Tribal Law & Order Act to Enhance Criminal Justice in Indian Country
On April 2nd, Senator Byron Dorgan introduced Sen. 797, known as the Tribal Law and Order Act of 2009. The Senate Committee on Indian Affairs held a hearing on the legislation on June 25th, and ordered the legislation to be reported favorably out of the Committee for a floor debate and vote by the U.S. Senate. Companion legislation in the U.S. House of Representatives, H.R. 1924 has been referred to the Subcommittee on Crime, Terrorism, and Homeland Security but to date there has not yet been any hearing scheduled for that legislation to proceed before the House for a floor debate and vote.
Indian tribal governments, law and justice professionals and victim advocacy groups should be analyzing the legislation and requesting that members of their Congress Delegation debate, support and vote for the legislation, when the time is right. It may prove strategically beneficial to hold over a floor debate and vote on the legislation until there is finality on the health care reform legislation currently working its way through Congress.
The legislation is intended to modify and strengthen the criminal justice system that operates within Indian country. Why? Because tribal communities face a high criminal offense rate, a depressed criminal justice system, and a quagmire that has resulted from the confused jurisdictional basis for the prosecution of crimes committed in Indian country. In the end, crimes occurring on the reservation are not being prosecuted as those that arise beyond Indian country. As such, many Indian people do not feel safe living in their own homes or neighborhoods.
The legislation seeks to rectify the high rate at which U.S. Attorneys decline cases for prosecution, by requiring federal law enforcement officials to disclose information to Tribal officials regarding declination decisions, including their reasons for declining to prosecute any case referred to them. Expect federal and tribal interests to diverge over the disclosure of declination information that the U.S. will deem confidential or privileged. Tribes must insist that declination disclosures not be so watered down by confidential or privileged classifications that the disclosures become meaningless. Indian country must not be prevented from learning about criminals who are running loose on the reservation, like major multinational drug cartels engaged in illegal narcotics and human trafficking on tribal lands.
With the goal of empowering tribal justice systems, the legislation directs the Secretary of the Interior to enter memoranda of agreement with tribal and state agencies for the purpose of training and commissioning tribal law enforcement officers. While this would enhance tribal police power, tribes must be aware that they and their officers could be subject to federal or state law enforcement standards. The legislation also authorizes tribal courts to sentence convicted offenders to imprisonment for up to three years and fines of up to $15,000.
However, the current legislation, if passed, would not come without tribal sovereignty costs. The law would require tribes to provide defendants state-licensed defense counsel; prohibit excessive bail or cruel or unusual punishment; and otherwise mandate due process of law. In reality, the requirements of the federal bill of rights would apply to tribes, which would overrule nearly 100 years of Supreme Court precedent holding the bill inapplicable to tribal governments. Tribal court judges would also be required to be state-bar licensed, and the judges’ decisions would need to be made public. By imposing federal requirements for tribal judicial service, Congress would be stripping that long-held power from tribes and tribal councils.
The Tribal Law and Order Act is a mixed bag for Indian country, requiring tribes to pay close attention to the Senate and House bills. If not, although tribal communities may end up being safer, tribal justice systems may end up virtually non-tribal.
