44 | The Federal Lawyer | March/April 2011
The Tribal Law and Order Act (TLOA) is a new, broad,
and comprehensive legislative package that attempts to
improve the criminal justice system in Indian country.
1
Whether, in the eyes of our nation’s indigenous people,
the act actually fulfills its promise remains to be seen.
On July 29, 2010, President Barack Obama signed into
law what is commonly referred to as the Tribal Law and
Order Act (Public Law 111-211),
2
which seeks to improve
the criminal justice system in Indian country in a variety
of ways. In fact, it is probably safe to say that this is the
most comprehensive legislation to address Indian country
criminal justice in history.
Watershed legislation in this field is not new. For
example, the Indian Country General Crimes Act (18 U.S.C.
1152), the Major Crimes Act (18 U.S.C. 1153), and the
Indian Law Enforcement Reform Act (25 U.S.C. 2801, et
seq.) have all had major impacts, yet none of that legisla-
tion affects criminal justice in Indian country as broadly as
the TLOA does. The TLOA addresses criminal jurisdiction,
policing, criminal intelligence information sharing, judicial
services, corrections, probation, and training in Indian
country. The act also deals with accountability and coop-
eration of federal and state law enforcement activities on
tribal lands. The TLOA even dares to address the substance
abuse problems that underlie and drive the majority of
criminal activity in Indian country. Never before has one
single piece of legislation attempted to address so many
aspects of the criminal justice system in Indian country
simultaneously.
The TLOA is so comprehensive that a full explanation of
its ramifications is not possible in the confines of this arti-
cle. For example, the act contains provisions that address
such diverse issues as legal protection for Indian arts and
crafts and tribal government access to explosives used in
public fireworks displays. What follows is an explanation
of some of the more important highlights of the TLOA. The
discussion will provide brief explanations of various prob-
lems that existed prior to enactment of the law and will
describe how the TLOA deals with those challenges. The
conclusion will offer an assessment of the likely “big pic-
ture,” “long-term” outcome of the TLOA on public safety
in Indian country.
Statutory Confirmation of Existing Federal Agency Policies
and Practices
Prior to enactment of the TLOA, the U.S. Department
of Justice (DOJ) and the U.S. Department of the Interior
(DOI) had put into place a number of policies, practices,
and initiatives designed to improve public safety in Indian
country. Many of these practices were implemented without
a legislative mandate, but rather had been put into practice
under pre-existing authorities. A number of these practices
apparently caught the attention of the authors of the legis-
lation and were subsequently statutorily confirmed as best
practices. Examples of pre-existing practices that now have
specific statutory authorization include the following:
designation of tribal prosecuting attorneys as special •
assistant U.S. attorneys so they can prosecute federal
crimes that occur on the reservation in federal court
(§ 213),
designation of assistant U.S. attorneys as tribal liaisons •
(§ 213 also specifies duties of the designated tribal liai-
sons), and
designation of a Native American issues coordinator at •
the Executive Office for U.S. Attorneys (§ 214(b)).
In addition, § 214(a) of the TLOA made the DOJ Office
of Tribal Justice a permanent component of the Department
of Justice. The Office of Tribal Justice had been in existence
for some 15 years prior to enactment; however, it was not
a statutorily confirmed freestanding component prior to
the act. Section 211(a)(4) of the TLOA statutorily acknowl-
edges the name change of the Department of the Interior,
Bureau of Indian Affairs’ (BIA) “Office of Law Enforcement
Services” to that of “Office of Justice Services,” (OJS) which
had already been done administratively in 2005 in order to
reflect the expansion of that office’s authority from just law
enforcement operations to the full panoply of criminal jus-
tice services in Indian country (including training, judicial
services, and corrections). Another BIA practice confirmed
by the TLOA includes the provision of police dispatch
services (§ 211(b)).
Improvement of Information Sharing Capabilities
Information sharing is critical to the provision of effec-
The Promise of the
Tribal Law and Order Act
By Christopher B. Chaney
Photo: Francis Canyon Pueblito Ruin, New Mexico. By Lawrence R. Baca.
tive, efficient, and professional criminal justice services in
Indian country, and the TLOA recognizes this in a number
of ways. First, § 233 amends 28 U.S.C. § 534 to allow tribal
criminal justice agencies access to the FBI’s National Crime
Information Center (NCIC) databases and other data-
bases that share federal criminal intelligence information.
Although this had already been FBI policy for some time,
there is now a statutory mandate to allow access.
Second, the TLOA significantly changes the way that
Indian country’s crime statistics are handled. Prior to the
TLOA, the BIA’s OJS collected crime data from tribal police
departments and reported that data to the FBI; however,
the data was reported in a lump sum and neither the FBI,
BIA’s OJS, nor tribal leaders were able to rely on any
published results in order to make informed policy deci-
sions. The act amends 25 U.S.C. § 2802 to make the BIA’s
OJS responsible for the collection, analysis, and reporting
of crime data. The act goes further and mandates that the
data reported to the BIA’s OJS be reported separately on
a tribe-by-tribe basis (§ 211(b)). Finally, § 251(b) of the
TLOA requires the DOJ’s Bureau of Justice Statistics, the
FBI, and the BIA’s OJS to work together to consult with
tribes in order to establish and implement tribal data col-
lection systems.
Changes in Criminal Law and Procedure
The TLOA also addressed criminal procedure in Indian
country. Prior to the enactment of the TLOA, BIA law
enforcement officers were authorized to make warrantless
arrests for certain enumerated crimes (mostly those related to
domestic violence) based on “reasonable grounds.” In § 211
(c)(2)(B), the warrantless arrest standard was modified to
that of “probable cause”—the same standard used by other
law enforcement jurisdictions. In addition, § 211(c)(2)(D)
expanded the list of enumerated crimes to which the war-
rantless arrest rule applied to include controlled substances
offenses, bootlegging, firearms offenses, and assaults.
Federal employees from the BIA’s OJS and from the fed-
eral Indian Health Service (IHS) are sometimes needed to
testify in tribal courts or in state courts. Prior to the TLOA,
nonfederal court subpoenas of BIA and IHS employees
were reviewed via a time-consuming administrative pro-
cess, and such subpoenas were not deemed valid unless
the federal agency granted permission for the testimony to
be taken. The result was that approval rarely came, or if it
was granted, it was sometimes done after the court hearing
had already taken place. The TLOA’s § 263 institutes a new
procedure whereby tribal court and state court subpoenas
are deemed approved by operation of law if the agency
does not act within 30 days.
Improvements in Criminal Justice Operations
The TLOA includes a number of provisions that affect
the operational “business end” of how the Department of
the Interior and the Department of Justice do their work
in Indian country. Prior to enactment of the TLOA, the
BIA’s OJS and the FBI were authorized, but not required,
to report to tribal law enforcement authorities when an
investigation was not referred for federal prosecution.
Similarly, U.S. attorneys offices were authorized, but not
required, to report to tribal prosecutorial authorities when
a case was declined for federal prosecution. The TLOA
§ 212 amends 25 U.S.C. § 2809, so that, in the case of
nonreferrals and declinations, the FBI and U.S. attorneys
offices “shall coordinate” with their tribal counterparts.
It is noteworthy that the law enforcement nonreferral
provision now not only covers the BIA and FBI but also
applies to “any Federal department or agency,” thus, the
Drug Enforcement Administration, the Bureau of Alcohol,
Tobacco, Firearms, and Explosives, inspector generals’
offices, and other federal law enforcement agencies that
investigate crimes in Indian country must coordinate with
their tribal law enforcement counterparts.
Under § 245 of the act, the Office of U.S. Probation and
Pre-Trial Services is authorized to appoint officers in Indian
country. Under § 261(a), the Bureau of Prisons is required to
notify a tribe’s chief law enforcement official when a prison-
er is being released into the tribal community if that prisoner
had been convicted of a violent crime, drug trafficking, or
a sex offense (the tribal sex offender registry must also be
notified if the tribe operates such a registry).
In addition, § 211(b) of the TLOA authorizes the BIA’s
OJS to provide “E-911” emergency services. Section
231(a) requires the BIA’s OJS to recognize officer train-
ing received at state and tribal police academies and
also raises the maximum hiring age for law enforcement
officers from 37 to 47 to allow for greater flexibility in
hiring. Section 231(b) provides the BIA’s OJS with greater
direction regarding Special Law Enforcement Commission
agreements (which allow the BIA’s OJS to cross-deputize
tribal police officers to enforce federal laws).
Other Administrative Changes Within Federal Agencies
Section 211(b) of the TLOA amends 25 U.S.C. § 2802
to require the BIA’s OJS to provide an annual report to
Congress that addresses unmet budgetary needs for law
enforcement, prosecution, judicial services, and correc-
tions resources in Indian country. This report is required
to cover not only those programs that the BIA’s OJS
administers directly but also those programs that tribal
governments run on their own. Section 241(a)(2) rein-
vigorates 25 U.S.C. § 2412 (part of the Indian Alcohol and
Substance Abuse Act), which authorizes and encourages
the Department of Justice and the Department of Health
and Human Services to assist tribes in developing “Tribal
Action Plans” to address substance abuse in their com-
munities. Prior to the enactment of the TLOA, 42 U.S.C.
§ 13709 limited certain grant funding programs to the con-
struction of incarceration facilities and required that tribal
matching funds be provided; Section 244 of the act makes
changes to provide greater flexibility to allow such grant
funds to be used to build “tribal justice centers” (which can
include law enforcement and judicial facilities in addition
to incarceration facilities) and eliminates the matching fund
requirement under this grant program.
The development of tribal law enforcement programs
in the state of Alaska has been hampered by two per-
ceived legal impediments: (1) mandatory Public Law
March/April 2011 | The Federal Lawyer | 45
280 (authorizing state criminal jurisdiction within Indian
country located in Alaska) and (2) the Supreme Court
decision in Alaska v. Native Village of Venetie, 522 U.S. 520
(1998) (holding that Native Village land was not “Indian
country” for jurisdictional purposes).
3
Because of these
two restrictions, law enforcement in many tribal com-
munities in Alaska had been provided by State Village
Public Safety Officer (VPSO) programs. In order to support
tribal communities served by VPSO programs, § 247 of the
TLOA made all VPSO programs eligible to apply for DOJ
Community Oriented Policing Services grants (a common
source of funding for tribal law enforcement agencies) and
mandated the BIA’s OJS to accept VPSO officer candidates
into the BIA’s Indian Police Academy for training.
Prior to the TLOA, most tribal community health facilities
did not have effective sexual assault policies or protocols in
place. Where they were in place, the content often differed
greatly from tribe to tribe. Section 265 requires the federal
Indian Health Service to coordinate with the DOJ, the BIA’s
OJS, and tribes to develop standardized sexual assault
policies and protocols. The BIA’s OJS is now authorized to
provide training regarding NCIC access to the FBI’s National
Crime Information Center databases (§ 211(b)). Section
231(c) authorizes the creation of an Indian Law Enforcement
Foundation that will function as an independent nonprofit
corporation to raise funds and grant awards to assist justice
services programs run by tribes and the BIA’s OJS.
Jurisdictional Reform
One of the more interesting changes to the criminal jus-
tice system in Indian country involves potential changes to
the jurisdictional status of tribal lands that are subject to 18
U.S.C. § 1162 (commonly referred to as “mandatory Public
Law 280”). Pursuant to mandatory Public Law 280, affected
tribes were subject to state criminal jurisdiction and most
nongeneral federal criminal jurisdiction was eliminated.
Dissatisfaction with that state of affairs (on the part of both
tribes and states) led to a number of jurisdictional retroces-
sions. Under 25 U.S.C. § 1323(a), states and tribes that con-
curred could petition the secretary of the interior to accept a
transfer of criminal jurisdiction from the state to the federal
government. Some states worked cooperatively with tribal
governments to make that change in appropriate cases, but
other states did not do so. If a tribal community was dissatis-
fied with state jurisdiction but the state would not agree to a
transfer of authority, then public safety could suffer. Section
221 created an additional path for mandatory Public Law
280 tribes to change their jurisdictional status. Under the
new provisions, a tribe can request the U.S. attorney general
to accept concurrent (with the state and tribe) federal crimi-
nal jurisdiction over the reservation. State agreement is not
required, because the state’s jurisdiction is not altered.
Perhaps the biggest change the TLOA made to the field
of criminal justice in Indian country was an authorization
to allow tribal courts to impose felony level sentences.
In 1968, the Indian Civil Rights Act was enacted with a
view toward protecting the rights of criminal defendants
in tribal courts.
4
However, Congress took things one step
further. Under 25 U.S.C. § 1302(7), the sentencing author-
ity of tribal courts was limited to the misdemeanor level
(after subsequent amendment it was limited to no more
than one year of incarceration and/or a fine of no more
than $5,000). Under § 234 of the TLOA, a tribe now has
the option to impose felony level sentences of up to three
years per count and up to nine years per case; the limit on
fines has been raised to $15,000. This enhanced sentencing
authority is conditioned on the tribe making bar-licensed
indigent defense counsel available, using a bar-licensed
judge, making tribal criminal laws available for public
inspection, and recording court proceedings.
Because most tribes do not have incarceration facilities
and those that do exist are designed to handle prison-
ers serving short-term misdemeanor level sentences, the
enhanced sentencing authority raised the question of what
the tribes would do with long-term prisoners. In response
to those concerns, § 234(c) of the TLOA creates a new
option for tribal courts. Defendants sentenced under the
new felony sentencing authority can be assigned to serve
their time in the custody of the U.S. Bureau of Prisons at
the expense of the federal government. This new “Tribal
Prisoner Pilot Program” will accept up to 100 prisoners;
per the TLOA, the prisoner must have been sentenced to
serve at least two years’ incarceration and the offense of
conviction must be for a violent crime.
Studies for Future Improvement
The Tribal Law and Order Act authorizes a number of
studies to be conducted that will provide information on
which legislators and others can rely when making deci-
sions on policy and resource allocation. Section 235 of
the TLOA creates a new entity called the Indian Law and
Order Commission, which will consist of a blue-ribbon
panel of experts on the criminal justice system in Indian
country. The goal of the commission is to study crimi-
nal jurisdiction, corrections, juvenile justice, the effects
of the Indian Civil Rights Act, and other areas that the
commission chooses to study. The Indian Law and Order
Commission will produce a report containing recommen-
dations for improvement that will be presented to the
President and to Congress by July 2012. Section 211(b)
of the TLOA requires the Department of the Interior, in
conjunction with the Department of Justice, to develop a
long-term tribal detention plan, and § 241(g)(1) requires
the two departments to work together in consultation
with tribes to develop long-term plans for juvenile deten-
tion, substance abuse treatment centers, and alternatives
to detention.
Conclusion
The Tribal Law and Order Act is watershed legislation for
the criminal justice system in Indian country. The legisla-
tion spans the spectrum of crime prevention, training, law
enforcement, information sharing, adjudication, probation,
corrections, substance abuse treatment, and re-entry pro-
grams. The act has great promise to improve public safety
in Indian country significantly. However, whether the TLOA
actually fulfills that promise will depend on three things:
46 | The Federal Lawyer | March/April 2011
adequate funding to build the facilities, purchase the •
equipment, and hire the personnel that the TLOA con-
templates;
5
zeal and willingness by the Department of Justice, the •
Department of the Interior, and the Department of
Health and Human Services to implement the act;
6
and
interest, engagement, and input from the federally rec-•
ognized tribes to ensure that implementation is done in
a way that improves public safety in a professional and
culturally appropriate way. TFL
Christopher B. Chaney is a member of the Seneca-Cayuga
Tribe of Oklahoma and serves as a deputy director in the
U.S. Department of Justice, Office of Tribal Justice. This article
reflects the opinion of the author and may not necessarily re-
flect the opinions or positions of the U.S. Department of Justice
or its components. The author thanks Tracy Toulou, Gaye
Tenoso, and Leslie Hagen for their advice and support.
Endnotes
1
“Indian country” is defined at 18 U.S.C. § 1151 to
include all land within the exterior boundaries of a reser-
vation, “dependent Indian communities,” and allotments.
In addition, other forms of Indian country have been rec-
ognized by Congress and by the U.S. Supreme Court. See,
e.g., Oklahoma Tax Commission v. Sac and Fox Nation,
508 U.S. 114 (1993).
2
Technically, Public Law 111-211 is entitled, An Act to
Protect Indian Arts and Crafts Through the Improvement of
Applicable Criminal Proceedings and for Other Purposes.
Title I of the act (§§ 101–103) amends certain provisions that
deal with enforcement of laws designed to protect the Indian
arts and crafts market from fraud. Title II of the act (§§ 201
–266) is entitled the Tribal Law and Order Act of 2010.
3
As explained above, there are a number of types of
territory that can be considered to be Indian country for
jurisdictional purposes; Venetie dealt only with Alaska
Native Village land, not reservations, informal reservations,
or allotments.
4
The Supreme Court had held that the provisions of
the Constitution do not apply in tribal courts; see Talton v.
Mayes, 163 U.S. 376 (1896). Under the Indian Civil Rights
Act, most—but not all—of the provisions of the Bill of
Rights were made statutorily applicable to tribal courts.
5
It should be noted that the TLOA provides significant
statutory authorities, but it does not appropriate any funds
for implementation.
6
As of the time that this article was written, all three
departments were actively engaged in working together on
implementing the TLOA using existing available resources.
March/April 2011 | The Federal Lawyer | 47
to Indian veterans appear to be appealed to the Board of
Veterans Appeals. Therefore, TVRs must be trained as advo-
cates so that they can directly represent Indian veterans
before the VA at the regional offices as well as the Board of
Veterans’ Appeals. It is essential in this regard to amend the
inherently discriminatory language of 38 C.F.R. §§ 14.628 and
14.629, which limits certification and accreditation to state
and county employees, with no provision for employees (or
designees) of any other entity, such as tribal employees.
There is a concurrent need for lawyers to provide legal
representation in complex cases in Indian country. At a mini-
mum, there should be some education in veterans law avail-
able to lawyers who work in Indian country. There are con-
siderable cultural ramifications inherent in PTSD cases, for
example, as the impact of the type of experience that results
in PTSD is as much the product of the culture from which the
veteran came as it is of the event he or she experienced. One
such case has gone before the Court of Appeals for Veterans’
Claims, but it was unsuccessful. It is essential to develop and
pursue the theory espoused in that case—that the reservation
culture in which the veteran grew up had a profound influ-
ence on the way in which he reacted to the situation that
produced his PTSD, more so than it perhaps would have for
someone from an urban culture. It is equally important for
the Indian legal community to bring to the court issues that
have strong cultural ramifications for Indian veterans.
There are currently three vacancies on the Court of
Appeals for Veterans’ Claims, and it is incumbent upon the
Indian legal community, including the Native American Bar
Association and the FBA Indian Law Section, to encourage
the nomination of an American Indian, Alaska Native, or
Native Hawai’ian individual for one of those vacancies.
It certainly makes economic sense to use advocacy skills
to assist veterans in this regard. Every Indian family has
been touched or affected by the military service of a fam-
ily member. Many veterans returning from the current wars
would not have survived the battlefield in any prior war.
Devastating burns and multiple amputations are common.
The signature wound of Iraq and Afghanistan is traumatic
brain injury, which requires lengthy treatment and often
never heals. Warriors in these conflicts have engaged in guer-
rilla warfare in close quarters that has left their minds and
psyches badly damaged.
Surely, Indian veterans, their survivors, and their depen-
dents are as deserving of adequate legal representation in
obtaining the compensation and services earned by going in
harm’s way as they are of representation in matters of water
rights, gaming, economic growth, energy development, and
the protection of sacred places. There is no more sacred
place than the soul of a warrior. Indian veterans’ issues are
Indian law issues. It is time for the Indian legal community
to rise to the challenge. TFL
Carol Wild Scott has been deputy director of The Veterans
Consortium Pro Bono Program since 1996, and is chair of the
FBA Veterans Law Section. Her background over the last 40
years has been primarily in military law and veterans law.
commenTary continued from page 43
