Tribal Law and Order Act to become law at cost to tribes

WASHINGTON – A major piece of legislation dealing with Indian country justice issues has made it through Congress, and President Barack Obama will sign it into law. Some tribes are expected to foot a greater bill involving tribal courts due to the changes.

The Tribal Law and Order Act cleared the House July 21 by a vote of 326-92, and had previously passed the Senate in late June. In both chambers, it was attached to the Indian Arts and Crafts bill, which strengthens the ability to prosecute those who unlawfully sell purported Indian goods.

The legislation, which bolsters justice resources for reservations in a number of areas, was supported by key Democrats and Republicans, who said they wanted to reduce crime on reservations.

Obama issued a statement upon its passage, saying the bill was an “important step to help the federal government better address the unique public safety challenges that confront tribal communities.”

The president noted that American Indians and Alaska Natives are victimized by violent crime at far higher rates than Americans as a whole, and some Native communities have seen increased gang and drug activity, with some tribes experiencing violent crime rates at more than 10 times the national average.

“The federal government’s relationship with tribal governments, its obligations under treaty and law, and our values as a nation require that we do more to improve public safety in tribal communities,” Obama said. “And this act will help us achieve that. It will strengthen the relationship between the federal government and tribal governments. It will improve our ability to work with tribal communities in the investigation and prosecution of crime, and it authorizes resources for tribes to fight crime more effectively.”

He thanked legislators across party lines for their work to pass the bill, and he said he looks forward to signing it into law.

The measure had long been pushed for by Senate Committee on Indian Affairs Chairman Byron Dorgan, D-N.D., who made it one of his top priorities.

Dorgan said the bill is in response to a “crisis” in law enforcement on many reservations where violent crime rates far exceed the national average.

He said the legislation aims to improve many aspects of the justice system reservations and clear up jurisdictional confusion among tribal, state and local law enforcement officials, which he believes often gridlocks effective law enforcement.

“Every American has a right to live in a safe community. That certainly includes the first Americans,” Dorgan said. “The federal government has treaty and trust obligations to ensure that Native Americans live in safe communities. This bill will help us do a much better job of meeting those obligations. It is legislation that is not only urgently needed and important, but it is also a historic step forward in improving the lives of Native Americans.”

Under the bill, tribal courts will be allowed to impose sentences of up to three years, but their authority is affected in some ways, like being required to follow U.S. court system procedures.

Also, tribes prosecuting individuals for crimes that could land them in jail for more than a year must provide defendants with the same right to a lawyer that they would have in state or federal court.

“The 1968 Indian Civil Rights Act notably did not include a right to counsel even though it is a constitutional (6th Amendment) right that also applies to the states,” said Navajo lawyer Chris Stearns. “My understanding is that this giant exception was made because back then no one thought that tribes would be able to pay for attorneys, or that there were even attorneys around at all on the reservation.”

Under the new law, when a tribe provides a defendant a lawyer, he or she must be licensed in either federal, state, or tribal court, and that court has to have “appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys.” Similarly, tribal judges have to have “sufficient legal training to preside over criminal proceedings” and also be licensed in federal, state, or tribal courts to practice law.

While some tribes already meet some of the new provisions, the changes are expected to come at a cost to many that choose to implement new standards.

Whitney Phillips, a spokeswoman for Rep. Stephanie Herseth Sandlin, D-S.D., a major champion of the bill in the House, said tribes that don’t have the resources to provide defense counsel or house inmates for longer sentences can continue to operate under the existing one-year sentencing provisions in the Indian Civil Rights Act, which does not require that defense counsel be provided.

“Because the provision is optional, it will not place any additional costs on tribes who choose not to participate in the enhanced sentencing provision,” Phillips said.

Hannah August, a spokeswoman for the Department of Justice, said the law will not cost tribes anything unless they choose to exercise the enhanced sentencing authority it provides.

“Tribes unable or unwilling to provide defense counsel may continue to operate as they do now, with the existing one-year cap on sentences in place. In a sense, by choosing to exercise the enhanced authority in section 304 tribes are imposing any additional costs upon themselves,” August said, adding that provisions of the measure would enhance the availability of grant funds for indigent defense in Indian legal arenas.

Beyond tribal court issues, a widely anticipated provision requires the Department of Justice to report on the cases it declines to prosecute on reservations. Many tribal officials have complained about the large number of cases they say go unheard.

The bill will also provide tribal police greater access to criminal history databases such as the National Crime Information Center, and will require tribal and federal officers serving Indian country to receive specialized training to interview victims of sexual assault and collect crime scene evidence.

Further, it requires Indian Health Service facilities to implement consistent sexual assault protocols, and requires federal officials to provide documents and testimony gained in the course of their federal duties to aid in prosecutions before tribal courts.