The Tribal Law and Order Act: Will it Help?

By: Dwight Quichua

The purpose of the Tribal Law and Order Act (“TLOA”) was to combat lawlessness found in Native American lands.  Although the TLOA is considered to be a helping hand from the United States (U.S.) Federal Government, it is suggested by David Patton in his article Tribal Law and Order Act of 2010: Breathing Life Into the Miner’s Canary that for tribal sovereignty to really work, the real solution is for all tribes to work together in addressing the issues of crime and crime prevention.

Diving into a brief history of tribal law, the Indian Reorganization Act of 1934 vested authority to tribes to establish their own constitutions.  In 1953, a change in tide resulted in Public Law 280 (P.L. 280) passed criminal jurisdiction in Indian Country to the states (Congress felt the states were in the best position to improve conditions and prevent crime in Indian Country), while taking away public funding by the federal government for law enforcement and judicial services.  The Indian Civil Rights Act of 1968 shifted the tide back, allowing states to give P.L. 280 jurisdiction back to the federal government along with forcing tribal governments to impose some civil rights, similar to the Bill of Rights, to its people.

TLOA, signed by President Obama, was the federal government’s attempt to address law enforcement problems within Indian Country.  TLOA’s provisions requires more consultation with tribal communities regarding public safety and justice, which would make prosecutors more accountable, allow U.S. Attorneys to be used in criminal prosecutions in federal court, and encourages federal courts to hold trials in Indian Country.  TLOA increases recruitment and retention efforts for tribal police by allowing officers to receive training where federal law enforcement training standards are met, increase tribal officers’ authority to arrest while on the reservation, and allow tribal officers more access to the National Criminal Information Database.  TLOA also increases tribal court sentencing authority, set a higher maximum total sentence power.  Further, the TLOA requires indigent defendants to be given competent representation (i.e., licensed attorney) and competent judges, who are sufficiently trained in criminal proceedings.  Additionally, the TLOA develops tribal juvenile codes and develops detention and treatment centers for at-risk youth, while providing grants to tribes that respond to juvenile delinquency.  Finally, the TLOA strives to address violence against women by allowing police to take proactive steps when an abuser or violent offender enters or returns to the community.

The vision of Tribal law, through the eye of one tribe (the White Earth Nation in Minnesota) is a tribal system whose power is boosted by the TLOA and in which the system deals with the offender in its entirety (i.e., arrest, rehabilitation, re-entry into society).  Besides TLOA, although a tribe may seek assistance from the federal government, it is still imperative that the tribes themselves take up the initiative to improve conditions in their lands.

With the enactment of the TLOA, it appears reduction of crimes is heading towards the right direction.  Yet, it may be too soon to tell, after only five years, what kind of legacy TLOA will leave behind.  It is obvious that more work is to be done through legislation and more cooperation between the sovereign Native American tribes and the U.S. federal government in order to co-exist and to ensure continuing amicable relationship between the parties.

Source:  David Patton, Article: Tribal Law and Order Act of 2010: Breathing Life Into the Miner’s Canary, 47 Gonz. L. Rev. 767 (2012).

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