TLOA

Washington Post Op Ed on VAWA and TLOA

Kate Fort

Here.

Even with the laws now passed, legal loopholes remain and the wait for justice for Native women continues, in part because VAWA, the newer of the two laws, won’t take effect until next year on most reservations, including the Standing Rock Sioux Reservation. Even then, tribes must have implemented a series of steps that many might not already have in place and could pose large legal costs.

One of these steps, for example, includes ensuring tribal judges have appropriate credentials they might not already have, said Troy Eid, a former U.S. Attorney for Colorado who this past year chaired the Justice Department’s Tribal Law and Order Commission.

“It’s going to be a while before these changes take place on many reservations,” he said. “And there is going to be a lot of waiting while these issues unfold.”

Indian Law Resource Center Report on Tribal Capacity for Enhanced Sentencing

Kate Fort

Report here.

The Indian Law Resource Center recently released, Restoring Safety to Native Women and Girls and Strengthening Native Nations ─ A Report on Tribal Capacity for Enhanced Sentencing and Restored Criminal Jurisdiction. The report examines existing literature on the readiness among Indian nations to exercise enhanced sentencing authority under TLOA and fuller criminal jurisdiction over all perpetrators of violent crimes under VAWA 2013 or other future legislation. It also identifies challenges facing Indian nations in exercising such authority and how some Indian nations are moving forward to increase their capacity to safeguard Native women in their communities. The report, available at http://indianlaw.org/content/restoring-safety-native-women-and-girls-and-strengthening-native-nations, concludes with ten recommendations aimed at ending violence against Native women and girls and strengthening the ability of Indian nations to address this crisis. We hope that the report will guide the Center, and perhaps others, in better assisting Indian and Alaska Native nations to make their communities safe places.

New Paper on the Availability of Tribal Law

Matthew L.M. Fletcher1 Comment

Bonnie J. Shucha posted her paper, “Whatever Tribal Precedent There May Be’: The (Un)Availability of Tribal Law” on SSRN. Here is the abstract:

This article explores the costs and benefits of publishing tribal law. Part I analyzes why tribal law is not more widely available; part II illustrates the benefits of making tribal law more accessible, and part III describes publication options for tribes. An appendix lists currently available tribal law collections.

All Things Considered on Prosecuting in Tribal Court

ilpc

Here.

“We live here. We engage the community here. We have an understanding of the crimes and the crime scenes, and we have Hopi juries here, and it gives us an advantage in that there are some cases I believe the tribal courts can more effectively prosecute,” she [Jill Engel] says.

USDOJ Releases Report to Congress on Indian Country Investigations and Prosecutions

Victoria Sweet

The Department of Justice released today a report to Congress entitled Indian Country Investigations and Prosecutions which provides a range of enforcement statistics required under the Tribal Law and Order Act of 2010.  The report, based on data compiled from the case management system used by U.S. Attorney’s Offices (USAO) with Indian Country jurisdiction shows among other things a 54 percent increase in Indian Country criminal prosecutions since Fiscal Year 2009.

Press Release here.

Read the report here.

Eastern Band of Cherokee Indians Issues Four Year Sentence in DV Case

Kate Fort

Here

Russell McKinley Wolfe, 35, was convicted on Nov. 16, 2012, in the Cherokee Court for Domestic Violence Assault on a Female, Violation of a Domestic Violence Protective Order, Driving While Impaired, and Injuring Public Property. He was sentenced to four years imprisonment. The sentence, issued by the Honorable Kirk G. Saunooke, Cherokee Court Judge, was one of the longest sentences ever issued by the Cherokee Court and comes after the enactment of the Tribal Law and Order Act which authorized criminal sentences of greater than one year in tribal courts.

Since the sentence was handed down in Wolfe’s case, the Office of the Tribal Prosecutor, in conjunction with the Cherokee Court and Cherokee Police Department, worked together with the Federal Bureau of Prisons to authorize Wolfe’s sentence to be served in a Federal Detention Facility with the Bureau of Prisons.

Michalyn Steele: “Comparative Institutional Competency and Sovereignty in Indian Affairs”

Matthew L.M. Fletcher

Michaelyn Steele has posted her paper, “Comparative Institutional Competency and Sovereignty in Indian Affairs,” on SSRN.

Here is the abstract:

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are best situated ultimately to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority — beyond where the Supreme Court has held tribal inherent authority to reach — underscores the importance of addressing the question of which branch ought to resolve the issue. This Article proposes a framework drawn from Supreme Court jurisprudence in the field of state sovereignty to argue that when sensitive issues of sovereignty are at stake, the comparative competence of the respective branches must be considered. Unlike any preceding work in this field, this Article proposes a model based on the indicia of institutional competence to suggest that Congress, rather than the courts, is the branch best suited to determine the scope of inherent tribal sovereignty.

Information on the Tribal Court Trial Advocacy Program

Kate Fort

From the federal press release:

The result of a collaborative effort by the Bureau of Indian Affairs Office of Justice Services (OJS) and DOJ’s Access to Justice Initiative (AJI), the Tribal Court Trial Advocacy Program is the first national effort by DOI and DOJ to offer trial advocacy training with courses designed specifically for tribal courts and free training to the judges, public defenders and prosecutors who work in them. Training is provided in three topic areas – domestic abuse, illegal narcotics and sexual assault on children and adults – with faculty and instructional materials prepared by experts knowledgeable about tribal court issues. The program is unique because it also has training specifically for public defenders.

A pilot training session on domestic violence held by the OJS and the ATJ in August 2011 in Rapid City, S.D., proved so successful that the OJS and its federal partners provided funding for seven additional sessions. The first of those, which focused on illegal narcotics, was held March 13-15, 2012, in Phoenix, Ariz. Each of the six remaining sessions, to be held through the rest of 2012 and into 2013, will focus on one training topic. The schedule for the coming sessions is:
July 24-26, 2012, Duluth, Minn.
August 14-16, 2012, Durango, Colo.
September 11-13, 2012, Great Falls, Mont.
October 2-4, 2012, Seattle, Wash.
October 23-25, 2012, Chinle, Ariz.
January 15-17, 2013, Albuquerque, N.M.

For more information about the DOI-DOJ Tribal Court Trial Advocacy Program, which training topic will be offered at which site, and how to register for upcoming sessions, contact the BIA’s Indian Police Academy at 575-748-8151.