Transcript Tribal Law and Order Act of 2010

Tribal Law and Order Act
of 2010
Tom Gede
Commissioner, Indian Law
and Order Commission
Conference of Western Attorneys General (CWAG)
Summer Meeting
July 11, 2011
Tom Gede
Commissioner, Indian Law and Order Commission
Adjunct Professor of Law, Pacific-McGeorge
School of Law
Office: Bingham McCutchen LLP
www.bingham.com
Tele: 415-393-2132
E-mail: [email protected]
Tribal Law and Order Act of 2010
• TLOA enacted July 29, 2010
• Bi-partisan support
• Pres. Obama bill-signing ceremony
Tribal Law and Order Act of 2010
• § 15 - Indian Law and Order Commission
 9 members in total:
 3 appointed by President in consultation with
Attorney General and Secretary of Interior
 2 appointed by Majority Leader of the Senate
in consultation with Chairpersons of the
Committees on Indian Affairs and Judiciary
 1 appointed by Minority Leader of the Senate,
in consultation with the Vice Chairperson and
Ranking Member of the Committees
Tribal Law and Order Act of 2010
• § 15 - Indian Law and Order Commission
 2 appointed by Speaker of House of
Representatives in consultation with
Chairpersons of House Committees on
Judiciary and Natural Resources
 1 appointed by Minority Leader of the House
of Representatives, in consultation with the
Ranking Members of the House Committees
Tribal Law and Order Act of 2010
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
Tribal Law and Order Act of 2010
2) to develop recommendations on

justice systems improvements -- simplifying
jurisdiction in Indian country

preventing juvenile crime on Indian land -rehabilitating Indian youth -- reducing recidivism

adjustments to penal authority of tribal courts and
exploring alternatives to incarceration
Tribal Law and Order Act of 2010

the enhanced use of the Federal Magistrates Act
in Indian country

effective means of protecting the rights of victims
and defendants in tribal criminal justice systems

changes to the tribal jails and federal prison
systems

other issues that would reduce violent crime in
Indian country
Tribal Law and Order Act of 2010
3) will report to President and Congress
not later than 2 years following
enactment findings and
recommendations for legislative
and administrative actions3)
Tribal Law and Order Act of 2010
4) will hold hearings
and take testimony
5) will appoint a Tribal Advisory Committee
to give advice and recommendations -two representatives of tribes from each
BIA region, members having experience in
justice systems, crime prevention, or
victim services
Tribal Law and Order Act of 2010
Key Bullets: (thanks to MAPETSI and OTJ)

Improves tools to fight domestic violence and
sexual assault in Indian country

Strengthens tribal courts, justice systems, and
tribal sovereignty

Enhances Federal accountability, consultation
and coordination
Tribal Law and Order Act of 2010
Key Bullets:

Makes programmatic improvements to aid
tribal justice systems

Improves tribal police recruitment, training
and retention
Tribal Law and Order Act of 2010
Improves tools to fight domestic
violence and sexual assault in
Indian country

34% of American Indian and Alaska Native
women will be raped or sexually assaulted

39% of Native women will suffer domestic or
partner violence
Tribal Law and Order Act of 2010

TLOA will require FBI and U.S. Attorneys to
maintain data when declining to prosecute
violent crimes in Indian country
(declination letters & data)

FBI and U.S. Attorneys will share evidence
with tribal justice officials that have
concurrent jurisdiction over the alleged
crime to allow prosecution in tribal court
Tribal Law and Order Act of 2010

Authorizes appointment of tribal prosecutors
as Special Asst. U.S. Attorneys to prosecute
minor crimes/non-Indian domestic violence

Requires Bureau of Prisons to notify tribal
authorities when releasing a sex offender into
Indian country

Requires Federal officers in Indian country to
receive training in DV/SA to improve
interview techniques/crime scene handling
Tribal Law and Order Act of 2010

Requires Indian Health Service (IHS) and
BIA officials to testify in tribal court on info
gained in scope of their employment to aid
in prosecutions of DV/SA - gives teeth to
tribal court subpoenas

Requires IHS, BIA and DOJ-VAWA offices to
standardize protocol on handling of SA in
Indian country
Tribal Law and Order Act of 2010
Strengthens tribal courts, justice
systems and tribal sovereignty

Indian tribes are first responders to most
crime in Indian country, but up-to-now have
been limited by Indian Civil Rights Act (ICRA)
bar on no more than one-year sentencing of
Indian offenders, and other limits
Tribal Law and Order Act of 2010

ICRA is amended conditionally to allow
tribes enhanced sentencing authority to up
to 3 years in jail per offense, and allows
sentencing on multiple charges, up to 9
years maximum

BOP directed to establish pilot program to
accept offenders convicted in tribal court
under enhanced sentencing
Tribal Law and Order Act of 2010
As conditions of authority to charge
greater than 1 year, tribe must:





provide effective assistance of counsel to
defendant at least equal to that guaranteed
by U.S. Constitution
by licensed attorney
by judge who is law trained and licensed
with publicly available laws, regulations,
interpretive documents, rules
and a record of criminal proceeding
Tribal Law and Order Act of 2010




Enhances deputizations of tribal police
officers to enforce violations of Federal law
in Indian country (Special Law Enforcement
Commissions or “SLEC”)
Secretary will establish minimum
requirements to enter into MOAs with
tribes for the SLECs
BIA to conduct regional training sessions in
Indian country at least bi-annually
Federal Tort Claims Act to be applicable
Tribal Law and Order Act of 2010





Deputized officers can cite offenders of
Federal law (Indian and non-Indian)
permits warrantless arrests in certain
circumstances - exigent circumstances
“authorized law enforcement officials” for
accessing National Crime Information
Center (NCIC)
Access to National Gang Intelligence Center
database
tribes eligible for DOJ Criminal History
Record Improvement grants
Tribal Law and Order Act of 2010
Change to Public Law 280:


In P.L. 280 jurisdictions, upon request of
tribe, United States shall accept jurisdiction
(General Crimes Act, Major Crimes Act)
upon consent of Attorney General
jurisdiction over those areas shall be
concurrent among the Federal Government,
State governments, and, where applicable,
tribal governments
Tribal Law and Order Act of 2010
State, Tribal, and Local Law
Enforcement Cooperation:

Attorney General may provide technical
and other assistance to State, tribal, and
local governments that enter into
cooperative agreements, including
agreements relating to mutual aid, hot
pursuit of suspects, and cross-deputization
Tribal Law and Order Act of 2010
Enhances Federal accountability,
consultation and coordination

TLOA codifies use of Tribal Liaisons at each
Federal District with Indian country, and
requires consultation and coordination with
tribal justice officials, and to provide technical
assistance to improve ability of tribes to
respond to reservation crime
Tribal Law and Order Act of 2010

TLOA makes permanent Office of Tribal Justice
at DOJ, as policy advisor to Attorney General

Establishes a Native American Issues
Coordinator for the Executive Office for United
States Attorneys (EOUSA), to coordinate with
the USA’s that have authority to prosecute
crimes in Indian country and to coordinate
prosecutions of crimes of national significance
in Indian country, as determined by the
Attorney General
Tribal Law and Order Act of 2010
Makes programmatic improvements
to aid tribal justice systems

TLOA improves funding for tribal court judicial
personnel, public defenders, court facilities,
development of records management systems
(ITJS-TLAA)

Reauthorizes Indian Alcohol and Substance
Abuse Act (IASA), grants for summer youth
programs, tribal juvenile codes, shelters,
detention and treatment centers
Tribal Law and Order Act of 2010



SAMHSA to form Indian Alcohol and Substance
Abuse directorate to provide technical
assistance to tribal governments for alcohol
and substance abuse prevention programs
Appointment of Indian country residents to
serve as assistant Federal probation officers to
monitor offenders living on or reentering
Indian country
Reauthorizes Tribal Youth Program in DOJ,
grants for delinquency prevention, treatment
and rehabilitation of juvenile offenders
Tribal Law and Order Act of 2010



Reauthorizes Tribal Resources Grant Program
within COPS, allowing more resources for
tribal police, removes time limits on hiring
grants, allows funds to cover indirect costs
Reauthorizes DOJ tribal jails construction
program, including regional detention centers
for long-term incarceration and tribal justice
centers
Makes Alaska Native Villages eligible for
grants for tribal courts and corrections
services
Tribal Law and Order Act of 2010
Improves tribal police recruitment,
training and retention
Currently, 3,000 BIA and tribal police cover
56 million acres of Indian lands; drug
traffickers take advantage of it; victims
suffer for lack of real-time response
Tribal Law and Order Act of 2010

TLOA expands hiring age of BIA police officers
from 37 to 47 to enable retired Native military
officers to join BIA police forces

Allows BIA and tribal police training at tribal,
State and local police academies and
universities that meet POST standards and are
consistent with Federal Law Enforcement
Training standards