Tribal Law and Order Act
(TLOA)
Opportunities and Challenges for
Tribal Healing to Wellness Courts
Jerry Gardner
Executive Director
Tribal Law and Policy Institute
(TLPI)
Tribal Law and Order Act (TLOA)
Opportunities and Challenges for Tribal
Healing to Wellness Courts
Opportunities
 Challenges
 Effectively addressing these
opportunities and challenges

Overall TLOA Opportunity:
TLOA has focused federal government
attention on:
 American Indian/Alaska Native Criminal
Justice Issues
 Tribal Law Enforcement
 Tribal Justice Systems
 Tribal Healing to Wellness Courts
Some Overall Challenges
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TLOA was not able to effectively address some of the
most important issues due to political limitations (See
Oliphant in the room)
TLOA was only able to provide funding authorization
(virtual $) rather than appropriations (real $)
Ongoing need to hold Congress and Administration
accountable to fully fund and fully implement TLOA –
while fully consulting with tribes
So many moving parts – TLOA provisions, reports
consultations, webinars, trainings, etc.
Illustration of Specific Current
Challenge:
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Draft DOI/DOJ Long Term Plan for Tribal
Detention Programs released for comment on
7/14/2011 (last Thursday)
Comment Period is only one week. Due by
7/21/2011 (this Thursday)
Due to Congress no late than one year from
TLOA enactment 7/29/2010
Very important for Tribal Wellness Courts
TLOA Overall Intent

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Enhanced Funding for Tribal Justice
Systems
Enhanced Authority for Tribal Justice
Systems
Enhanced Federal Cooperation and
Accountability
One Way to Look at TLOA

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Which provisions can Tribal
governments take advantage of NOW?
Which provisions require Federal action
first?
Which provisions require funding?
Reauthorize/Expand Existing
Programs for Funding Tribal Justice
Systems

Provides 5 more years of authorizations
(“virtual funding”) thru FY2015 – for
series of tribal justice funding acts
• TLOA Section 241: Indian Alcohol and
•
Substance Abuse Act (1986)
TLOS Section 242: Indian Tribal Justice Act
(1993)
Reauthorizations (continued)
• TLOA Section 242: Indian Tribal Justice
•
•
•
Technical and Legal Assistance Act (PL 106559) which includes TCAP authorization
TLOA Section 243: Tribal COPS
TLOA Section 244: DOJ Tribal Jails Program
TLOA Section 246: OJJDP Tribal Youth
Program (TYP)
TLOA Provisions

Evidence sharing and declination data:
•

Requires federal prosecutors to maintain data on
criminal declinations in Indian Country, and to share
evidence to support prosecutions in tribal court
Tribal Police Access to Criminal History
Records
•
Many tribal police have no access to criminal history
records. TLOA provides tribal police greater access to
criminal history databases that provide them with
essential information when detaining or arresting a
suspect
TLOA Provisions

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Federal Testimony: Requires Federal Officials
who work in Indian country to testify about
information gained in the scope of their duties
to support a prosecution in tribal court
Authorizes Deputization of Special Assistant
U.S. Attorneys to prosecute reservation crimes
in Federal courts and encourages Federal
courts to hold cases in Indian country
TLOA Provisions

Increases Deputization of Tribal and State Police to
Enforce Federal Law:
•
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Enhances Special Law Enforcement Commission program
to deputize officers to enforce federal laws on Indian lands
Authorizes the Drug Enforcement Agency to deputize
tribal police to assist on reservation drug raids
Increases recruitment and retention efforts for BIA and
Tribal police
Expands training opportunities for BIA and Tribal police to
receive training at state police academies and tribal,
state, and local colleges – where Federal law
enforcement training standards are met
TLOA Section 221 (PL 280)


Amends mandatory “Public Law 280” (18 USC
1162 & 25 USC 1321(a))
Prior to TLOA:
•

Now:
•
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Retrocession required state concurrence; Secretary of
Interior decided
Allows for re-assumption to concurrent federal
jurisdiction; no state concurrence; AG decides
DOJ proposed rule
TLOA Section 234 (a)-(b)


Amends Indian Civil Rights Act (25 USC
1302)
Prior to TLOA:
• Tribal courts limited to 1 year per count

Now:
• Tribal courts limited to 3 years per count and
9 years per case
TLOA Section 234 (a)-(b) cont.

Amends Indian Civil Rights Act (25 USC
1302)
• Tribal courts that exercise felony jurisdiction
must provide:
• Bar licensed indigent defense counsel
• Bar licensed judge
• Tribal criminal laws must be publicly available
TLOA Section 211(b)
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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
TLPI provides Tribal Healing
and Wellness Courts Training
and Technical Assistance
Contact:
diana@tlpi.org
323.650.5467
www.tlpi.org
Part of the NCJA/NCAI
Tribal-State Collaboration &
John Harte
Justice Capacity Building
Mapetsi Policy Group
Project funded by the
Bureau of Justice Assistance

Senate Committee held 15 hearings (‘07-’10)
confirmed longstanding crisis of violence in
Indian Country:
 Epidemic domestic and sexual violence
 Non-Indian gangs/DTOs target reservations for
drug smuggling and other crimes
 Low police presence, limited training
 High declination rates & inadequate federal
response and coordination with local tribal justice
officials

Primary Causes of Indian Country Violence:
 Underfunded tribal justice systems
 Broken and Divided System
▪ Handcuffed tribal justice systems
▪ Lack of federal accountability
▪ Jurisdictional maze

TLO sought to address system and funding
Tribal court judges testimony confirmed significant
unmet needs, huge caseloads, shoestring budgets
 Anecdotal information is helpful, but Congress,
Administration, and tribes have no consistent
source of data to argue for funding increases
 TLOA section 211 requires BIA to report annually on
tribal court spending and unmet needs of tribal
court personnel, technology, and facilities
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Prior to TLOA, existing federal programs to fund tribal
courts had been expired 6+ years
Gave appropriators excuse to not fund or under-fund
Section 242 reauthorized the Indian Tribal Justice
Support Act and Tribal Justice Technical & Legal
Assistance Acts (BIA and DOJ tribal court programs)
Section 244 reauthorize/expanded DOJ Tribal Jails
program to include “Justice Center” construction
Little opposition to funding, with some exceptions
Federal laws and Supreme Court rulings hamper
tribal justice systems and force tribal communities
to rely on federal and state justice systems
 Despite reliance: GAO reports in Dec. 2010 that
between 2005-09, U.S. Attorneys declined to
prosecute 52% of reservation violent crimes,
including 67% of crimes of sexual violence
 RESULT: Tribal courts are overseeing more violent
cases, but remained subject to ICRA limit on
sentencing
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Where there was little opposition to funding,
there was significant OPPOSITION to
increased authority
House Judiciary Committee, December 2009
hearing: questioned tribal court fairness,
capacity, and constitutionality of sentencing
indigent suspect to one day in jail without
licensed legal counsel

Result: Sec. 234. Tribal Court Sentencing (25 U.S.C. 1302)
 Enhanced tribal court sentencing authority
▪ 1-3 years imprisonment, $15,000 fine, or both
▪ 9-year cap on stacked sentencing
 Tribal courts can stack sentences
 Protections for accused where D is subject to 1+ year
▪ Licensed counsel for indigent defendants
▪ Licensed / law trained judges
▪ Trial must be recorded (audio or video)
▪ Must publish laws, rules of evidence/procedure
▪ Sentencing options: tribal, BOP, state, alternatives
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Sec. 234. BOP Pilot, alternatives to incarceration
Sec. 211. BIA-OJS Responsibilities
 BIA-OJS long-term plan for incarceration in Indian Country
▪ Coordinate with DOJ
▪ Consult with tribal leaders and tribal justice officials

Sec. 241. IASA Reauthorization
 DOI (OJS/BIE)-DOJ-HHS (IHS) long-term plan for juvenile centers
▪ Consult with tribal and BIA juvenile detention centers

Sec. 244. Tribal Jails Program Reauthorization / Expansion
 DOJ long-term plan to for incarceration in Indian Country
▪ Coordinate with BIA-OJS, IHS, BIE
▪ Consult with tribal leaders and tribal justice officials
*DEADLINE OF PLAN SUBMISSION TO CONGRESS: JULY 29, 2011

Section 213. Tribal Prosecutors as SAUSA
 AG may deputize tribal prosecutors as SAUSAs

Sec. 221. PL 280 amendment
 Provide outlet for tribes to call on U.S., DOJ may
reassume federal jurisdiction

Sec. 231. Enhanced SLECs
 Improve authority of tribal police to arrest all
offenders, while protecting tribal sovereign
immunity, providing FTCA protection
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Tribal participation is critical to effective
implementation
TLOA is clearly imperfect = does not mandate
funding or overturn Oliphant
But it does provide tribal court with added
tools to combat crime, and lays building
blocks for greater local tribal control through
stronger tribal courts
Tribal Law & Order Act:
Implementation
National Association of Drug Court Professionals
National Harbor, Maryland
July 18, 2011
Tribal Law & Order Act

Signed in to law by President Obama on
July 29, 2010.

Public Law 111-211.
Confirmation of
Existing Practices

Authorizes and mandates:
– That tribal prosecutors are specifically eligible
for SAUSA status,
– That USAOs must designate tribal liaisons
with statutorily specified duties, and
– That DOJ Office of Tribal Justice become a
permanent component at Main Justice.
Federal Declinations

When federal investigation terminated or
USAO declines prosecution, US “shall
coordinate” with tribal law enforcement
officials.

EOUSA to submit annual reports to
Congress.
Information Sharing

Statutorily confirms existing FBI CJIS
policy to allow tribal law enforcement
access to “Federal criminal information
databases” including NCIC (28 USC 534).

Requires BIA OJS to report UCR crime
data to FBI CJIS on a tribe-by-tribe basis.
Public Law 280
Jurisdictional Reform
Amends “Public Law 280” (18 USC 1162).
 Prior to TLOA, retrocession required State
concurrence and approval by the
Secretary of the Interior.
 TLOA allows for re-assumption of
concurrent federal jurisdiction by the
Attorney General; no State concurrence is
required.

Public Law 280
Jurisdictional Reform

DOJ proposed rule published in Federal
Register at 76 FR 29675 (May 23, 2011).

Comments were due July 7, 2011.
Public Law 280
Jurisdictional Reform

DOJ Proposed Rule highlights:
– Tribe proposes re-assumption of federal
criminal jurisdiction.
– Extensive consultation with tribe, federal, &
state/local agencies.
– Factors: improved access to criminal justice
resources.
– Deputy AG decides after recommendation
from FBI, EOUSA, & OTJ.
Felony Criminal Jurisdiction

Amends Indian Civil Rights Act.

Prior to TLOA: tribal courts limited to one
year of imprisonment per count.

Now: TLOA authorizes up to three years
per count and nine years per case.
Felony Criminal Jurisdiction
Tribal courts that opt-in must provide:
 Bar-licensed indigent defense counsel,
 Judge with “sufficient training” to conduct
criminal trial,
 Tribal criminal laws/rules be publicly
available, and
 Court proceedings must be recorded.
Tribal Prisoner Pilot Program
DOJ Bureau of Prisons 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.

Prisoner Re-entry
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.
 Authorizes Federal Pretrial & Probation
Services to appoint officers in IC which
can provide for substance abuse & other
treatment services.

DOJ Grant Funding

Prior to TLOA: DOJ jail construction grant
program was limited to construction of
facilities for incarceration; tribal matching
funds required.

Now: allows for construction of “tribal
justice centers”; no match required.
Law and Order Commission
Creates new Indian Law & Order
Commission to conduct a comprehensive
study of IC criminal justice system.
 Will submit report to President &
Congress.

Chris Chaney
 US DOJ Office of Tribal Justice
 (202) 353-0257
 christopher.chaney@usdoj.gov
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www.justice.gov/otj