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Intersecting Laws: The Tribal Law and Order Act and the Indian Civil Rights Act

NCJ Number
Date Published
October 2016
29 pages
This report examines the intersection of the Tribal Law and Order Act (TLOA) of 2010 and the Indian Civil Rights Act (ICRA) enacted in 1968 and amended in 1986.
ICRA was enacted to secure for the American Indian the broad constitutional rights afforded to other Americans, thereby protecting individual Indians from arbitrary and unjust actions of tribal governments. Although ICRA guaranteed substantive personal rights to defendants under tribal jurisdiction, some of the constitutional protections not incorporated in ICRA included the requirement of the separation of church and state, the right to a jury trial in civil cases, and the requirement to provide indigent defendants with appointed counsel. ICRA also placed restraints on tribal courts' imposition of punishment, originally limiting tribal court sentences to 6 months; however, in 1986, Congress expanded Indian tribes' sentencing authority under ICRA to 1 year and a $5,000 fine. Under these amendments, it was assumed that a tribe could impose sentences of longer than 1 year when the suspect was also charged and convicted of discrete offenses arising from the same criminal enterprise. The TLOA was enacted in 2010 to clarify governmental responsibilities regarding crimes in Indian Country, increase and improve collaboration of violent crime in Indian Country, combat crimes such as domestic violence, sexual assault, and drug trafficking, reduce the rates of substance abuse, and support the collection and sharing of crime data among jurisdictions. For tribes opting to implement the enhanced sentencing options provided for under TLOA, obstacles and challenges are likely; however, providing due process through services such as indigent defense should not be viewed as an obstacle. Although tribes must provide indigent defendants with court-appointed counsel in order to impose enhanced sentences, the standards used in determining indigent status are under each tribe's control.

Date Published: October 1, 2016