The Tribal Law and Order Act: Law Explained

Most can agree that Native American tribal legal systems have faced immense challenges, ranging from jurisdiction limitations to sustainable funding needs.

The Tribal Law and Order Act of 2010 aimed to strengthen tribal legal systems, but its implementation has seen mixed results.

This article will provide an in-depth look at the Tribal Law and Order Act - explaining its key objectives, sentencing provisions, effectiveness to date, remaining obstacles, and the outlook for the future of tribal law and justice.

Introduction to the Tribal Law and Order Act

The Tribal Law and Order Act (TLOA) of 2010 was enacted to help address issues of violent crime, domestic violence, and public safety in Native American communities. The TLOA aims to increase tribal authority to prosecute and punish criminals, and improve collaboration between tribal, federal, and state law enforcement agencies.

Understanding the TLOA's Objectives

The TLOA has several key objectives:

Enhance tribal sovereignty by increasing tribal authority to investigate, prosecute, convict, and sentence criminals in Indian country
Improve public safety in Native American communities by reducing violent crime and combating domestic violence and drug trafficking
Support tribal justice systems with increased federal funding, training, and technical assistance
Promote cooperation and coordination between tribal, federal, and state law enforcement agencies

Ultimately, the TLOA seeks to strengthen tribal legal systems and provide tribal governments with more tools to protect their communities and administer justice.

Tribal Law and Order Act of 2010 Summary

The Tribal Law and Order Act:

Expands the sentencing authority of tribal courts from 1 year to 3 years per offense, including the option to stack sentences consecutively up to 9 years
Establishes new federal guidelines for handling domestic violence cases in Native communities
Enhances tribal police cooperation, training, hiring, and evidence collection capabilities
Improves data collection and information sharing between tribal, federal, and state agencies
Provides more federal prosecutors to address reservation crimes
Gives tribal courts access to national criminal databases

Evaluating the TLOA's Effectiveness

While the TLOA has enhanced tribal legal authority and cooperation between agencies, there are still challenges:

Many tribes lack resources to fully implement TLOA provisions
Complex jurisdictional issues between tribal, federal and state systems persist
Violent crime and domestic abuse rates remain high in many tribal communities

More federal funding and support is needed to help tribes administer justice and protect public safety.

Challenges Faced in Implementing the TLOA

Tribal governments have faced difficulties implementing key components of the TLOA:

Building tribal court and detention facilities requires substantial funding and infrastructure
Hiring and training law enforcement and court personnel with enhanced capabilities is challenging
Complex jurisdictional coordination issues between tribal, federal and state agencies still exist
Tribes often lack access to national criminal databases and information sharing systems

Overcoming these challenges is essential for tribes to fully realize the public safety goals of the TLOA. Continued cooperation and funding support are needed.

What does the Tribal Law and Order Act do?

The Tribal Law and Order Act (TLOA) of 2010 aims to help Native American tribes strengthen their criminal justice systems and address high crime rates. Some key things the TLOA does:

Clarifies jurisdictions and responsibilities between federal, state, and tribal law enforcement agencies when crimes occur in Indian country. This aims to improve coordination and reduce gaps.
Increases sentencing authority of tribal courts over certain crimes from 1 year to 3 years imprisonment and up to a $15,000 fine. This gives tribes more local control.
Requires the Department of Justice to maintain statistics on crimes in Indian country and report back to Congress. This improves transparency and accountability.
Expands training opportunities for tribal law enforcement officials and provides more resources to tribal justice systems. This helps professionalize tribal police and courts.
Gives tribes authority to enforce protection orders issued by tribal and state courts against both Native and non-Native offenders. This expands tribes' ability to protect victims.

In summary, the TLOA gives tribal justice systems more resources and authority to locally fight crime on Native American lands through improved coordination, sentencing, data collection, training, and victim protections. This aims to reduce crime and increase safety in Indian country.

What is the Tribal Law and Order Act sentencing?

The Tribal Law and Order Act (TLOA) of 2010 allows tribal courts to impose enhanced sentencing on certain repeat offenders. Specifically, the act states that a tribal court may sentence a defendant to up to 3 years in prison or a $15,000 fine if the defendant:

Has been previously convicted of the same offense
Is being accused of a criminal offense

The TLOA aims to give tribal courts more authority to hand down stricter sentences for repeat offenders. This helps address issues such as high crime rates in Indian country.

However, there are still limits on the sentencing powers of tribal courts. The maximum sentence a tribal court can impose is 3 years in prison or a $15,000 fine per offense. The act does not allow cumulative sentencing for multiple offenses.

So in summary, the key points about Tribal Law and Order Act sentencing are:

Allows up to 3 year prison sentences or $15,000 fines per offense for certain repeat offenders
Only applies to defendants with a previous conviction for the same offense
Gives tribal courts more sentencing authority but still imposes limits
Intended to help reduce crime rates in Indian country

The act represents an important step in empowering tribal courts and boosting tribal sovereignty. But some argue it does not go far enough in allowing tribal justice systems to fully address public safety issues in their communities. There are ongoing efforts to expand the sentencing capacities of tribal courts even further.

How does tribal law work?

Generally, tribal courts have civil jurisdiction over Indians and non-Indians who either reside or do business on federal Indian reservations. They also have criminal jurisdiction over violations of tribal laws committed by tribal members residing or doing business on the reservation.

Under 25 C.F.R. Part 11, tribal courts have the power to enforce tribal laws and impose penalties such as fines, forfeitures, and imprisonment. However, tribal courts are limited in the sentences they can impose. For instance, tribal courts cannot impose over 3 years imprisonment or a fine greater than $15,000.

Some key aspects of how tribal law functions include:

Tribal laws and courts vary between tribes. Each tribe has its own laws, court systems, law enforcement, and corrections programs.
Tribal courts handle cases related to tribal laws and ordinances. Common cases involve issues like fishing and hunting violations, water rights, tribal enrollment, and child welfare.
Tribal courts have limited jurisdiction over non-members and limited sentencing authority compared to state/federal courts. Their jurisdiction depends on the defendant's ties to tribal lands.
Tribal court rulings can be appealed in federal courts, but federal court review is limited by the Indian Civil Rights Act. Federal courts give deference to tribal courts in interpreting tribal laws and customs.

So in summary, tribal courts enforce tribal laws over reservation residents, but have limits on their jurisdiction and sentencing powers compared to mainstream courts. Tribal laws also differ between tribes given their sovereignty.

Why hasn t the tribal law and order act been widely implemented by tribes?

The Tribal Law and Order Act (TLOA) of 2010 aimed to help strengthen tribal justice systems and address high crime rates in Indian country. However, over a decade later, the TLOA has not been widely implemented by many tribes.

There are a few key reasons for this:

Requirements to Change Justice Systems: The TLOA required tribes to make changes to their justice systems in order to qualify for funding and support. This included requiring tribes to collect criminal data, report crimes to federal databases, allow non-tribal law enforcement to access tribal lands, and impose harsher sentencing. Many tribes viewed these mandates as infringing on their sovereignty.
Issues for PL-280 Tribes: Tribes in states subject to Public Law 280 (PL-280) faced additional barriers to implementing the TLOA. PL-280 gave some states concurrent jurisdiction over tribal lands, limiting tribal authority. The TLOA did not adequately address how PL-280 tribes could assert more jurisdiction.
Lack of Resources: Many tribes simply lacked the resources and capacity to overhaul their justice systems to meet TLOA requirements. Small, rural tribes faced additional challenges hiring law enforcement, attorneys, judges and upgrading jails or courts.
Concerns Over Loss of Sovereignty: Some tribal leaders worried that complying with TLOA mandates meant allowing increased federal interference in internal tribal affairs. There were concerns over erosion of sovereignty.

While the TLOA aimed to empower tribal justice systems, its prescriptive approach deterred wide adoption. Providing tribes more flexibility and resources may have enabled broader implementation across Indian country.

Historical Context of Native American Tribal Laws

What is Tribal Law?

Tribal law refers to the legal customs, traditions, and governance systems of Native American tribes. It encompasses both traditional tribal laws that have been passed down through generations as well as contemporary tribal codes and court rulings. Some key aspects of tribal law include:

Customary laws based on long-held cultural values and norms around issues like marriage, property rights, conduct during ceremonies, etc.
Laws codified in written legal codes adopted by tribal councils, covering areas like criminal law, civil disputes, family law, etc.
Rulings by tribal courts and peacemaking systems aimed at resolving conflicts and delivering justice.

Unlike state or federal law, tribal law can vary greatly between tribes, reflecting each tribe's unique culture, history and government structure. But across tribes, the core purpose remains restoring harmony and upholding community values.

Evolution of Tribal Justice Systems

Native American tribes have administered justice within their communities for centuries through traditional clan-based legal customs. But in 1883, a federal law known as the Major Crimes Act gave the federal government jurisdiction over major felonies committed on reservations, while less serious crimes were left to tribal jurisdiction.

Over the next century, the federal government increasingly encroached on tribal legal authority through policies aimed at assimilation and termination of tribes. But policies shifted in the 1970s towards tribal self-determination. A key development was the Indian Tribal Justice Act of 1993 which provided funding and support for tribes to develop their own court systems based on tribal law.

Today, over 300 tribes operate tribal courts that exercise jurisdiction over civil disputes, family law, juvenile justice and minor crimes. These tribunals blend traditional Native American justice concepts with more conventional Western-style court procedures. The goal is to support tribal sovereignty while meeting both customary and contemporary law enforcement needs in Indian Country.

Key Legal Milestones in Tribal Sovereignty

Some major 20th century laws that upheld certain aspects of tribal sovereignty while also imposing federal oversight include:

Indian Civil Rights Act of 1968: Extended Bill of Rights protections to tribal jurisdiction, but also restricted punishment tribal courts could impose.
Indian Self-Determination and Education Assistance Act of 1975: Enabled tribes to assume administration of federal programs on reservations through contracted agreements.
Indian Child Welfare Act of 1978: Granted tribes/families authority in child custody proceedings previously dominated by non-Native institutions.
Indian Gaming Regulatory Act of 1988: Provided framework for tribes to operate casinos on reservation land subject to tribal-state compacts and federal oversight.

These laws attempted to balance tribal autonomy with federal trust responsibilities. But interpretation of statutes and treaties regarding the relationship between tribal, federal and state jurisdiction continues to develop through new legislation and landmark court decisions.

Comparative Analysis: Tribal Law vs State Law

While complex jurisdictional issues can arise, typically tribal law governs within Indian Country on reservations, while state law applies beyond reservation boundaries. Key distinctions in jurisdictions include:

Criminal Jurisdiction

Tribes retain misdemeanor jurisdiction over all Native American perpetrators, but generally only violent felony jurisdiction over Native American perpetrators under the Tribal Law and Order Act.
State has authority over non-Natives who commit crimes in Indian Country under Supreme Court rulings.

Civil Jurisdiction

Tribal jurisdiction is usually limited to members, while state jurisdiction depends on subject matter and party identities. Land ownership, taxation, and gaming rights involve especially complex jurisdictional analyses.

Cultural Values

Tribal law places greater emphasis on restorative justice and community harmony over punitive outcomes compared to Western legal systems.

Jurisdictional issues have caused gaps in law enforcement on reservations. Statutes like the Tribal Law and Order Act aim to clarify jurisdictions to improve public safety and support tribes exercising authority, but complex jurisdictional challenges remain ongoing.

Strengthening Tribal Justice through the TLOA

The Tribal Law and Order Act (TLOA) of 2010 was enacted to help strengthen tribal legal systems and improve public safety in Native American communities. By enhancing tribal courts' authority and supporting collaboration between tribal, federal, and state law enforcement, the TLOA aims to address issues like violent crime, domestic violence, and drug trafficking in Indian country.

Tribal Law and Order Act Enhanced Sentencing

A major component of the TLOA is the enhanced sentencing authority it grants to tribal courts over certain offenses. Specifically, tribal courts can now impose prison terms of up to 3 years and fines of up to $15,000 for a single offense. This is a significant increase from the previous 1 year/$5,000 limit imposed by the Indian Civil Rights Act of 1968.

With this expanded authority, tribal courts have greater leverage to deter crime and administer justice for offenses like assault, child abuse, and drug possession on reservations. Harsher penalties also incentivize offenders to participate in rehabilitation programs offered through tribal courts. Overall, tribal communities have welcomed the enhanced sentencing as it enables them to better protect public safety.

Improving Law Enforcement in Indian Country

The TLOA mandates several provisions aimed at improving law enforcement efforts in Native American lands to combat violent crime, domestic violence, and drug trafficking.

It expands the sentencing authority of federal courts over violent crimes in Indian country and requires federal prosecutors to coordinate closely with tribal justice officials on arrests and prosecutions. New guidelines also call for the Justice Department to maintain statistics on declinations of Indian country cases in order to facilitate prosecutions of violent crimes.

Additionally, the TLOA focuses on increasing coordination between tribal, federal and state officials on issues of law enforcement. It also provides more training for law enforcement officials on handling domestic violence and sexual assault cases in Native communities.

Enhancements to Tribal Court Systems

Through the TLOA, tribal courts have gained enhancements allowing them to operate more effectively as part of the overall justice system in Indian country.

Tribal courts now have better access to national criminal data systems, enabling them to obtain accurate information on offenders' criminal histories to support sentencing and probation decisions. Rules have also been updated to require defendants be provided with legal counsel in tribal courts, protecting their rights.

To support these changes, the TLOA authorizes funding for tribal governments to provide public defenders, train court staff, upgrade court facilities, and enhance overall capacity to administer justice and manage correctional facilities.

Collaboration with the Department of Justice

Recognizing that declines in public safety on tribal lands stem from gaps in law enforcement services, the TLOA mandates that the Department of Justice cooperate with tribal authorities on several fronts.

The Attorney General must coordinate with tribal justice officials on the investigation and prosecution of Indian country crimes and must submit reports to Congress on these efforts. The DOJ is also required to ensure access to national crime databases by tribal law enforcement agencies. Additionally, Indian Health Service facilities must implement guidelines for treating domestic and sexual violence victims coordinated with the DOJ.

Through this mandated collaboration at the federal level down to tribal communities, the TLOA aims to foster cooperation across justice systems to protect Native people.

TLOA's Impact on Native American Civil Rights

Advancements in Native American Civil Rights

The Tribal Law and Order Act (TLOA) of 2010 has contributed to advancements in civil rights protections for Native Americans in several key ways:

It has strengthened the sentencing authority of tribal courts, allowing them to impose enhanced sentences for certain crimes. This helps address issues of crime and justice within Native communities more effectively.
It has improved coordination and communication between federal, state, and tribal law enforcement agencies. This facilitates better policing and investigations on tribal lands.
It has expanded the types of crimes over which tribal courts can assert jurisdiction when certain rights of defendants are protected. This allows tribes to address more issues through their own legal systems.
It has promoted better data collection and information sharing related to crimes in Indian country. This enables more targeted policies and programs to address public safety issues.

Overall, these measures reinforce tribal sovereignty while also upholding civil liberties and due process rights.

Tribal Sovereignty under the TLOA

The TLOA upholds tribal sovereignty in several important respects:

It recognizes and reinforces the inherent authority of tribal courts and governments to address crime and justice issues within their communities independently.
It promotes capacity building and resources for tribal justice systems to be more effective and rights-protecting. This empowers tribes to address issues on their own terms.
It facilitates inter-governmental cooperation between tribes and federal/state agencies while still allowing tribes to take the lead in administering justice on tribal lands.
It enables enhanced sentencing by tribal courts while including civil rights protections for defendants in the tribal justice process. This balances sovereignty with rights.

By promoting tribal self-governance over justice issues impacting Native communities directly, the TLOA enables tribes to exert greater autonomy and self-determination.

The Role of the National Congress of American Indians

The National Congress of American Indians (NCAI) was a strong proponent for the Tribal Law and Order Act. The NCAI helped shape key provisions during the legislative process based on extensive consultation with tribes.

Specific contributions of the NCAI included:

Advocating for enhanced sentencing authority for tribal courts to better address public safety needs.
Ensuring civil rights protections were built into the law to uphold due process.
Promoting inter-governmental cooperation provisions to facilitate coordination between tribes and federal/state agencies.
Supporting better tribal justice systems resourcing and capacity building.

The NCAI continues to provide critical analysis and guidance on implementation of the TLOA at both the federal and tribal levels based on direct tribal input. Its advocacy upholds tribal sovereignty while balancing civil rights concerns.

Case Studies: The Impact on Specific Tribes

The Eastern Band of Cherokee Indians (EBCI) is one tribe that has seen a positive impact from the TLOA:

The EBCI used TLOA provisions to expand tribal court sentencing authority over certain crimes like domestic violence. This enabled more cases to be tried in tribal courts.
Felony sentencing authority facilitated by the TLOA deterred serious crime on EBCI lands like drug trafficking. Crime rates for offenses like drug sales dropped 35% from 2010-2015.
The EBCI developed its own re-entry program for tribal members incarcerated in federal prisons by utilizing federal funds made available through the TLOA. This promoted rehabilitation and reintegration.

So for the EBCI, key public safety and civil rights goals were advanced through the tribe utilizing tools and resources enabled by the TLOA. The law upheld Cherokee sovereignty while providing measured reforms.

Challenges and Future Directions Post-TLOA

While the TLOA has made significant strides in empowering tribal justice systems, ongoing challenges persist around jurisdiction, funding, and the need for further legislative reform.

Continued Jurisdictional Challenges

The TLOA affirmed tribal court jurisdiction over crimes committed in Indian country, whether the defendant is Native American or not. However, major crimes such as rape, murder, and assault remain under federal jurisdiction if committed by a non-Native offender against a Native victim. This jurisdictional gap continues to limit tribal authority and makes it difficult to prosecute crimes.

Tribal courts also face challenges in sentencing and incarcerating non-Native offenders. The TLOA increased maximum tribal court sentences to 3 years per offense and 9 years total, but stiffer penalties are still handled in federal court. Tribes also lack the facilities to incarcerate non-Native offenders.

Overall, complex jurisdictional rules continue to constrain tribes in fully prosecuting and punishing reservation crime. Increased cooperation between tribal, federal, and state systems is needed.

The Need for Sustainable Funding

A major barrier for tribal justice systems is insufficient and inconsistent funding. The TLOA authorized new funding for tribal justice programs, but annual appropriations are unreliable. Tribes need dependable funding to hire judges, prosecutors, public defenders, law enforcement, and build detention facilities.

Only a long-term federal commitment to finance tribal courts, corrections, rehabilitation programs, and related services can ensure tribes have the tools to sustainably execute justice in Indian country post-TLOA.

Calls for Comprehensive Legislative Reform

While an important step forward, the TLOA failed to completely fix the complex legal framework around tribal courts and law enforcement. Many feel substantial legislative reforms are still required to enable tribes to fully police and prosecute reservation crime.

Advocates have proposed measures like expanded sentencing authority, clarified jurisdiction, increased cooperation between federal and tribal prosecutors, stronger law enforcement powers, and elevated legal parity between tribal and federal courts. Comprehensive legislation addressing these issues may happen in the future.

The Future of Tribal Law and Order

Looking ahead, tribal justice systems seem poised to expand in authority and capacity thanks to TLOA provisions and potential new laws. With adequate, consistent federal funding, tribes can build out courts, detention centers, rehabilitation programs, and law enforcement to better serve communities.

Still, practical barriers around jurisdiction and resources persist. True tribal sovereignty over legal matters in Indian country may remain elusive unless Congress passes sweeping reforms. But following TLOA’s progress, there is hope tribal justice systems will continue evolving and asserting increasing independence.

Conclusion

The Tribal Law and Order Act (TLOA) of 2010 represents a milestone in strengthening tribal legal systems and enhancing public safety in Native American communities. By expanding sentencing authority and jurisdiction of tribal courts, improving coordination between federal and tribal agencies, and providing new tools and resources, the TLOA empowers tribes to better address crime and uphold justice.

However, unresolved challenges remain regarding full implementation of the TLOA, realization of tribal sovereignty, and overcoming the legacy of inadequate support for tribal justice systems. Ongoing efforts are still needed to build on the TLOA's achievements and fulfill its vision of secure and just Native American communities governed by their own laws and institutions.

Reflecting on the TLOA's Legacy

The TLOA has significantly expanded the authority of tribal courts to impose stronger sentences for a wider range of crimes. This enhanced sentencing capacity enables tribes to crack down on drug trafficking, violence against women, and other serious offenses plaguing their communities. By affirming tribes' power to prosecute both member and non-member Indians, the TLOA also upholds tribal sovereignty and self-determination.

In addition, new guidelines for handling domestic violence cases, provisions for better coordination between tribal and federal agencies, and authorized funding for tribal justice personnel and detention facilities are other notable achievements of the TLOA. These provisions strengthen the foundations of law and order in Indian country.

Assessing the Unresolved Challenges

Despite the TLOA's achievements, many tribal courts still lack the resources and capacity to fully implement enhanced sentencing and exercise expanded jurisdiction. Insufficient detention facilities, funding shortages, complex legal requirements, and poor coordination with federal agencies continue to hinder the law's implementation.

Furthermore, the TLOA does not apply to tribes in certain states where federal law limits tribal jurisdiction. So for some tribes, jurisdictional gaps remain which allow non-Indian criminals to evade prosecution. Thus the TLOA falls short of fully upholding tribal sovereignty or enabling comprehensive community safety.

Envisioning the Future of Tribal Law

Realizing the full promise of the TLOA will require ongoing efforts to build tribal justice capacities, streamline legal processes, improve intergovernmental collaboration, and secure sufficient funding. Further legislation to standardize procedures, close jurisdictional gaps, and support tribal institutions may also be needed.

Looking ahead, tribes continue pursuing self-governance and legal autonomy. Despite limitations, the TLOA model has demonstrated that tribal justice systems can effectively uphold order when given adequate legal authority and resources. The strengthening of indigenous justice systems will be key to securing tribal sovereignty and enabling safety, fairness and cultural integrity on Native lands.