Tribal Law and Order Act

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• Tribal Law and Order Act
• of 2010
• Tom Gede, Commissioner,
• Indian Law and Order Commission
• Second Nevada Interjurisdictional Tribal
  Colloquium
• March 28-29, 2011
• Reno-Sparks Tribal Health Center

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• 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 tom.gede_at_bingham.com

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Tribal Law and Order Act of 2010

• TLOA enacted July 29, 2010
• Title II, Public Law 111-211, 124 Stat. 2261 et
  seq.)
• Bi-partisan support
• Pres. Obama bill-signing ceremony

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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

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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

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Tribal Law and Order Act of 2010

• Indian Law and Order Commission (ILOC) created
• to conduct a comprehensive study of law
  enforcement and criminal justice in tribal
  communities, including, generally,
• jurisdiction over crimes committed in Indian
  country,
• tribal jail and federal prisons systems,
• tribal juvenile justice systems and the federal
  juvenile justice system as relating to Indian
  country
• the impact of the Indian Civil Rights Act of
  1968 and other subjects

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Tribal Law and Order Act of 2010

• Indian Law and Order Commission (ILOC) created
• to develop recommendations on
• modifications improvements to justice systems
  at the tribal, federal, and state levels,
  including consideration of simplifying
  jurisdiction in Indian country
• improving services programs to prevent juvenile
  crime on Indian land, to rehabilitate Indian
  youth in custody, and to reduce recidivism among
  Indian youth
• adjustments to penal authority of tribal courts
  and exploring alternatives to incarceration

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Tribal Law and Order Act of 2010

• Indian Law and Order Commission (ILOC) created
• ( . . . to develop recommendations on)
• 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
• and other issues that, as determined by the
  Commission, would reduce violent crime in Indian
  country and

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Tribal Law and Order Act of 2010

• Indian Law and Order Commission (ILOC) created
• not later than 2 years after the date of
  enactment of the TLOA, to submit to the President
  and Congress a report that contains a detailed
  statement of the findings and conclusions of the
  Commission and recommendations for legislative
  and administrative actions as the Commission
  considers to be appropriate.

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Tribal Law and Order Act of 2010

• Indian Law and Order Commission (ILOC) created
• will hold such hearings and take testimony
• will appoint a Tribal Advisory Committee to give
  advice and recommendations, materials, documents,
  testimony, consisting of two representatives of
  Indian tribes from each region of the BIA, with
  members having experience relating to justice
  systems, crime prevention, or victim services.

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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

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Tribal Law and Order Act of 2010

• Key Bullets
• Makes programmatic improvements to aid tribal
  justice systems
• Improves tribal police recruitment, training and
  retention

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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

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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

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Tribal Law and Order Act of 2010

• Authorizes appointment of tribal prosecutors as
  Special Asst. U.S. Attorneys to prosecute minor
  crimes and 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 and crime scene handling

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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

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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 have been limited by
  Indian Civil Rights Act (ICRA) bar on no more
  than one-year sentencing of Indian offenders, and
  other limits

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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

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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

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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

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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

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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

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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

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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

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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, to coordinate with the USAs 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

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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

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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

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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

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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
  are taking advantage of it victims suffer for
  lack of real-time response

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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