In this Memorandum we report on the status of implementation of the tribal sentencing authority in the Tribal Law and Order Act of 2010 (TLOA) and the opportunities for assistance for tribes who wish to exercise such authority. The TLOA, among many other things, amended the Indian Civil Rights Act (25 U.S.C. § 1302) to expand the limits of tribal sentencing authority from one year imprisonment and a $5,000 fine to up to three years imprisonment and a $15,000 fine, with consecutive sentences authorized for multiple offenses. However, in order to exercise this expanded sentencing authority, the Act requires tribes to provide additional due process protections to defendants in tribal courts. These protections include: the right to court-appointed counsel and the right to effective assistance of counsel; licensed, law-trained judges; published and publicly available criminal laws; and records of criminal proceedings. See 25 U.S.C. § 1302 (Supp. 2012).
On May 30, 2012, the Government Accountability Office (GAO) released a report, based on a survey of 171 tribes that had received federal funding for their tribal courts, finding that none of the surveyed tribes were yet exercising the expanded sentencing authority under the TLOA. According to the report, the most commonly identified challenge to implementing the expanded sentencing authority was limited funding, both to implement the TLOA’s due process requirements and to fund activities associated with longer sentences, such as detention and probation.
Given the findings of this GAO report, we believe that some tribes may not be aware that the Department of Justice (DOJ) and the Department of the Interior (DOI) have been engaged in efforts, which involve several agencies, to expand access to available funding and to offer other assistance to tribes seeking to implement the TLOA expanded sentencing authority. The agencies are working together to implement their “Long Term Plan to Build and Enhance Tribal Justice Systems,” a plan that was developed with input from tribal leaders and submitted to Congress in August 2011. The Plan includes short-, mid-, and long-term recommendations related to three topics: (1) alternatives to incarceration in Indian Country; (2) detention in Indian Country; and (3) reentry in tribal communities.
In September 2012, DOJ and DOI hosted a webinar to update tribes on the progress the Departments have made in implementing several of the short-term steps included in the Plan, which provide new resources and opportunities for tribes wishing to take advantage of the TLOA sentencing provisions. These include expanded funding and technical assistance for electronic monitoring; training and pilot programs related to sentencing alternatives (including use of monitoring devices); new opportunities to use funding for multi-purpose justice centers and treatment facilities; and expanded tribal eligibility for reentry funding opportunities, among several others.
The GAO report is available online at http://www.gao.gov/products/GAO-12-658R, and further information from the webinar is available at http://tloa.ncai.org/webinars.cfm. Please let us know if you have any questions, or would like assistance in identifying funding sources or in implementing the Tribal Law and Order Act due process requirements.