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

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

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

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  1. 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

  2. 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@bingham.com

  3. Tribal Law and Order Act of 2010 • TLOA enacted July 29, 2010 • Bi-partisan support • Pres. Obama bill-signing ceremony

  4. 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 Leaderof the Senate in consultation with Chairpersons of the Committees on Indian Affairs and Judiciary • 1 appointed by Minority Leaderof the Senate, in consultation with the Vice Chairperson and Ranking Member of the Committees

  5. 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 Leaderof the House of Representatives, in consultation with the Ranking Members of the House Committees

  6. Tribal Law and Order Act of 2010 Indian Law and Order Commission (ILOC) created: • 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

  7. 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

  8. 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

  9. 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)

  10. Tribal Law and Order Act of 2010 • will hold hearings and take testimony • 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

  11. 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

  12. Tribal Law and Order Act of 2010 Key Bullets: • Makes programmatic improvements to aid tribal justice systems • Improves tribal police recruitment, training and retention

  13. 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

  14. 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

  15. 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

  16. 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

  17. 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

  18. 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

  19. 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

  20. 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

  21. 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

  22. 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

  23. 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

  24. 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

  25. 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

  26. 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 SubstanceAbuse Act (IASA), grants for summer youth programs, tribal juvenile codes, shelters, detention and treatment centers

  27. 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

  28. 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

  29. 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

  30. 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

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