Indian Country and the Tribal Law and Order Act of 2010
By Michael J. Bulzomi, J.D.
Crime remains an endemic problem in Indian Country. Shocking homicide rates, skyrocketing levels of juvenile crime and gang activity, child abuse, and substance abuse plague the over 1.4 million people who populate tribal land.1 Crime data showed that violent victimization of Indians and Alaska natives is 2.5 times greater than that of other ethnic and racial subgroups within the United States.2
Some people have wondered if confusion over criminal jurisdiction in Indian Country contributes to an increased rate of crime.3 Others point to the lack of resources allocated to the criminal justice system in tribal land. Undoubtedly, many factors lead to the high crime rate. Regardless of the contributing factors, an obvious need exists for additional federal legislation to improve the criminal justice system in these areas. On July 29, 2010, Congress responded to this need by enacting a sweeping criminal reform known as the Tribal Law and Order Act (TLOA) for Indian Country.4
This article reviews briefly the major federal legislative acts impacting criminal jurisdiction on tribal land. It then will highlight changes and improvements in jurisdiction and the criminal justice system under TLOA in Indian Country.5
Congress has responded routinely to criminal jurisdiction problems in Indian Country by passing legislation tailored to address the problems faced at a given time. The main legislative acts in Indian country include the Federal Enclaves Act, the Assimilative Crimes Act, and the Major Crimes Act.6 Two other legislative acts impacting tribal land are Public Law 280 and the Indian Civil Rights Act of 1968.7
Federal Enclaves Act
In 1817, Congress passed the Federal Enclaves Act, which asserts federal criminal jurisdiction over non-Indians for crimes they commit on tribal land and over Native Americans for some offenses against non-Indians.8 Under the Act, “the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States...[extend] to the Indian Country.”9 Consequently, for jurisdictional purposes, Indian land today is treated as a “federal enclave,” similar to a federal building, park, prison, or military base. The Act has three important exceptions. It does not apply to crimes by Indians against other Native Americans, offenses by Indians punished by the tribe, or crimes over which a treaty gives the tribe exclusive jurisdiction.
Special Agent Bulzomi is a legal instructor at the FBI Academy.
The Act applies the entire body of federal criminal law to Indian country. By making the site of the crime one of their elements, federal enclave laws adopt or define traditional crimes, such as arson, murder, and robbery, addressed by state laws and apply them to federal enclaves. Thus, someone can violate an enclave law by committing a certain act in an enclave. However, the federal criminal code applied to federal enclaves by no means is complete.
Assimilated Crimes Act
Congress recognized that some criminal acts committed within federal enclaves went unpunished because no specific federal laws prohibited them, and state law had no force within these enclaves, including Indian Country. To address this oversight, in 1825, Congress enacted the Assimilated Crimes Act, which reads in part:
Whoever within or upon any [federal enclave] is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.10
This provision made state criminal law applicable to any offense not otherwise specifically addressed by a separate federal statute when committed in a federal enclave. The definition of federal enclave makes this provision applicable to Indian Country through the Federal Enclaves Act.
An important question left open by the Federal Enclaves Act was which sovereign has jurisdiction over crimes involving a non-Indian defendant and victim on tribal land. The U.S. Supreme Court addressed that issue in 1881 in United States v. McBratney.11 This case involved the murder of a non-Indian by another non-Native American on the Ute Indian Reservation in Colorado. The defendant, tried and found guilty of murder in federal court, appealed his conviction on the ground that no federal jurisdiction existed to try his case. The Supreme Court ruled in favor of the defendant, finding that when a non-Native American commits a crime against another non-Indian on a reservation, the state in which the reservation is located has criminal jurisdiction. The Court reasoned that unless the enabling act admitting a state into the Union excluded state jurisdiction over crimes involving only non-Indian parties committed on tribal land, state courts are vested with jurisdiction.12
Major Crimes Act
In 1885, Congress passed the Major Crimes Act to address the resolution of cases in which a crime involving two Native American parties occurs in Indian country.13 This Act established federal jurisdiction over seven crimes committed in these instances. The original seven covered by the Act include murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny. Subsequent amendments to the Act have added seven more offenses: kidnapping, incest, assault with a dangerous weapon, assault resulting in serious bodily injury, assault with intent to commit rape, robbery, and felonious sexual molestation of a minor. Although the intent of the Act is to permit federal punishment of major crimes by Indians against other Native Americans, the Major Crimes Act applies even in offenses committed by Indians against individuals of another ethnicity.14
The question of criminal jurisdiction over misdemeanors where the defendant is non-Indian remained unanswered until the Supreme Court decided Oliphant v. Suquamish Indian Tribe.15 In this case, tribal police arrested Oliphant, a non-Native American living on a reservation in Washington State. Oliphant was charged with resisting arrest and assaulting a police officer. He was found guilty in tribal court and appealed his conviction, claiming he was not subject to Indian jurisdiction because he was not Native American. The Supreme Court upheld Oliphant’s claim, finding that due to the tribe’s domestic, dependent status, it did not have jurisdiction over non-Indians unless Congress granted such power.
Congress passed Public Law 102-137, amending Title 25, Section 1301, U.S. Code, providing Native American tribes jurisdiction in misdemeanor crimes over all Indians to include nonmember Indians (belonging to another tribe). This was done in response to the Supreme Court’s decision in Duro v. Reina where Duro, a nonmember Indian, was convicted of the misdemeanor offense of unlawfully discharging a firearm, killing a 14-year-old boy on the Salt River Pima–Maricopa Indian Reservation in Arizona.16 Duro appealed his conviction. The Supreme Court held that the tribe had no jurisdiction over nonmember Indians, ruling that tribes differ in social and cultural structures and that enrollment in a tribe constitutes consent to the authority of that tribe but not to others. Congress responded to the Duro decision by passing Public Law 102-137, granting tribal jurisdiction to all enrolled Indians and not just tribal members.17
Taken together, the Major Crimes Act, Federal Enclaves Act, and Assimilative Crimes Act give the federal government exclusive jurisdiction to prosecute crimes committed on tribal lands and involving non-Indian defendants perpetrating offenses against Native Americans or Indian interests, as well as cases featuring Indian defendants committing one of the major crimes enumerated in the Major Crimes Act. States have jurisdiction over crimes committed on Indian lands within their borders involving non-Indian defendants and victims. The tribes have jurisdiction over nonmajor crimes (misdemeanors) committed on Native American lands by Indians.
Public Law 280
In 1953, with the passage of Public Law 280, Congress transferred criminal jurisdiction in Indian country to six states.18 This federal law granted so-called mandatory states all criminal and civil jurisdiction over Indian land within their borders. The states affected by the legislation included California, Minnesota (except for the Red Lake Reservation), Nebraska, Oregon (excluding the Warm Springs Reservation), Wisconsin, and Alaska (except for the Annette Islands Metlakatla Indians) after it gained statehood. This law effectively terminated all tribal criminal jurisdictions in the affected tribal area within these states. Public Law 280 also provides that any state (so-called optional states) wishing to assume jurisdiction over tribes within their borders may do so by state law or by amending the state constitution. Following passage of Public Law 280, 10 states chose to do so. In 1968, an amendment to Public Law 280 was passed requiring tribal consent before additional states could extend jurisdiction.19 Since 1968, no tribe has consented.
Indian Civil Rights Act of 1968
“Congress has responded routinely to criminal jurisdiction problems in Indian Country by passing legislation tailored to address the problems faced at a given time.”
In 1896, the Supreme Court decided Talton v. Mayes.20 The case involved a tribe’s use of a grand jury system that did not use the number of jurors specified in the U.S. Constitution. The Court ruled that the Constitution’s provisions do not bind Indian tribes. Further, the Court recognized Indian tribes as sovereign nations established and recognized as such prior to the adoption of the Constitution that had not ratified the Constitution as the states had. Consequently, the tribes were not constrained by any of the Constitution’s provisions when dealing with tribal members, and tribal members could not claim any constitutional protections against the actions of their tribes. Congress became concerned about the implications of this holding and passed the Indian Civil Rights Act of 1968 (ICRA).21
The ICRA imposed most of the substantive restraints of the Bill of Rights upon the tribes. The most important exclusions from the Act include the right to appointed counsel (at the tribal member’s expense) and the Grand Jury Clause of the Fifth Amendment. The ICRA prohibits the exclusion of evidence as a remedy for violations of its provisions. The Act also limits tribal criminal jurisdiction over Indians to misdemeanors. The maximum penalties in tribal court for misdemeanors include up to one year in jail and $5,000 in fines per count.22
Tribal Law and Order Act of 2010
In response to the skyrocketing crime rate and confusion with respect to jurisdiction in Indian Country, Congress passed the Tribal Law and Order Act of 2010 (TLOA).23 Senator Byron Dorgan, the main sponsor of TLOA, stated that the Act is premised on the notion that “Native American families have a right to live in a safe and secure environment. The federal government has treaty and trust obligations to see that they do.”24 In enacting TLOA, Congress sought to live up to its obligations by improving law enforcement in Indian Country, ensuring tribal criminal justice, increasing tribal sentencing authority, and extending federal authority and responsibility over Indian country.
Accountability and Coordination
Tribal leaders long have complained that federal prosecutors decline an excessive number of criminal cases, leaving many crimes in Indian Country unaddressed. Statistical data seem to support their claims. Fifty-two percent of the reported violent cases and 40 percent of the nonviolent cases in tribal lands between 2005 and 2009 were declined for prosecution by federal prosecutors.25 The tribes often receive no notification of the declinations. Lack of notification frustrates tribal efforts to prosecute because requests for evidence from the federal case languish, evidence is lost or damaged, or federal witnesses are unavailable. Even if the tribe resolves the case, punishment often is inadequate for serious crimes because sentences cannot exceed one year of incarceration.
“Confusion about jurisdiction in Indian Country remains a problem.”
To address these concerns, Section 212 of TLOA amends Title 25, Section 2809, U.S. Code and states that “any federal department or agency” in cases of nonreferrals or declinations of criminal investigations in Indian Country “shall coordinate” with their tribal counterparts.26 This requirement extends to the FBI; U.S. Attorneys Offices; Drug Enforcement Agency (DEA); Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); and others conducting investigations in tribal land. Coordination includes the status of the investigation and the use of relevant evidence in tribal court.27 The FBI and the U.S. Attorney’s Office also must report to Congress annually concerning declinations of prosecution.28 The rate of declination should drop with this reporting requirement.
To assist in the coordination and prosecution of cases, the U.S. Attorney’s Offices in Indian Country may appoint special assistant U.S. attorneys.29 These prosecutors should increase the number of federal prosecutions in tribal land. TLOA authorizes the use of tribal prosecutors in this capacity.30 This inherently should lead to greater coordination of cases and, hopefully, additional training for tribal prosecutors. To further ensure coordination, U.S. Attorney’s Offices have a mandate to appoint one assistant U.S. attorney as a tribal liaison where the U.S. Attorney’s Office jurisdiction includes Indian Country.31 TLOA seeks to ensure that criminal misconduct in tribal lands will stand a greater chance of adjudication.
Increased Tribal Sovereignty
TLOA amends the ICRA, increasing tribal court authority by allowing prosecutions of felony cases involving sentencing limited to up to three years imprisonment.32 Before TLOA, tribal courts handled only misdemeanor cases; they now may prosecute less serious felonies often passed over by federal authorities. The sentencing is limited to up to three years per count and up to nine years per case with a $15,000 cap on fines.33 This enhancement is limited by the tribe’s ability to provide both bar-licensed defense counsel to indigent defendants (not required under the ICRA) and a presiding judge who has “sufficient legal training” and is a licensed attorney.34 The tribe also must make available published tribal criminal statutes and rules of criminal procedure and evidence, along with a record of tribal criminal and court proceedings.35
In tribal systems, there are internal obstacles to overcome in terms of developing, expanding, and funding adequate law enforcement, courts, and treatment services. TLOA provides for the reauthorization of funding to support and improve tribal justice systems.36 These measures should help close the gap where lesser violent crimes are nonprossed by federal authorities and former sentencing restrictions made tribal prosecution meaningless.
Because Indian Country has limited facilities generally designed for short-term incarceration, Native Americans sentenced for felonies by a tribal court may be incarcerated in a federal facility at government expense under a pilot program that allows for up to 100 such inmates.37 They also may be held in tribal facilities approved by the U.S. Bureau of Indian Affairs (BIA) for long-term incarceration, tribal rehabilitation facilities, or state facilities under contract with the tribe.38 The U.S. Bureau of Prisons now must notify tribal law enforcement officers whenever a prisoner convicted of a sex offense, drug trafficking, or a violent crime is released into Indian Country.39 Previously, only state and local governments received this notification.
Finally, TLOA allows for federal prosecution of crimes not prosecuted due to lack of resources or interest by Public Law 280 states.40 Tribes may request that the U.S. attorney general approve concurrent jurisdiction where applicable between the federal government, the state, and the tribe.41 This means that Public Law 280 states no longer have to give concurrence to such a change of status as previously required under federal law because the state’s jurisdiction remains unchanged. It is important to note that the tribes make the decision to seek federal intervention, thus, showing the expanding recognition of tribal sovereignty.
Federal laws and court decisions make criminal jurisdiction in Indian Country complicated. Law enforcement officers must know and navigate through these complications while doing their job; they must determine what authority they have in a given situation. Further, a low number of law enforcement officers (less than 3,000) patrol these large rural areas (more than 56 million acres in 35 states) and respond to crime in Indian country.42 Improvement in law enforcement is needed, and TLOA addresses this improvement in several ways.
One, TLOA enhances tribal law enforcement by giving tribal police mandated statutory access to databases containing federal criminal intelligence information.43 This access includes the FBI’s National Crime Information Center (NCIC).44 Access to information from such databases greatly assists in the resolution of crime.
“Federal laws and court decisions make criminal jurisdiction in Indian Country complicated.”
Two, TLOA encourages cross-deputization. Tribal and state law enforcement agencies in Indian Country receive incentives through grants and technical assistance to enter into cooperative law enforcement agreements to combat crime in and near tribal areas.45 At the federal level, TLOA enhances existing law to grant deputization to expand the authority of existing officers in Indian Country to enforce federal laws normally outside their jurisdiction regardless of the perpetrator’s identity.46 This measure simplifies the exercise of criminal jurisdiction and provides greater protection of Indian Country from crime through increased enforcement.
Three, recruitment and retention of law enforcement officers in Indian Country proves difficult. Many tribal officers leave their departments within two years of hire. Of course, TLOA can accomplish very little if too few officers exist in Indian Country to enforce the law and protect and serve the people. The Act increases the hiring age of tribal officers from 37 to 47.47 This allows dedicated and experienced officers to keep working and for retired military personnel already living in Indian Country to start a second career. The Act also establishes training standards for tribal police officers and provides some funding for the training.48 Tribal areas benefit by TLOA keeping officers working in Indian Country and allowing for greater hiring flexibility.
Four, BIA law enforcement officers previously had the authority to make warrantless arrests for a number of predicate offenses (mainly related to domestic abuse) based on “reasonable grounds.” TLOA changed the justification requirement for warrantless arrests to “probable cause.”49 Some would argue that probable cause is a higher standard to meet and that officers may end up with fewer arrests, but it proves necessary for warrants and likely will result in greater conviction rates. The list of predicate offenses for warrantless arrest expanded to include controlled substance offenses, bootlegging, firearms offenses, and assaults.50 These changes should facilitate quicker apprehension of criminals in Indian Country.
Finally, mandated training for all BIA and tribal law enforcement and judicial personnel is included in TLOA regarding illegal narcotics investigations and prosecutions and alcohol and substance abuse and prevention for adults and youths.51 This training is to be provided by the secretary of the U.S. Department of the Interior, the U.S. attorney general, the administrator of DEA, and the director of the FBI through existing or newly created training programs.52 Through improved and increased training, a greater understanding of jurisdiction and crime resolution and prevention becomes possible, resulting in more efficient and professional protection from crime for everyone in Indian Country.
Confusion about jurisdiction in Indian Country remains a problem. Jurisdiction still is a patchwork of tribal, state, and federal jurisdiction that varies depending on the crime, identity of the perpetrator, identity of the victim, and location of the offense. TLOA does not offer a magic cure for this confusion. However, it does provide the hope of a better quality of life in Indian Country.
TLOA allows for the improvement of public safety and criminal justice in Indian Country through the combined efforts of tribal government, federal agencies, and the states. Specifically, TLOA has enhanced the ability of the U.S. Department of Justice to prosecute crimes in Indian Country and strengthened criminal justice capabilities across varying jurisdictions. TLOA does this by establishing new channels for communication and cooperation among the concurrent jurisdictions involved in Indian Country. However, the success of improvement hinges on the willingness of these concurrent parties to form a partnership in criminal justice jurisdiction in tribal land. If this occurs, people living in Indian Country will have the safe and secure environment promised in the federal government’s treaty and trust obligations.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
“In response to the skyrocketing crime rate and confusion with respect to jurisdiction in Indian Country, Congress passed the Tribal Law and Order Act of 2010 (TLOA).”