Tribal Law and Order Act

The Tribal Law and Order Act (P.L. 111-211) (codified in scattered sections of 25 U.S.C. and 18 U.S.C.) TLOA) is a comprehensive statute focused on all aspects of investigating and prosecuting crime in Indian country with a primary purpose of reducing crime in Indian country and increasing public safety. The statute attempts to systematically address a wide variety of problems from data collection to housing prisoners.

Congress passed the TLOA in 2010 and it became law on July 29, 2010. Reports such as Amnesty International’s Maze of Injustice: the Failure to Protect Indigenous Women from Sexual Violence in the USA ignited public interest in the high rates of violence in Indian country and motivated systemic changes. Additionally, the TLOA Senate Report of 2009, indicated that police presence was lacking in Indian Country and tribal court’s limited sentencing power both greatly contributed to the proliferation of crime in Indian Country.

TLOA aimed to increase federal accountability, enhance tribal authority, authorize (not appropriated) additional funding, and established the Indian Law and Order Commission (ILOC).

For a section-by-section analysis of TLOA, the National Congress of American Indians hosts an analysis on their TLOA website, www.tloa.ncai.org. The TurtleTalk blog also hosts a helpful Tribal Law and Order Act Summary.

Sections of Title II include:

Subtitle A—Federal Accountability and Coordination

Subtitle B—State Accountability and Coordination

Subtitle C—Empowering Tribal Law Enforcement Agencies and Tribal Governments

Subtitle D—Tribal Justice Systems

Subtitle E—Indian Country Crime Data Collection and Information Sharing

Subtitle F—Domestic Violence and Sexual Assault Prosecution and Prevention

Reporting Federal Declination Rates

According to the TLOA Senate Report, declination rates in Indian County were 52.2% in 2007 and 47% in 2008. As compared to declination rates outside of Indian Country, which were 20.7% in 2007 and 15.6% in 2008. Thus, one objective of TLOA was to increase federal communication with Indian Country by requiring reporting of federal declination rates.

Section 212, codified in 25 U.S.C. §2809, mandates a series of annual reports and evidence sharing between federal and tribal justice officials and prosecutorial agencies when a case is declined. As part of the reporting requirements, the FBI must include in the declination reports: types of crimes alleged, status of parties as Indian or non-Indian, and reasons for declining or terminating prosecution.

Access to National Database

Section 233 of TLOA, codified in 28 U.S.C. §534, gives tribal law enforcement officers access and input authority to national crime databases. Although small, this section of TLOA is very important on the ground because it ensures that tribal, federal, and state agencies are privy to the same information in order to prevent crime.

Bureau of Prisons Pilot Project

In Section 234, TLOA also created the Bureau of Prisons Pilot Project, codified in 25 U.S.C. §1302(d).

§ 1302. Constitutional Rights

(d) Sentences: In the case of a defendant sentenced in accordance with subsections (b) and (c), a tribal court may require the defendant—

(A) in a tribal correctional center that has been approved by the Bureau of Indian Affairs for long-term incarceration, in accordance with guidelines to be developed by the Bureau of Indian Affairs (in consultation with Indian tribes) not later than 180 days after July 29, 2010;

(B) in the nearest appropriate Federal facility, at the expense of the United States pursuant to the Bureau of Prisons tribal prisoner pilot program described in section 304(c) [1] of the Tribal Law and Order Act of 2010;

(C) in a State or local government-approved detention or correctional center pursuant to an agreement between the Indian tribe and the State or local government; or

(D) in an alternative rehabilitation center of an Indian tribe; or

(2) to serve another alternative form of punishment, as determined by the tribal court judge pursuant to tribal law.

The pilot program authorized the BOP to house for a period of four years a limited number of certain offenders sentenced in tribal courts. The pilot program was set to run from November 2010 until November 2014.

On May 7, 2014, BOP submitted a report to Congress as required by section 234(c)(5) of the TLOA on the project from November 29, 2010 to November 29, 2013. The BOP stated that it supports the TLOA pilot program and recommended making the pilot program permanent to ensure the resource is available to Tribes. To date, Congress has not acted on the recommendation.

Enhanced Sentencing

Prior to passage of the TLOA, the Indian Civil Rights Act (ICRA) limited tribes’ power to impose sentences of more than one year of imprisonment or more than a $5,000 fine. TLOA provides that if a tribe complies with the prerequisites listed in the statute, the tribe’s criminal court is able to exercise enhanced sentencing authority and can sentence a defendant to three years and a $15,000 fine for a single offense. Additionally, a tribal court can stack sentences up to a cumulative total of nine year for multiple offenses. These options for tribal courts are collectively known as “enhanced sentencing authority” (ESA).

Tribal Court Sentencing Authority

Pre – TLOA/

ICRA Limits

Post- TLOA

Max $5,000 per offense

Max $15,000 per offense

Max 1 year imprisonment per offense

Max 3 year imprisonment per offense

Permissible without max

Max 9 year imprisonment

Availability of Authority

Tribes that Satisfy TLOA Requirements

*Note: TLOA effectively foreclosed sentence stacking for Tribes that do not choose to exercise ESA. See Seth J. Fortin, “The Two-Tiered Program of the Tribal Law and Order Act.” UCLA Law Review 61, no. 88 (2013): 91 – 96; Discussion of sentence stacking, https://www.uclalawreview.org/pdf/discourse/61-7.pdf.

In order for a tribal criminal court to exercise ESA, Tribes must comply with minimum due process requirements. These criteria are separate and in addition to the requirements already included in ICRA. Section 234 of TLOA is codified in Sections 1302(b)-(c) of ICRA.

§ 1302. Constitutional Rights

(b) Offenses subject to greater than 1-year imprisonment or a fine greater than $5,000

A tribal court may subject a defendant to a term of imprisonment greater than 1 year but not to exceed 3 years for any 1 offense, or a fine greater than $5,000 but not to exceed $15,000, or both, if the defendant is a person accused of a criminal offense who—

  1. Has been previously convicted of the same or a comparable offense by any jurisdiction in the United States; or
  2. Is being prosecuted for any offense comparable to an offense that would be punishable by more than 1 year of imprisonment if prosecuted by the United States or any of the States.

(c) Rights of defendants

In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall—

  1. provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and
  2. at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
  3. require that the judge presiding over the criminal proceeding—

(A) has sufficient legal training to preside over criminal proceedings; and

(B) is licensed to practice law by any jurisdiction in the United States;

  1. prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and
  2. maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.

The National Congress of American Indians hosts an Implementation Chart on its TLOA webpage, www.tloa.ncai.org, which lists tribes that have implemented enhanced sentencing as of July 2016.

Indian Law and Order Commission (ILOC)

Under Section 235, codified in 25 U.S.C. §2812, the ILOC is an inter-governmental workgroup set up to evaluate how the criminal justice system interacts with Indian Country and make recommendations to the President and Congress on how to improve prosecution and prevent crime in Indian Country. The Commission was extended by the Reauthorization of the Violence Against Women Act in 2013 (VAWA).

The Commission created a final 324 page report making 40 major recommendations.

The ILOC recommendations, with minor exception, became policy of the American Bar Association (ABA). The ABA also played a role in the passage of TLOA, issuing support letters urging Congress to enact legislation to protect victims of violence in Indian Country.

Legislative History