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Do Congress and Obama Really Support the Tribal Law and Order Act?

WASHINGTON – If there’s one issue that every politician agrees with on Indian issues in Washington, it’s that tribal justice and safety needs to be strengthened. But when Congress members had a very real opportunity to put the money where their mouths are this year, they passed the buck—and the Obama administration let them do it.

To great fanfare in July 2010, President Barack Obama signed the Tribal Law and Order Act, a law meant to combat the crisis of crime facing many reservations today. According to federal statistics that Obama himself cited, Indian women suffer the highest rate of violent crime of any demographic in the United States with 1 out of every 3 Indian women raped or sexually assaulted in their lifetime. Overall, Indians are the least safe people in all the country.

“There continues to be a public safety crisis on our Indian reservations, and the lives of women and children are in danger every day,” lamented the now retired Sen. Byron Dorgan, D-N.D., who led the way for passage of the TLOA when he headed the U.S. Senate Committee on Indian Affairs.

That reality is one reason that Dorgan and many advocates in Indian country were so disappointed to learn that Congress, last month, majorly undercut the abilities of the TLOA to combat the crisis when it passed a measure that shortchanged a whopping $90 million in proposed funding for U.S. Department of Justice programs in Indian country.

“One way the TLOA sought to remedy the epidemic was to mandate that federal law enforcement cooperate and coordinate with tribal law enforcement,” wrote Ryan Dreveskracht, a lawyer with the Galanda Broadman Indian-focused law firm, in an article posted on his firm’s website. “The TLOA sought to immediately increase tribal law enforcement funding levels. Because Indian country crime is local, these consultation and tribal funding mandates were deemed crucial to the effectiveness of the TLOA.”

But when Congress released its fiscal year 2012 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Programs Report on November 14, it was as if those components of the TLOA, which so many Congress members had hailed so recently, didn’t matter.

The legislation offered funding cuts for tribal justice programs across the board, and it did not include a tribal set-aside for discretionary Office of Justice Programs needed to implement the TLOA, Dreveskracht noted. It also proposed $15 million cuts to both the COPS Tribal Resources Grant Program and the Tribal Youth Program. Funding for tribal assistance within Office of Justice programs, meanwhile, received $38 million, which Dreveskracht noted was $62 million short of the approximately $100 million initially proposed in Obama’s FY 2012 budget request. In total, over $90 million was lost.

Surely, there must have been a mistake.

No, said Rep. Jack Kingston, R-Ga., it’s time to, “…face reality, and the reality is that America is at a crossroads. For every dollar we spend, 42 cents has to be borrowed. The gross national debt is now 97 percent of GDP and we are rapidly becoming the next Greece, Spain, or Portugal. Internationally, this weakens our standing as a global leader and our lenders, such as China, may seek to restructure our debt if we don’t take care of it ourselves. Domestically, it hurts job creation, smothers the private sector and erodes some of our basic personal freedoms.”

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Kingston didn’t mention that fearing for one’s life all the time doesn’t do much to support job creation.

Some in Indian country thought that Obama, given his strong support of the TLOA, would ask for changes to the legislation on tribal justice issues specifically. But this did not happen. Instead, Obama signed H.R. 2112 into law just four days after it was introduced, as Public Law 112-55.

The Obama administration does deserve credit in that the president in his own budget request asked for much more money in this area – and his Justice Department continues to work hard to increase the prosecution of violent crimes on Indian lands – but still he didn’t fight against the congressional cuts. And more cuts are likely to be proposed in coming years.

It was disappointing, to say the least. “[U]ntil Congress adequately funds the programs authorized in the Tribal Law and Order Act it will be difficult for Indian communities to achieve the level of safety that so many Americans enjoy," Dorgan said.

“Unlike other areas of government spending, the federal government has a distinct legal, treaty, and trust obligation to provide for the public safety of Indian country,” Dreveskracht noted in an interview. “This obligation was made explicit in section 202 of the TLOA and was thoroughly discussed in the congressional record.

“That that same Congress is absolutely ignoring those duties now makes it that much worse. As a result, people are literally dying,” Dreveskracht added. “While crime outside Indian reservations has declined in recent years, the violent crime rate in Indian country has increased dramatically over the same time period—with homicides increasing by 14 percent in just four years.”

One of the biggest secrets of the TLOA, according to Dreveskracht, is that even though it forced Congress, the Obama administration, and even the American public to look at the problem—it really accomplishes nothing on its own that really changes the situation.

“The TLOA preserves the status quo in that it bestows the responsibility of policing tribal communities in federal police forces and prosecutors who have proven themselves incapable and uninterested in putting an end to reservation crime,” Dreveskracht said. “Tribal governments are still stripped of the inherent sovereign authority to protect their citizens.”

Dreveskracht said this is why, when judging the potential effectiveness of the TLOA, it becomes especially important to separate the various programs that the law set out to implement. “While some of the TLOA programs are meant to strengthen federal justice programs that will never work, others are meant to strengthen tribal justice programs that will,” he said. “Unfortunately, and probably not coincidentally, the FY 2012 cuts will affect some of the only provisions of the TLOA that support the strengthening of tribal justice programs: funding for the establishment and reinforcement of tribal court systems; funding for tribal police force hiring and training; and funding for tribes to develop culturally appropriate prevention and intervention strategies for tribal youth.

“Put short, the FY 2012 cuts decimate some of the only redeeming aspects of the TLOA,” Dreveskracht continued. “I don't have much hope that the TLOA can be effective at all without funding for this component. In fact, just the opposite—continuing to fund TLOA components that do nothing but perpetuate the already broken system will likely cause more harm than good.”