[Senate Report 116-37]
[From the U.S. Government Publishing Office]
Calendar No. 77
116th Congress } { Report
SENATE
1st Session } { 116-37
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AMENDING THE TRIBAL LAW AND ORDER ACT OF 2010 AND THE INDIAN LAW
ENFORCEMENT REFORM ACT TO PROVIDE FOR ADVANCEMENTS IN PUBLIC SAFETY
SERVICES TO INDIAN COMMUNITIES, AND FOR OTHER PURPOSES
_______
May 6, 2019.--Ordered to be printed
_______
Mr. Hoeven, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 210]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 210) to amend the Tribal Law and Order Act of 2010 and
the Indian Law Enforcement Reform Act to provide for
advancements in public safety services to Indian communities,
and for other purposes, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
PURPOSE
The Tribal Law and Order Act Reauthorization and Amendments
Act of 2019, S. 210, builds on the improvements to criminal
justice systems serving Indian communities that were enacted in
the Tribal Law and Order Act of 2010 (TLOA). The sponsors of
the bill intend it to provide additional tools for law
enforcement officials to reduce crime, overcrowded jail
conditions, and recidivism as well as address justice for
Indian youth. It also seeks to clarify the responsibilities of
Federal, state, tribal, and local governments with respect to
crimes committed in Indian Country. The bill extends the
authorization of various programs in the Tribal Law and Order
Act of 2010 until 2024 and contains other provisions to improve
justice within Indian Country.
NEED FOR LEGISLATION
Testimony received at the Committee on Indian Affairs'
hearings, roundtables, and meetings indicates that the rates of
murder, rape, and burglary in Indian country have diminished
since the passage of the TLOA but that the overall levels of
violent crime have increased while the levels of property crime
have fluctuated. Additionally, the overall levels of crime
still remain high on several Indian reservations. Continued
enhancements for public safety are necessary to provide
additional tools for law enforcement officials to reduce crime
and recidivism, tackle overcrowded jail conditions, and address
justice for Indian youth.
BACKGROUND
The TLOA was introduced on April 2, 2009, in the 111th
Congress. It was incorporated into H.R. 725, the Indian Arts
and Crafts Act Amendments (which had passed the House of
Representatives on January 19, 2010, and was pending in the
Senate). On June 23, 2010, H.R. 725 was amended with the text
of the TLOA and passed by the Senate. The amended bill, H.R.
725, was passed by the House of Representatives on July 21,
2010, and became Public Law No. 111-211 on July 29, 2010.
Passed in response to the public safety crisis in Indian
communities, the 2010 law reflected the efforts of Congress and
Indian tribes to develop a comprehensive approach to improving
the efficiency and effectiveness of criminal justice systems in
Indian Country.\1\ Its purpose was to increase the capacity of
tribal governments and their law enforcement agencies to better
coordinate with Federal and state agencies and to better manage
public safety concerns within Indian Country.
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\1\See also S. Rep. No. 111-93, at 1 and 4 (2009).
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The Senators who drafted the law intended the TLOA to
reduce violent crime, drug trafficking, and rates of drug and
alcohol addiction, combat sexual and domestic violence against
American Indian and Alaska Native women; and, standardize
interagency information sharing among Federal, state, and
tribal stakeholders. It also encouraged the hiring, training,
and support of more tribal and Federal law enforcement officers
to assist in preventing and addressing unacceptably high rates
of crimes in Indian communities.
Since the enactment of the TLOA, the Committee has held
three hearings and one roundtable on the implementation of the
law.\2\ While some reductions in crime rates have occurred, the
information from the Department of Justice's (DOJ's) Bureau of
Statistics indicates that levels still remain high.\3\ The
following chart contains a summary of the information provided
by the Bureau.
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\2\Tribal Law and Order Act One Year Later: Have We Improved Public
Safety and Justice Throughout Indian Country? Hearing Before the S.
Comm. on Indian Affairs, 112th Cong. (2011). The Indian Law and Order
Commission Report: A Roadmap for Making Native America Safer, Hearing
Before the S. Comm. on Indian Affairs, 113th Cong. (2014). Tribal Law
and Order Act (TLOA)--5 Years Later: How Have the Justice Systems in
Indian Country Improved? Hearing Before the S. Comm. on Indian Affairs,
114th Cong. (2015). The Tribal Law and Order Act 5 Years Later: Next
Steps to Improving Justice Systems in Indian Communities. Roundtable
Before the S. Comm. on Indian Affairs, 114th Cong. (2016).
\3\Tribal Crime Data Collection Activities, 2012. Bureau of Justice
Statistics, Department of Justice (2012), at 5. Tribal Crime Data
Collection Activities, 2015. Bureau of Justice Statistics, Department
of Justice (2015), at 8 and 12. The number of tribal law enforcement
agencies reporting to the Uniform Crime Reporting Program in 2010 was
143 and in 2013, the figure rose to 158. Steven Perry, Tribal Crime
Data Collection Activities, 2015. Bureau of Justice Statistics,
Department of Justice (2015), at 1. Reporting is entirely voluntary for
tribal and BIA agencies so that key information from the non-reporting
tribes would not be reflected and, thus, the crime rates may be
understated.
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2010, 143 2013, 158 2017, 152
Type of Offense Tribes Tribes Tribes\4\
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Murder/Manslaughter............................................. 133 79 74
Rape............................................................ 852 812 556
Robbery......................................................... 280 309 273
Aggravated Assault.............................................. 4,267 4,200 6,667
Total Violent Crimes:\5\.................................... 5,532 5,400 7,570
Burglary........................................................ 4,990 5,461 2,803
Larceny-theft................................................... 10,495 14,643 11,295
Motor Vehicle theft............................................. 2,228 2,816 2,176
Arson........................................................... 818 801 275
Total Property Crime........................................ 18,531 23,721 16,549
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The TLOA required the following key reports:
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\ 4\United States Department of Justice, Federal Bureau of
Investigation. (September 2018). Crime in the United States, 2017.
Table 11. Retrieved November 30, 2018, from https://ucr.fbi.gov/crime-
in-the-u.s/2017/crime-in-the-u.s.-2017/topic-pages/about-cius.
\ 5\The U.S. Attorneys' Offices data for CY 2011 indicate that just
under 37 percent (1,041) of all Indian Country submissions for
prosecution (2,840) were declined by the U.S. Attorneys' Offices. U.S.
Department of Justice Indian Country Investigations and Prosecutions,
2011-2012. Department of Justice (2012), at 5. The data for CY 2013
show that 34% (853) of all Indian Country submissions for prosecution
(2,542) were declined for prosecution. According to the Federal Bureau
of Investigation reports, all the cases that had been denied for
prosecution were denied because no evidence could be found regarding
foul play. U.S. Department of Justice Indian Country Investigations and
Prosecutions, 2013. Department of Justice (2013) at 7.
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Tribal Court Sentencing Guidelines and
Process, which the Bureau of Indian Affairs (BIA)
completed in 2011;
Long Term Plan to Build and Enhance Tribal
Justice Systems, which the DOJ and the Department of
the Interior (DOI) completed in August, 2011;
Tribal Prisoner Pilot Program Progress,
which the DOJ completed in 2014;
Annual Crime Statistics Report by the Bureau
of Justice Statistics (BJS);
Annual Report on the BIA Office of Justice
Services spending and unmet needs;
Annual Indian Country Investigations and
Prosecutions reported by the United States Attorney
General;
A study of the Indian Health Service's
capability to collect and secure domestic and sexual
assault evidence, which the U.S. Government
Accountability Office (GAO) completed in 2012;
Community Oriented Policing Services Grants
Report, which DOJ published in December, 2010; and
A Roadmap for Making Native America Safer,
published by the TLOA-established Indian Law and Order
Commission in 2013.
Other reports regarding public safety in Indian Country
have provided additional information for consideration in the
development of S. 210. Specifically, the DOJ Office of the
Inspector General (DOJ-OIG), and the GAO, published four
additional reports related to public safety in Indian Country
since the TLOA's enactment. These key supplementary reports
include:
Review of the Department's Tribal Law
Enforcement Efforts Pursuant to the Tribal Law and
Order Act of 2010, completed by the DOJ-OIG in 2017;
Human Trafficking: Action Needed to Identify
the Number of Native American Victims Receiving
Federally-Funded Services, completed by the GAO in
2017;
Human Trafficking: Information on Cases in
Indian Country or that Involved Native Americans,
completed by the GAO in 2017; and
Native American Youth: Involvement in
Justice Systems and Information on Grants to Help
Address Juvenile Delinquency Highlights, completed by
the GAO in 2018.
2011 Long Term Plan to Build and Enhance Tribal Justice Systems report
The Long Term Plan to Build and Enhance Tribal Justice
Systems report intended to obtain information on alternatives
to incarceration for jails and other public safety buildings,
critically assess tribal public safety infrastructure, and
review institutional methods to develop alternatives to
incarceration.
After publication of this report, both the DOJ and the BIA
engaged in additional actions or studies regarding
incarceration and alternatives. For example, the Bureau of
Justice Assistance (BJA) completed a study of strategies to
validate an offender risk assessment tool called Level of
Service Inventory-Revised (LSI-R) for use in tribal justice
systems.\6\
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\6\An LSI-R identifies problem areas in an offender's life and
predicts his or her risk of recidivism. Evidence-based practices to
reduce recidivism stress the importance of assessing the individual on
risk, needs, and responsivity of the offender to rehabilitation
practices, as a result the LSI-R for Tribal justice systems was a basic
step to enhance tribal justice systems. Crime and Justice Institute,
Implementing Evidence-Based Practice in Community Corrections: The
Principles of Effective Intervention. Boston, MA: Crime and Justice
Institute and U.S. Department of Justice (2004).
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Tribal leaders have encouraged establishing culturally
sensitive alternatives to incarceration that would allow
offenders to remain close to their Native communities, focus on
treating the root causes of criminal behavior, and emphasize
rehabilitation rather than retribution. The DOJ now provides
resources, training, and capacity building for tribes to
implement and develop these intervention efforts (e.g.,
alcohol/offender monitoring devices and related equipment) as
incarceration alternatives.\7\
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\7\https://www.bja.gov/Publications/TLOA-TJP-Webinar-Summary.pdf, 2
(last reviewed December, 2016).
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The Committee recognized in the TLOA, and in S. 210, that
these alternatives must be combined with active prevention
efforts to begin addressing the crime rates in Indian
communities. To that end, the bill encourages various
approaches to reduce recidivism. For example, S. 210 combines
early crime prevention efforts through school and summer
programs for Native youth and data-driven research on key
trends in tribal jail populations. While these types of
programs hold promise, all efforts included in the TLOA and S.
210 will need to be further assessed for long-term benefits and
efficacy.
Annual U.S. Department of Justice: Indian Country investigations and
prosecutions
Section 212(B) of the TLOA requires the Federal Bureau of
Investigation (FBI) and the Attorney General to submit an
annual report to Congress on terminated or declined
investigations and prosecutions in Indian Country. The reports
should outline the following information: the types of crimes
alleged, the status of accused as Indian or non-Indian, the
status of victim as Indian or non-Indian and, the reasons for
deciding against referring the investigation for prosecution,
declining to prosecute, or terminating a prosecution.
In CY2014, the FBI closed 2,064 Indian Country cases--an
increase of 7 cases from CY2013.\8\ The most common reason for
case closure was that the investigation concluded no Federal
crime had occurred. Most notably, the report also highlighted
the difficulties in prosecuting sex crimes in Indian
Country.\9\
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\8\U.S. Department of Justice Indian Country Investigations and
Prosecutions, 2013. Department of Justice (2013) at 11.
\9\These problems stem from a number of challenges, some of which
are outlined in the 2014 report. U.S. Department of Justice Indian
Country Investigations and Prosecutions, 2014. Department of Justice
(2014) at 36-37.
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In CY2017, the FBI reported a 12.5 percent increase in
total closed investigations over CY2016 statistics.\10\ Of the
2,210 FBI Indian Country investigations closed in CY2017, the
FBI closed 68 percent for Federal, state, or tribal
prosecution.\11\ However, the U.S. Attorney Office's (USAO)
declination rate of 37 percent for Indian Country matters
remained relatively steady with all previous years
reported.\12\ Since 2011, the rates have ranged between a low
of 31 percent to a high of 39 percent.\13\ According to the
2017 report, ``[t]he most common reason for declination by
USAOs was insufficient evidence.''\14\
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\10\U.S. Department of Justice Indian Country Investigations and
Prosecutions, 2017. Department of Justice (2017) at 3.
\11\Id. at 10.
\12\Id. at 3.
\13\Id. CY 2017--37%, CY 2016--34%, CY 2015--39%, CY 2014--34%, CY
2013--34%, CY 2012--31%, CY 2011--38%.
\14\Id. at 4.
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The Committee remains concerned about the lack of progress
made by USAOs to address declinations, particularly when USAOs
link many declinations to causes of insufficient evidence for a
prosecution. Additionally, the Committee seeks further
clarification and detail from the DOJ and the Executive Office
of U.S. Attorneys regarding the causes of these underlying
limitations for prosecution. For example, if the Federal
response to the crime scene is delayed for so long that the
crime scene and evidence becomes contaminated or destroyed,
then improvements are necessary to prevent similar future
problems. The Committee, however, is encouraged that ``[t]he
Department is committed to continuing to improve these
communications''\15\ between the DOJ and tribes to improve law
enforcement and case coordination.
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\15\Id. at 20.
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It is further notable that the FBI does not solicit or
integrate information from the Bureau of Indian Affairs or
tribal governments for this annual report. As a result, the
total numbers in the report do not include many of the
misdemeanor crimes still occurring in Indian Country\16\ and
impacting recidivism, which remains high in Indian
communities.\17\ The DOJ should engage with the Indian tribes
regarding how to best capture, evaluate, and report this
information to provide a better understanding and comprehensive
view of public safety trends in Indian Country.
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\16\Id. at 11.
\17\Id. at 2.
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Report on enhanced tribal-court sentencing authority
Section 234(b) of the TLOA requires the Attorney General
and the Secretary of the Interior, no later than four years
after the enactment of the TLOA, to submit a report to Congress
on the effectiveness of enhanced tribal court sentencing
authority in curtailing violence and improving the
administration of justice on Indian lands. In addition, Section
234(b) requires the report to include further guidance on the
enhanced authority at the levels provided by TLOA.\18\
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\18\Tribal Law and Order Act Report on Enhanced Tribal-Court
Sentencing Authority, Department of Justice, at 6.
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As of January 2015, only nine tribes have opted to exercise
the enhanced sentencing provisions of TLOA.\19\ However,
several others were in the process of gaining enhanced
sentencing authority.
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\19\Christian Folsom-Smith, Enhanced Sentencing in Tribal Courts,
The National Tribal Justice Center, (2015) at 8.
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Tribal Prisoner Pilot Program progress report
Section 234(c) of the TLOA creates the Bureau of Prisons
(BOP) Tribal Prisoner Pilot Program. In this pilot program, the
BOP may accept and house Indian prisoners sentenced by tribal
courts for violent offenses within the Bureau's facilities.
From November, 2010, to November, 2014, the BOP received
requests for six tribal inmates from three Indian nations to
participate in the prisoner pilot program under TLOA. BOP
accepted all six offenders and transferred them to appropriate
Federal facilities.
The information in the report indicated that an extension
of this program would continue to assist in reducing
overcrowding within tribal jails. However, the Committee
believes that any program extension should require an
assessment of the services available to those prisoners and the
effectiveness of those services is necessary as part of any
program extension.
Annual U.S. Department of Justice: Tribal crime data collection
activities report
Section 251(g) of the TLOA requires the Bureau of Justice
Statistics (BJS) to annually report on data collected relating
to crimes in Indian Country and to support tribal participation
in national records and information systems as described in the
TLOA. The ability to access and comprehend data of tribal
crimes continues to advance as more tribal law enforcement
agencies participate in the FBI's Uniform Crime Reporting
Program--increasing from only 12 tribes in 2008 to a high of
158 in 2014, although the numbers decreased slightly to 152 in
2017.
The 2015 report indicated a 3.3 percent decrease in total
inmates in Indian Country jails from 2012 to 2013 midyear
totals, while the 2016 to 2018 report indicated a 1.2 percent
increase in total number of inmates held in Indian Country
jails between the midyear 2015 and 2016.\20\ The number of
jails or detention centers being utilized in Indian Country
increased from 68 facilities in 2004 to 80 in 2016.\21\
According to the 2016 to 2018 report, ``[t]he occupied bed
space on the most crowded day in June declined from 118
[percent] in 2000 to 83 [percent] in 2016.''\22\
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\20\Tribal Crime Data Collection Activities, 2016-2018, Bureau of
Justice Statistics, Department of Justice (2018) at 4.
\21\Tribal Crime Data Collection Activities, 2016-2018, Bureau of
Justice Statistics, Department of Justice (2018) at 4.
\22\Id. at 5.
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At midyear 2014, state and local jails housed 10,400
American Indian and Alaska Native inmates, who accounted for
1.4 percent of total inmate jail populations. Most American
Indian and Alaska Native inmates were located in the western
states.\23\
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\23\Tribal Crime Data Collection Activities, 2015, Bureau of
Justice Statistics, Department of Justice (2015) at 1.
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To improve future DOJ tribal crime reporting accuracy, the
BIA and the DOJ provided training to and improved the data
collection and sharing systems for tribal justice
officials.\24\ Preliminary information from Indian tribes and
the Federal agencies indicate that these improved systems
appear to hold promising benefits for public safety. The bill,
S. 210, provides for further improvement of these data
collection and sharing systems.
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\24\The Department of Justice established the tribal access to
criminal databases on a pilot basis. See http://www.justice.gov/tribal/
tribal-access-program-tap (last reviewed December 1, 2015). The
Department Budget Request for FY2016 had proposed changes to the
Working Capital Fund in its Justice Management Division to allow Indian
tribes to reimburse the fund for expenses related to law enforcement
databases.
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Indian Health Service: Continued efforts needed to help strengthen
response to sexual assaults and domestic violence report
Section 266(b) of the TLOA required, no later than one year
after enactment of the Act, the Comptroller General to report
to the Committee on Indian Affairs of the Senate and the
Committee on Natural Resources of the House of Representatives
on the capabilities of the Indian Health Service (IHS) to
collect and perform sexual assault and domestic violence post-
exams and collections for criminal prosecution in remote Indian
reservations and Alaska Native villages.
The report concluded that the ability of IHS hospitals to
collect and preserve medical forensic evidence from patients in
cases of sexual assault and domestic violence varies from
hospital to hospital. Of the 45 hospitals in the IHS network,
26 reported they are able to perform medical forensic exams on
site for victims of sexual assault, while the remaining 19
hospitals choose to refer sexual assault victims to other
facilities.\25\
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\25\U.S. Gov't Accountability Office, GAO-12-29, Indian Health
Service: Continued Efforts Needed to Help Strengthen Response to Sexual
Assaults and Domestic Violence 2 (2011).
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Before March 2011, the IHS did not have an agency wide
standardized plan on how to conduct these services. The agency
has reportedly made progress to improve their capacity for
these services by instituting a network wide standard.
According to the IHS, systemic issues such as funding for
appropriate training and equipment, distances to rural
communities on reservations, staff burnout, and high turnover
are challenges to the long-term viability of this type of care
in many hospitals.
In addition, the GAO report highlighted the inability of
IHS to keep records on the frequency of forensic exams and the
number of staffers who have the appropriate training or
certification to conduct such exams. The GAO further found that
``the March 2011 sexual assault policy does not address how its
hospitals should respond in cases of discrete domestic violence
without a sexual component or in cases of child sexual
abuse.''\26\
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\26\Id. at 47.
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Though the GAO concluded its work on this report in 2012,
data from DOJ show that domestic violence, sexual assault, and
aggravated or simple assault continue to account for a large
portion of incarcerations in Indian country.\27\\28\ This trend
indicates that these communities still need resources for
continued work on appropriate and adequate responses to these
types of crimes.
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\27\Tribal Crime Data Collection Activities, 2016-2018, Bureau of
Justice Statistics, Department of Justice (2018) at 5.
\28\Id.
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Community Oriented Policing Services Grants
Administered by the DOJ, Community Oriented Policing
Services (COPS) grants in Indian Country focus primarily on
activities for combating drugs, substance abuse and mental
health-related programs, and increasing the capacity of the
tribal justice system overall. Section 243(3) of the TLOA
required the Attorney General to provide a report to Congress
describing the extent and effectiveness of the COPS grants in
Indian communities. The report provided data on the grant
programs that assist Indian tribes through program activities,
training, and technical assistance.
From 1994 to 2009, DOJ awarded more than $400 million in
COPS grants to over 2,000 tribal grant recipients consisting of
Indian tribes. In FY2010, the last year data is available in
the report, DOJ awarded $48.6 million in grants to 141
entities. However, with only 23 officer positions funded
through FY2010 COPS grants, it appears these tribal grantees
used the majority of COPS funds for non-officer related
expenditures.
The purposes of the grants continue to serve much needed
areas of public safety such as combatting drug abuse. Better
data systems, developed in part by the provisions relating to
data collection and sharing system improvements in S. 210,
would be useful in evaluating the effectiveness of these
grants.
Indian Law and Order Commission
The TLOA authorized the creation of the Indian Law and
Order Commission. The Commission began its work in late summer
2011 and issued its final report entitled A Roadmap for Making
Native America Safer on November 12, 2013.
The TLOA required the Commission to examine:
Jurisdiction;
Tribal and Federal incarceration systems;
Tribal and Federal juvenile justice systems;
The impact of the Indian Civil Rights Act of
1968; and
Other subjects relevant to achieving the
purposes of the TLOA.
The Act further required the Commission to develop
recommendations on necessary modifications and improvements to
justice systems at the Federal, state, and tribal levels to:
Simplify jurisdiction in Indian Country;
Improve juvenile justice services and
programs;
Adjust tribal penal authority, including
detention alternatives;
Enhance the use of Federal magistrates in
Indian Country;
Change the tribal and Federal detention
systems; and
Address other issues that would reduce crime
in Indian Country.
The Commission's findings that Native American youth are
overrepresented in both Federal and state juvenile justice
systems and receive harsher sentences than other youth in these
systems is especially alarming given that the Federal system
offers no special juvenile division (i.e., no special juvenile
court judges, probation system, and no juvenile detention,
diversion, or rehabilitation facilities) and, generally, that
there is no requirement that juvenile justice systems contact
an incarcerated Indian child's tribe for services or any other
reason.
To address the juvenile justice-specific findings in the
report, the Commission issued four primary recommendations.
These recommendations include:
Tribes be allowed to opt-out of the Federal
juvenile justice system or have a right to consent
before the U.S. Attorney files charges against an
Indian child;
The funding structures for Native youth be
reorganized into a block grant rather than individual
grant programs;
Federal and state systems maintain proper
records of tribal youth in their custody and a single
Federal agency coordinate data, needs, and make
recommendations for Native youth; and
Federal, state, and tribal governments
improve cooperation on the care and services for the
Native youth in the juvenile justice systems.
DOJ-OIG Review of the Department's Tribal Law Enforcement Efforts
Pursuant to the Tribal Law and Order Act of 2010 report
In December 2017, the DOJ-OIG issued its Review of the
Department's Tribal Law Enforcement Efforts Pursuant to the
Tribal Law and Order Act of 2010. The DOJ-OIG ``conducted this
review to assess the steps the Department and its components
have taken to implement these TLOA requirements.''\29\ The
review concluded that the Department ``ha[d] taken some steps
to carry out TLOA's mandates''\30\, but it still fell short in
many areas of responsibility, assistance, oversight, and
coordination.
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\29\Office of the Inspector General, Department of Justice, Review
of the Department's Tribal Law Enforcement Efforts Pursuant to the
Tribal Law and Order Act of 2010. (2017) at i.
\30\Id.
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Of particular note, the OIG found that ``there is no
Department-level entity that oversees component activities or
coordinates these efforts to fulfill TLOA mandates.''\31\
Without such oversight, ``the Department cannot ensure that it
is prioritizing its Indian [C]ountry responsibilities or
meeting these important requirements.''\32\
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\31\Id. at 13.
\32\Id.
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In addition, the OIG found that ``funding and resources for
Indian [C]ountry prosecutions have decreased since TLOA's
implementation.''\33\ Moreover, the Department's communication
with and training for Indian tribes was not consistent or
sufficient as TLOA contemplated.\34\ The DOJ-OIG further found
that ``crime data in Indian [C]ountry remains unreliable and
incomplete, limiting the Department's ability to engage in
performance based management of its efforts to implement its
TLOA responsibilities.''\35\
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\33\Id. at 18.
\34\Id. at 29 and 32.
\35\Office of the Inspector General, Department of Justice, Review
of the Department's Tribal Law Enforcement Efforts Pursuant to the
Tribal Law and Order Act of 2010. (2017) at i.
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While the 2017 DOJ Indian Country Investigations and
Prosecutions report indicates that ``[i]t is the Department's
position that prioritization of initiatives in Indian
[C]ountry, including the effort to build capacity in Tribal
courts, will eventually lead to enhanced public safety for
Native Americans,''\36\ the DOJ-OIG findings suggest
implementation of this position is inconsistent. As such, the
Committee recognizes the Department's position but remains
concerned about the DOJ-OIG's findings.
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\36\U.S. Department of Justice Indian Country Investigations and
Prosecutions, 2017. Department of Justice (2017) at 4.
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Accordingly, the Committee amended S. 210 to address the
issues identified by the DOJ-OIG. Most notably, the legislation
would require the Attorney General, acting through the Deputy
Attorney General, to coordinate and provide oversight for all
DOJ responsibilities for public safety in Indian communities.
The Committee believes elevated coordination efforts at the DOJ
are necessary to facilitate better responses to crime and
improve public safety in Indian communities.
GAO reports on Native American youth
Senators Hoeven and Barrasso requested that the GAO examine
data regarding Native American youth in Federal, state, and
tribal justice systems as well as the Federal resources
available to Indian tribes to help address juvenile
delinquency. The GAO issued its report on September 5, 2018.
This report is the first comprehensive review of the status of
Native youth in these systems. It lays the groundwork for a
subsequent GAO study currently underway that will examine the
effectiveness of the Federal programs available to help Indian
tribes address juvenile delinquency.
To complete the 2018 report, the GAO examined Federal,
state, local, and tribal arrest, adjudication, and confinement
data from 2010 through 2016.\37\ The GAO noted that there is no
centralized source of information regarding youth in these
justice systems. Moreover, these systems do not track the
Native-status, including tribal membership or membership
eligibility, of youth in a consistent manner.
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\37\The GAO reports that 2016 was the most recently available
complete year data was available for their review.
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While much of the tribal data was incomplete, the GAO found
that the number of Native youth in the Federal, state, and
local systems declined from 2010 through 2016 for all phases of
the juvenile justice process (i.e., arrest, adjudication, and
confinement).\38\ The data limitations did not allow the GAO to
conclude why these declines occurred.
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\38\U.S. Gov't Accountability Office, GAO-18-591, Native American
Youth: Involvement in Justice Systems and Information on Grants to Help
Address Juvenile Delinquency Highlights (2018).
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However, the GAO consulted with various tribal and Federal
experts to ascertain possible reasons for such declines. These
experts suggested that the movement toward restorative, instead
of punitive, justice could be a possible reason for such
declines. In fact, according to the report, ``a number of
states have worked out civil diversion agreements with local
tribes which provide opportunities for the tribe to practice
restorative justice with delinquent youth instead of confining
them.''\39\ In addition, the perspectives offered by the
experts the GAO interviewed suggested that the declines could
result from the lack of consistent tracking or reporting of the
tribal status of the youth.
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\39\U.S. Gov't Accountability Office, GAO-18-591, Native American
Youth: Involvement in Justice Systems and Information on Grants to Help
Address Juvenile Delinquency 30 (2018).
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Pursuant to the Juvenile Justice and Delinquency Prevention
Act, states must identify and assess racial disparities in
their justice systems, which would require them to, at a
minimum, inquire regarding the racial identity of youth
entering their systems. However, from 2013 to 2016, the Office
of Juvenile Justice and Delinquency Prevention (OJJDP) did not
enforce that requirement.\40\ As a result, the GAO was
ultimately unable to determine to what degree inconsistent
tracking attributed to such decline.
---------------------------------------------------------------------------
\40\https://chronicleofsocialchange.org/youth-services-insider/
ojjdp-racial-disparities-pass-might-continue/28488 (last reviewed
September 24, 2018).
---------------------------------------------------------------------------
Title II of S. 210 would help address this inconsistent
tracking. The bill requires the Secretary of the Interior, the
Attorney General, and the OJJDP Administrator to coordinate to
develop a means for collecting data on offenses committed by
Indian youth, including information regarding the tribal
affiliation or membership.
Despite the inconsistent tracking, the GAO found that
Native youth were more involved in the state or local systems
than the Federal system. There were 105,487 arrests, and these
courts received about 86,400 delinquency cases from 2010 to
2014. Native youth involvement was most prevalent in 10 states
for arrests from 2010 to 2016: Alaska, Arizona, Minnesota,
Montana, New Mexico, North Dakota, Oklahoma, South Dakota,
Washington, and Wisconsin. Of these states, Arizona and South
Dakota had the highest numbers of Native youth involvement. The
GAO also noted that several risk factors made the Native youth
more susceptible to being involved in these justice systems.
These risk factors include substance abuse and high rates of
poverty.
Native youth were involved in the Federal system at rates
higher than other youth. Moreover, the involvement of these
youth was for more serious crimes such as sex offenses, than
other youth. Consequently, the terms of confinement were more
onerous for Native youth. The DOJ officials interviewed by the
GAO indicated that the nature of Federal jurisdiction in Indian
lands and for major crimes contributed to this sentencing
disparity.
The GAO also reviewed Federal grant resources and
cooperative agreement resources at the DOI, DOJ, and the
Department of Health and Human Services (HHS) related to the
risk or protective factors for youth involvement in the
juvenile justice system for FY2015 to FY2017. The GAO found
that Indian tribes are eligible for 122 grants to address
juvenile delinquency, including 73 from the DOJ and 49 from the
HHS.
The GAO found that a significant amount of juvenile justice
money did not ultimately go to Indian tribes. The GAO
calculated that the federal government made $1.2 billion
available from these grants over the two year period reviewed,
but only awarded $207.7 million to Indian tribes and tribal
organizations ($106.5 million from the DHHS and $101.2 million
from the DOJ).\41\ Additionally, the GAO found that Tribes
received most of these funds from 27 tribal specific grants at
these Departments, suggesting Tribes were unsuccessful
competing with states and other entities for larger grant
programs.
---------------------------------------------------------------------------
\41\U.S. Gov't Accountability Office, GAO-18-591, Native American
Youth: Involvement in Justice Systems and Information on Grants to Help
Address Juvenile Delinquency 57 (2018).
---------------------------------------------------------------------------
To determine the challenges in applying for the Federal
funds or common weaknesses in unsuccessful applications, the
GAO sought the perspectives of Indian tribes, tribal
organizations, and the DOJ. Most of these officials indicated
that the lack of a grant writer left the Indian tribes without
the ability to apply for and receive these grant funds. The
Indian tribes indicated that access to Departmental program
officials for questions or technical assistance was helpful in
improving grant applications. Another noteworthy challenge
Indian tribes faced in accessing these additional funds was the
lack of data and limited ability to collect data required by
the Departments to apply for certain juvenile justice grants.
Making this challenge even more difficult is the spread of
requirements to propose evidence-based approaches for Federal
grant applications. Indian tribes have sought to employ more
restorative justice approaches based on traditional and
cultural practices, which often lack evidence-based reviews of
their effectiveness. However, Indian tribes also encounter
difficulty when attempting to use or advance these approaches
or initiatives as part of their application due to the limited
availability of existing research on their effectiveness.
The bill, S. 210, takes action to address this challenge.
Title II of the Tribal Law and Order Reauthorization and
Amendments Act of 2019 requires the Secretary of the Interior,
the Attorney General, and the OJJDP Administrator to consult
with Indian tribes ``regarding the means by which traditional
or cultural tribal programs may serve or be developed as
promising or evidence-based programs.''
It is unclear from the report the extent to which
recommended methods to reduce bureaucratic demands on Indian
tribes exist in these programs. One method that fostered
administrative efficiencies and reduced costs is the
integration approach modeled by the ``477 program'' with
Federal workforce development programs for Tribes.\42\ This
program combines several related programs and streamlines the
application, budget, and reporting processes, thereby saving
Indian tribes the cost and time to prepare individual
applications, budgets, and reports for each program.
---------------------------------------------------------------------------
\42\Indian Employment, Training and Related Services Demonstration
Act of 1992, Pub. L. No. 102-477, 106 Stat. 2302 (1992).
---------------------------------------------------------------------------
The Tribal Law and Order Reauthorization and Amendments Act
of 2019 seeks to build upon this more efficient approach for
public safety-related programs. This bill would require the
Secretaries of the Interior, HHS, and the Attorney General to
consult with Indian tribes to determine the feasibility of
integrating public safety and behavioral health related
programs to improve services for Indians, including juveniles.
On September 26, 2018, the Committee held an oversight
hearing on this GAO Report.\43\ Of particular note, the DOI
Principal Deputy Assistant Secretary for Indian Affairs
testified in support of notice to Indian tribes when a tribal
member juvenile comes in contact with another jurisdiction's
juvenile justice system.\44\ Likewise, Judge Abinanti, Chief
Justice of the Yurok Tribal Court, further testified in support
of promoting education and tribal culture as key components of
building resiliency in tribal youth and preventing
recidivism.\45\
---------------------------------------------------------------------------
\43\Justice for Native Youth: The GAO Report on ``Native American
Youth Involvement in Justice Systems and Information on Grants to Help
Address Juvenile Delinquency,'' Hearing Before the S. Comm. on Indian
Affairs, 115th Cong. (2018).
\44\Id. (statement of John Tahsuda, Principal Deputy Assistant
Secretary, U.S. Department of the Interior).
\45\Id. (statement of Hon. Abby Abinanti, Chief Judge, Yurok Tribal
Court, Yurok Tribe of the Yurok Reservation).
---------------------------------------------------------------------------
GAO Reports on Human Trafficking on Native Americans in the United
States
In 2017, the GAO issued two reports related to the human
trafficking of Native Americans in the United States\46\:
---------------------------------------------------------------------------
\46\U.S. Gov't Accountability Office, GAO-17-325, Human
Trafficking: Action Needed to Identify the Number of Native American
Victims Receiving Federally-Funded Services (2017).; U.S. Gov't
Accountability Office, GAO-17-624, Human Trafficking: Information on
Cases in Indian Country or that Involved Native Americans (2017).
---------------------------------------------------------------------------
Human Trafficking: Action Needed to Identify
the Number of Native American Victims Receiving
Federally-Funded Services, GAO-17-325 (March 30, 2017);
and
Human Trafficking: Information on Cases in
Indian Country or that Involved Native Americans, GAO-
17-624 (July 24, 2017).
The first report, GAO-17-325 studied:
The extent to which Federal agencies collect
and maintain data on investigations and prosecutions of
human trafficking in Indian Country or of Native
Americans regardless of location;
Whether Federal grant programs are available
to help address human trafficking in Indian Country or
of Native Americans regardless of location; and
The number of Native American victims who
have received assistance through such grant
programs.\47\
---------------------------------------------------------------------------
\47\U.S. Gov't Accountability Office, GAO Rep. No. 17-325, Human
Trafficking: Action Needed to Identify the Number of Native American
Victims Receiving Federally-Funded Services 2-3 (2017).
---------------------------------------------------------------------------
According to the report, for FY2013 to FY2016, the GAO
found evidence of 14 Federal investigations and two Federal
prosecutions of human trafficking offenses in Indian
Country.\48\ In comparison to the United States as a whole
during that same period, data showed over 6,100 Federal human
trafficking investigations and approximately 1,000 Federal
human trafficking prosecutions.\49\ The GAO report stated that
the data for Indian Country does not represent the total number
of human trafficking cases in Indian Country because the crime
is likely underreported.
---------------------------------------------------------------------------
\48\Id at 17.
\49\Id.
---------------------------------------------------------------------------
During the FY2014-FY2016 period, the DOJ, HHS, and the
Department of Homeland Security administered at least fifty
grant programs to address human trafficking in Indian Country
or of Native Americans.\50\ These programs allow funding to be
used for:
---------------------------------------------------------------------------
\50\Id. at 21.
---------------------------------------------------------------------------
Collaboration and partnerships;
Data, research, and evaluation;
Provision of services directly to victims;
Public awareness; and
Training or technical assistance.\51\
---------------------------------------------------------------------------
\51\Id. at 22.
---------------------------------------------------------------------------
The GAO found that ``the number of Native American human
trafficking victims who received services through these
programs is unknown because agencies generally did not require
grantees to report the Native American status of victims
served.''\52\ Additionally, even when reporting requirements
are present, the numbers tend to be aggregate crime statistics
that do not identify the specific crime against the victim. As
such, the grantee data are not useful in determining how many
Native American victims are served by these programs.\53\
---------------------------------------------------------------------------
\52\Id. at 24.
\53\Id.
---------------------------------------------------------------------------
The report noted, ``According to the 2013-2017 Federal
Strategic Action Plan on Services for Victims of Human
Trafficking in the United States, expanding human trafficking
data collection and research efforts for vulnerable
populations, which include Native Americans, is an area for
improvement for the [F]ederal government.''\54\ Additionally,
the Report noted the fact that knowledge regarding a victim's
status as a Native American ``can be helpful to ensure
culturally appropriate practices are made available.''\55\ As
the GAO report states, ``the absence of data collection by
granting agencies regarding the Native American status of human
trafficking victims served hinders their ability to determine
whether their victim assistance goals are being met.''\56\
---------------------------------------------------------------------------
\54\Id. at 27.
\55\Id. at 28.
\56\Id.
---------------------------------------------------------------------------
As it relates to funding and services, the GAO made
recommendations for executive action. The GAO believes the
Directors of the Office on Violence Against Women (OVW) and the
Office for Victims of Crime (OVC), and the OJJDP Administrator
within the DOJ should ``require grantees to report the number
of human trafficking victims served using grant funding, and as
appropriate, the Native American status of those victims.''\57\
Collecting demographic information while protecting victim
privacy is a useful approach to learn the extent and effect of
human trafficking in Indian Country and of Native Americans.
---------------------------------------------------------------------------
\57\Id. at 29.
---------------------------------------------------------------------------
The second GAO report, GAO-17-624, addressed the following:
``[T]he extent to which tribal and major
city Law Enforcement Agencies (LEAs) have encountered
human trafficking in Indian Country or of Native
Americans;
``Factors affecting the ability of LEAs to
identify and investigate this specific human
trafficking; and
``Availability of services to Native
American victims of human trafficking.''\58\
---------------------------------------------------------------------------
\58\U.S. Gov't Accountability Office, GAO-17-624, Human
Trafficking: Information on Cases in Indian Country or That Involved
Native Americans 1 (2017).
---------------------------------------------------------------------------
The GAO surveyed all known 203 tribal LEAs, 68 major city
LEAs, and 315 victim service providers for this report.
Reasons given by the LEAs for why human trafficking goes
unreported, regardless of ethnicity, include: victim fear of
retaliation, victim trauma, embarrassment, feelings of shame,
distrust of law enforcement, and drug addiction. The LEAs
further stated they believe Native American victims are more
reluctant to report being trafficked due to the factors
previously listed above as well as the families of the victims
discouraging cooperation.\59\
---------------------------------------------------------------------------
\59\Id. at 13 (2017).
---------------------------------------------------------------------------
In the process of completing its report, the GAO found that
some Indian tribes have enacted tribal statutes to address
human trafficking or related criminal acts that could form the
foundation of a human trafficking crime, including
prostitution, child sex abuse, or sexual assault.
The second human trafficking GAO report notes that the most
frequently identified barriers to providing services to Native
American victims of human trafficking were inadequate funding
or resources, lack of personnel, lack of emergency shelter, and
lack of legal aid resources.\60\ The GAO report notes that
there are Federally-developed training programs to aid service
providers who work with Native American human trafficking
victims, but improvements in the effectiveness in these
programs are in order to improve cost efficiencies and better
use of resources.
---------------------------------------------------------------------------
\60\Id. at 20.
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THE TRIBAL LAW AND ORDER REAUTHORIZATION ACT
To continue the public safety improvements facilitated by
the TLOA, S. 210 aims to reauthorize the provisions within TLOA
from FY2020 to FY2024, and to secure improvements related to
interagency coordination and information sharing, among other
things.
Principles
The bill, S. 210, is built upon the fundamental principles
of reducing recidivism and improving justice for Indian youth,
among others. For example, one report indicated that ``[y]outh
contact with the justice system matters because it can have
profound negative impacts on a youth's mental and physical
well-being, as well as negatively impact their current and
future education and employment.''\61\ This report further
highlighted that ``research on juvenile corrections has found
that confinement can negatively affect youth in custody and
`lead to further involvement in the juvenile and adult criminal
justice systems rather than interrupting the offending cycle or
facilitating rehabilitation.'''\62\
---------------------------------------------------------------------------
\61\The Complex Maze of the Juvenile Justice System in Wisconsin
and Its Impact on Youth of Color. Kids Forward. 1 (2018) (Holman, B., &
Ziedenberg, J. (2011). The dangers of detention: The impact of
incarcerating youth in detention and other secure facilities. Justice
Policy Institute. Retrieved (by report authors) from http://
www.justicepolicy.org/images/upload/06-
11_rep_dangersofdetention_jj.pdf).
\62\The Complex Maze of the Juvenile Justice System in Wisconsin
and Its Impact on Youth of Color. Kids Forward. 1 (2018) (quoting
Development Services Group, Inc. (2010). Correctional facilities.
Literature Review: A product of the Model Programs Guide. Washington,
D.C.: Office of Juvenile Justice Delinquency Prevention. Retrieved (by
report authors) from https://www.ojjdp.gov/mpg/litreviews/
Correctional_Facilities.pdf).
---------------------------------------------------------------------------
In nearly every Committee hearing on public safety-related
matters, the Committee received testimony that drug and alcohol
abuse were contributing factors in most nearly every crime
committed in Indian communities. Moreover, according to one
report, the OJJDP data indicate that ``Native American youth
are more likely to face conviction in adult court, especially
for drug-related crimes.''\63\ Clearly, reducing recidivism
would require significant efforts in addressing drug and
alcohol abuse.
---------------------------------------------------------------------------
\63\Id. at 5 (2017). Easy access to juvenile populations: 1990-
2016. Office of Juvenile Justice and Delinquency Prevention. Retrieved
(by report authors) from https://www.ojjdp. gov/ojstatbb/ezapop/asp/
profile_selection.asp).
---------------------------------------------------------------------------
To that end, S. 210 is intended to require more efforts,
coordination, and participation from the HHS agencies in
addressing such substance abuse and recidivism.\64\ If
successful, preventing recidivism in a Native community can
reduce a host of costs (financial and otherwise) and increase
public safety in Indian country.
---------------------------------------------------------------------------
\64\This requirement is consistent with the recommendations that
were highlighted in testimony before the Committee during the hearing
on juvenile justice. See Juvenile Justice in Indian Country: Challenges
and Promising Strategies, Hearing Before the S. Comm. on Ind. Affairs,
114th Cong. (2015).
---------------------------------------------------------------------------
Improving justice for Indian youth
The TLOA contained important requirements to improve
justice for Indian youth such as the development of a long-term
plan for the construction, renovation, and operation of Indian
juvenile detention and treatment centers as well as the use of
alternatives to detention for juvenile offenders. It also
authorized Federal agencies to use certain grant funding for
Indian youth judicial-related services, including public
defenders, appointed defense counsel, guardians ad litem, and
court-appointed advocates for juveniles.
On July 15, 2015, the Committee held a hearing on Juvenile
Justice in Indian Country: Challenges and Promising
Strategies.\65\ Additionally, on September 26, 2018, the
Committee held a hearing on Justice for Native Youth: The GAO
Report on ``Native American Youth Involvement in Justice
Systems and Information on Grants to Help Address Juvenile
Delinquency.''\66\ These hearings highlighted several
recommendations for improving justice for Indian youth, such as
increasing Federal and tribal resources available to address
recidivism rates for Indian youth.
---------------------------------------------------------------------------
\65\Juvenile Justice in Indian Country: Challenges and Promising
Strategies, Hearing Before the S. Comm. on Ind. Affairs, 114th Cong.
(2015).
\66\Justice for Native Youth: The GAO Report on ``Native American
Youth Involvement in Justice Systems and Information on Grants to Help
Address Juvenile Delinquency,'' Hearing Before the S. Comm. on Indian
Affairs, 115th Cong. (2018).
---------------------------------------------------------------------------
The Indian Law and Order Commission report and the Attorney
General's Advisory Committee on American Indian/Alaska Native
Children Exposed to Violence report both found that Indian
children are exposed to higher rates of violence than other
children.\67\ This disturbing finding compounds the
unacceptably disproportionate rate of incarceration of Indian
youth. These data underscore that Native children are more
likely to be exposed to trauma after trauma, seemingly without
appropriate intervention or services.
---------------------------------------------------------------------------
\67\See Attorney General's Advisory Committee on American Indian/
Alaska Native Children Exposed to Violence: Ending Violence So Children
Can Thrive, Department of Justice (2014); See also Addie Rolnick,
Untangling the Web: Juvenile Justice in Indian Country (2016). 19
N.Y.U. J. Legis. & Pub. Pol'y 49, (2016), http://ssrn.com/
abstract=2779767.
---------------------------------------------------------------------------
Building upon the requirements in TLOA and the
recommendations of the two reports and hearings, the
predecessor bills, S. 1953 (115th Congress) and S. 2920 (116th
Congress), provided for extensive enhancements to the Juvenile
Justice and Delinquency Prevention Act of 1974 and other laws
which affect Indian juveniles. The authors of these provisions
based them upon tribal recommendations, which Tribes had
proposed in 2008 when Congress was working to reauthorize the
Juvenile Justice and Delinquency Prevention Act of 1974.
For example, S. 2920 would have amended the Juvenile
Justice and Delinquency Prevention Act of 1974 to include an
Indian representative on state advisory groups which address
juvenile justice policy. The predecessor bill also required in
state plans for funding that notice be provided to Indian
tribes when one of their tribal member juveniles comes in
contact with the juvenile justice system of the state or local
unit of government. These concepts were carried forward in S.
1953, and again in S. 210.
During the 114th and 115th Congresses, the Senate and the
House of Representatives considered several proposals to
reauthorize the Juvenile Justice and Delinquency Prevention Act
of 1974. While each Chamber included a few modified tribal
recommendations included in its respective bills, these
reauthorizations left a majority of the tribal proposals out.
In response to the discussions regarding the tribal
proposals in the context of the Juvenile Justice and
Delinquency Prevention Act of 1974 reauthorization during the
115th Congress, the sponsors of S. 1953 amended the bill. The
amendments, which are reflected in the current bill, S. 210,
eliminated the requirements for state plans to implement
certain actions and, instead, set forth amendments to the
Indian Law Enforcement Reform Act. These amendments are a more
flexible approach to improving justice for Native youth by
requiring coordination among agencies to consult with Indian
tribes and find a means to develop or incorporate many of the
tribal recommendations into juvenile justice systems.
This bill would also requires a more robust consultation by
the OJJDP Administrator. In addition, the OJJDP Administrator
must include the recommendations from the Coordinating Council
on Juvenile Justice and Delinquency Prevention (Council)
regarding improving service delivery to Indian communities in
the Office's annual report to Congress as the TLOA required
that an Indian representative be appointed to the Council.
LEGISLATIVE HISTORY
On January 24, 2019, Senator Hoeven introduced S. 210, the
Tribal Law and Order Reauthorization and Amendments Act of
2019. The Senate referred the bill to the Committee on Indian
Affairs. On January 29, 2019, the Committee considered S. 210
at a duly called business meeting. By voice vote, the Committee
ordered the bill, without amendment, favorably reported to the
Senate. Senator McSally joined as a co-sponsor on February 4,
2019. Senator Barrasso joined as a co-sponsor on February 5,
2019. Senator Cramer joined as a co-sponsor on March 14, 2019.
115th Congress. Senator Hoeven, along with Senators
Barrasso and McCain, introduced S. 1953, Tribal Law and Order
Reauthorization and Amendments Act of 2016 on October 5, 2017.
Senator Murkowski joined as a co-sponsor on October 25, 2017.
On October 25, 2017, the Committee held a legislative hearing
on the bill at which officials from the DOI and DOJ testified.
The witnesses raised no objections to the bill. Senator Daines
joined as a co-sponsor on October 30, 2017.
On February 14, 2018, the Committee held a duly called
business meeting to consider S. 1953. Committee members filed
five amendments to the bill. Chairman Hoeven offered a
substitute amendment, Senator Udall offered one amendment, and
Senators Smith and Daines offered one amendment. The respective
sponsors of the remaining amendments withdrew them at the
business meeting. The Committee favorably ordered the bill
reported, as amended, by voice vote.
The Senate took no further action on the bill, and no
member introduced a companion bill in the House of
Representatives.
114th Congress. During the 114th Congress, the Committee
held an oversight hearing on the TLOA on December 2, 2015, and
a roundtable on the TLOA on February 25, 2016. On May 11, 2016,
then-Chairman Barrasso, along with Senator McCain, introduced
S. 2920, the Tribal Law and Order Reauthorization and
Amendments Act of 2016.
The Committee held a legislative hearing on S. 2920 on May
18, 2016, at which the Director of the BIA, Mr. Michael S.
Black, testified in support of the bill with recommendations
for modifying the bill. The Director of the Office of Tribal
Justice, Mr. Tracy Toulou, testified on behalf of the DOJ in
support of the goals of the bill, and recommended some changes
throughout the bill.
On June 22, 2016, the Committee held a duly called business
meeting to consider S. 2920. Chairman Barrasso offered one
substitute amendment to address the recommendations from the
DOI and DOJ, the Federal Defenders Organization, tribal
organizations, and Indian tribes. The Committee adopted the
substitute amendment by a voice vote. Senator McCain offered an
additional amendment to add an assessment of unmet staffing
needs for health care, behavioral health, and tele-health needs
at tribal jails to the BIA annual unmet needs and spending
report. The Committee also adopted this amendment by a voice
vote. The Committee then ordered the bill, as amended, reported
favorably to the Senate by a voice vote.
The Senate took no further action on the bill, and no
member introduced a companion bill in the House of
Representatives.
AMENDMENTS
The current bill, S. 210, largely reflects the amendments
made to the predecessor bills. The current bill includes a new
provision regarding a demonstration program regarding personnel
background investigations for applicants for law enforcement
positions in the Bureau of Indian Affairs in Section 101(c) of
the bill. In addition, the provisions regarding public defense
counsel in Indian Country were modified to require
collaboration and consultation with Indian tribes in Section
112.
During the 115th Congress, The Committee considered three
amendments to S. 1953, at the duly called business meeting held
on February 14, 2018. Senator Hoeven filed a substitute
amendment, ROM18075. Senators Daines and Smith filed one
amendment, AEG18091. Senator Udall offered one amendment,
AEG18086.
ROM18075. Chairman Hoeven developed the substitute
amendment after discussions with the DOJ and the DOI, and
tribal leaders and justice officials. The key provisions are as
follows:
(1) The amendment would strike the provisions requiring the
withholding of funding from the BIA and the DOJ due to the
failure to submit required annual reports in a timely manner
(e.g., BIA's unmet needs and spending reports and the DOJ's
prosecutions and declinations reports). In lieu thereof, for
the DOJ, the Attorney General, through the Deputy Attorney
General, is required to oversee and ensure additional
accountability for efforts for a comprehensive approach to
public safety in Indian communities including timely submission
of reports.
(2) For background checks for tribal law enforcement hires,
the BIA is required to complete them within sixty days after
the receipt of a complete background check application. An
extension of no more than thirty days may be authorized upon
written request by the BIA to the Indian tribe. In current law,
the BIA had to complete the check within sixty days of
receiving the request, even if the applications were
incomplete. Current law allows for extensions, but there is no
deadline.
(3) The amendment would provide for more flexible time
frames for consultation and resulting actions since three
Federal Departments will need to coordinate and engage with
Indian tribes.
(4) The amendment would provide for more clarity and
technical corrections as recommended by the DOJ for the
following:
Designating which programs should be
evaluated for a ``477-like'' program,\68\ which allows
for streamlining budgets and reporting requirements and
a single audit, and on what processes the Departments
should consult with Indian tribes;
---------------------------------------------------------------------------
\68\See Indian Employment, Training and Related Services
Demonstration Act of 1992, Pub. L. No. 102-477, 106 Stat. 2302 (1992).
---------------------------------------------------------------------------
Revising ``tribal liaison'' titles for the
Federal Public Defenders Officer to ``tribal
coordinator''; and
Making the provision of certain information
consistent with Federal law to ensure victim privacy
and consistency with Constitutional, practical, or
confidentiality limits.
(5) The amendment would extend the BOP programs to hold
tribally-sentenced individuals for violent crimes in Federal
facilities for up to 9 years, which correlates with the
sentencing caps authorized in the TLOA. This program may be
extended for a prisoner whose underlying tribal sentence has
not expired.
(6) For Native youth, the amendment would:
Include HHS as an additional department,
along with DOI and DOJ, that must coordinate and
develop solutions on juvenile justice issues for Native
youth;
Clarify the types of data that must be
collected regarding Native juveniles (e.g., the
offenses, whether the youth was in pre-adjudication
detention, removed from a home, or placed in secure
confinement, the extent of compliance for state notice
to Indian tribes for removal from homes for status
offenses as required by Federal law);
In consultation and coordination with Indian
tribes, include in the research and evaluation
requirements conducted by the Interior Secretary,
Attorney General, and OJJDP Administrator, the
structure and needs of tribal juvenile justice systems,
the characteristics and outcomes for youth in those
systems, and recommendations for improvement of those
systems; and
Set a time frame for implementing and
reporting on improvements, processes, and other
activities reviewed and developed to improve justice
for Native youth not later than three years after
enactment of the bill as well as recommendations, if
any, for ensuring such implementation.
(7) As recommended by the DOI, the amendment would
authorize the BIA law enforcement officers to take an
individual into protective custody and transport the individual
to an appropriate mental health facility under limited
circumstances, as determined by a tribal court of competent
jurisdiction, and to be covered by Federal Tort Claim Act
liability. Standards for education, experience, and other
relevant qualifications are required for these officers. This
amendment authorizes $1.5 million to implement this section.
(8) As recommended by the DOI, the amendment clarifies that
law enforcement officers employed by Indian tribes that have
contracted or compacted under the Indian Self-Determination and
Education Assistance Act may enforce Federal law, upon
completion of training, passage of background investigations,
receipt of specific certifications from the BIA--provided the
sponsoring Indian tribe has policies and procedures that meet
or exceed the BIA's for the program, service, function, or
activity. Under this section of the amendment, these officers
will be deemed Federal law enforcement officers and receive
Federal Tort Claim Act coverage. The Interior Secretary shall
develop procedures for credentialing these officers.
AEG18091. This amendment would authorize the Attorney
General to transfer funding from the OVW previously authorized
and appropriated for certain violence against women prevention
and tracking activities to the TAP. The TAP allows
participating Indian tribes to access certain crime databases
to help fulfill their law enforcement responsibilities.
AEG18086. This amendment improves certain reporting
requirements within the bill in three ways.
It would require the Attorney General to consult every five
years, beginning one year after enactment of S. 1953, with
Indian tribes regarding improvements to the annual prosecutions
and investigations declination reports.
For the victim trafficking reports, this amendment would
also prohibit mandating a victim to provide personally
identifiable information and a service provider from denying
services to a victim for not disclosing such information.
For research and evaluation requirements for the juvenile
justice report required under the bill, the amendment would
require the following additional items to be examined and
appear in the report: educational opportunities and attainment
of Indian juveniles, potential links to recidivism, and delayed
educational opportunities while incarcerated.
SECTION-BY-SECTION ANALYSIS OF BILL AS ORDERED REPORTED
Section 1. Short title
The short title is the ``Tribal Law and Order Act
Reauthorization and Amendments Act of 2019.''
Section 2. Findings
This section contains several findings including that:
The Tribal Law and Order Act of 2010 was
enacted to address accountability and enhance law
enforcement responses in Indian community;
Drug and alcohol abuse is a key contributing
factor to violence and crime in Indian Country and
substance abuse prevention and treatment would help
reduce recidivism rates in Indian Country; and
Crimes rates on some reservations have risen
and jails continue to operate in overcrowded
conditions.
Title I--Tribal Law and Order
Section 101. Bureau of Indian Affairs law enforcement
This section adds additional requirements for the annual
Bureau of Indian Affairs unmet needs and spending report and
background check processes, including a demonstration program
for personnel background investigations for applicants for law
enforcement positions in the BIA. This section also authorizes
the Secretary to establish applicable rental rates for quarters
and facilities for employees of the BIA Office of Justice
Services. This section also extends the Indian Alcohol and
Substance Abuse Prevention and Treatment Act of 1986 and public
safety grants through FY2024.
Section 102. Amendment to add EOD authority
This section authorizes the Secretary of the Interior to
authorize BIA law enforcement officers to execute emergency
civil orders of detention to take an individual into protective
custody for emergency mental health purposes and transport the
individual to the nearest mental health facility when requested
by a tribal court or an employee authorized by state or tribal
law. These BIA law enforcement officers shall be covered by the
Federal Tort Claims Act. The BIA and Indian Police Academy
shall establish appropriate standards to carry out this
section. Not later than 180 days, the BIA shall enter
agreements with state and tribal mental health officials that
outline processes to carry out this section, where BIA provides
the primary law enforcement for an Indian tribe. This section
authorizes $1.5 million for the BIA to implement this section.
Section 103. Detention services
This section requires the IHS to be responsible for medical
care and treatment of detained Indians at BIA or tribal
detention centers, without regard to the individual's domicile.
The BIA and IHS are required to enter a Memorandum of Agreement
to implement this section.
Section 104. Tribal law enforcement officers
This section states that law enforcement officers employed
by Indian tribes that have compacted or contracted under the
Indian Self Determination and Education Assistance Act shall
have authority to enforce Federal law within the area under
tribal jurisdiction if they have completed the required
training, passed an adjudicated background investigation,
received BIA certification, and the Indian tribe has adopted
the required policies and procedures that meet or exceed the
same or similar policies of OJS. These officers shall be deemed
Federal law enforcement officers for enforcing Indian Country
crime statutes, consideration as an eligible officer under 5
USC, ch. 81, subchapter III, and Federal Tort Claim Act
coverage. The Secretary of the Interior shall develop
procedures for credentialing these officers. These tribal
officers attending state or equivalent training programs shall
be required to attend the Indian Police Academy bridge program.
Section 105. Oversight, coordination, and accountability
This section would require the Attorney General, acting
through the Deputy Attorney General, to coordinate and provide
oversight for all DOJ responsibilities for public safety in
Indian communities.
Section 106. Integration and coordination of programs
This subsection requires, no later than eighteen months
after enactment, the Attorney General and the Secretaries of
the Interior and DHHS to consult with Indian tribes regarding
the feasibility of integrating and consolidating Federal law
enforcement, public safety, substance abuse, and mental health
programs designed to support tribal communities, similarly to
the integrated job-training and related programs under Public
Law No. 102-477. These agencies are required to identify
applicable programs. A required joint report is to be submitted
to Congress on the findings under this section no less than one
year after enactment of this Act.
This section requires improving interagency cooperation, by
requiring the Attorney General to evaluate and report to
respective Congressional committees on DOJ programs regarding
current requirements encouraging intergovernmental cooperation,
the benefits and barriers to intergovernmental cooperation, and
recommendations for incentivizing such cooperation between
state, local, and tribal governments. This section also
requires the Attorney General, and the Secretaries of Interior
and DHHS to enter a Memorandum of Agreement to cooperate,
confer, transfer funds and information on matters relating to
detention of inmates and reducing recidivism and a separate
Memorandum of Agreement to develop, share, and implement
effective strategies to improve reentry of Indian inmates into
Indian communities. They are further required to submit a
report to Congress not later than four years after enactment of
this Act regarding implementation of these Memoranda of
Agreement under this section.
Section 107. Data sharing with Indian tribes
This section requires the Attorney General to establish a
Tribal Access Program to enhance the ability of tribal
governments to access, enter, and obtain information from
Federal criminal databases. It further requires the Attorney
General, to the extent permitted by law, to share a report with
an Indian tribe that is created from the analysis of
information submitted by the Indian tribe to the Federal
criminal information database. It also authorizes the Attorney
General to use unobligated funds or certain other remaining
funding balances for the Tribal Access Program.
The Attorney General is also required to ensure technical
assistance and training is provided to Indian law enforcement
so they can access the national crime databases. This provision
transfers the responsibility from the BIA to the DOJ. The FBI
is required to coordinate with the BIA to ensure Indian tribes
have the appropriate credentials (an ORI identification number)
to be able to input their data into the national crime
databases.
This section also directs the Attorney General to consult
with Indian tribes regarding the required Annual Declination
Reports to improve data collection, the information reporting
process, and information sharing.
Section 108. Judicial administration in Indian country
This section directs the Director of the BOP to maintain
the pilot program established by the Tribal Law and Order Act
of 2010 allowing certain tribally-convicted persons to serve
their time in Federal prisons. The pilot program would be
extended for up to nine years after the date of enactment of
this Act and may be extended for a prisoner whose underlying
tribal sentence has not expired, but no extension shall exceed
the maximum sentence time under the Tribal Law and Order Act of
2010.
This section also requires consultation with Indian tribes
by the BOP, BIA, IHS, OJJDP, and the Substance Abuse and Mental
Health Services Administration regarding Indian juvenile
justice and incarceration.
Section 109. Federal notice
This section authorizes the appropriate United States
Attorney's Office to give notice of the conviction, and other
pertinent information, of an enrolled member of a Federally-
recognized Indian tribe convicted in the respective Federal
District court to the Indian tribe (or appropriate tribal
justice official) of the tribal member.
Section 110. Detention facilities
This section amends 25 U.S.C. 2802 and 3613 to allow an
Indian tribe with an Indian Self-Determination and Education
Assistance Act contract or compact to use its available
detention funding to provide for alternatives to detention as
agreed upon with the Secretary of Interior, acting through the
BIA Office of Justice Services.
This section also reauthorizes funds for the Secretary of
the Interior and the Attorney General to construct and staff
juvenile detention centers and for the Attorney General to
carry out programs for incarceration on Indian lands.
Section 111. Reauthorization for tribal courts training
This section reauthorizes funds for Indian tribal justice
technical and legal assistance training, technical assistance,
and civil and criminal legal assistance grants from FY2020 to
FY2024.
Section 112. Public defenders
This section requires, less than one year after enactment
that the Director of the United States Courts shall collaborate
and consult with Indian tribes to develop working relationships
and communication with tribal leaders and their communities
while providing technical assistance and training. It provides
a Sense of Congress that the Director of the Administrative
Office of the United States Courts and the Attorney General
should work together to ensure districts that contain Indian
Country have sufficient resources for adequate criminal defense
representation for Indian Country defendants.
The tribal coordinator will communicate with tribal leaders
and tribal communities and provide technical assistance and
trainings regarding criminal defense techniques and strategies,
forensics, and reentry programs. The Sense of Congress is that,
in evaluating the performance of tribal coordinators and as
part of the funding formula, the Administrative Office of the
United States Courts should take into consideration the
multiple duties of the tribal coordinators. The Sense of
Congress is also that the Director of Administrative Office of
the United States Courts and the Attorney General ensures that
Indian Country has sufficient resources for adequate
representation.
Section 113. Offenses in Indian country: trespass on Indian land
This section establishes a new Federal offense for
violating an exclusion order issued by a tribal court.
Section 114. Resources for public safety in Indian country; drug
trafficking prevention
This section maintains the Shadow Wolves drug trafficking
prevention program within the Bureau of Immigration and Customs
Enforcement and authorizes the Commissioner of U.S. Customs and
Border Protection to transfer funds to the Director of the BIA
for road maintenance and repair under the Director's
jurisdiction. This section also reauthorizes funds for
international illegal narcotics trafficking eradication on
certain Indian reservations from FY2020 to FY2024.
Section 115. Substance abuse prevention tribal action plans
This section amends the Indian Alcohol and Substance Abuse
and Prevention and Treatment Act of 1986 to add the Secretary
of the Department of Agriculture and the Secretary of the
Department of Housing and Urban Development to the current
inter-departmental agencies that are required to enter the
Memorandum of Agreement for substance abuse prevention and
reauthorizes funds for the tribal action plans and training.
Section 116. Office of Justice Services spending report
This section includes an assessment of unmet staffing needs
for health care, behavioral health, and tele-health needs at
tribal jails to be added to the needs report for tribal and BIA
justice agencies that is submitted to appropriate committees of
Congress at each fiscal year.
Section 117. Trafficking victims protection
This section amends the Trafficking Victims Protection Act
to require that the Secretary of DHHS and the Attorney General,
in consultation with the Secretary of Labor submit to Congress
a report of certain grants awarded under 22 U.S.C. 7105 that
lists the total number of entities that directly serve tribal
communities or are Indian tribal governments or tribal
organizations. The report must also include the total number of
health care providers that participated in training supported
by the pilot program under 22 U.S.C. 7105 who are IHS
employees.
Section 118. Reporting on Indian victims of trafficking
This section instructs the Directors of the OVW, the OVC,
and the OJJDP Administrator to require each grantee to report
on the number of human trafficking victims served with grant
funding, and whether the victims were members of an Indian
tribe. This section provides that nothing in this section shall
require an individual victim to report any personally
identifiable information and the grantee shall not deny
services to a victim for declining to provide such information.
This section also requires the Attorney General to report
annually to Congress on the data collected.
Title III--Justice for Indian Youth
Section 201. Federal jurisdiction over Indian juveniles
This section amends 18 U.S.C. 5032 to allow the Attorney
General to defer to tribal jurisdiction over an Indian juvenile
before proceeding with the matter in Federal court. It is
similar to the deferral to state courts in current law.
Section 202. Reauthorization of tribal youth programs
This section reauthorizes funds for summer youth programs
for Bureau of Indian Education and tribal schools, emergency
shelters for Indian youth from FY2020 to FY2024.
Section 203. Justice for Indian youth
This section amends the Indian Law Enforcement Reform Act.
It directs the Secretaries of Interior and DHHS, Attorney
General, and the OJJDP Administrator to:
Coordinate to assist Indian tribes in
addressing juvenile offenses through technical
assistance, research, and information sharing on
effective programs and practices;
Consult with Indian tribes bi-annually on
strengthening the government-to-government
relationship, improving juvenile delinquency programs,
improving services, improving coordination among
Federal agencies to reduce juvenile offenses,
delinquency, and recidivism, developing cultural
programs as promising or evidence-based programs, and
other matters for Indian youth;
Facilitate the incorporation of tribal
cultural practices into juvenile justice systems;
Conduct certain research and evaluation
related to Indian juveniles; and
Develop a means for collecting data, a
process for informing Indian tribes when one of their
juvenile members comes into contact with a state or
local juvenile justice system, and partnerships with
Bureau of Indian Education schools.
This section requires the Attorney General and the OJJDP
Administrator to issue a tribal consultation policy not later
than one year after enactment of this Act. In addition, not
later than three years after enactment of this Act, the OJJDP
Administrator shall submit a report on the consultation and
recommendations for implementing this section as well as the
recommendations of the Council related to Indian youth. Not
later than three years after enactment of this Act, the OJJDP
Administrator shall implement the processes, improvements, and
other activities under this section.
Section 204. Coordinating council on juvenile justice and delinquency
prevention
This section adds the Director of the IHS and the Assistant
Secretary for Indian Affairs to the Council.
Section 205. Grants for delinquency prevention programs
This section reauthorizes grants to support and enhance
tribal juvenile delinquency prevention services and the ability
of Indian tribes to respond to and care for juvenile offenders
through FY2024.
COST AND BUDGETARY CONSIDERATIONS
The cost estimate for S. 210, as calculated by the
Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 20, 2019.
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 210, the Tribal Law
and Order Reauthorization and Amendments Act of 2019.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
Keith Hall,
Director.
Enclosure.
Bill summary: S. 210 would amend the Tribal Law and Order
Act of 2010 and the Indian Law Enforcement Reform Act. It would
establish or reauthorize various programs and offices within
the Bureau of Indian Affairs (BIA), the Department of Justice
(DOJ), and the Judiciary concerning public safety in Indian
communities.
Estimated Federal cost: The estimated budgetary effect of
S. 210 is shown in Table 1. The costs of the legislation fall
within budget functions 450 (community and regional
development) and 750 (administration of justice).
TABLE 1.--ESTIMATED INCREASES IN SPENDING SUBJECT TO APPROPRIATION UNDER S. 210
----------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
----------------------------------------------------------------------
2019 2020 2021 2022 2023 2024 2019-2024
----------------------------------------------------------------------------------------------------------------
Indian Law Enforcement, Courts, and
Detention Facilities:
Authorization........................ 0 152 150 150 150 150 752
Estimated Outlays.................... 0 66 104 124 138 150 582
Prevention of Alcohol and Drug Abuse and
Juvenile Delinquency:
Authorization........................ 0 58 58 58 58 58 290
Estimated Outlays.................... 0 23 38 47 53 58 219
Other Programs:
Estimated Authorization.............. 40 28 29 28 29 29 143
Estimated Outlays.................... 0 12 19 22 25 28 106
Total Changes:
Estimated Authorization.......... 0 238 237 236 237 237 1,185
Estimated Outlays................ 0 101 161 193 216 236 907
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that S.
210 will be enacted late in fiscal year 2019 and that the
necessary amounts will be appropriated for each fiscal year
starting in 2020. Estimated outlays are based on historical
spending patterns for similar programs.
S. 210 would specifically authorize the appropriation of
about $1 billion over the 2020-2024 period for BIA and DOJ to
carry out the bill's provisions. The Congress provided $370
million for similar purposes in 2018.
In addition, using information from BIA, DOJ, and the
Administrative Office of the U.S. Courts (AOUSC), CBO estimates
that appropriations totaling $143 million over the five-year
period also would be necessary to implement additional
provisions of the bill.
Indian law enforcement, courts, and detention facilities:
CBO estimates that implementing the provisions of S. 210 that
would authorize funding for Indian law enforcement, courts, and
detention facilities would cost $582 million over the 2020-2024
period and an additional $170 million after 2024.
For each year through 2024, the bill would authorize the
following annual appropriations:
$58 million for BIA to aid tribal justice
systems;
$40 million for DOJ to make grants to Indian
tribes to hire, train, and equip law enforcement
officers;
$35 million for DOJ grants to Indian tribes
for the construction and maintenance of detention
facilities and tribal justice centers; and
$17 million to construct, renovate, and
staff juvenile detention centers on Indian lands.
The bill also would authorize the appropriation of $1.5
million in 2020 for BIA to establish standards for and train
BIA law enforcement officials in the process of taking people
into protective custody for mental health reasons.
Prevention of alcohol and drug abuse and juvenile
delinquency: CBO estimates that implementing the provisions of
S. 210 that concern programs to reduce alcohol and drug abuse
and juvenile delinquency on tribal lands would cost $219
million over the 2020-2024 period and an additional $71 million
after 2024.
For each year through 2024, the bill would authorize the
following annual appropriations:
$25 million for DOJ to make grants for local
and tribal delinquency prevention programs;
$17 million for BIA to construct, renovate,
and staff emergency shelters for Indian youth who abuse
alcohol or illegal substances;
$7 million for BIA to make grants to Indian
tribes to create curricula aimed at preventing alcohol
and drug abuse;
$5 million for BIA to implement summer youth
programs to prevent substance abuse; and
$4 million for BIA to combat illegal
narcotics trafficking on tribal land.
Other programs: The bill would authorize the appropriation
of whatever amounts are necessary for the following programs.
In addition, S. 210 would require the agencies to implement the
provisions detailed below. CBO used information from the
different agencies about the cost of similar activities, or the
amount of recent appropriations, to estimate the costs of those
provisions.
Grants for tribal courts training: S. 210 would reauthorize
two DOJ programs that provide grants to improve tribal courts
and to provide technical and legal assistance to tribes. In
2018, about $19 million was allocated for those programs. CBO
estimates that continuing those programs through 2024 would
cost $69 million over the 2020-2024 period.
Training related to substance abuse and illegal narcotics:
S. 210 would reauthorize a program that provides training to
tribal law enforcement about substance abuse and illegal
narcotics. In 2018, about $22 million was allocated for all
Indian police and judicial training by BIA. CBO estimates that
about $2 million of that amount was used for training about
substance abuse and illegal narcotics. Assuming that level of
training continues, CBO estimates that implementing this
provision would cost $10 million over the 2020-2024 period.
Public Defenders: The bill would require offices of federal
public defenders whose districts include tribal lands to
appoint one assistant federal public defender to serve as a
tribal liaison and to ensure that each district has adequate
representation for tribal members. Using information from the
AOUSC, CBO estimates this provision would require about 20
additional full-time employees and additional funding for
travel, technology, and training. CBO estimates that
implementing the provision would cost $20 million over the
2020-2024 period.
Reports, Consultation, and Pilot Program: The bill would
require agencies to report on various activities, consult with
Indian tribes, and run a pilot program on background checks for
applicants to law enforcement positions within BIA. In total,
CBO estimates, implementing these provisions would cost $7
million over the 2020-2024 period.
Uncertainty: Section 103 would require the Indian Health
Service (IHS) to be responsible for the medical care and
treatment of all Indians detained or incarcerated in a BIA or
tribal detention or correctional center, without regard to
where a person resides. According to BIA, IHS routinely
provides a variety of medical services to incarcerated Indians.
Confusion occasionally arises regarding whether a local IHS
clinic is required to treat someone from outside the local
tribal area, which can result in delays in providing care to a
small number of individuals. CBO has concluded that this
provision is intended to remove the confusion over IHS's
responsibility to care for nonlocal inmates and would not
require additional care to be provided. On that basis, CBO
estimates that the provision would have no significant cost.
However, IHS believes that the provision could be
interpreted to require it to provide significantly more care to
inmates of BIA detention centers than it does currently, and
could require additional clinic hours and medical personnel. In
that scenario, the provision could have higher costs than CBO
estimates.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending and
revenues. S. 210 would make it a federal crime to violate an
order from a tribal court that excludes a person from tribal
land because of certain previous criminal convictions or civil
adjudications. Because those prosecuted and convicted under S.
210 could be subject to criminal fines, the federal government
might collect additional amounts if the legislation is enacted.
Criminal fines are recorded as revenues, deposited in the Crime
Victims Fund, and later spent without further appropriation
action. CBO expects that any additional revenues and subsequent
direct spending would not be significant in any year because
the legislation would probably affect only a small number of
cases.
Increase in long-term direct spending and deficits: None.
Mandates: S. 210 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act.
However, the bill would provide several benefits to Indian
tribes. S. 210 would authorize programs and grants to address
tribal public safety, offender incarceration, alcohol and
substance abuse, and treatment and prevention of juvenile
delinquency. It would create tribal liaisons in offices of
federal public defenders, and those liaisons would coordinate
the cases of defendants who are accused of federal crimes on
Indian land. The bill would direct DOJ to share information
from criminal databases with Indian tribes, and it would
require the Office of the U.S. Attorney to notify tribes when
an enrolled member is convicted in a district court. The bill
also would benefit tribes by extending a pilot program to allow
offenders convicted in tribal courts to be held in Bureau of
Prisons facilities. Any costs to tribal governments would
result from complying with conditions of federal assistance.
Estimate prepared by Federal Costs: Mark Grabowicz
(Department of Justice); Jon Sperl (Department of the Interior,
Judiciary); Robert Stewart (Indian Health Service). Mandates:
Rachel Austin.
Estimate reviewed by: Kim Cawley, Chief, Natural and
Physical Resources Cost Estimates Unit; Chad Chirico, Chief,
Low-Income Health Programs and Prescription Drugs Cost
Estimates Unit; H. Samuel Papenfuss, Deputy Assistant Director
for Budget Analysis.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 210.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 210 will
have a minimal impact on regulatory or paperwork requirements.
CHANGES IN EXISTING LAW (CORDON RULE)
On February 6, 2019, the Committee on Indian Affairs
unanimously approved a motion by Chairman Hoeven to waive the
Cordon rule. In the opinion of the Committee, it is necessary
to dispense with subsection 12 of rule XXVI of the Standing
Rules of the Senate to expedite the business of the Senate.
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