The 2010 Tribal Law and Order Act–Standardized Sexual Assualt Policies, Protocols, and Training
By Kay Heitkamp, Two Rivers Tribune Contributing Writer
The 2010 Tribal Law and Order Act (TLOA) was recently signed into law by President Obama with a goal of reducing acts of violence against Native American women. The act provides for better training of tribal law enforcement officers who are usually the first responders to women who are the victims of domestic violence or sexual assault. Tribal Police departments will be strengthened by the development of standardized sexual assault policies, protocols and training. Tribes will have more authority to hold instigators of crimes accountable. Provisions of the 2010 Tribal Law and Order Act will help increase communication between tribal law enforcement, federal authorities and the court system.
In response to passage of this act, Dorothy Alther (Ogala), senior staff attorney with California Indian Legal Services (CILS) in Escondido, issued this statement:
“The Tribal Law and Order Act (TLOA) holds new promises for California justice systems. Signed into law in July of 2010, the TLOA addresses changes to the administration of tribal law enforcement in Indian Country, enhances tribal court sentencing authority, amends Public Law 280 (P.L. 280), and much more.
I work very closely with the California Tribal Police Chiefs Association and have firsthand experience with how tribal law enforcement in California is treated by the Office of Justice Services (OJS), the division within the Bureau of Indian Affairs that is charged with law enforcement services in Indian Country. OJS has long ignored California Tribes’ need for tribal law enforcement funding and support.
Currently, OJS denies California tribes law enforcement funding under the rationale that California is a P.L. 280 state and that the state is responsible for providing law enforcement on California reservations. Under the TLOA, OJS is now required to communicate with tribes on a regular basis regarding public safety, as well as, conduct meaningful and timely consultation with tribes in the development of regulations affecting public safety and justice systems. This mandate will force OJS to meet with and discuss the unmet law enforcement needs of California tribes.
The TLOA also requires the OJS to report on the formula, priority list or other methodology it uses to determine how law enforcement funding will be allocated. Currently, OJS has no such funding formula and arbitrarily decides what tribes will be allocated funds. California Indian Legal Services is currently suing the OJS for this discriminatory practice in the federal district court of southern California.
Many of the tribal law enforcement officers in California hold a Special Law Enforcement Commission (SLEC) issued by OJS. The SLEC allows a tribal law enforcement officer to enforce certain federal criminal laws on the reservation. While OJS has issued SLECs to several tribal officers, it does little to nothing to support or assist tribal law enforcement officers in the field.
Under the TLOA, OJS is now required to revisit the SLEC agreements (or Memorandums of Agreements) and develop the agreements in consultation with the tribes. This process will hopefully allow tribes to have a greater say in what support OJS will provide the tribes and clear up ambiguities in the current agreements that have lead to confusion on the legal status of SLEC officers. The new agreements must further reflect that a SLEC officer is a federal law enforcement officer under the Federal Tort Claims Act and for other purposes.
The TLOA amendments to P.L. 280 will allow a tribe to request the Attorney General to reassume federal criminal jurisdiction under two key federal statutes. This is a major step in bringing additional resources to California Indian Country by adding a third layer of criminal investigation and prosecution of crimes committed on an Indian reservation.
The enhanced sentencing authority granted tribal courts under the TLOA may be met with mixed reviews from tribes. While tribal courts may now fine a criminal defendant up to $15,000 and incarcerate him or her for up to three years, the tribe is required to provide the defendant with defense counsel if he or she is indigent. Without federal funding to meet the cost of providing defense counsel and housing a defendant in a prison for three years, tribes may not be able to take advantage of the enhanced sentencing authority.
As with many new laws, without funding to implement it, the law becomes a hollow promise. The TLOA offers new programs and opportunities for tribes, and I only hope the funding will be made available to see the law become a reality.”
About Dorothy Alther
CILS has announced that Alther will receive the prestigious Pierce-Hickerson Award that honors those who make outstanding contributions to the advancement or preservation of Native American rights. For more information, visit the CILS website at www.calindian.org.
Alther began her career with CILS in 1993, advocating on behalf of individual Native Americans, tribes and tribal entities. She has been involved in obtaining federal recognition for tribes and has been instrumental in training tribes in tribal court and law enforcement development. She has also drafted a number of tribal constitutions and codes. Her work in court development inspired CILS’ annual Tribal Courts Conference, during which tribal communities, tribal court judges and law enforcement officers discuss current issues related to tribal justice and receive updates on the law.
California Indian Legal Services
CILS is a Native American-owned law firm that provides legal services to individual Indians and Indian tribes. The main office is located in Escondido. Other offices are in Bishop, Eureka, and Sacramento.
Their website provides self-help materials on a variety of legal topics, including how adopted individuals can petition to open their birth records, the probate process, and obtaining a waiver for court fees and costs. The complete 2010 edition of the California Judges Benchguide: Indian Child Welfare Act can also be downloaded. There are also a number of links to Native news sources, Tribal courts and governments, and advocacy groups.