Here:
Bureau of Prisons TLOA Final Report
Here:
Tribal Law and Order Act
Chehalis COA Decides Criminal Matter involving Tribal Law and Order Act
Here is the opinion in Confederated Tribes of the Chehalis Reservation v. Lyons. An excerpt:
For the reasons set forth above, we hold that the trial court committed reversible error by admitting the Sexual Assault Report Form without providing the defendant the opportunity to confront the author of the Report. We further hold that the criminal laws and rules of evidence of the Chehalis Tribe were not publicly available prior to the charging of the defendant in this case as required for the Tribe to exercise the enhanced sentencing authority permitted by the federal Tribal Law and Order Act of 2010.
New Student Scholarship on the Tribal Law and Order Act
Seth J. Fortin has published “The Two-Tiered Program of the Tribal Law and Order Act” (PDF) in the UCLA Law Review Discourse.
Here is the abstract:
The Tribal Law and Order Act of 2010 was intended to significantly expand the sentencing powers of tribal courts, raising the maximum sentence for a given offense from one year to three. But the Act requires courts that would take advantage of these new powers to provide significant procedural protections to criminal defendants, while failing to provide the funding most tribal courts would need to make those protections a reality. Moreover, the Act leaves vague and open to interpretation the precise form those protections should take, which is an open invitation to federal courts to scrutinize tribal court procedure; this, in turn, may put tribal courts in the position of choosing between longer sentences and retaining their traditional character. These two obstacles—lack of funding, and the danger to tribal courts’ unique character— mean that the Act is likely to sort tribes into two “tiers”: wealthier or more assimilated tribes will be able to take advantage of the longer sentences, while tribes that cannot afford (whether financially or culturally) to change their practices will be left unable to adequately sentence serious offenders. And because of the way the Act resolves a longstanding ambiguity in Indian law, some tribes in the latter group may be left with less sentencing power than they had previously.
Eastern District of Michigan Ranks 6th in Charging Indian Country Criminal Cases
Here.
Op-Ed on Indian Country Prosecutions and Investigations
Authored by:
Michael W. Cotter, U.S. Attorney, District of Montana
Calvin Wilson, Chief Prosecutor, Northern Cheyenne Tribal Court
Glen Littlebird, Sr., Prosecutor, Northern Cheyenne Tribal Court
This week the United States Department of Justice released 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, and FBI crime data from reservations, shows among other things a 54 percent increase in Indian Country criminal prosecutions since Fiscal Year 2009.
Here in the District of Montana, justice in Indian Country is achieved through both tribal and federal courts. Currently, under the Indian Civil Rights Act, a tribal court’s authority to sentence a defendant is limited to a term of imprisonment of 1 year and a fine of $5000 per offense. Because tribal court penalties are limited, the most serious of crimes are prosecuted in federal court by the USAO. In Montana, the USAO shares prosecutorial responsibilities with tribal prosecutors on all of the reservations in the state, except the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation.
The Indian Country Investigations and Prosecutions report released this week by the Department of Justice previews a new era of partnership between the federal government and American Indian tribes. The report documents an unprecedented level of collaboration with tribal law enforcement, regular consultation on a crime fighting strategy, joint federal/tribal task forces, information sharing, training of investigators, and cross deputizing tribal police and prosecutors to enforce federal and tribal law. We certainly have seen the changes described by the report in the USAO’s relationships with its tribal partners in Montana.
Since 2010, the District of Montana USAO has implemented a bi-monthly meeting involving the federal prosecutors assigned to each reservation, the tribal prosecutors for the reservation and tribal and federal law enforcement officers. During these meetings, cases arising on a particular reservation during the preceding two-week period are discussed and a joint decision is made concerning which jurisdiction – Federal or tribal or both – will prosecute a particular case. Between 2010 and the present, the USAO in Montana has devoted six prosecutors to Indian Country. With these additional resources, over the last two years, 76% of all cases staffed have been resolved in either federal or tribal court. During the last two years, the Montana USAO has averaged 30 jury trials each year. Each of the approximately 60 trials involved violent crimes committed in Indian Country. In addition, numerous trials have occurred in tribal courts across Montana resulting in convictions of defendants that have committed less serious crimes.
Tribal courts play an integral role in providing public safety in our Indian communities. In Montana, federal and tribal prosecutors recognize and respect each other and the courts in which they work. Tribal courts, like tribal governments, are important federal partners. The members of federal law enforcement and the USAO Montana support partners in tribal law enforcement and the tribal court system, and vice versa. That is why federal prosecutors and agents share investigative files with their counterparts in Indian Country. Just as tribal law enforcement respond to federal court subpoenas, special agents from the FBI routinely respond to tribal court subpoenas to provide testimony in criminal proceedings and trials.
Tribal communities as a whole, and defendants as well as victims of crime in Indian country must have confidence that their tribal court systems are capable of delivering justice. When that confidence is lacking for whatever reason, the Department of Justice and the USAOs must do all we can to develop that confidence. The federal and tribal governments need a true partnership. It is only through this “court to court” relationship that justice truly may be achieved in Indian Country for victims of crimes. We agree that the process in place is way better than it has ever been before. It’s real. It’s working. It is also important to remember that often tribal court can provide quicker and better answers in various criminal matters.
Although it will take some time before we can understand the full impact of the recent efforts on crime in Indian Country, some things are clear. The increase in enforcement will bolster the faith and confidence that American Indian communities have in the criminal justice system. The increase in collaboration and communication strengthens the bond of trust between federal and tribal investigators, prosecutors, and other personnel in both federal and tribal criminal justice systems. Finally, the efforts undertaken in the last few years by the men and women of the federal and tribal criminal justice systems will make communities safer in Montana.
Michael W. Cotter was nominated by President Barack Obama to serve as the United States Attorney for the District of Montana. He was sworn in as Montana’s 39th United States Attorney on December 30, 2009.
Calvin Wilson has been licensed to practice law in the State of Montana since 1977. He is currently the Chief Prosecutor for the Northern Cheyenne Tribal Court. He has also served as a tribal judge, a tribal attorney, an elected Country Attorney for Big Horn County and a prosecutor for the City of Hardin.
Glen Littlebird, Sr., who is also a prosecutor for Northern Cheyenne Tribal Court, has served as a special agent for the BIA, a tribal judge, and a tribal councilman.
DOJ Press Release on Tribal Law and Order Act Report
Report to Congress is Requirement under the Tribal Law and Order Act of 2010
WASHINGTON – 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.
“Across the country, U.S. Attorneys have been focused on fighting crime in Indian Country and reinforcing the bond between federal and tribal law enforcement, which also strengthens the faith that people have in their criminal justice system,” said Attorney General Eric Holder. “This report on federal law enforcement efforts in Indian Country is beginning to show the fruits of this labor with an increase in Indian Country cases prosecuted in federal courts over the past three years, but we have more work to do. The department will continue in its commitment to working with our tribal partners to build safe, sustainable, and healthy communities in American Indian and Alaska Native communities.”
“Every day, the men and women from U.S. Attorney’s Offices who prosecute violent crimes in Indian Country work hard to improve public safety in those communities,” said Timothy Purdon, U.S. Attorney for the District of North Dakota and Chairman of the Attorney General’s Advisory Subcommittee on Native American Issues. “The notable increase in prosecutions of Indian Country crime described in this report are the result of the many initiatives led by U.S. Attorney’s Offices across the country, including community prosecution strategies that place federal prosecutors on the reservations on a frequent basis to enhance criminal investigations and communication, and Tribal Special Assistant U.S. Attorney programs that have enhanced coordination with cross-deputized tribal prosecutors. These efforts and the resulting increase in prosecutions are a testament to the Justice Department’s commitment to public safety in Indian Country and they are an encouraging step toward safer, stronger native communities.”
“The FBI has a sustained commitment to enhancing public safety in Indian Country,” said FBI Assistant Director Ron Hosko. “As this report demonstrates our investigative strategy is focused on fully leveraging vital partnerships with federal, state, local and tribal agencies to address violent crime and victimization in tribal communities. This approach not only produces investigative results in the short term but also develops the trust and collaboration necessary to ensure sustained enhancements to public safety in the long term.”
The information contained in the report shows the following:
• The Justice Department’s prioritization of Indian country crime has resulted in a notable increase in commitment to overall law enforcement efforts in Indian country. Caseloads have increased overall from 1,091 cases filed in fiscal year (FY) 2009 to 1,138 in FY 2010 to 1,547 in FY 2011 to 1,677 in FY 2012. This represents a nearly 54 percent increase in the Indian country crime caseload.
• USAO data for calendar year (CY) 2011 indicate that just under 37 percent (1,041) of all Indian Country submissions for prosecution (2,840) were declined by USAOs. In CY 2012, USAOs declined approximately 31 percent (965) of all (3,145) Indian Country submissions for prosecution. Overall, a substantial majority of Indian Country criminal cases opened by USAOs were prosecuted.
• The most common reasons for declination by USAOs were insufficient evidence (61 percent in CY 2011 and 52 percent in CY 2012) and referral to another prosecuting authority (19 percent in CY 2011 and 24 percent in CY 2012).
• The most common reasons investigations during calendar years CY 2011 and 2012 were not referred included deaths determined to be due to non-criminal causes (e.g., natural causes, accidents, suicides) and allegations in which there was insufficient evidence to prove criminal activity.
•The report shows a new era of partnership between the federal government and American Indian tribes, including an unprecedented level of collaboration with tribal law enforcement. The increase in collaboration and communication strengthens the bond of trust between federal and tribal investigators, prosecutors, and other personnel in both federal and tribal criminal justice systems, and it will make communities safer as a result.
Read the entire report at www.justice.gov/tribal/tloa-report-cy-2011-2012.pdf
Read about the Justice Department’s efforts to increase public safety in Indian County at http://www.justice.gov/tribal/accomplishments.html
Arizona Attorney Article: “Justice on Tribal Lands Still Elusive”
Here:
An excerpt:
But a new dialogue may be in the wind. On February 15, Navajo Nation President Ben Shelly spoke fresh words at the opening of an impressive justice center in Tuba City: “We’re ready to have a federal court. We’re ready for a federal judge here.” Federal judges in native America handling federal cases would help. Sure, new statutes would require enactment. Empaneling juries would present challenges. But until Indian nations acquire full criminal jurisdiction for offenses occurring within their boundaries, improved justice for native victims will require expanded federal efforts.
PBS Frontline: Where Tribal Justice Works
Here.
An excerpt:
In 2011, a man in northeastern Oregon beat his girlfriend with a gun, using it like a club to strike her in front of their children.
Both were members of the Confederated Tribes of the Umatilla Indian Reservation. The federal government, which has jurisdiction over major crimes in Indian Country, declined to prosecute.
So the tribes stepped in. The man was convicted in their courts and sentenced to 790 days in federal prison.
But had the assault happened a week earlier, the case could never have gone to trial.
The Umatilla tribes had recently enacted new provisions from a federal law, the Tribal Law and Order Act, that allowed Native American courts to try their own people for felony crimes instead of relying on the federal authorities.
Without those provisions, once federal prosecutors declined the case, the woman would have had no other legal recourse.
Brent Leonhard, the general counsel for the Umatilla tribes, is proud of the conviction: “I personally was concerned that the victim at some point would end up dead,” he said.
“People here were pretty happy to see the person held accountable.”
United States to Assert Concurrent Criminal Jurisdiction over White Earth Reservation
First Assumption of Federal Jurisdiction Under Historic Tribal Law and Order Act
The Department of Justice has granted a request by the White Earth Nation for the United States to assume concurrent criminal jurisdiction on the 1,300 square mile White Earth reservation in northern Minnesota, Deputy Attorney General James M. Cole announced today.
The decision was the first action of its kind under the landmark Tribal Law and Order Act of 2010 (TLOA), which granted the Justice Department discretion to accept concurrent federal jurisdiction to prosecute major crimes within areas of Indian country that are also subject to state criminal jurisdiction under Public Law 280. Public Law 280 is the 1953 law that mandated the transfer of federal law enforcement jurisdiction for certain tribes to six states, including Minnesota. The decision, relayed yesterday in a letter to the tribe signed by Deputy Attorney General Cole, will take effect on June 1, 2013. Tribal, state, and county prosecutors and law enforcement agencies will also continue to have criminal jurisdiction on the reservation.
“Our goal in granting this request is to strengthen public safety and security for the people of White Earth,” said Deputy Attorney General Cole. “We look forward to partnering with the tribe and our state and local counterparts to support White Earth in ensuring justice on the reservation.”
“The public safety challenges facing our tribal communities are serious and complex,” said U.S. Attorney for the District of Minnesota B. Todd Jones. “The United States Attorney’s Office will continue working closely and collaboratively with our tribal and local partners towards our common goal – improving public safety. It is our hope that with the additional jurisdiction, our Office will be able to support our tribal and county partners for the benefit of all communities.”
The Department of Justice already has jurisdiction to prosecute crimes such as drug trafficking and financial crimes wherever they occur in the United States – including on the White Earth reservation. The change announced today will expand this existing jurisdiction on the reservation to allow federal prosecution of major crimes such as murder, rape, felony assault and felony child abuse.
The decision followed careful consideration of the request and information provided by the White Earth Nation, as well as by the Justice Department’s Office of Tribal Justice, the Executive Office for United States Attorneys, the U.S. Attorney’s Office for the District of Minnesota, the FBI, the U.S. District Court, state and local law enforcement partners and other sources.
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Office of Public Affairs
NPR on Slow Pace of Criminal Justice Reform in Indian Country
Here. Via the excellent North Dakota Supreme Court site.
An excerpt:
The Hopi of northern Arizona were among the first in the nation to increase criminal sentences under the law. The tribe spent 18 months updating criminal codes to create a new class of felonies that could result in more jail time for convicted offenders.
Few tribes have put together all the pieces required to boost jail time, but progress is being made on other fronts. The Southern Utes in Colorado are now contracting with the federal government to hold detainees. On South Dakota’s Rosebud Sioux reservation, tribal officials worked with the U.S. attorney’s office to create a diversion program to keep juveniles out of trouble.
In Montana, special teams made up of tribal and federal officials were established last summer to investigate sexual assault cases.
Turtle Talk 
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