Tribal Law and Order Act of 2010 Tom Gede Commissioner, Indian Law and Order Commission

Tribal Law and Order Act

of 2010

Tom GedeCommissioner, Indian Law

and Order Commission

Conference of Western Attorneys General (CWAG) Summer Meeting

July 11, 2011

Tom Gede Commissioner, Indian Law and Order

CommissionAdjunct Professor of Law, Pacific-McGeorge

School of Law

Office: Bingham McCutchen LLPwww.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


• § 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


• § 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


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


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


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


3) will report to President and Congress not later than 2 years following

enactment findings and recommendations for legislative

and administrative actions3)


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


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


Key Bullets:

Makes programmatic improvements to aid tribal justice systems

Improves tribal police recruitment, training and retention


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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

Documents

Tribal Law and Order Act of 2010 Tom Gede Commissioner, Indian Law and Order Commission