2/27/12 OVERVIEW OF THE TRIBAL
LAW AND ORDER ACT AND
TRIBAL IMPLEMENTATION
ISUES
BJ Jones
Director-Tribal Judicial Institute
Chief Judge- Sisseton-Wahpeton Oyate
Prairie Island Indian Community
What’s The Day Looking Like
Examine why the TLOA was
passed and an overview of its
provisions
Look at role of Tribal
governments in implementing
TLOA and assess where we are
so far
Examine in detail the
provisions related to expanded
sentencing, right to counsel,
what kind of counsel, etc
Examine whether TLOA has
impacted rights of Tribes to have
traditional systems, requirements of
sitting Judges, training for TLOA
prosecutors and Judges
What were some of the problems
TLOA was designed to address
High federal declination rate of the federal government in
prosecuting Major Crimes and General Crimes Violations
Lack of cooperation between federal and tribal government
in prosecution of crimes
Restraints on the Department of Interior and Indian Health
Services in assisting in the investigation and prosecution of
both federal and tribal criminal prosecutions
Restraints on tribal sentencing authority
Tribal disatisfaction in PL 280 states with state jurisdiction
1 2/27/12 What does Tribal Law and Order Act
say about justice in Tribal
Communities?
Tends to focus on deficiencies in the federal and tribal
justice systems implying that not enough natives are
incarcerated??
Incarceration rate for Indians 38% higher than national
average and this does not include tribal court incarceration
145 Indians per 100,000 incarcerated in 1980 in California
compared to 767 in 2000
Majority of children in federal custody for criminal behavior
native- native children 40% higher detention rates than nonnative (again not including tribal)
Incarceration rate for natives grew 5.6% in one year
(2008-2009)
What have we observed so far
According to February 20, 2012 NY Times article
federal declination rates have not dropped
Syracuse University study shows 52% of federal
prosecutions in 2011 declined
65% of sexual assaults on native women declined by
federal government
61% of sexual abuse of children cases declined
In contrast approximately 20% of cases off-reservation
in DOJ wheelhouse rejected
Why according to the DOJ
and others
Proof problems- DOJ position
Distance between reservation and federal agency
headquarters?
2 2/27/12 Tribal Law & Order Act
Signed in to law by President Obama on
July 29, 2010.
Public Law 111-211.
TLOA Section 102(a)
Amends Indian Arts & Crafts Act.
Before TLOA: FBI had responsibility to
investigate violations.
Now: any federal law enforcement officer
can investigate violations.
TLOA Section 103
Amends Indian Arts & Crafts Act.
Before TLOA: all violations were felonies
regardless of value.
Now: violations of $1,000 or more are
felonies; violations of less than $1,000 are
Class A (1 year maximum) misdemeanors.
3 2/27/12 TLOA Section 211(a)(4)
Amends 25 USC 2801 of the Indian Law
Enforcement Reform Act of 1990 (ILERA).
Confirms BIA s 2005 administrative name
change from OLES to BIA Office of Justice
Services (OJS).
TLOA Section 211(b)
Amends ILERA (25 USC 2802). New
responsibilities of BIA OJS now include:
Dispatch,
E-911 emergency services,
Training for NCIC access,
TLOA Section 211(b)
Amends ILERA (25 USC 2802). New
responsibilities of BIA OJS now include:
Collection, analysis, and reporting of crime
data,
Reporting UCR crime data to FBI CJIS on a
tribe-by-tribe basis,
4 2/27/12 TLOA Section 211(b)
Amends ILERA (25 USC 2802). New
responsibilities of BIA OJS now include:
Annual report to Congress addressing
unmet need for OJS & tribal law
enforcement, prosecution, judicial,
corrections, etc. resources.
TLOA Section 211(b)
Amends ILERA (25 USC 2802).
DOI, in coordination with DOJ, must
develop a long term tribal detention plan.
Report must be submitted to Congress
within 1 year.
TLOA Section 211(c)(2)(B)
Amends ILERA (25 USC 2803) regarding
BIA OJS warrantless arrest standard.
Prior to TLOA: reasonable grounds .
Now: probable cause .
5 2/27/12 TLOA Section 211(c)(2)(D)
Amends ILERA (25 USC 2803) by
expanding offenses for which warrantless
arrest authorized to now include:
Controlled substances, federal firearms
offenses, assault, and bootlegging.
TLOA Section 212
Amends ILERA (25 USC 2809).
When federal investigation terminated or
USAO declines prosecution, US shall
coordinate with tribal law enforcement
officials.
EOUSA to submit annual reports to
Congress.
TLOA Section 213
Amends 28 USC 543.
Prior to TLOA: some USAOs designated
tribal prosecuting attorneys as SAUSAs.
Now: tribal prosecuting attorneys
specifically set forth as eligible for SAUSA
status.
6 2/27/12 TLOA Section 213
Amends ILERA.
Prior to TLOA: most USAOs with IC
designated an AUSA as a Tribal Liaison.
Now: all USAOs with IC must designate a
Tribal Liaison; duties set forth.
TLOA Section 214(a)
Amends Indian Tribal Justice Technical &
Legal Assistance Act
Prior to TLOA: DOJ Office of Tribal Justice
was a detailee office.
Now: OTJ will become a permanent DOJ
component.
TLOA Section 214(b)
Amends ILERA.
Statutorily confirmed existing EOUSA
Native American Issues Coordinator
position; duties set forth.
7 2/27/12 TLOA Section 221
Amends mandatory Public Law 280 (18
USC 1162 & 25 USC 1321(a)).
Prior to TLOA: retrocession required State
concurrence; Secretary of Interior decided.
Now: allows for re-assumption to
concurrent federal jurisdiction; no State
concurrence; AG decides.
May 23, 2011 DOJ rule on assumption of
concurrent (tricurrent?) jurisdiction
Applies to those Tribes whose reservations are subject to
mandatory PL 280 jurisdiction only under 18 USC 1162(a)
(Why not applicable to other States like New York and
Kansas with other federal laws)
This is separate from retrocession provisions of PL 280-18
USC 1323(a) that allow Tribe to remove state jurisdiction
Three factors for DOJ to consider
Whether assumption would increase law enforcement
presence
Whether it would increase access to judicial systems
Whether it would increase access to detention facilities
TLOA Section 231(a)
Amends ILERA (25 USC 2802(e)).
BIA OJS required to recognize state &
tribal police academies and other programs
that meet Peace Officer Standards of
Training.
Maximum age of new BIA OJS officers
moved from 37 to 47.
8 2/27/12 TLOA Section 231(b)
Amends ILERA (25 USC 2804).
Requires DOI to establish procedures for
establishment of SLEC MOA.
Time deadlines set forth.
TLOA Section 231(c)
Amends Indian Self-Determination &
Education Assistance Act.
Creates Indian Law Enforcement
Foundation.
Receive donations and grant awards to OJS
& tribal public safety & justice services
programs.
TLOA Section 233
Amends 28 USC 534.
Statutorily confirms existing FBI CJIS
policy to allow tribal law enforcement
access to Federal criminal information
databases including NCIC.
9 2/27/12 TLOA Section 234(a)-(b)
Amends Indian Civil Rights Act (25 USC
1302).
Prior to TLOA: tribal courts limited to one
year per count.
Now: tribal courts limited to 3 years per
count and 9 years per case.
TLOA Section 234(a)-(b)
Amends Indian Civil Rights Act (25 USC
1302). Tribal courts that exercise felony
jurisdiction must provide:
Bar licensed indigent D counsel,
Bar licensed judge, and
Tribal criminal laws must be publicly
available.
TLOA Section 234(c)
Creates BOP Tribal Prisoner Pilot Program.
Up to 100 prisoners at BOP expense.
Must be sentenced under new tribal court
felony sentencing authority.
Must be for a violent crime.
Sentence must be for at least two years.
10 2/27/12 Bureau of Prison Rule on
Issue
Must be convicted of a violent crime comparable to those
listed in Major Crimes Act
Must have at least two years left on sentence to serve
Must be 18 years of age
Must be medically able to serve a federal sentence
Must get a TB test
Tribal Judge must certify that sentence was imposed in
accordance with new provisions of TLOA
Tribal Court may rescind sentence during execution
TLOA Section 235
Amends ILERA.
Creates new Tribal Law & Order
Commission to conduct a comprehensive
study of IC criminal justice system.
Will submit report to President & Congress.
TLOA Section 241(a)(2)
Amends Indian Alcohol & Substance Abuse
Prevention & Treatment Act (25 USC
2412).
DOJ OJP & HHS IHS/SAMHSA to develop
tribal action plans upon tribal request.
11 2/27/12 TLOA Section 241(g)(1)
DOJ & DOI, in consultation with tribes,
must develop long-term plan for juvenile
detention, treatment centers & alternatives
to detention.
Plan to be developed by no later than 1
year after TLOA enactment.
TLOA Section 244
Amends Violent Crime Control & Law
Enforcement Act (42 USC 13709).
Prior to TLOA: grant authority limited
tribes to construction of facilities for
incarceration; matching funds required.
Now: allows for construction of tribal
justice centers ; no match required.
TLOA Section 245
Amends Indian Tribal Justice Technical &
Legal Assistance Act.
Authorizes Federal Pretrial & Probation
Services to appoint officers in IC which can
provide for substance abuse & other
treatment services.
12 2/27/12 TLOA Section 246
Amends Juvenile Justice & Delinquency
Prevention Act (42 USC 5783).
Adds grant program authorization for
grants to tribes & tribal consortia for
delinquency prevention & response
programs.
TLOA Section 247
Addresses Village Public Safety Officer
(VPSO) programs in Alaska.
VPSO programs eligible for DOJ COPS
grants.
VPSO officers authorized to attend BIA OJS
Indian Police Academy.
TLOA Section 251(b)
Amends Omnibus Crime Control & Safe
Streets Act (42 USC 3732).
Requires DOJ BJS, jointly with FBI & BIA-
OJS, to consult with tribes to establish &
implement tribal data collection systems.
Requires annual BJS report to Congress on
Indian country crime data collection.
13 2/27/12 TLOA Section 261(a)
Amends 18 USC 4042.
BOP must notify tribe s chief law
enforcement officer when releasing to
tribal jurisdiction a prisoner convicted of
violent crime, drug trafficking, or sex
offense.
TLOA Section 263
Amends ILERA.
Prior to TLOA: BIA & IHS employees
served with tribal or state court subpoenas
invoked Touhy regulations for approval.
Now: subpoenas approved if no
disapproval within 30 days.
TLOA Section 265
Amends ILERA.
IHS shall coordinate with tribes, DOJ OVW,
& BIA OJS to develop standardized sexual
assault policies and protocol.
14 2/27/12 Disparity in sentencing
Not only is the rate of
incarceration alarming but the
sentences natives get tend to be
disproportional to non-native
population
Native Defendants
sentenced in federal courts
generally receive more harsh
sentences than persons
committing the same
offenses under state
jurisdiction because of
Federal Sentencing
Guidelines
Although most states would
deny it, some limited studies
have suggested that native
persons treated more
harshly in state systems (SD
recent study, ND parole
revocation study)
Future trends??
With focus on lowering the
declination rates by US Attorneys in
Indian country, federal prosecutions
bound to increase
Tribal sentencing authority increased
to 3 years under TLOA
Native population disproportionately
younger and growing faster and this
is the demographic group most likely
to be incarcerated
If more Tribes creates criminal
justice systems will tribal
incarceration rates increase?
Some possible solutions?
In those PL 280 states where Tribes are concerned about state
incarceration rate Tribes can exercise concurrent criminal
jurisdiction or gain a retrocession of its jurisdiction so tribal and
federal jurisdiction would be concurrent
Tribes can expand alternative courts such as Wellness and Drug
Courts to work with offenders to try and avoid incarceration
Tribes can exercise their prerogative to expand sentencing
authority to three years and try to keep offenders out of state
system OR
The reality may be that more perps of crime need to be
incarcerated and these stats recognize this and they will and
should continue to go up
15 2/27/12 Criminal Jurisdiction 101 in PL
280 States
States and Tribes have concurrent jurisdiction over
“prohibitory” crimes committed by Indians in Indian
country
No federal jurisdiction except federal subject matter crimes
Tribes have exclusive jurisdiction over “regulatory” crimes
committed by Indians
States have exclusive jurisdiction over non-Indian
prohibitory crime, but Tribes can impose “civil regulatory
penalties” against non-Indians provided one of the prongs of
Montana v. US has been met
Some PL 280 issues
Why have not more 280 Tribes exercised criminal
jurisdiction?
Funding issues- BIA still not willing to equitably fund PL 280
Tribes although DOJ does not seem to care
Huge endeavor and may not be politically popular
Some Tribes may be satisfied with the State and County
systems
One 280 State- Nebraska- three Tribes gained a retrocession of
jurisdiction back to them and in other states (Minnesota for
example) some tribes exercise concurrent jurisdiction
TLOA does not distinguish between Tribes for purposes of
enhanced sentencing
Criminal jurisdiction in non-280
states
Concurrent federal and tribal jurisdiction over Major Crimes Act
violations, 18 USC §1153 (Indians committing certain crimes
against other Indians or non-Indians)- No double jeopardy and no
Petite policy bar
Exclusive federal over non-Indian vs. Indian crime- GCA- 18 USC
1152
Exclusive tribal over non-MCA Indian on Indian crime- GCA
Exclusive state non-I on non-I but possibly not N-I victimless- US
v. McBratney
Concurrent federal and tribal over Indian vs. N-I and Indian
victimless unless Tribe has already punished- GCA
16 2/27/12 Some issues in Non PL 280
StatesMany have not amended their
laws to define major crimes as
within their jurisdiction leaving
these cases subject to exclusive
federal (crimes against children
and sexual crimes for example)
Some Tribes lock up thousands
of people while others use
alternative sentencing methods
Higher incarceration rates tend
to be in Arizona and Northern
Plains and Rockies
Some Emerging Issues- Who is an
Indian?
The Indian Civil Rights Act was
amended by Congress to extend
tribal criminal jurisdiction over
all “Indians” in response to Duro
v. Reina (holding that tribes
could not prosecute non-member
Indians) but the definition of
Indian is that used under 18
USC 1153
Problem is that there is no
definition of Indian under that
law except a federal common law
one
So what is the problem?
Recently the Ninth Circuit (Ca, Az, MT, Wa, Or, Ak)
consisting of states with large native populations decided
several cases, US v. Cruz, 554 F.3d 840 (2009) most notably,
seemingly restricting Indian status to enrolled members
Because Tribes are wedded to the federal definition Indian
tribal court jurisdiction may be affected
What are tribes to do with those violators who are not
enrolled, disenrol, are native from other countries (Canada,
Mexico) or who don’t have sufficient blood to enrol?
17 2/27/12 Rediscovering Indian Treaties
TLOA in no way addressed
impact of Oliphant, stripping
tribal courts of criminal
jurisdiction over non-Indians
Some Tribes have turned to
their treaties as a way of
regulating non-Indians in their
communities
Bad Man clause puts onus on
federal government to
prosecute or remove “bad men”
from their CommunitiesLavetta Elk story
What Do Tribal Citizens Think of Justice
Systems
Unofficial survey of a group of
tribal members in non-PL 280
States
Perception of federal courts is that
they are too harsh
Perception of state courts is that
they are insensitive and racist
towards tribal members
Perception of tribal courts is that
they are corrupt or controlled by
tribal government
What is the impact of these trends
in tribal communities
Lot of distrust of justice systems
in Indian communities amongst
victims and offenders
Many of the criminals being
prosecuted in tribal communities
are the victims of the previous
generation who received no
healing
Some suggest that the studies
that resulted in TLOA were
similar to studies that resulted in
PL 280- Lawlessness and no
prosecutions of criminals
18 2/27/12 What Should the Tribal
Response be?
Wholeheartedly adopt
the western system and
fund jails, prosecutors
and public defenders?
Keep expanding
alternative courts that
focus on healing
individuals and the
community?
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