TRIBAL LAW & ORDER ACT OF 2010, PL 111-211 AND VIOLENCE AGAINST WOMEN REAUTHORIZATION ACT of 2013, PL 113-4 THE GOOD, THE BAD, AND THE UGLY
TLOA and VAWA TLOA: Strengthen tribal court systems Allowed tribal courts to address cases deemed too insignificant to pursue through federal courts. VAWA: Increasing Tribal Courts jurisdiction of non-indian defendants.
TLOA and VAWA How has legislation impacted Indian Country since passage?
THE GOOd,
THE GOOD, Extended Sentencing Amends limitations of 1968 ICRA sentencing authority from maximum of one year and $5,000 fine. Tribes can now amend Law and Order Code to allow for sentences up to nine years and fines not to exceed $15,000. Empowers tribal courts and enhances their legitimacy in the national legal system.
THE GOOD, Motivation to develop up to date Law and Order Codes, Court Procedures, and make them accessible to the public. Puts spotlight on the application of equal protection and due process requirements. US Bureau of Prisons help to alleviate some incarceration costs by accepting defendants serving sentences of more than one year.
THE GOOD: PL 280 tribes have been provided some jurisdictional relief. Non-Indians may be arrested and tried for crimes of domestic violence under 2013 VAWA Reauthorization. Could be the first small step in overturning Oliphant.
THE BAd,
THE BAD, Long term sentencing subjects tribal courts to utilizing law trained judges, prosecutors and public defenders admitted to a Bar. Places large financial burden on tribal governments. Some tribes may also have to amend tribal constitutions via secretarial elections. Not a simple process. Traditional court systems or courts with limited funding may fall behind other tribal and state courts ensuring application of equal protection and due process rights.
THE BAD, Bureau of Prisons committed to accept up to 100 prisoners under a pilot program run from year to year. To date less than 10 tribal prisoners are housed under provisions of TOLA. No long term commitment for future detainees has been made. Limited BIA and tribal detention centers. Most tribes rely on non-indian detention facilities at on-going and escalating costs to the tribes.
THE BAD, Types of crimes a non-indian may be subject to in tribal court is narrow and limited.
THE UGLY
THE UGLY, May widen gap of justice between tribes with financial resources to implement TLOA and those unable to accommodate increased costs of insuring compliance. Number of non-indians subject to tribal courts will not appreciably increase for a number of years. Only three Tribal Courts approved to implement jurisdiction over non-indians before the March 7, 2015 start date: Pascua Yaqui, AZ, Tulalip, WA, and Confederated Tribes of Umatilla, OR. Note: DOJ has identified over 188 tribal court systems throughout Indian Country.
THE UGLY, Long term detention issues not addressed in any appreciable way and will increase as new sentencing provisions are implemented, especially as more juveniles enter the system. PL-280 issue is unresolved but made more complicated by addition of another layer of jurisdiction. Only one PL-280 tribe has sought the expansion of federal jurisdiction.
Role of Tribal-State Judges Consortiums Supporting TLOA and VAWA
Issues Facing Tribal Courts: A Roadmap for Making Native America Safer, produced by The Indian Law and Order Commission Lays out a very long journey Comprehensive and far reaching Getting down the road -- a few blocks at a time Interim -- rely on what is available
Issues Facing Tribal Courts: TLOA in Indian Country Appears as closed tribal court system Self-contained Geographical limitations State, county and other jurisdictions bordering tribal courts Interact with the same defendants Share the same provider systems DUI cases Juveniles attending schools off the reservation
Issues Facing Tribal Courts: Judges expected to enhance court operations Insure that orders can be properly implemented locally and in foreign jurisdictions if necessary. Many services are not under his/her direct control.
TOOLS: Comity or full faith and credit Valuable force to carry out judicial orders Accessing services
TOOLS: Tribal-State Judicial Consortiums Vehicle for judges to come together Share experiences Make various services available to each other Implement policies to insure broader access and utilization Implement practical and hands on solutions Without elaborate state or federal legislation Vehicle for on-going collaboration Get down the road quicker Fewer road blocks
GOAL Ensuring safe communities.