My name is Zack Smith, and I appreciate the opportunity to provide written testimony to the subcommittee.REF The views I express in this testimony are my own and should not be construed as representing any official position of The Heritage Foundation.

I currently serve as a Senior Legal Fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Before joining Heritage, I served as an Assistant United States Attorney in the Northern District of Florida, worked at a large law firm here in Washington, DC, and clerked for the Honorable Emmett R. Cox on the United States Court of Appeals for the Eleventh Circuit.

Introduction

The Biden Border Crisis has been an unmitigated disaster. If someone tried to design an ideal scenario to allow human trafficking, drug trafficking, and other criminal activities to flourish, they would have a hard time improving on the current situation at our Southern Border. Rather than enforcing the law, the Biden Administration has instead abdicated its duty to do so with sad and foreseeable consequences following.

As the title of the subcommittee’s hearing makes clear, the consequences of this border crisis aren’t confined only to the border but have spread throughout the country from the biggest urban cities to even the most rural Indian reservations. And in fact, it is often these latter locations that suffer the most from the Biden Border Crisis because of the lack of qualified law enforcement personnel to serve these communities and the jurisdictional morass that entangles those who do serve and who seek to arrest and prosecute offenders.REF

Ever the savvy operators, organized crime—particularly many of the Mexican cartels—have sought to capitalize on this sad situation. Undoubtedly, the uncertainty surrounding who can be arrested by whom for what crimes that will then be prosecuted by which authorities, who may or may not have the power to do so, proves to be part of the attraction for the cartels.

While drug use and organized crime have long been problems on reservations, these problems today have been exacerbated by the introduction of new, powerful, and even more deadly drugs such as fentanyl and by efforts to reform and revise tribal jurisdiction over certain issues, individuals, and cases in the wake of several recent U.S. Supreme Court rulings.

The Scourge of Fentanyl

As my Heritage colleague, Paul Larkin, has made clear, “the mass production of illicitly produced and distributed fentanyl” is “killing thousands of Americans today.”REF It’s 50-100 times more powerful than morphine, and as Larkin notes, “[f]or perspective, heroin is [only] five times as powerful as morphine.”REF It’s also easier and cheaper to produce and ship because it’s a synthetic opioid rather than a plant-based one like cocaine. Receiving the necessary precursor chemicals from China, “[t]wo of the nine Mexican drug cartels—the Sinaloa Cartel and the Jalisco New Generation Cartel (CJNG)—are principally responsible for manufacturing the finished product” and smuggling it into the United States.REF From there, it spreads death and destruction wherever it goes.

As one Biden-appointed U.S. Attorney recently noted in her testimony before a Senate committee, “Fentanyl overdoses are the leading cause of opioid-related deaths throughout the United States, including Indian country.”REF She added that the Justice Department “recognizes that the widespread availability and abuse of drugs in Indian country, coupled with drug trafficking groups operating in Indian country, contribute to the high rates of crimes on reservations, including violent crime.”REF To help combat these problems, President Biden issued an executive order stating that the “safety and well-being of all Native Americans is a top priority for my Administration,”REF where he noted that criminal “jurisdiction complexities and resource constraints have left many injustices unaddressed.”REF

But put in the larger context of his other policies, Biden’s statements ring hollow. The recruitment and retention issues plaguing police departments around the country are also plaguing police departments charged with patrolling and enforcing the laws in Indian country. And it’s no wonder. In addition to being responsible for covering vast swaths of territory, these offices would also likely be subjected to the onerous requirements of President Biden’s problematic executive order on policing, along with facing the long-hours and low pay other officers face too.REF

Jurisdictional Morass in Indian Country

On top of that, imagine being on patrol, pulling over a car or truck late at night on a deserted reservation highway, and seeing illegal contraband—like drugs and guns—in plain view. Can the tribal police officer search and detain the suspect if he’s not a tribal member? He can, but that wasn’t clear until the Supreme Court definitively answered the question in a 2021 decision.REF Jurisdictional questions like this—with real world practical consequences—often plague those who patrol Indian country.

Now that the U.S. Supreme Court has perplexingly declared half of Oklahoma to be Indian Country—with the logic of this decision potentially extending to other territories too—the morass is more confusing than ever before.REF Take, for instance, the situation in Tulsa, Oklahoma. On July 8, 2020, the citizens of Tulsa went to bed with their entire city firmly within the state of Oklahoma and subject to its laws. The following day, the Supreme Court issued its decision in McGirt v. Oklahoma, and many citizens of Tulsa went to bed with their homes now on reservation land—subject to some mixture of state, federal, and tribal law depending on who they are and where they are located.REF While the Supreme Court has slightly softened the impacts of this problematic precedent,REF local police still struggle to enforce even basic laws based on the jurisdictional mess that’s been created and left unresolved.REF

If local and tribal police struggle to enforce basic public safety laws because of the jumbled jurisdictional provisions, it doesn’t take much imagination to see how these provisions give cover to the cartels and hamper legitimate law enforcement investigations into cartel-driven organized crime efforts like human and drug trafficking operations.REF The urgency of the matter is hammered home when one considers that Tulsa’s police chief has made clear that the “fentanyl crisis is huge for us. We can do interdictions and remove kilos of this stuff [where even 2 milligrams can prove to be a fatal doseREF], but it doesn’t stop. It just continues to plague the community.”REF

Seized Fentanyl Accounts for Only a Small Portion Being Smuggled Into Our Country

Of course it plagues Tulsa’s community—and many others too. Consider that ABC News reported “[t]rafficking of fentanyl appears largely to occur at the southwest border, where 90% of the drug seized by [U.S. Customs and Border Protection] is found. Over the past year [2023], the agency seized more than 850% fentanyl compared to 2019 and seized nearly as much fentanyl in fiscal year 2023 compared to the previous year,” according to DHS data.REF Consider too that this only accounts for fentanyl found and seized by CBP. At the end of December 2023, the Biden Administration encountered more than 12,000 people crossing the border each day.REF To put this context, Obama-Administration DHS Secretary Jeh Johnson previously said that 1,000 border crossings in a single day made for a “bad day” that “overwhelms the system” and described 4,000 crossings in a single day as a “crisis.”REF During Fiscal Year 2023, which ended on Sept. 30th of that year, Department of Homeland Security Secretary Alejandro Mayorkas admitted that over “600,000 people illegally made their way into the States without being apprehended by border agents.”REF It’s no wonder that fentanyl and other harmful drugs continue to flow into our nation’s cities, towns, and tribal lands virtually unabated.

Conclusion

The sad reality is that this crisis was avoidable. If the Biden Administration had done its duty, secured our borders, and held offenders accountable for their actions, reservations and other localities wouldn’t be experiencing the fentanyl crisis they currently face, and cartels would not feel emboldened to prey on these communities. Until the administration begins enforcing the law, the crisis will continue.

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