The Tribal Law and Order Act & Its Implications for Criminal Justice in Indian Country
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The second in a bi-monthly webinar series that aims to enhance state and tribal collaboration and highlight the benefits of intergovernmental coordination. Jointly hosted by the National Criminal Justice Association (NCJA) and the National Congress of American Indians (NCAI), the September 13 webinar will focus on the recently enacted Tribal Law & Order Act and its implications for states and tribes. John Harte, enrolled member of the San Felipe Pueblo and former Policy Director of the U.S. Senate Committee on Indian Affairs, will be presenting on key provisions of the Tribal Law & Order Act and the types of intergovernmental coordination necessary for successful implementation. Because numerous provisions of the Tribal Law & Order Act mandate quick action by the federal government, as well as input and action by state and tribal officials, it is important to host this webinar as early as possible. As such, we have postponed our previously scheduled webinar on cross-jurisdictional law enforcement agreements until a later time this fall. For our federal partners who may not be able to view this webinar on your internal computer systems, NCJA will be showing the webinar in our conference room for a limited audience. Please contact Abby Wright at awright@ncja.org or 202.448.1719 if you would like to view the webinar at NCJA. We welcome your continued participation in this webinar series, a component of a larger tribal-state collaboration project funded by the Bureau of Justice Assistance, U.S. Department of Justice.
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The Tribal Law and Order Act & Its Implications for Criminal Justice in Indian Country
- 1. Part of the NCJA/NCAI Tribal-State Collaboration & Justice Capacity Building Project funded by the Bureau of Justice Assistance
- 4. 1. Viewer Window 2. Control Panel
- 6. John Harte Mapetsi Policy Group John Dossett National Congress of American Indians
Editor's Notes
- Heard early on from LE experts that the justice system is a 4 legged-table that won’t stand if one of the legs are broken. As a result, the Act seeks to address the entire just system: from prevention, to law enforcement, to courts, to detention and rehabilitation The Act places significant additional accountability on the Administration. It would’ve been easy to oppose and shirk the responsibility, but the Obama Administration provided strong support for the Act, and they deserve a lot of credit for the passage. Again, this is a comprehensive law, and we could discuss the nuances for days, but John and I have 30 minutes to briefly discuss a few of the major provisions
- *ICRA sentencing last increased in 1988 to 1 year acknowledging increase in drug crimes in IC. In recent years, tribal courts handle significant drug trafficking & gang violence, and major crimes like rape, child sexual assault, and homicides. Noting this increase in violence, tribes urged congress to increase sentencing authority so that the punishment could meet the crime in tribal court to bring justice to the victim, their family and the community. *At the same time, federal defenders and civil rights advocates urged a balanced increase that protects the rights of defendants : the result is the compromise included in section 304. *Note: resolves current federal litigation questioning tribal court authority to stack or try multiple cases in one trial, but places a 9 year cap on stacking. The significant benefit here is that we take the issue away from the U.S. Supreme Court, and affirm tribal authority. *BIA must certify tribal courts – January 25, 2011 – in consultation with tribes. Look to BIAM Chapter 69, referenced in 25 CFR Part 10.5 *BOP must establish Pilot Program by Nov. 26, 2010 -
- < 3000 tribal and BIA police patrol more than 56 M acres of IC, often alone w.o backup, and often w.o adequate equipment. Policing IC is one of the toughest jobs in the Nation, and the jurisdictional maze makes it even more taxing. One proven method of helping tribal police was the Special Law Enforcement Commission or SLEC program. SLECs grant tribal police the authority to enforce federal laws against all offenders – Indian and non-Indian. However, the SLEC program languished for years b/c the BIA never dedicated any effort to train tribal police, and delayed entering into MOUs with Tribes to grant the certifications Section 301 amends the ILERA to enhance & expedite the SLEC process. BIA has 180 days (Jan. 25, 2011) to establish a process and minimum requirements for tribal officers to gain SLECs. Once officers meet the requirements, BIA must approve the SLEC w/in 60 days. All MOUs must grant FTCA protection to tribal officers and treatment of tribal officers as federal officers – meaning that it is a federal felony to assault a tribal officer with an SLEC. Tribal police with SLECs also gain CVB authority (cite all offenders including non-Indians for misdemeanors), warrantless arrest authority for certain crimes, and of course the authority to arrest all offenders suspected of violating federal law – Indian and non-Indian.
- *Current system forces tribes to rely on federal officials to investigate and prosecute major crimes, and all crimes committed by non-Indians. However, the declination rate from 2005-2008 was 62% for all IC violent crimes, including 50% declination of homicides, and 75% for child sex crimes and rapes. *Tribal police and victims complained that they were never updated on status of cases, and never notified if a case were declined for prosecution. *Victims were left hanging in the wind, suspects were seen walking free, which feeds into the failure to report crime – and a complete loss of faith in the justice system. *Section 102 amends the ILERA to mandate that federal LE and US Attorneys notify tribal justice officials when declining a case and share evidence and other information to help a tribal court prosecution. In addition, it requires federal officials to maintain data on declined case / and terminated investigations – including data on whether the victim or defendant are Indian or non-Indian, type of crime, and reason for declining the case. The information will provide insight to both federal and tribal justice officials and congress – we’ll be able to see where the weak points are, where improved investigations or more resources are needed. Section 102
- *In 1953, PL 83-280 delegated federal responsibility over IC crime to 6 states, and later opened it up to all states. 57 years later, we see a mixed bag. Some states have embraced the obligation, and others have called it an unfunded mandate, and either ignore or fail to dedicate resources to combat IC crime. *NCAI and tribal leaders have long asked for a repeal of PL 280 or the ability for tribes to unilaterally request retrocession of the Act. Congress did not show a political will to grant unilateral retrocession, as a result, the option in section 201 was offered as a compromise. * The amendment to PL 280 grants tribes the authority to call on federal officials where the state refuses to meet its obligation.
- Crime data drives public safety strategy, and informs the decisions of law enforcement and public officials as to what where and how they need to dedicate public safety and justice resources. Crime data also drives federal grant programs – many of which require data to prove need. *Crime data in IC is either non-existent or sorely outdated. *Several provisions in the Act seek to improve and establish consistent data collection in IC by requiring enhanced coordination between BIA and DOJ. Separate from data collection is information access. Information access is vital to the safety of police officers generally, and especially so for tribal police who again often patrol vast reservations w/o backup. When they pull a suspect over, it’s vital that they have access to information – including whether the person is out on a warrant, has prior gun or gang violations, and other critical information. *The Act takes several steps to increase tribal police access to national criminal history databases – like NCIC and the National Gang Intelligence Database
- Tribal jails has been referred to as a “catch and release” or revolving door system, where only the most recent violent offenders are incarcerated, and most offenders are set free. The majority of tribal and BIA jails (only 93 total in system) are overcrowded or in disrepair or both. The majority of tribes have no jail or detention center. Various IG reports call the state of Indian jails a national disgrace, and note that they are a health and safety hazard to officers and inmates alike. In recent years, offenders sentenced by tribal courts are more violent, but tribal jails are not equipped to deal with them. Few jails have rehabilitation, treatment, education, or health care services. *Lack of coordination between BIA and DOJ plays a large role in the problem. In 1999, DOJ agreed to take over construction, and BIA maintained authority to operate and maintain the facilities. However, they haven’t communicated – and some jails were built w/o staffing agreements, and no vision has been crafted to deal with the longstanding - $8 BILLION problem. *Three sections in the bill require OJS and DOJ to coordinate and consult with tribal officials on a long-term plan for tribal detention services, including alternatives to incarceration, everything is on the table. Interior and Justice must consult with tribal officials, and bring in BIE and IHS for purposes of providing health care and education to juveniles in custody. The deadline for the plan is July 29, 2011.
- *Epidemic of DV / SA in IC. 34% of AI and AN women will be raped in their lifetimes, and 39% will suffer DV. 75% of adult rapes declined for prosecution in federal court – feeds into unreported cases, b/c many lose faith in the justice system Titles I & III enhance investigation and prosecution at the tribal and federal level. SLECs and court sentencing at the tribal level, and disposition reports, information sharing, and appointment of SAUSAs at the federal level Title VI further enhances prosecution of DV/SA and protection of survivors of violence