Carole Goldberg, T om Gede
Indian Law & Order Commission tom.gede@morganlewis.com
• goldberg@law.ucla.edu
Report to the ABA on the
Roadmap for Making Native America Safer
2015 ABA Annual Meeting - July 20, 2015

• Created by Tribal Law and Order Act of 2010
(TLOA) to advise the President and Congress on
Federal, State and Tribal reforms to strengthen criminal justice for the 566 Federally recognized
Indian Tribes and Nations.
• Extended by the Violence Against Women Act
(VAWA) Reauthorization Act with sunset in
January 2014 .
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• Nine volunteers appointed by the President (3) and
Majority and Minority leadership of Congress (6).
• Recruited three Federal experts to serve as its staff, who were “detailed.”
• Planned and executed comprehensive assessment of Native American and Alaska Native public safety and criminal justice.
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Indian Law and Order Commission (ILOC) created:
1) to conduct comprehensive study of law enforcement and criminal justice in tribal communities
 jurisdiction over crimes committed in Indian country
 tribal jail and federal prisons systems
 juvenile justice systems -- tribal and federal
 the impact of the Indian Civil Rights Act of 1968
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2) to develop recommendations on
 justice systems improvements -jurisdiction in Indian country simplifying
 preventing juvenile crime on Indian land -rehabilitating Indian youth -- reducing recidivism
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 adjustments to penal authority of tribal courts and exploring alternatives to incarceration

3) will report to President and Congress not later than 3 years following enactment findings and recommendations for legislative and administrative actions
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ILOC held field hearings, took testimony , appointed and consulted with a Tribal Advisory
Board in all 12 BIA regions, and worked entirely in the field – from Alaska to the East Coast.
Unanimously prepared and approved THE ROADMAP FOR
MAKING NATIVE AMERICA
SAFER – a 324-page report, with
40 major recommendations.
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• To end the public safety gap in Native
American & Alaska Native communities.
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• The Federal government is largely to blame for the public safety gap in Native America.
– Directly, due to outmoded Federal command-and-
control laws, policies and institutions
– Indirectly, through Congressionally-authorized
State criminal jurisdiction over Indian people and lands through Public Law 83-280, settlement acts, and statutes targeting specific states and tribes
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• Most of the U.S. relies primarily on locally-based criminal justice systems – local police, prosecutors, defenders, judges and juries, corrections, and wrap-
around services.
• Federal law forces Native communities to do precisely the opposite. Tribes depend on Federal and/or State laws and agencies dispensing justice from outside their communities -with fewer resources and less accountability to local citizens .
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• Work to respect and reinforce the power of locally based Tribal criminal justice systems to protect all people and lands within Tribes’ borders
• Enforce the Federal Constitutional rights of all
U.S. citizens
• Achieve parity in Tribal justice funding compared with comparable parts of our country
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• Give Tribes freedom to exit the Federal criminal justice system entirely, except for laws of general application, and guarantee that same freedom to
Tribes in P.L. 83-280 States.
• Ensure a direct appeal from Tribal court to new
U.S. Court of Indian Appeals for all criminal defendants for alleged Federal Constitution rights violations – 4 th , 5 th , 6 th and 8 th Amendments.
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Most Alaska Native communities lack regular access to police, courts and related services.
• Services are based in regional hubs that are usually remote from the communities they serve.
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• At least 75 Native communities lack any law enforcement presence at all.
• Alaska
Natives are
19% of the total population but 47% of reported rape victims.

• Domestic violence rates for reported crimes are up to 10 times higher than the rest of the United States.
• Yet, there is just one woman’s shelter located in
Alaska’s 229 Federally recognized Native villages, and no juvenile shelters at all.
• An Alaska Native Tribal leader told the Commission during one of many field visits across the state:
“Every woman you’ve met today has been raped. All of us… we all know each other. Please tell Congress and President Obama before it’s too late.”
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VAWA Domestic Violence Provision in Alaska
In 2013 re-authorization of Violence Against Women
Act (VAWA) gave tribal courts authority to prosecute domestic violence cases when defendants are non-
Native.
• However . . . Alaska was exempted – Sec. 910.
• ILOC reported that Alaska’s exception from
VAWA’s tribal jurisdiction provision was
“unconscionable.”
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• In addition to ILOC, Alaska Native women protested to Congress, urging repeal of Sec. 910.
• Sen. Lisa Murkowski reversed stance, & with Sen.
Mark Begich, co-sponsored repeal of Sec. 910.
• Passed unanimously in the Senate on Dec. 9, 2014, approved by House on Dec. 11. The repeal bill was presented to and signed by President Barack
Obama.

Village Public Safety Officers
• At time of ILOC’s site visits,
Village Public Safety Officers
(VPSO), who provide basic services, could not carry firearms
– although most offenders do.

• In wake of ILOC Report and horrific killing of unarmed VPSO in Manokotak in 2013, Alaska
Legislature authorized carrying firearms for
VPSO’s; Gov. Parnell signed bill July 2014.
– To qualify, VPSO’s to go through same training as Alaska Troopers at Public Safety Academy in
Sitka.
– Firearms and training at the academy, and travel
& liability insurance, about $62,000 annually for
20 VPSOs per year.

Additional Steps for Improving Public Safety in Native
Villages in Alaska
The Federal government and State of Alaska should strengthen Tribal sovereignty and local self-governance, including locally-based criminal justice systems.
• Congress should recognize some form of “Indian country” in Alaska for Tribal concurrent criminal jurisdiction, e.g. permit trust lands (right now – only done by regulation) or create special jurisdiction.
• Respect tribal court orders in other courts.
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• Parity of funding for Tribal justice and law enforcement
• Consolidate all Federal criminal justice services for Tribes in the U.S. Department of Justice to enhance performance and accountability.
• Change Federal grant-funding system to basefunding program for Tribes.
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• Improve Federal deputization of Tribal prosecutors as SAUSAs – Special Assistant U.S. Attorneys – entitled to Federal criminal justice information
• Move trials / court proceedings inside Indian county.
• Improve Federal criminal justice data reporting / IS.
• Direct Federal agents to serve as witnesses in Tribal court proceedings
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• Apply the Federal Speedy Tribal Act, 18 U.S.C.
Section 3161, to all Tribal court criminal proceedings.
• Amend the Indian Civil Rights Act (ICRA) to permit Tribal governments to define their own criminal laws and sentences – must be consistent with 8 th Amendment.
• Ensure assumption of Federal concurrent jurisdiction in mandatory P.L. 280 states is not an unfunded mandate.
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• Establish “Special Assistant Federal Public Defender
Program” / deputize Tribal defenders to receive lawenforcement-sensitive Federal criminal justice information in cases involving concurrent Tribal jurisdiction.

• Congress should clarify of tribal policing authority within tribal Indian country in Public Law 280 (and like) jurisdictions:
– allowing arrests/detentions of non-Native perpetrators or when enforcing restraining orders.
– immunizing Tribal officers from state enforcement for unlawful policing.
• Congress should clarify the standard for “who is an
Indian” for purposes of federal Indian country criminal laws.

• Incentivize cross-deputation - Federal, State &
Tribal law enforcement agencies.
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• Develop model Tribal-State agreements
• Provide enhanced insurance coverage/risk management
• Ensure Federal and State notification to Tribes at each stage of criminal justice proceedings to protect victims and enhance offender services.

– State POST certification
– Allows tribal police to enforce state law
– MOA of mutual aid necessary
– 6 of 22 tribes participate, growing

• Mandate notification to Tribes when offenders enter and leave the Federal Bureau of Prisons to facilitate consideration of offender placement, community supervision, and re-entry programs.
• Enable Federal court sentencing to Tribal corrections and, as appropriate, alternative programs.
• Streamline Federal correctional programs within one agency (U.S. Department of Justice).
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• Codify TLOA’s BOP pilot program so Tribal courts have the permanent option of sentencing Tribal offenders to Federal detention.
• Incentivize effective alternatives to detention where appropriate.
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• The Commission’s report is one of the first comprehensive policy assessments of juvenile justice in Native America:
“Indian country juvenile justice exposes the worst consequences of our broken Indian country justice system…. Federal and State juvenile justice systems take Indian children, who are the least well, and make them the most incarcerated.”
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• Native American and Alaska Native juveniles have the highest per-capita rate of violent victimization.
• Among juveniles, Native juveniles suffer Post-
Traumatic Stress Disorder (PTSD) at a rate of 22%
– triple the general population, and exceeding or matching PTSD rates in military personnel who served in Afghanistan and Iraq.
• Disproportionately high rates of Native juveniles dying from alcohol abuse, suicide, violent crime
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Although Native youth make up approximately half of the juveniles in Federal detention --
• Federal court system has no juvenile division;
• Parole is unavailable to juveniles in Federal detention;
• Secondary education is not provided;
• Opportunities for incentivized rehabilitation –
wellness and diversion programs, for instance – practically non-existent.
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• Federal Delinquency Act should give as much deference to Tribes as States in determining when
Federal juvenile jurisdiction arises
• When Tribe lacks or won’t assert jurisdiction
• When Tribe lacks services adequate to needs of juveniles
• When offense is a violent felony or drug offense in which
Federal government has a “substantial interest”
• States should transfer on-reservation juvenile cases to Tribes, as in dependency cases under ICWA
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• Require Tribal consent to Federal prosecutions of
juveniles, including whether to charge younger
Native offenders as a adults.
• Federal funding should follow victims and
offenders, so that Tribes can more effectively address local priorities.
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• The Federal government and States should notify
Tribes at all key stages of juvenile justice proceedings involving Tribal citizens
• Data/information systems should be configured accordingly.
• Federal courts hearing Indian country juvenile matters ought to be required to establish pretrial
diversion programs for such cases that allow sentencing in Tribal courts.
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“The Commission finds that the public safety crisis in
Native America is emphatically not an intractable problem…. We see breathtaking possibilities for safer, strong Native communities achieved through homegrown, Tribally based systems that respect the civil rights of all U.S. citizens and reject outmoded Federal command-and-control policies in favor of increased local control, accountability and transparency .”
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