of them in off-reservation border towns, and conducted 150 interviews
with BIA and tribal officials, as well as detention professionals
throughout the nation.
The report concludes that facility conditions contribute to escapes,
fatalities and suicide attempts - "a regular occurrence at many of these
The Office of Law Enforcement Services oversees Interior Department law
enforcement and security programs, including those of the BIA (the BIA is a
subordinate agency of Interior's). "However, we found no evidence that they
have ever provided any oversight for the Indian detention program," the
report states. The BIA-LES lacks the administrative infrastructure to
oversee the program:
"BIA-LES was unable to produce any annual budget submissions for our
review. We later learned that BIA-LES managers use historical funding
levels as their new annual budget requests and have rarely asked for actual
budget increases. In addition, we discovered that BIA-LES does not seek to
obtain accurate or realistic budget projections from detention facility
administrators. In fact, funds allocated to individual jails by BIA-LES are
not even tracked. Their failure to make an effort to assess the true cost
of operations or to have any internal controls in place becomes a
"These fiscal management failures also impact new detention facilities
built with funds awarded as grants by the Department of Justice ... Since
1997, DOJ has provided over $150 million in construction grants for new
detention facilities. However, these grants are only for construction of
the facility.. BIA is then responsible for providing the funding for
operational costs. Given the poor budget planning and execution by BIA-LES,
it was not surprising to learn that facilities completed with DOJ grant
monies often do not get the necessary funding to actually open for
Staffing is inadequate, staff training is inadequate, and inmate
overcrowding is the norm, the report contends, leading to the housing of
juveniles with adult offenders.
"Obviously BIA is sitting on a liability time bomb and must act to diffuse
it now so that the modest funds available can be used for their intended
purpose, instead of potentially being consumed by legal fees, fines and
The report ultimately concludes though that no one individual or
administration can be blamed for the "abysmal" condition of the majority of
jails the OIG inspected. "Some of these problems are decades old."
The report found a few good things to say about a few detention facilities
in Indian country, especially those run by tribes through "638-contracts,"
under which tribes run their own programs with federal funding. But even
here the findings were not altogether encouraging:
"During our assessment, we reviewed 16 detention facilities that are
operated under 638-contracts. We found that funds for the detention program
are not specified and contract terms and conditions are not always
enforced. Tribal agencies are often not held accountable for failing to
comply with contract terms and conditions. For example, a FY2001 Single
Audit Report for the Rosebud SiouxTribe identified $2.5 million in
questionable costs regarding federal funds used for tribal programs that
were not in compliance with the contract agreement and related laws and
regulations. The report recommended that specific terms or controls and
procedures be implemented to ensure that these funds were safeguarded from
"We also found that a male detention officer at the White Buffalo Home
raped a 17-year-old female inmate in October 2002 when he was tasked to
transport her for medical treatment. The detention officer was convicted
after confessing to the crime. According to the report of investigation,
the perpetrator had a prior criminal record but an "appropriate background
investigation" had not been conducted according to the requirements of the
contract. We learned that the perpetrator was related to a tribal council
member. BIA's ineffective oversight of this particular contract is
especially disturbing since BIA had to take over control of the nearby
adult jail and police department due to serious problems associated with
the tribe's operation of the law enforcement and detention programs.
"Funding for detention services is generally not specified in the terms and
conditions of 638-contracts. A review of the 16 638-contracts determined
that the BIA had allocated at least $61 million for law enforcement program
management from FY2001 through FY2003. However, we were only able to trace
funds totaling about $7 million (11 percent), which had been budgeted for
contract-managed detention facilities.
"In our opinion, language used in the majority of 638-contracts directly
contributes to the inadequate funding and operation of detention programs.
BIA cannot ensure that necessary detention services are provided for
without establishing and implementing specific funding, expenditure and
operational requirements. Specific contract requirements would not only
improve the ability of BIA to monitor these programs and to verify that
designated funds were actually used for detention services but would also
prevent tribes from reallocating much needed detention program funds or
exerting undue influence on the operation of the program."