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Security gets a hearing

WASHINGTON - The Grand Coulee Dam is located within Colville borders in Washington state.

And not so long ago, cell members of Al-Qaida, the terrorist network that spawned the airline-hijack atrocities at the World Trade Center and the Pentagon, were located in a cave in Afghanistan. They left behind papers detailing a plan of attack on the Grand Coulee.

This example, offered by Tom Heffelfinger, U.S. attorney for Minnesota and chairman of the Native-specific subcommittee to the U.S. attorney general's advisory committee on homeland security, was the most sobering of many testimonials that tribes should be directly involved in homeland security operations. As the Homeland Security Act of 2002 now stands in law, tribal governments are defined along with other "local governments"; as such they can only receive federal assistance indirectly through states for their homeland security functions.

The many practical issues this relationship raises for fiscally hard-pressed tribes is paralleled by sovereignty issues, as framed by Jamestown S'Klallam Tribal Chairman W. Ron Allen in a rousing initial speech to assembled tribal leaders, federal officials, congressional staff, national Native organizational executives and other notables: "It's a topic that has been on our minds since 9/11, all of us ? We're often an afterthought policy ? If you're going to pass laws with cross-jurisdictional issues, it's always about federal, state and tribal governments ? But it always ends after federal and state ? We must lead ? We must seize those reigns of control to enhance the unique sovereignty of Indian country."

The applause here was huge, leaving no doubt whatsoever that self-governance and sovereignty issues color tribal response to the current homeland security law.

Still, practical matters abounded most at the all-day tribal leaders' forum and associated Senate Committee on Indian Affairs hearing, July 29 and 30 respectively.

Among them, 25 tribal nations are located along international borders with Mexico and Canada. Three more are within five miles of such borders. Many dams, railroads, power plants, telecommunications nodes, electricity gridlines, watercourses, roads, bridges and other points of critical infrastructure targeted for terrorist attack are on or near tribal lands, or traverse them. A handful of tribes host Intercontinental Ballistic Missile, or ICBM, silos on their land or near it.

The geographic distance of many reservations from population centers is such that tribal forces will often offer the first response to any incident or suspicious activity. Often too, they may offer the nation's only possibility for a quick response to crisis on tribal lands.

Sen. Daniel K. Inouye, D-Hawaii, presided over both meetings as co-chairman of the Senate Committee on Indian Affairs. This was appropriate, not only as a continuation of the senator's much-appreciated solidarity on Native issues in the Senate, but also because it seemed fitting that an armed forces veteran from the state that houses Pearl Harbor should lead a campaign for security in unlikely places. At any rate, his presence gave the proceedings an air of occasion noted by a number of speakers.

Inouye himself was all business. He opened the July 29 forum by noting "The extensive ? infrastructure located in or near tribal lands ? is essential to our nation's security." And he closed the July 30 hearing with assurances that he will "get to work on reporting a bill" to the Senate - work that will take place over the August congressional recess, resulting in an actionable version of S. 578, the Tribal Government Amendments to the Homeland Security Act of 2002, in the first week of September, he estimated.

In between these bookend remarks, the senator directed careful questioning to every witness at the three-panel hearing, cast floor votes on other bills before the Senate, elicited an impressive slate of commitments from federal officials to continue this "good start at integrating tribes with DHS activities" (in the phrase of Josh Filler, director of the State and Local Government Coordination office, Department of Homeland Security), and poured scorn on the notion of groups historically against tribal distinctions in federal law that "This bill will put this country under attack from within."

To the contrary, Inouye maintained time and again, Native people are American patriots - patriots who have answered the call to arms more reliably (on a per capita basis) than any other population group in the land. Tribes must be empowered to uphold law against terrorist threats until federal authorities can respond, Inouye added. In many places, tribal law enforcement will be the first line of defense against terrorism, as well as on many ongoing "border" issues (illegal entry for one, smuggling for another) that may have implications for future terrorist acts. (The federal warning that another 9/11-styled terrorist act will take place, as a matter of when not if, also got a regular mention at these sessions.)

Inouye himself was especially pleased with a promise from Heffelfinger to work with the committee on refining Section 13 of S. 578.

Section 13 attempts to fill the so-called "gap" in law enforcement in Indian country created by Oliphant and more recent Supreme Court decisions, all to the effect that tribes cannot enforce law against non-Indians on reservations, and sometimes not against on-reservation Indians who are not also tribal members. The gap has already been the subject of congressional corrective action, namely in the law known as the "Duro fix" that gave tribes on-reservation jurisdiction over all Indians. But still other court decisions since then have undermined that correction in certain instances. For all the ink and argumentation yet to come on the subject, the immediate question for law enforcement is more along the lines of ? what's a tribal law enforcement officer authorized to do if a non-Indian, or an Indian who is not a member of a host tribe, displays suspicious activity while on tribal lands?

Heffelfinger said that as written, Section 13 of S. 578 is too broad in that it doesn't stop at law enforcement, but goes on to affirm adjudication as a tribal authority.

Inouye has been energetic in stating that S. 578 does not expand tribal jurisdiction, but authorizes tribal law enforcement powers over terrorist activity on tribal lands only, with federal courts adjudicating.

In an apparent nod to the difficulty of the position, Inouye met Heffelfinger's pledge of assistance to the committee on Section 13 with thanks - and then with a small chuckle. The hearing could end there as far as he was concerned, he quipped.

(Coincidentally, President George W. Bush's Justice Department recently asked the Supreme Court to review a lower court ruling against tribal jurisdiction in a complex criminal case. A court finding in the administration's favor would reinstate certain law enforcement powers for the tribe in the case, while generally reinforcing the concept of tribal jurisdiction over Indians on tribal lands. But the court hasn't accepted the case yet, and won't hear it until next year if it does.)

Alaska Natives were another subject suggested for revision in the reportable S. 578, due in September. Alaska Native villages oversee 40 million acres, compared with 56 to 58 million for tribes in the contiguous states, but they were not singled out in the definition of tribes proposed in the draft of S. 578.