- The Washington Times - Sunday, January 25, 2004

American Indian tribes are trying to revive an amendment to the Homeland Security Act that would give them criminal jurisdiction over non-Indians to combat terrorist threats on Indian lands.

But opponents of this move — who include some non-Indians living on reservations — say it would overturn a 25-year-old Supreme Court decision “limiting and defining Indian sovereignty” and could lead to tribal power grabs affecting hundreds of thousands of non-Indians.

Supporters of the change deny such claims, saying its purpose is to reclassify tribal governments as “states” under the HSA law, so tribes can receive sufficient funding and technical expertise to play a meaningful role in fighting terrorism.

“It’s critical for us to have that ability,” said Robert Holden of the National Congress of American Indians.

But Wayne Howle, senior deputy attorney general for Nevada, said he can “understand the concerns” of opponents.

“I can understand that non-Indians would not want to be subject to tribal jurisdiction [in criminal matters]. That’s quite a departure. But I can understand the tribal point of view as well,” he said in a telephone interview.

Leaders of the Senate Indian Affairs Committee sought to add the amendment to the homeland security bill last year. The amendment was supported by both the panel’s Republican chairman, Sen. Ben Nighthorse Campbell of Colorado, and its Democratic vice chairman, Sen. Daniel K. Inouye of Hawaii. But the amendment was never acted upon, said Patricia Zell, a legal staffer for Mr. Inouye. In fact, it was never reported out of committee, according to the Senate library.

“Some groups hit the panic button, claiming this change would mean tribal governments would be able to exercise control over all people for all purposes. That’s just not true,” Ms. Zell said.

A Republican committee staffer who did not wish to be identified put it this way: “The groups fear there would be other jurisdictional grabs [by tribal governments]. … they fear tribes could exert [broad] authority over non-Indians, and yet non-Indians cannot vote in tribal elections.”

At this time, said Ms. Zell, proponents of the provision (officially designated S.578) are “trying to educate the public” about what the measure would do. She said it might be re-introduced — possibly with some changes in language — as part of a package of amendments to the HSA.

Thomas B. Heffelfinger, U.S. attorney for Minnesota and the top Justice Department spokesman on S.578, says the department supports the first 12 sections of the amendment, or those that would reclassify tribal governments as states, not local governments, in dealing with terrorism.

But Mr. Heffelfinger, who is also chairman of the Attorney General Advisory Committee’s Native American issues subcommittee, said the department does not support Section 13, which would give tribes the authority to “enforce and adjudicate violations of criminal, civil, and regulatory laws committed by any person on land under the jurisdiction of an Indian tribal government.”

“We say that section goes too far,” Mr. Heffelfinger said in a telephone interview. He added that the department’s Office of Legislative Affairs has been contacting Senate Indian Affairs Committee staffers, asking them to set up a meeting to find ways to “clarify and simplify” questions pertaining to legal jurisdiction on Indian lands.

Leading the opposition to S.578 is a group called Citizens Equal Rights Alliance. CERA, based in Ronan, Mont., is a nonprofit group that seeks to “protect all who live on or near Indian reservations from discrimination” by federal, state or tribal governments and their policies.

Darrel Smith, chairman of CERA’s legal issues committee, points to the 2000 census, which found that non-Indians account for 48 percent of reservation residents

He says the proposed amendment to the Homeland Security Act contradicts a 1978 Supreme Court decision ruling that tribes do not have criminal jurisdiction to try and punish non-Indians. Typically, states or the federal government now have authority to arrest and try criminal offenders who are not Indians on Indian lands.

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