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Tribal Law and Order Act

What is the Tribal Law and Order Act?

The Tribal Law and Order Act (P.L. 111-211) (codified in scattered sections of 25 U.S.C. and 18 U.S.C.) TLOA) is a comprehensive statute focused on all aspects of investigating and prosecuting crime in Indian country with a primary purpose of reducing crime in Indian country and increasing public safety. The statute attempts to systematically address a wide variety of problems from data collection to housing prisoners.

Congress passed the TLOA in 2010 and it became law on July 29, 2010. Reports such as Amnesty International’s Maze of Injustice: the Failure to Protect Indigenous Women from Sexual Violence in the USA ignited public interest in the high rates of violence in Indian country and motivated systemic changes. Additionally, the TLOA Senate Report of 2009, indicated that police presence was lacking in Indian Country and tribal court’s limited sentencing power both greatly contributed to the proliferation of crime in Indian Country. 

TLOA aimed to increase federal accountability, enhance tribal authority, authorize (not appropriated) additional funding, and established the Indian Law and Order Commission (ILOC).

For a section-by-section analysis of TLOA, the National Congress of American Indians hosts an analysis on their TLOA website, www.tloa.ncai.org. The TurtleTalk blog also hosts a helpful Tribal Law and Order Act Summary.



Language of the Tribal Law and Order Act

Sections of Title II include:

  • Sec. 201. Short title; table of contents.
  • Sec. 202. Findings; purposes.
  • Sec. 203. Definitions.
  • Sec. 204. Severability.
  • Sec. 205. Jurisdiction of the State of Alaska.
  • Sec. 206. Effect.

Subtitle A—Federal Accountability and Coordination

  • Sec. 211. Office of Justice Services responsibilities.
  • Sec. 212. Disposition reports.
  • Sec. 213. Prosecution of crimes in Indian country.
  • Sec. 214. Administration.

Subtitle B—State Accountability and Coordination

  • Sec. 221. State criminal jurisdiction and resources.
  • Sec. 222. State, tribal, and local law enforcement cooperation.

Subtitle C—Empowering Tribal Law Enforcement Agencies and Tribal Governments

  • Sec. 231. Tribal police officers.
  • Sec. 232. Drug enforcement in Indian country.
  • Sec. 233. Access to national criminal information databases.
  • Sec. 234. Tribal court sentencing authority.
  • Sec. 235. Indian Law and Order Commission.
  • Sec. 236. Exemption for tribal display materials.

Subtitle D—Tribal Justice Systems

  • Sec. 241. Indian alcohol and substance abuse.
  • Sec. 242. Indian tribal justice; technical and legal assistance.
  • Sec. 243. Tribal resources grant program.
  • Sec. 244. Tribal jails program.
  • Sec. 245. Tribal probation office liaison program.
  • Sec. 246. Tribal youth program.
  • Sec. 247. Improving public safety presence in rural Alaska.

Subtitle E—Indian Country Crime Data Collection and Information Sharing

  • Sec. 251. Tracking of crimes committed in Indian country.
  • Sec. 252. Criminal history record improvement program.

Subtitle F—Domestic Violence and Sexual Assault Prosecution and Prevention

  • Sec. 261. Prisoner release and reentry.
  • Sec. 262. Domestic and sexual violence offense training.
  • Sec. 263. Testimony by Federal employees.
  • Sec. 264. Coordination of Federal agencies.
  • Sec. 265. Sexual assault protocol.
  • Sec. 266. Study of IHS sexual assault and domestic violence response capabilities.



Reporting Federal Declination Rates

According to the TLOA Senate Report, declination rates in Indian County were 52.2% in 2007 and 47% in 2008.  As compared to declination rates outside of Indian Country, which were 20.7% in 2007 and 15.6% in 2008. Thus, one objective of TLOA was to increase federal communication with Indian Country by requiring reporting of federal declination rates.

Section 212, codified in 25 U.S.C. §2809, mandates a series of annual reports and evidence sharing between federal and tribal justice officials and prosecutorial agencies when a case is declined. As part of the reporting requirements, the FBI must include in the declination reports: types of crimes alleged, status of parties as Indian or non-Indian, and reasons for declining or terminating prosecution.

Access to National Database

Section 233 of TLOA, codified in 28 U.S.C. §534, gives tribal law enforcement officers access and input authority to national crime databases. Although small, this section of TLOA is very important on the ground because it ensures that tribal, federal, and state agencies are privy to the same information in order to prevent crime.

Bureau of Prisons Pilot Project 

In Section 234, TLOA also created the Bureau of Prisons Pilot Project, codified in 25 U.S.C. §1302(d).

§ 1302. Constitutional Rights

(d) Sentences: In the case of a defendant sentenced in accordance with subsections (b) and (c), a tribal court may require the defendant—

(1) to serve the sentence—

(A) in a tribal correctional center that has been approved by the Bureau of Indian Affairs for long-term incarceration, in accordance with guidelines to be developed by the Bureau of Indian Affairs (in consultation with Indian tribes) not later than 180 days after July 29, 2010;

(B) in the nearest appropriate Federal facility, at the expense of the United States pursuant to the Bureau of Prisons tribal prisoner pilot program described in section 304(c)[1] of the Tribal Law and Order Act of 2010;

(C) in a State or local government-approved detention or correctional center pursuant to an agreement between the Indian tribe and the State or local government; or

(D) in an alternative rehabilitation center of an Indian tribe; or

(2) to serve another alternative form of punishment, as determined by the tribal court judge pursuant to tribal law.

The pilot program authorized the BOP to house for a period of four years a limited number of certain offenders sentenced in tribal courts. The pilot program was set to run from November 2010 until November 2014.

On May 7, 2014, BOP submitted a report to Congress as required by section 234(c)(5) of the TLOA on the project from November 29, 2010 to November 29, 2013. The BOP stated that it supports the TLOA pilot program and recommended making the pilot program permanent to ensure the resource is available to Tribes. To date, Congress has not acted on the recommendation.

Enhanced Sentencing

Prior to passage of the TLOA, the Indian Civil Rights Act (ICRA) limited tribes’ power to impose sentences of more than one year of imprisonment or more than a $5,000 fine. TLOA provides that if a tribe complies with the prerequisites listed in the statute, the tribe’s criminal court is able to exercise enhanced sentencing authority and can sentence a defendant to three years and a $15,000 fine for a single offense. Additionally, a tribal court can stack sentences up to a cumulative total of nine year for multiple offenses. These options for tribal courts are collectively known as “enhanced sentencing authority” (ESA).

Tribal Court Sentencing Authority

Pre – TLOA/

ICRA Limits

Post- TLOA

Fines

Max $5,000 per offense

Max $15,000 per offense

Prison Sentences

Max 1 year imprisonment per offense

Max 3 year imprisonment per offense

Sentence Stacking*

Permissible without max

Max 9 year imprisonment

Availability of Authority

All Tribes

Tribes that Satisfy TLOA Requirements

*Note: TLOA effectively foreclosed sentence stacking for Tribes that do not choose to exercise ESA. See Seth J. Fortin, “The Two-Tiered Program of the Tribal Law and Order Act.” UCLA Law Review 61, no. 88 (2013): 91 – 96; Discussion of sentence stacking, https://www.uclalawreview.org/pdf/discourse/61-7.pdf.

In order for a tribal criminal court to exercise ESA, Tribes must comply with minimum due process requirements. These criteria are separate and in addition to the requirements already included in ICRA. Section 234 of TLOA is codified in Sections 1302(b)-(c) of ICRA.

§ 1302. Constitutional Rights

(b) Offenses subject to greater than 1-year imprisonment or a fine greater than $5,000

A tribal court may subject a defendant to a term of imprisonment greater than 1 year but not to exceed 3 years for any 1 offense, or a fine greater than $5,000 but not to exceed $15,000, or both, if the defendant is a person accused of a criminal offense who—

  1. Has been previously convicted of the same or a comparable offense by any jurisdiction in the United States; or
  2. Is being prosecuted for any offense comparable to an offense that would be punishable by more than 1 year of imprisonment if prosecuted by the United States or any of the States.

(c) Rights of defendants

In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall—

  1. provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and
  2. at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
  3. require that the judge presiding over the criminal proceeding—

(A) has sufficient legal training to preside over criminal proceedings; and

(B) is licensed to practice law by any jurisdiction in the United States;

  1. prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and
  2. maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.

The National Congress of American Indians hosts an Implementation Chart on its TLOA webpage, www.tloa.ncai.org, which lists tribes that have implemented enhanced sentencing as of July 2016.

 

Indian Law and Order Commission (ILOC)

Under Section 235, codified in 25 U.S.C. §2812, the ILOC is an inter-governmental workgroup set up to evaluate how the criminal justice system interacts with Indian Country and make recommendations to the President and Congress on how to improve prosecution and prevent crime in Indian Country. The Commission was extended by the Reauthorization of the Violence Against Women Act in 2013 (VAWA).

The Commission created a final 324 page report making 40 major recommendations.

Table of Contents

The ILOC recommendations, with minor exception, became policy of the American Bar Association (ABA). The ABA also played a role in the passage of TLOA, issuing support letters urging Congress to enact legislation to protect victims of violence in Indian Country.

Legislative History

For more information on the passage of TLOA, visit https://www.congress.gov/bill/111th-congress/house-bill/725.

 

Implementation Hearings

Reports & Government Documents

  • “Tribal Law and Order Act: None of the Surveyed Tribes Reported Exercising the New Sentencing Authority, and the Department of Justice Could Clarify Tribal Eligibility for Certain Grant Funds” U.S. Government Accountability Office (GAO)  Report, May 30, 2012. The US GAO report to Congress regarding: (1) To what extent did selected tribes report that they exercise, or have plans to exercise, TLOA’s new sentencing authority, and that they implement, or have plans to implement its associated requirements, and what challenges, if any, did the selected tribes report in doing so?; and (2) What types of assistance did federal agencies report that they provide to assist tribes in exercising TLOA’s new sentencing authority, and what, if any, federal assistance did selected tribes report that they would like to receive?
  • “Indian Alcohol and Substance Abuse Memorandum of Agreement” U.S. Department of Health and Human Services, U.S. Department of the Interior, and U.S. Department of Justice, August 2011. Pursuant to the Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986 (Title IV, Subtitle C of Public Law 99-570) (the Act), DHHS and DOI entered into a Memorandum of Agreement (MOA) to develop and implement a coordinated program for the prevention and treatment of alcohol and substance abuse at the local level. Through the Tribal Law and Order Act of 2010 (Title II of Public Law 111-211) (TLOA) amendments to the Act, Congress sought to engage new federal partners to build upon those efforts. Pursuant to the TLOA amendments to the Act, the Secretary of Health and Human Services, the Secretary of the Interior, and the Attorney General, developed and entered into an MOA.
  • “The Tribal Law and Order Act Long Term Plan to Build and Enhance Tribal Justice Systems” U.S. Department of Interior and U.S Department of Justice, August 2011. TLOA mandates that the Departments of Justice (DOJ) and the Interior (DOI) develop, in consultation with Tribal Leaders and tribal justice professionals, a long term plan to address incarceration and the alternatives to it in Indian country. DOJ and DOI obtained substantial input from tribal justice officials, including law enforcement, courts, and corrections. DOJ and DOI conducted a series of consultations with Tribal Leaders across the country; conducted focus groups with tribal justice officials; hosted webinars; created a multi-agency Work Group on Corrections (“Work Group”) to provide recommendations on action steps; and drafted a Tribal Justice Plan (Plan) for public comment. Those comments were incorporated into the final Plan submitted to Congress.
  • “United States Attorney Tribal Law and Order Act Directives” Duties imposed on United States Attorneys by the Tribal Law and Order Act of 2010.
  • “Bureau of Prisons Implements Key Provision of Tribal Law and Order Act with Pilot Program to Incarcerate Tribal Prisoners in Federal Prisons” November 26, 2010. The Department of Justice Federal Bureau of Prisons implemented a key provision of the Tribal Law and Order Act of 2010 by launching a four-year pilot program to accept certain tribal offenders sentenced in tribal courts for placement in Bureau of Prisons institutions. The four-year pilot program has now expired.
  • “Review of the Department’s Tribal Law Enforcement Efforts Pursuant to the Tribal Law and Order Act of 2010 Office of the Inspector General, U.S. Department of Justice, December 14, 2017. The report found that the Department of Justice (Department) has taken some steps to carry out Tribal Law and Order Act’s (TLOA) mandates. However, the Department and its components still lack a coordinated approach to overseeing the assistance it provides in Indian country. Further, the Department has not prioritized assistance to Indian country at the level consistent with its public statements or annual reports to Congress. The report also found that the Department needs to do more to ensure it provides all of the training TLOA requires. Finally, crime data in Indian country remains unreliable and incomplete, limiting the Department’s ability to engage in performance based management of its efforts to implement its TLOA responsibilities.

     

Bureau of Justice Assistance/Justice Department Tribal Technical Assistance Provider Resources

Efforts to Reauthorize

Efforts made to reauthorize and/or improve TLOA implementation:

Blogs & Other Resources

  • National Congress of American Indians Tribal Law and Order Act Resource Center is a website specifically developed by NCAI to share information and resources relative to TLOA. It contains news, events, webinars, and other helpful information.
  • U.S. Department of Justice, Tribal Law and Order Act webpage provides links to the text of the Tribal Law and Order Act; documents to enhance understanding of its provisions; and some of the reports and action items created in accord with provisions and directives in TLOA.
  • U.S. Department of Justice, Bureau of Justice Assistance TLOA Website provides an overview of BJA, an overview of the Tribal Law and Order Act (TLOA), TLOA activities that BJA is involved in, an overview of BJA training and technical assistance, BJA publications and performance reports, an overview of BJA programs that serve tribal communities, and an overview of Coordinated Tribal Assistance Solicitation that could potentially fund TLOA activities.
  • Native American Rights Fund Research Guide, Tribal Law and Order Act of 2010 provides links to additional resources on TLOA like news articles, legal commentary, books, and government reports.

     

Video/Photos

President Obama signs TLOA into law
PHOTO: President Obama signs TLOA into law

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