Judge William A. Thorne Jr., Pomo Coast Miwok, moderated a roundtable discussion by the Senate Committee on Indian Affairs on the Tribal Law and Order Act of 2010. Thorne, vice president of the National Indian Justice Center, asked tough questions and didn’t balk at the difficult answers.
The wide-ranging discussion on February 25 was aimed at finding out what is working, and what isn’t, five years after TLOA was signed into law. Also, SCIA Chairman John Barrasso, R-Wyo., explained in his opening statement that some provisions of the Act have sunset and the committee wanted to get feedback on whether or not those should be reauthorized.
Nineteen panelists representing the federal government and tribes spoke during the nearly four-hour presentation, and several more tribal leaders participated in the hour-long comment period that followed. “We want to leave all the ideas on the table,” said Thorne, noting that this was an idea-generating session, not formal testimony.
Recurring topics included funding, the need for prevention and treatment of substance and alcohol abuse, jurisdictional complexity, and a seeming universal commitment to keeping kids out of the justice system.
Many of TLOA’s provisions cannot be implemented, said several panelists, for lack of funding. Harold Frazier, chairman of the Cheyenne River Sioux Tribe, said TLOA has not made things better on his reservation. He has too few police officers for want of enough training opportunities at approved police academies and funding. The jail is a mess—the juvenile facility had no lights for five months. Court personnel cannot be hired at salaries that are one-third what they can earn in other sectors. “Grants are not the solution,” he said, because when the grant money is gone, he has no way to replace it.
TLOA has been more helpful in communities where the tribe has more resources, but overall, as Jason Thompson, assistant director for the BIA’s Office of Justice Services, summarized, “Lots of things in TLOA require we find resources to make them happen.”
Substance Abuse and Alcohol Prevention
Thompson also spoke about the lack of treatment facilities for drug and alcohol abusers. “The only place to put substance and alcohol abusers is jail. Eighty percent of [those incarcerated] are substance abuse offenders; only 20 percent [have committed] violent crimes. We see this across Indian country, with the exception of tribes who have created their own programs.”
Patrick Teton, chief of police for the Shoshone-Bannock Tribes of the Fort Hall Reservation, said that prisoners need services related to substance abuse.
One aspect of TLOA that worked well was the Bureau of Prisons Tribal Law and Order Pilot Program, largely because the federal BOP has services for substance abusers and sexual offenders, as well as education and vocational training. The pilot program, which expired in 2014, allowed tribes to request that the BOP incarcerate people convicted by tribal courts. The programs both created access to rehabilitation programs tribes could not provide and allowed tribes to exercise the enhanced sentencing authority in TLOA.
Despite TLOA, jurisdictional complexity persists in Indian country, as federal, state, county and tribal law enforcement agencies struggle to stretch resources and prosecute cases that can be won.
Several panelists called for an Oliphant fix. Oliphant v. Suquamish Indian Tribe, decided by the Supreme Court in 1978, removed tribes’ authority to prosecute non-Indians for crimes committed on tribal lands. The Hon. Stacie Crawford, chief judge for the Fort Peck Tribal Court, called for the expansion of tribal criminal justice authority to include non-Indians.
William Brunelle, director of the Red Lake Department of Public Safety, said the Oliphant decision was a problem in PL280 states as well as other states. It creates “a gray area in identifying law enforcement authority,” depending on where the crime occurred.”
Multidisciplinary Teams have worked well for the Pascua Yaqui Tribe, according to Attorney General Alfred Urbina. These are teams of tribal, state and federal law enforcement personnel who coordinate their efforts to prosecute child abuse cases, making sure that everyone has access to the same information and can plan how to move cases from one venue to another when appropriate.
TLOA’s Tribal Liaison program, under which U.S. Attorneys in Indian country appoint an assistant U.S. Attorney to work with tribes, has also been a success, and Urbina suggested that a state district attorney with the same brief could help keep cases from getting dropped for lack of communication between tribal and state courts.
Cross-deputization has worked well for some tribes, but depends heavily on a state’s willingness to work with tribal law enforcement, a matter that can be particularly fraught in PL280 states. Loretta Tuell, an attorney with Greenberg Traurig who spoke on behalf of the Association of Village Council Presidents, pointed out that just between California and Alaska, half of the tribes in the U.S. are in PL 280 states and thus embroiled in what she called a “jurisdictional quagmire.”
She asked, “What is the responsibility of the U.S. if they have delegated authority [under PL280] and the state does not act? In [Alaska] villages, the public safety officers are funded by the state. If the state wants to pull that funding, a vacuum is created [and] you [can] end up with places where there is no law enforcement at all.” Tribes in PL280 states, she said, are not able to take full advantage of the provisions in TLOA because they are not eligible to receive the funding that would support those provisions.
Under TLOA, the Department of Justice may accept concurrent federal jurisdiction to prosecute violations of the General Crimes Act and the Major Crimes Act for tribes subject to PL280. So far, the Mille Lacs Band of Ojibwe and the White Earth Reservation have availed themselves of the provision. This is not the same as retrocession; it is merely a clarification of the federal government’s role in prosecuting serious crimes on reservations. Two other tribes’ requests were denied, and one request is pending.
Juvenile justice was a main focus of the Indian Law and Order Commission’s 2013 assessment of public safety in Indian country, “A Roadmap for Making Native America Safer.”
The deplorable condition of many juvenile detention centers, lack of educational and rehabilitation programs in those facilities and the incarceration of AIAN children in adult jails led the commission to recommend that authority over children in the justice system be returned to tribes.
The tribal representatives who participated in this roundtable want their kids out of the justice system altogether. Thorne told ICTMN that keeping kids out of courts and jails has been shown to be the best course. Most teenagers are not developmentally capable of predicting the consequences of their behavior without help. Instead of punishment, they need guidance, which is more in keeping with traditional tribal practices. He said he believes the punishment paradigm is a holdover from the boarding school era.
Teton said, “We need to deal with problems [of substance abuse] a lot sooner before kids get into the system. The end of the problem is arresting them. We need education in elementary school before they have a problem. We need to combat it before they get involved with law enforcement.”
Brunelle said his tribe has instituted a successful pilot program for alternatives to incarceration where they are keeping track of kids and working with them one on one. And The Hon. Kami D. Hart, children’s court judge for the Gila River Indian Community, said her tribe’s kids always have the alternative of going into treatment instead of being incarcerated, but the problem is that Medicaid decides when they can go into treatment. The tribe, she said, needs access to the same funding streams for kids that the state has.
National Congress of American Indians President Brian Cladoosby addressed the panelists briefly. He emphasized that American Indian and Alaska Native children are disproportionately exposed to poverty and violence. Rather than incarcerate them, he said, we should try to put in culturally appropriate interventions, otherwise, “youth [are] placed in unsafe, abusive, expensive situations that push them further into a life of crime.”