oversight

Tribal Law and Order Act: None of the Surveyed Tribes Reported Exercising the New Sentencing Authority, and the Department of Justice Could Clarify Tribal Eligibility for Certain Grant Funds

Published by the Government Accountability Office on 2012-05-30.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

United States Government Accountability Office
Washington, DC 20548



    May 30, 2012


    Congressional Requesters

    Subject: Tribal Law and Order Act: None of the Surveyed Tribes Reported Exercising the New
    Sentencing Authority, and the Department of Justice Could Clarify Tribal Eligibility for Certain
    Grant Funds

    The Tribal Law and Order Act of 2010 (TLOA) recognizes that instances of crime have
    increased on Indian reservations, and concerns have been raised as to whether tribal courts are
    able to impose sentences stringent enough to help deter such criminal activity. 1 Prior to the
    enactment of TLOA, federal law limited tribal courts to imposing prison terms of no greater than
    1-year per offense for convicted defendants. We reported in February 2011 that tribal officials
    said that the 1-year limit on prison sentences did not serve as an effective deterrent against
    criminal activity and may have contributed to the high levels of crime and repeat offenders in
    Indian country. 2 We also reported that, as a result of the limited sentencing authorities of tribal
    courts, tribes will often rely on the federal government to investigate and prosecute more
    serious offenses, such as homicide, because a successful federal prosecution of such offenders
    could result in a lengthier prison sentence and better ensure justice for victims of crime in Indian
    country. However, acknowledging that tribal justice systems are often the most appropriate
    institutions for maintaining law and order in Indian country, TLOA states that its purpose is to,
    among other things, empower tribal governments to effectively provide public safety and reduce
    the prevalence of violent crime in Indian country. For example, TLOA authorizes tribal courts to
    impose upon certain convicted defendants terms of imprisonment of up to 3 years per offense,
    provided the tribes afford certain rights to defendants, which are discussed below.

    We reported in May 2012 on the extent to which the Department of Justice (DOJ) and the
    Bureau of Indian Affairs (BIA) within the Department of the Interior (DOI) provide federal funding
    and other assistance that may be used to support indigent defense, including in Indian country. 3

    1
     See Pub. L. No. 111-211, tit. II, § 202, 124 Stat. 2258, 2262-63 (2010) (recognizing, for example, that Indian tribes
    have faced significant increases in instances of domestic violence, burglary, assault, and child abuse as a direct
    result of increased methamphetamine use on Indian reservations).
    2
      GAO, Indian Country Criminal Justice: Departments of the Interior and Justice Should Strengthen Coordination to
    Support Tribal Courts. GAO-11-252 (Washington, D.C.: Feb. 14, 2011). “Indian country” refers to all land within the
    limits of any Indian reservation under the jurisdiction of the U.S. government, all dependent Indian communities within
    U.S. borders, and all existing Indian allotments, including any rights-of-way running through an allotment. See 18
    U.S.C. § 1151.
    3
     GAO, Indigent Defense: DOJ Could Increase Awareness of Eligible Funding and Better Determine the Extent to
    Which Funds Help Support This Purpose. GAO-12-569 (Washington, D.C.: May 9, 2012). We used “indigent defense”
    to refer to any direct and indirect activities that help ensure indigent defendants are afforded counsel in criminal
    cases. These activities may include hiring public defenders, investigators, or other support staff; providing training for
    public defenders; making technological improvements in defenders’ offices or systems; or providing loan repayments
    to help retain public defenders.




                                                                               GAO-12-658R Tribal Law and Order Act
Federal law does not entitle an indigent Indian defendant prosecuted in a tribal court to a
licensed defense attorney provided at the tribal government’s expense unless a sentence in
excess of 1-year per offense as authorized under TLOA is sought. Therefore, as part of our
indigent defense review and in response to your request, we asked tribes about their plans to
implement this as well as the other requirements necessary to exercise TLOA’s new sentencing
authority. Specifically, this report addresses the following questions:

(1) To what extent did selected tribes report that they exercise, or have plans to exercise,
TLOA’s new sentencing authority, and that they implement, or have plans to implement its
associated requirements, and what challenges, if any, did the selected tribes report in doing so?

(2) What types of assistance did federal agencies report that they provide to assist tribes in
exercising TLOA’s new sentencing authority, and what, if any, federal assistance did selected
tribes report that they would like to receive?

To answer both objectives, we surveyed all 171 tribes (out of the 566 federally-recognized tribes
as of January 3, 2012) that (1) reported allocating Tribal Priority Allocations (TPA)—federal
funding that BIA distributes to tribes and that tribes may allocate to a variety of activities—to
their tribal courts (referred to as the “Tribal Courts TPA”) (142 out of 171), (2) were awarded the
Edward Byrne Memorial Justice Assistance Grant (JAG) by DOJ (2 out of 171), or (3) both
allocated funding to their Tribal Courts TPA and received JAG funding (27 out of 171) in any
fiscal year from 2005 through 2010. 4 We selected these tribes because they allocated federal
funding to their Tribal Courts TPA, and therefore operated tribal courts during this time period. In
addition, we selected these same tribes for surveys we conducted from December 2011 through
February 2012 for the purposes of our review of the extent to which federal funding is used to
support state, local, and tribal indigent defense services. 5 In developing the two questionnaires
sent to Tribal Courts TPA and JAG recipients, we consulted with 2 tribal associations and pre-
tested the questionnaires with 4 tribes. In our surveys, we asked the tribes about their plans to
exercise the new sentencing authority TLOA provides. Generally, tribal court officials such as
the chief judge, court administrator, or court clerk completed the questionnaire. We attempted to
contact nonrespondents multiple times by email, phone, and fax during the survey to encourage
them to complete and submit the questionnaire, and conducted abbreviated phone interviews
on key questions with a subset of those tribes. Of the 171 tribes, 109 responded to the section
of our surveys regarding TLOA’s new sentencing authority, thus resulting in a 64 percent
response rate. (See encl. I for our survey questions and results.) Because we surveyed only
those tribes that allocated or received federal funding for their tribal courts, and not all of them
responded, the results from this survey cannot be generalized to all tribes; however, the
responses provided us with information on the perspectives of selected tribes’ plans to exercise
the new sentencing authority. 6 We also interviewed the following entities regarding the impact of
4
 BIA publishes a list of all Indian tribes that are recognized and eligible to receive funding and services from BIA by
virtue of their status as Indian tribes (referred to as “federally-recognized tribes”). We sent one survey to tribes that
reported allocating TPA funding to Tribal Courts, and a separate survey to tribes that received JAG. For tribes that
received both surveys, we asked that one representative from the tribe complete the section related to TLOA. We did
not include Courts of Indian Offenses (referred to as “CFR courts”) in our survey of tribal courts because CFR courts
constitute direct services administered by BIA officials. Based on discussions with BIA officials, we also did not
include tribal courts in BIA’s Alaska region.
5
    See GAO-12-569.
6
 In addition, the target population was tribes using BIA or DOJ funding, and not all tribes. For example, in some
instances, tribes may operate tribal courts without receiving JAG funding or allocating funding to the Tribal Courts
TPA.


Page 2                                                                   GAO-12-658R Tribal Law and Order Act
the new sentencing authority on tribal public safety and justice programs: BIA officials
responsible for activities related to tribal courts; DOJ officials responsible for advising the
department on tribal matters, interacting with tribes, and administering tribal grant funding; tribal
experts, such as officials from the National Congress of American Indians (NCAI), because it
serves as the major national tribal government organization; and tribal court officials at 3 tribes
we visited, at 2 additional tribes with which we pretested our survey, and at 9 other tribes
because they reported allocating federal funding for indigent defense in our survey. In selecting
the tribes we visited or with which we conducted pretests, we considered diversity across
factors such as their location, the amount and type of federal funding they received, and
whether the tribe employed a public defender to help ensure that we obtained a range of
perspectives. The views of these tribes are not generalizable, but provide valuable insights into
selected tribes’ decisions to exercise the new sentencing authority.

We conducted this performance audit from February 2012 through May 2012 in accordance with
generally accepted government auditing standards. Those standards require that we plan and
perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that the evidence obtained
provides a reasonable basis for our findings and conclusions based on our audit objectives.

Results in Brief

Among the tribes that responded to our survey (109), none reported that they were exercising
TLOA’s new sentencing authority, and, in open-ended responses, many tribes (86 of 90, or 96
percent) reported challenges to exercising this authority due to funding limitations. Tribes were
relatively evenly split among those that reported that they have plans to exercise the new
authority (36 of 101, or 36 percent); that they did not know the tribe’s plans to exercise the new
authority (34 of 101, or 34 percent) because, for instance, the tribal council has not yet made a
decision; and that they did not have plans to do so (31 of 101, or 31 percent). 7 In addition, 64
percent of selected tribes (70 of 109) reported implementing at least half of the requirements
necessary for exercising the new sentencing authority, but reported challenges in implementing
other requirements. Specifically, these tribes most frequently reported implementing the
requirement to maintain a record of the criminal proceeding, and least frequently reported
providing the defendant a licensed defense attorney. For example, 8 tribes that described
challenges to exercising the new sentencing authority reported challenges with the costs of
implementing the requirements associated with the sentencing authority. In particular, 3 tribes
reported challenges with the costs of providing a licensed judge with sufficient legal training as
required under TLOA. As a result, tribal courts may be unable to impose prison sentences of
over 1 year to 3 years per offense—as TLOA provides—and possibly provide a more effective
deterrent to criminal activity in Indian country.

DOJ and BIA provide funding and technical assistance to tribes that can be used to help them
exercise the new sentencing authority, and tribes reported that they desire additional funding
and technical assistance from the federal government for this purpose. However, tribes do not
always have a clear understanding about their eligibility for federal funding sources available to
help them exercise the new sentencing authority. In its fiscal year 2011 solicitation for the Tribal
Civil and Criminal Legal Assistance (TCCLA) grant, DOJ stated that consistent with its
authorizing statute, eligibility is “limited to tribal and non-tribal non-profit (Internal Revenue Code
(I.R.C.) § 501(c)(3)) entities that provide legal assistance services for federally recognized
7
 The total does not equal 109 because, although 109 tribes responded to our survey, 8 did not respond to this
question.


Page 3                                                                 GAO-12-658R Tribal Law and Order Act
Indian tribes, members of federally recognized Indian tribes, or tribal justice systems pursuant to
the federal poverty guidelines.” 8 However, 6 of the 9 tribes or tribal entities that applied for
TCCLA in fiscal year 2011 were ineligible—because they were not 501(c)(3) non-profit
entities—yet DOJ did not explain to the tribes that they were ineligible for funding because they
were not such entities. As a result, these tribes used resources to prepare applications
explaining their intended use of the funding—which, for 4 of the 6 tribes, was to meet
requirements necessary for exercising the new sentencing authority—when they were not
eligible for the funding. DOJ officials agreed that they could update the letter used to inform
applicants that they were not selected for funding to make it clearer that only 501(c)(3) nonprofit
entities are eligible. Further, internal control standards state that agency management should
ensure that there are adequate means of communicating with external stakeholders that may
have a significant impact on the agency achieving its goals. 9 By taking actions to better clarify
that applicants must be 501(c)(3) non-profit entities to be eligible for TCCLA, both during the
application process and when applicants are notified of their ineligibility, DOJ could better
ensure that the tribes and DOJ will not use resources to prepare, review, and deny applications
for grants for which tribes or certain tribal entities are not eligible. Moreover, tribes would also be
better positioned to make informed decisions about the available funds to pursue.

We are recommending that DOJ take actions—both during the application process and when
applicants are notified of their ineligibility—to better clarify the circumstances under which
applicants, including tribes or tribal entities, are eligible or ineligible for TCCLA funds. DOJ
concurred with the recommendation.

Background

Whether or not tribes have jurisdiction to investigate and prosecute crimes that occur in Indian
country depends on various factors, including the nature of the crime, whether or not the alleged
offender or victim is Indian, and whether jurisdiction has been conferred on a particular entity by,
for example, federal treaty or statue. 10 As a general principle, the federal government
recognizes Indian tribes as “distinct, independent political communities” that “remain a separate
people, with the power of regulating their internal and social relations,” which includes enacting
substantive law over internal matters and enforcing that law in their own forums. 11 The federal
government, however, has authority to regulate or modify the power of self-government that
tribes otherwise possess, and has exercised this authority to establish an intricate web of
jurisdiction over crime in Indian country. 12 For example, tribal and federal jurisdiction is generally
8
 TCCLA provides funding and technical assistance to assist tribal jurisdictions in improving their justice systems. See
e.g. 25 U.S.C. § 3663 (authorizing tribal criminal assistance grants).
9
 See GAO, Internal Control: Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1
(Washington, D.C.: November 1999).
10
  For example, the Major Crimes Act, as amended, provides the federal government with criminal jurisdiction over
Indians charged with felony-level offenses enumerated in the statute. See 18 U.S.C. § 1153. Such felony-level
offenses include murder; manslaughter; maiming; felony provisions of the Sexual Abuse Act of 1986, as amended,
incest; assault with intent to commit murder; burglary; and robbery, among others.
11
  See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978) (citing United States v. Wheeler, 435 U.S. 313
(1978)). See also 25 U.S.C. § 1301(2) (defining an Indian tribe’s power of self-government).
12
  See United States, v. Lara, 541 U.S. 193, 200-01 (2004) (referencing the Indian Commerce Clause, U.S. CONST.,
art. I, § 8, cl. 3, and the Treaty Clause, U.S. CONST. art II, § 2, cl. 2, as authority for the federal regulation of Indian
affairs). The General Crimes Act, the Major Crimes Act, and Public Law 280 are the three federal laws central to the
exercise of criminal jurisdiction in Indian country. See 18 U.S.C. §§ 1152 (codifying the General Crimes Act, as
amended), 1153 (codifying the Major Crimes Act, as amended), and 1162 (codifying Public Law 280, as amended).

Page 4                                                                      GAO-12-658R Tribal Law and Order Act
concurrent, meaning both the tribal governments and federal government, independent and
exclusive of the other, may prosecute the alleged offender, where the alleged offender is Indian
but the victim is non-Indian. Federal jurisdiction is generally exclusive where the alleged
offender is non-Indian and the victim is Indian; and depending on the nature of the crime, tribal
jurisdiction may be exclusive where the alleged offender and the victim are Indian. 13

Tribes, which retain limited, inherent sovereignty, are not bound by restraints placed upon the
federal or state governments through the Bill of Rights or other amendments to the U.S.
Constitution. 14 When a tribal government exercises its jurisdiction to prosecute an Indian
offender, however, it must do so in accordance with the Indian Civil Rights Act (ICRA). Enacted
in 1968, ICRA limited the extent to which tribes may exercise their powers of self-government by
imposing conditions on tribal governments similar to those found in the Bill of Rights to the U.S.
Constitution. 15 For example, ICRA extends the protections of free speech, free exercise of
religion, and due process and equal protection under tribal laws. 16 Tribes must also afford a
defendant the rights to a speedy and public trial, to be informed of the nature and cause of the
accusation, and to be represented by counsel at the defendant’s own expense, among other
things. 17 ICRA also governs the sentencing authority tribes may exercise over convicted Indian
offenders. Prior to the enactment of TLOA, ICRA provided that tribes could only sentence a
convicted defendant to a term of imprisonment not to exceed 1-year per offense. With the
enactment of TLOA in July 2010, tribal courts are able to impose upon convicted defendants, in
defined circumstances, terms of imprisonment not to exceed 3 years for any offense. 18

To exercise the new sentencing authority, however, tribes must have met the following
requirements:
   • afford the defendant the right to effective assistance of counsel at least equal to that
       guaranteed by the United States Constitution;
   • if the defendant is indigent, provide the defendant with a licensed defense attorney at the
       tribe’s expense; 19

13
  The exercise of criminal jurisdiction by state governments in Indian country may be generally summarized as being
limited to two instances—where both the alleged offender and victim are non-Indian, or where a federal treaty or
statute confers, or authorizes a state to assume, criminal jurisdiction over Indians in Indian country.
14
  See Santa Clara Pueblo, 436 U.S. at 55-58 (explaining that tribes, as separate sovereigns preexisting the
Constitution, “have historically been regarded as unconstrained by those constitutional provisions specifically as
limitations on federal or state authority” and that through 25 U.S.C. § 1302 (enacted as amended through Indian Civil
Rights Act), “Congress acted to impose certain restrictions upon tribal governments similar, but not identical, to those
contained in the Bill of Rights and the Fourteenth Amendment”).
15
     See Pub. L. No. 90-284, tit. II, 82 Stat. 73, 77 (1968) (codified as amended at 25 U.S.C. §§ 1301-41).
16
     See 25 U.S.C. § 1302(a)(1), (8).
17
     See 25 U.S.C. § 1302(a)(6).
18
  A term of imprisonment in excess of 1 year may be imposed upon a convicted defendant if the defendant had been
previously convicted of the same or a comparable offense by any jurisdiction in the United States (e.g., federal or
state) or if the defendant is being prosecuted for an offense comparable to an offense that, in any U.S. or state
jurisdiction, may be punishable by more than 1 year of imprisonment. See 25 U.S.C. § 1302(b)(1)-(2). Further, the
maximum term of imprisonment that may be imposed in a criminal proceeding (i.e., where a defendant is charged
with multiple offenses,) is 9 years. See 25 U.S.C. § 1302(a)(7)(D).
19
  Specifically, such an attorney must be licensed to practice law by any jurisdiction in the United States that applies
appropriate professional licensing standards and effectively ensures the competence and professional responsibility
of its licensed attorneys. See 25 U.S.C. § 1302(c)(2).


Page 5                                                                     GAO-12-658R Tribal Law and Order Act
       •   ensure that a judge licensed to practice law in any jurisdiction in the United States
           presides over the proceeding;
       •   ensure that the judge has sufficient legal training to preside over criminal proceedings;
       •   prior to charging the defendant, make publicly available the tribal government’s criminal
           laws and rules of evidence and criminal procedure; and
       •   maintain a record of the criminal proceedings, including an audio or other recording of
           the trial proceedings.

In addition, TLOA established the Indian Law and Order Commission (Commission), which is
responsible for conducting a comprehensive study of law enforcement and criminal justice in
tribal communities. 20

DOI and DOJ are the two primary federal agencies that provide support to federally-recognized
tribes to, among other purposes, help them administer justice. Within DOI, BIA is responsible for
supporting tribes in their efforts to ensure public safety and administer justice within their
reservations as well as to provide related services directly or through contracts or compacts with
federally-recognized tribes. 21 To that end, BIA’s Office of Justice Services—which was
established by TLOA—supports tribal law enforcement, detention, and court programs. 22 Within
the Office of Justice Services, the Division of Tribal Justice Support for Courts works with tribes
to establish and maintain tribal judicial systems. This includes conducting assessments of tribal
courts and providing training and technical assistance on a range of topics, including
establishing or updating law and order codes. Further, BIA distributes funding that tribes may
allocate to their tribal courts through its Tribal Courts TPA. All federally–recognized tribes are
eligible to receive TPA funds. 23 DOJ provides grant funding, training, and technical assistance
to federally-recognized tribes to enhance the capacity of tribal courts, among other tribal justice
programs, through its Office of Justice Programs. This includes JAG, a formula grant program
that is a source of federal justice funding to state, local, and tribal governments. In addition,
pursuant to TLOA, the Attorney General established the Office of Tribal Justice within DOJ to
facilitate coordination for federally-recognized tribal governments and tribal organizations
seeking assistance or information from DOJ on issues related to public safety and justice in
Indian country. 24



20
  See Pub. L. No. 111-211, tit. II, § 235, 124 Stat. at 2282-86 (establishing the Commission and, among other things,
mandating that it submit a report to the President and Congress no later than 2 years after enactment of TLOA
(enacted July 29, 2010) detailing the findings and conclusions of the Commission and recommendations for
legislative and administrative actions the Commission considers appropriate).
21
 Through the Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 93-638, 88 Stat. 2203, as
amended, the federal government established a policy of Indian self-determination whereby tribes, with the support
and assistance of the federal government, would be afforded an “effective and meaningful” role in planning,
conducting, and administering programs and services previously administered by federal entities. See 25 U.S.C. §
450a. Tribes generally obtain funding to assume these functions pursuant to self-determination contracts or self-
governance compacts negotiated and entered into with BIA. See 25 U.S.C. §§ 450h, 458cc. Self-governance
compacts differ from self-determination contracts in that such compacts afford tribes more flexibility in how the agreed
upon funding may be utilized.
22
     See 25 U.S.C. § 2802.
23
 In fiscal year 2011, tribes could choose to allocate BIA funding to 34 TPA activities, including social services,
natural resources management, and tribal courts.
24
     See 25 U.S.C. § 3665a.


Page 6                                                                   GAO-12-658R Tribal Law and Order Act
A Third of Selected Tribes Plan to Exercise TLOA’s Sentencing Authority, but Tribes
Most Frequently Reported That They Did Not Have Funds to Do So

None of the 109 tribes that responded to our survey reported that they were currently exercising
the new sentencing authority. Among these tribes, 36 of 101 (36 percent) reported that they
have plans to exercise the new authority; 34 of 101 (34 percent) reported that they did not know
the tribe’s plans to exercise the new authority because, for instance, the tribal council has not
yet made a decision; and 31 of 101 (31 percent) reported that they did not have plans to do
so. 25 A tribal official who reported that his tribe has plans to exercise the new authority stated
that the tribe decided to do so because the authority permitted the tribe the flexibility to sentence
for 3 years if necessary. Specifically, the official stated that because the reservation is near a
metropolitan area, the tribe encounters many cross-jurisdictional crimes—such as gang
activity—and the authority to sentence up to 3 years would allow the tribe to more effectively
control crime.

Although tribes did not report exercising the new sentencing authority, 64 percent of these tribes
(70 of 109) reported that they currently implement at least half of the associated requirements
for exercising the new sentencing authority. These tribes most frequently reported maintaining a
record of the criminal proceeding and least frequently reported providing the defendant a
licensed attorney. For example, officials from one tribe reported difficulty attracting licensed
attorneys to work for the tribe who are knowledgeable about Indian law. Another tribe reported
that its judges are not law-trained and that only males are allowed to serve as judges. 26 Figure 1
shows, for each requirement necessary to exercise the new sentencing authority, the number of
tribes that reported they were currently implementing the requirement, have plans to implement
it, or have no plans to do so.




25
 The total does not equal 109 because, although 109 tribes responded to our survey, 8 did not respond to this
question.
26
  As we reported in February 2011, some tribes do not require that judges be law-trained or licensed to practice law.
Rather, in many instances, qualifications to serve as a tribal judge may only include that the individual be a member
of the tribe and meet any residency or age requirements established by the tribe.

Page 7                                                                  GAO-12-658R Tribal Law and Order Act
Figure 1. Number of Surveyed Tribes That Reported Implementing Requirements Necessary to Exercise
TLOA’s Sentencing Authority




Note: Some tribes answered “don’t know” or did not provide an answer, so each item does not total 109.


Tribes that described challenges to exercising the new sentencing authority most frequently
identified limited funding (86 of 90, or 96 percent). For instance, 8 of these 90 tribes identified
challenges with the costs of implementing the requirements associated with the sentencing
authority. In addition, 12 of the 90 (13 percent) tribes reported that the costs associated with
longer sentences presented a challenge to exercising the new sentencing authority. For
instance, 1 tribe stated that although the tribe implements all requirements necessary for
exercising the new authority, it has chosen not to do so because it does not have the funding to
support other activities that would result from implementing the new sentencing authority, such
as probation. Moreover, 3 of the 90 tribes reported challenges with the costs of hiring a
licensed, law-trained judge. For example, 1 tribe reported that it has maintained a very effective
criminal and civil justice system for the past 40 years—which has never had or required a law-
trained judge to preside over the court system—and that the costs associated with hiring a law-
trained judge from outside of the community would be unreasonable. Furthermore, in our
indigent defense review, 52 percent (24 of 46) of tribes that reported they did not provide
indigent defense services in any year from fiscal years 2005 through 2010 also reported that
they did not have sufficient funding to provide these services. 27

In addition, 36 of 90 (40 percent) tribes identified limitations of their tribal codes and
constitutions as a challenge to exercising the new sentencing authority, and 33 of 90 (37
percent) tribes reported that their tribal codes would need to be revised to take advantage of the
new sentencing authority. For example, 1 tribe reported that the tribe’s constitution sets forth
minimal requirements for tribal court judges, which would not meet the requirement of a
27
     GAO-12-569.


Page 8                                                                        GAO-12-658R Tribal Law and Order Act
licensed, law-trained judge necessary to exercise the new sentencing authority. Another tribe
reported that its tribal constitution currently limits the tribal court’s sentencing authority to 1 year.
One of these tribes estimated that it would take at least 1 year for its council to approve
rewriting the tribal codes and another year to rewrite them.

In addition to tribes, officials from DOJ’s Office of Tribal Justice, the Indian Law and Order
Commission (Commission), NCAI, and BIA also identified factors that could help to explain why
tribes do not have plans to exercise the new sentencing authority. For example, consistent with
statements made by an official from the Office of Tribal Justice, some tribes may be planning to
exercise the authority, but have not currently done so because they may be waiting to see
whether tribes that have exercised the authority have been subject to litigation as a result or
whether such sentences will withstand appeal. In addition, officials from NCAI and BIA reported
that some tribes may view the new sentencing authority and the associated requirements as
incompatible with traditional notions of tribal justice. For example, an official from NCAI stated
that some tribes have a fundamental opposition to incarceration as a means of punishment and
instead choose traditional means of justice that incorporate healing and rehabilitation, as
opposed to detention. Moreover, a BIA official stated that the process for tribes to update tribal
codes and constitutions to reflect provisions in TLOA will take time and money.


DOJ Could Clarify Eligibility for Funding It Provides to Tribes, and Tribes Reported That
More Funding and Training Would Help Them Exercise TLOA’s Sentencing Authority

BIA and DOJ Provide Funding and Technical Assistance to Tribes, but DOJ Could Clarify
Tribes’ Eligibility for Funding

Both BIA and DOJ provide funding that tribes could use to help meet the necessary
requirements for exercising the new sentencing authority. According to BIA officials, tribal courts
receive funding through BIA’s annual Tribal Courts TPA distributions in the form of contracts or
compacts. 28 Tribes select among available TPAs, such as tribal courts and social services, and
then determine how much BIA funding to allocate to each of these TPAs. Further, tribes may
generally reallocate funding from one TPA activity to another according to their needs. For
example, a tribe needing more funds for tribal courts than for natural resources management
may move funds to meet those needs. In fiscal year 2011, 141 tribes allocated $24.7 million of
BIA contracts and compacts to their tribal courts for salaries and related administrative costs of
judges, prosecutors, public defenders, court clerks, probation officers, juvenile officers, and
other court support staff through the Tribal Courts TPA. In addition, DOJ officials identified the
Coordinated Tribal Assistance Solicitation (CTAS) as a resource for tribes that reported needing
additional funding to exercise the new sentencing authority. In fiscal year 2011, DOJ awarded,
through CTAS, $82 million to tribal justice system and juvenile justice programs that could be
used to exercise the new sentencing authority, such as maintaining a record of the criminal
proceeding and hiring court-appointed defenders for juvenile offenders. 29

28
  In addition, BIA provides direct services operations for those tribes that choose not to operate the program
themselves, such as tribes that use CFR courts.
29
  In fiscal year 2010, DOJ awarded $25 million to tribes through the Tribal Court Assistance Program (TCAP), and
$1.1 million through the Tribal Juvenile Accountability Discretionary Grant (TJADG). Starting in fiscal year 2010,
TCAP and TJADG were rolled into CTAS, which includes one solicitation for 10 previously separate grant programs.
The purpose areas related to justice systems include justice systems and alcohol and substance abuse, corrections
and correctional alternatives, and violence against women. The purpose areas related to juvenile systems include
juvenile justice and tribal youth courts.


Page 9                                                                  GAO-12-658R Tribal Law and Order Act
In addition, DOJ and BIA provide training and other assistance to tribes, which could assist
them in exercising the new sentencing authority. For instance, DOJ (through Access to Justice
and the U.S. Attorneys’ Offices), BIA, and the Administrative Office of the U.S. Courts’ (AOUSC)
Offices of Defender Services (through the federal public defender offices) have partnered to
develop the Tribal Court Trial Advocacy Training Program, which consists of a series of
trainings for tribal court personnel, including defenders, prosecutors, and judges. 30 According to
a DOJ official involved in the training, this training could help tribes meet the requirement in
TLOA that a judge presiding over the criminal proceeding have sufficient legal training. The first
such training occurred in August 2011, and the second in March 2012. According to DOJ and
BIA officials, an additional six trainings are planned through January 2013. In addition, BIA
provides court recording devices to tribes, which could help tribes in implementing the
requirement to maintain a record of criminal proceedings. According to BIA officials, as of May
2012, BIA provided over 60 recording devices for tribal courts and plans to provide an additional
15 to tribes that requested the device.

Moreover, a DOJ official stated that the Tribal Civil and Criminal Legal Assistance (TCCLA)
grant could be used to support tribes’ efforts to exercise the new sentencing authority. In
particular, certain types of tribes (which we discuss below) could use funding in one of the grant
categories—Category 2, which is available for criminal legal assistance—to hire a law-trained
public defender. However, tribes were not always clear on whether they met eligibility
requirements for the grant.31 The statute establishing TCCLA states that eligibility is limited to
nonprofit entities, as defined under section 501(c)(3) of the Internal Revenue Code. DOJ’s fiscal
year 2010 TCCLA solicitation did not specify that eligibility was limited to 501(c)(3) nonprofit
entities, but DOJ adjusted its fiscal year 2011 TCCLA solicitation to include that eligibility for
TCCLA is “limited to tribal and non-tribal non-profit (Internal Revenue Code (I.R.C.) § 501(c)(3))
entities that provide legal assistance services for Indian tribes, members of Indian tribes, or
tribal justice systems pursuant to federal poverty guidelines.” 32 DOJ grant program officials
stated that they made this change because their Office of General Counsel indicated that the
statute limited eligibility to 501(c)(3) nonprofit entities. However, this phrasing could be read as
“tribal entities” and “non-tribal non-profit (Internal Revenue Code (I.R.C.) § 501(c)(3)) entities”
are eligible for the funding, and as not restricting eligibility to “tribal non-profit (Internal Revenue
Code (I.R.C.) § 501(c)(3)) entities.” For instance, even after DOJ changed the solicitation
language, an official from one tribe reported applying in fiscal year 2011 for TCCLA because,
based on eligibility requirements, the individual understood that, as a division of tribal
government, the individual’s office qualified as a tribal entity when it was actually ineligible
because it was not a 501(c)(3) entity. Of the nine tribal governments or tribal entities that
applied for TCCLA in fiscal year 2011, six were uncertain about their eligibility and applied,
despite not being 501(c)(3) nonprofits, and were denied by DOJ. As a result, six tribes

30
  The AOUSC serves the federal judiciary in carrying out its constitutional mission to provide equal justice under law
through a wide range of administrative, legal, financial, management, program, and information technology services
to the federal courts. The U.S. Attorneys are the chief federal law enforcement officers in their districts, responsible
for federal criminal prosecutions and civil cases involving the United States government.
31
 The other TCCLA categories are Category 1: Tribal Civil Legal Assistance Grants and Category 3: Tribal Justice
Advocacy Training and Technical Assistance. Although Category 3 grants could be used to support tribes’ efforts to
exercise TLOA’s sentencing authority, applicants are limited to national or regional membership organizations and
associations whose membership section consists of judicial system personnel within tribal justice systems.
32
  The fiscal year 2010 solicitation stated that eligibility is “limited to tribal and non-tribal non-profit entities that provide
legal assistance services for Indian tribes, members of Indian tribes, or tribal justice systems pursuant to federal
poverty guidelines.”

Page 10                                                                         GAO-12-658R Tribal Law and Order Act
expended resources to apply for TCCLA although they were ineligible, and four of these tribes
planned to use the funding to exercise the new sentencing authority.

In addition to these tribes being uncertain about their eligibility when applying for TCCLA,
certain tribes continued to be uncertain about their eligibility even after receiving a letter from
DOJ explaining why they were not selected for funding. In particular, of the 3 tribes we
interviewed regarding TCCLA all 3 reported that after they received this letter from DOJ, they
still did not understand why they were ineligible. The letters sent to these tribes stated that the
tribes were not eligible because they were not nonprofit entities. What the letters did not explain
was that the tribes were ineligible because they are not 501(c)(3) nonprofit entities. DOJ officials
agreed that the letter could be updated to clarify that only 501(c)(3) nonprofit entities are
eligible. Internal control standards state that agency management should ensure that there are
adequate means of communicating with external stakeholders that may have a significant
impact on the agency achieving its goals. 33 By taking actions to better clarify TCCLA’s eligibility
requirements both during the application process and when applicants are notified of their
ineligibility, DOJ could better ensure that neither the tribes nor DOJ will use resources to
prepare, review, and deny applications for grants for which tribes are not eligible, and
consequently enable tribes to make informed decisions about funding sources.

Tribes Reported That More Funding and Training Would Be Beneficial

While DOJ and BIA provide funding, training, and technical assistance, tribes that responded to
our survey and identified assistance they would like to receive from the federal government (86
of 109) most frequently reported that more of this type of support from the federal government
would help them exercise the new sentencing authority.
    • For instance, tribes reported that they would like to build or expand a detention facility on
        the reservation (10); receive additional funding to employ a licensed attorney to provide
        indigent defense services (2); and hire a licensed, law-trained judge (2), among other
        things.
    • In addition, 15 tribes reported that they would like technical assistance and guidance on
        the new sentencing authority and the necessary requirements. For example, 1 tribe
        identified assistance such as guidance from BIA and local U.S. Attorneys’ Offices
        regarding how to implement the new sentencing authority.
    • Eleven tribes also identified instances where the federal government could share
        information to help tribes exercise the new sentencing authority, such as by developing a
        fact sheet.

Both DOJ and BIA have taken actions to increase funding and training to tribes in this area. In
its fiscal year 2012 CTAS solicitation, DOJ officials reported that they made a number of
changes to reflect tribes’ needs for additional resources with the passage of TLOA. For
instance, DOJ added the implementation of enhanced authorities and provisions under TLOA as
a goal under the justice systems, and alcohol and substance abuse purpose area. In addition,
DOJ also announced a new program for fiscal year 2012, the Tribal Justice System Capacity
Building Training and Technical Assistance program, which seeks to enhance tribal justice
information sharing and meet tribal justice system capacity building needs, among other
things. 34 Further, in its fiscal year 2013 budget justification, BIA recognized tribes’ need for


33
     See GAO/AIMD-00-21.3.1.
34
 Moreover, DOJ’s Bureau of Justice Statistics is developing a national survey on tribal courts to be fielded in fiscal
year 2013. DOJ officials stated that they intend to use the results from the survey to inform policy decisions, but

Page 11                                                                    GAO-12-658R Tribal Law and Order Act
additional resources, and asked for $1 million in additional Tribal Courts TPA funding to help
meet that need. 35 In particular, to support the new sentencing authority given to tribal courts in
TLOA, BIA requested additional funding to be used for tribal court staff salaries, among other
things. According to BIA, tribal court systems were struggling financially to operate under the
pre-TLOA requirements, and implementation of TLOA requires additional resources. For
example, according to BIA’s budget justification, should a tribal court exercise the sentencing
authority extended by TLOA, additional training on developing tribal sentencing guidelines will
be required for tribal court judges and other personnel. BIA expects that the amount of funding
requested would significantly improve the ability of the tribal courts to effectively implement
TLOA, among other things. In addition, BIA has partnered with the National Judicial College to
provide scholarships in 2012 and 2013 for two members of each of the 141 tribal courts that
allocate to the Tribal Courts TPA to each attend two courses. 36 These courses could include
Appellate Skills for Tribal Judges and Advanced Tribal Court Management. Moreover, according
to BIA, it has established a new process for conducting tribal court reviews that will allow it to
assess the unmet needs of tribal courts, including those related to the implementation of the
requirements necessary to exercise TLOA’s new sentencing authority, by the end of 2013.

Conclusions

The new sentencing authority under TLOA provides tribal courts with the opportunity to impose
sentences of more than 1 year to 3 years per offense and possibly provide a more effective
deterrent to criminal activity in Indian country. Tribes reported that funding and technical
assistance from DOJ and BIA could assist them in exercising the new authority. However, some
tribes expressed uncertainty regarding their eligibility for certain funds. Specifically, DOJ did not
inform tribes that applied for TCCLA grants, which could be used to help meet the requirements
necessary to exercise the new sentencing authority, that they were deemed ineligible because
they were not 501(c)(3) nonprofit entities. By taking actions to better clarify that applicants must
be 501(c)(3) nonprofit entities to be eligible for TCCLA, both during the application process and
when applicants are notified of their ineligibility, DOJ could better ensure that the tribes and DOJ
will not use resources to prepare, review, and deny applications for grants for which tribes or
certain tribal entities are not eligible.

Recommendation for Executive Action

To help ensure that tribes better understand which grant resources could assist tribes in
exercising the new sentencing authority, we recommend that the Assistant Attorney General of
the Office of Justice Programs take actions—both during the application process and when
applicants are notified of their ineligibility—to better clarify the circumstances under which
applicants, including tribes and tribal entities, are eligible or ineligible for TCCLA funds.




because the survey is still being developed, they could not provide specific details regarding how the information will
be used.
35
 Tribes, however, have the authority to move funds out of the Tribal Courts TPA into other TPA activities, such as
social services.
36
  The National Judicial College offers programs to judges nationwide to improve the delivery of justice and advance
the rule of law through a disciplined process of professional study and collegial dialogue. Since June 2002, it has
included curricula aimed at the challenges facing tribal courts.

Page 12                                                                   GAO-12-658R Tribal Law and Order Act
Agency Comments and Our Evaluation

We provided a draft of this report for review and comment to DOJ and DOI. In addition, we
provided relevant sections of the report to NCAI and the Commission. We received written
comments from DOJ, which are reprinted in full in enclosure II. In its written comments, DOJ
concurred with the recommendation that it take actions to better clarify the circumstances under
which applicants, including tribes and tribal entities, are eligible or ineligible for TCCLA funds,
and identified several actions that the Office of Justice Programs has taken and will take to do
so. These actions include updating the fiscal year 2012 TCCLA solicitation to clarify eligibility
language, revising language in letters sent to fiscal year 2012 TCCLA applicants that were not
selected for funding to explain why they were ineligible, and developing a web page to provide
information on resources for legal assistance and indigent defense services and activities
available for tribes. These actions, when implemented, should address the intent of our
recommendation. In an email dated May 17, 2012, DOI’s liaison stated that DOI does not have
written comments to include in our report. DOJ, DOI, and the Commission also provided
technical comments, which we incorporated throughout the report as appropriate.

                                              -----

We are sending copies of this report to the appropriate congressional committees, the Attorney
General and the Secretary of the Interior. In addition, the report will be available at no charge on
the GAO website at http://www.gao.gov. If you or your staff have any questions about this
report, please contact me at (202) 512-8777 or larencee@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on the last page of this
report. GAO staff who made key contributions to this report are listed in enclosure III.




Eileen R. Larence
Director, Homeland Security and Justice Issues

Enclosures - 3




Page 13                                                       GAO-12-658R Tribal Law and Order Act
List of Requesters

The Honorable Patrick J. Leahy
Chairman
Committee on the Judiciary
United States Senate

The Honorable John Thune
United States Senate

The Honorable John Conyers, Jr.
Ranking Member
Committee on the Judiciary
House of Representatives

The Honorable Robert C. Scott
Ranking Member
Subcommittee on Crime, Terrorism, and Homeland Security
Committee on the Judiciary
House of Representatives

The Honorable Jerrold Nadler
Ranking Member
Subcommittee on the Constitution
Committee on the Judiciary
House of Representatives




Page 14                                               GAO-12-658R Tribal Law and Order Act
Enclosure I: Survey Questions and Responses


To gather information on whether tribes are implementing the Tribal Law and Order Act’s
(TLOA) new sentencing authority, we surveyed all 171 tribes that received federal funding that
could have been used for indigent defense in any fiscal year from 2005 through 2010. In
particular, we conducted a web-based survey to tribes that (1) reported allocating Tribal Priority
Allocations (TPA)—federal funding that the Bureau of Indian Affairs (BIA) distributes to tribes
and that tribes may allocate to a variety of activities—to their tribal courts (referred to as the
“Tribal Courts TPA”) (142 out of 171), (2) were awarded the Edward Byrne Memorial Justice
Assistance Grant (JAG) by the Department of Justice (2 out of 171), or (3) both allocated
funding to their Tribal Courts TPA and received JAG funding (27 out of 171) in any fiscal year
from 2005 through 2010. We sent one survey to tribes that reported allocating TPA funding to
Tribal Courts, and a separate survey to tribes that received JAG. For tribes that received both
surveys, we asked that one representative from the tribe complete the section related to TLOA.
We received responses from 109 tribes, for a response rate of 64 percent; however, not all 109
respondents answered every question. Our survey was composed of closed- and open-ended
questions. In this enclosure, we include all the survey questions and aggregate results of
responses to the closed-ended questions related to TLOA; we do not provide information on
responses provided to the open-ended questions. 37




37
  Both surveys contained five sections: (1) awareness of allowable uses of funding; (2) allocation of funding for
indigent defense; (3) conditions influencing whether funding was allocated for indigent defense; (4) likelihood of
allocating 2011 funding for indigent defense; and (5) TLOA. For survey results and questions from the non-TLOA
sections, see Indigent Defense: Surveys of Grant Recipients, Select Tribes, and Indigent Defense Providers, GAO-
12-661SP (Washington, D.C.: May 2012). For a more detailed discussion of our survey methodology, see GAO-12-
569.

Page 15                                                                 GAO-12-658R Tribal Law and Order Act
Enclosure I: Survey Questions and Responses

Section V: Tribal Law and Order Act
The Tribal Law and Order Act of 2010 (TLOA) provides for new sentencing authority for Indian
Tribes, but included several requirements—some related to indigent defense—that must be
fulfilled before that authority may be exercised. (TLOA, Pub. L. No. 111-211, among other
things, amended the Indian Civil Rights Act of 1968, Pub. L. No. 90-284.)


1. Does your Tribe currently, or have plans to, exercise the new sentencing authority provided
by TLOA?
                                                    Number of
                                                    Respondents
                           Currently exercise       0

                           Have plans to exercise   36

                           No plans to exercise     31

                           Don’t know               34

                           Total                    101




Page 16                                                         GAO-12-658R Tribal Law and Order Act
Enclosure I: Survey Questions and Responses

2. Listed below are the TLOA requirements for exercising the new sentencing authority.
Regardless of whether your Tribe plans to exercise the new sentencing authority, does your
Tribe currently, or have plans to, implement any of the following?


 TLOA requirements for exercising        Does your Tribe currently,   Number of
 new sentencing authority                or have plans to,            Respondents
                                         implement this
                                         requirement?
 a. Provide the defendant the right to      Currently implement       41
 effective assistance of counsel at         Have plans to implement   18
 least equal to that guaranteed in the      No plans to implement     21
 U.S. Constitution.                                                   20
                                            Don’t know
                                         Total                        100
 b. Provide an indigent defendant the       Currently implement       39
 assistance of a defense attorney           Have plans to implement   18
 licensed to practice by any U.S.           No plans to implement     24
 jurisdiction, at the expense of the        Don’t know                19
 Tribal government.                      Total                        100
 c. Require that the judge presiding        Currently implement       73
 over the criminal proceeding have          Have plans to implement   11
 sufficient legal training to preside       No plans to implement     10
 over criminal proceedings.                 Don’t know                8
                                         Total                        102
 d. Require that the judge presiding        Currently implement       53
 over the criminal proceeding be            Have plans to implement   13
 licensed to practice law in any U.S.       No plans to implement     20
 jurisdiction.                              Don’t know                15
                                         Total                        101
 e. Prior to charging the defendant,        Currently implement       66
 make publicly available the Tribe’s        Have plans to implement   17
 criminal laws, rules of evidence, and      No plans to implement     8
 rules of criminal procedure.               Don’t know                10
                                         Total                        101
 f. Maintain a record of the criminal       Currently implement       85
 proceeding, including an audio or          Have plans to implement   6
 other recording.                           No plans to implement     5
                                            Don’t know                6
                                         Total                        102




Page 17                                                               GAO-12-658R Tribal Law and Order Act
Enclosure I: Survey Questions and Responses

3. What challenges, if any, may affect your Tribe’s ability to exercise the new sentencing
authority under TLOA? For example, challenges may include funding, changing Tribal codes,
increasing jail capacity, etc.




4. If you have any additional comments or would like to explain any of your answers on TLOA’s
sentencing authority, please provide them in the box below.




5. What assistance, if any, would your Tribe like to receive from the United States government
to help your Tribe exercise the new sentencing authority provided by TLOA?




Page 18                                                    GAO-12-658R Tribal Law and Order Act
Enclosure II: Comments from the Department of Justice




Page 19                                             GAO-12-658R Tribal Law and Order Act
Enclosure II: Comments from the Department of Justice




Page 20                                             GAO-12-658R Tribal Law and Order Act
Enclosure II: Comments from the Department of Justice




Page 21                                             GAO-12-658R Tribal Law and Order Act
Enclosure III: GAO Contact and Staff Acknowledgments

GAO Contact
Eileen R. Larence, (202) 512-8777 or larencee@gao.gov


Staff Acknowledgments
In addition to the contact named above, Kristy Brown, Assistant Director; Jill Verret, Analyst-in-
Charge; and Alicia Loucks, Analyst, managed this assignment. Michele Fejfar, Heather
Hampton, Christine Hanson, Thomas Lombardi, Carl Ramirez, and Jerome Sandau also made
significant contributions to the work.




(441051)


Page 22                                                      GAO-12-658R Tribal Law and Order Act
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