In 2010, Congress passed the Tribal Law and Order Act (TLOA). The act was intended to tackle crime in Indian country, and had a number of provisions such as better data sharing and communication between tribes, state and federal officials, and enhanced sentencing capabilities for tribes.

Affie Ellis is one of the Indian Law and Order Commissioners responsible for writing the TLOA. Ellis’ job has been to conduct field hearings and operate in a fact-finding capacity, and she spoke about some of the issues and comments she’s heard, and begins with the issue of criminal jurisdiction in Indian country.

The Indian Law and Order Commission has spent a great deal of time discussing situations where you have a non-Indian defendant and the tribe has no jurisdiction over that non-Indian person. We’ve talked about a variety of ideas to try and capture those situations where federal prosecutors declined to take those cases. The Supreme Court spoke pretty clearly on this issue in the 1978 Olyphant decision, which said tribes don’t have jurisdiction over non-Indians. So we’ve tried to think outside the box with some of our approaches: do we look at the inherent authority of a tribe to exercise jurisdiction over non-Indians?

One idea we’ve been kicking around is looking at some kind of delegated federal authority for tribal courts to exercise federal jurisdiction over those non-Indians.

How would that work?

It’s kind of a new concept which was brought to the commission at a recent hearing in Oklahoma, but basically, a tribal court judge would receive a status of federal magistrate, so technically they’d be wearing a federal robe, so to speak, and exercising federal law over the non-Indian. But that would be the delegated authority, not recognized inherent tribal authority over a non-Indian.

And I do want to mention as kind of a disclaimer, these are just ideas we’re kicking around, but no means have we taken final action with what we’re discussing or looking at doing. But it’s an idea that we’re talking about, and again, also talking about the importance of making all of these optional.

What are some of the other ideas you’ve been kicking around?

The commission has tried to think really outside the box with changing the structural situation that governs how crimes are prosecuted in Indian country. So aside from these structural changes, we’ve also heard numerous recommendations to keep the system the way it is but make that system even better.

Right now a lot of attention was paid to the Wind River Reservation because of the High Priority Performance Goal program – a lot of people refer to it as “The Surge” – so in discussing theHHPG program, Wind River has been very gracious in hosting and providing our commission with information on how that program was implemented […] we heard a lot about some growing pains, if you will, of having that extra law enforcement there who maybe didn’t have an understanding of some of the tribes unique cultural situations.

They also told us about when you have increased law enforcement you generally have an increased number of arrests, and that definitely impacts your detention facilities, as well as the follow through of what you do with those people in tribal court. In talking with their tribal prosecutors they explained that their workload is overwhelming, and so as the Department of Justice and the federal government move forward with targeting other reservations for the HPPG program, we found that this testimony and the experience that the Wind River Tribes had with the HPPG program will hopefully provide some lessons learned so that we’re moving forward with programs like that in a more comprehensive and holistic way.

So even with HPPG or increased jurisdiction, a lot of this comes down to a tribes ability to handle the financial burden of increased powers and authorities. Is money an issue you’re looking at?

Yes, our commission talks a great deal about funding and I think our biggest concern is that we write a report that just says “we need more money,” and lawmakers will look at that and say “well, yeah,” and put the report on the shelf. So our goal is to not just recommend that more funds be allocated for tribal programs, for tribal courts, for law enforcement, but to try and find ways that we can find some efficiencies. One overwhelming concern we’ve heard from tribes is it’s all grant-driven and so funding’s very unstable, so we’re trying to pay some attention to talking about how we can make that funding more stable and less whimsical so that tribes can actually start to manage their budgets knowing what their appropriated dollars will be.

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