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Calendar No. 732
115th Congress} { Report
SENATE
2d Session } { 115-433
======================================================================
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
_______
December 13, 2018.--Ordered to be printed
_______
Mr. Hoeven, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 1953]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 1953) 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 with an amendment in the nature of a
substitue and recommends that the bill, as amended, do pass.
PURPOSE
The Tribal Law and Order Act Reauthorization and Amendments
Act of 2018, S. 1953, builds on the improvements to criminal
justice systems serving Indian communities that were enacted in
the Tribal Law and Order Act of 2010 (TLOA). It is also
intended 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
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
2022. The bill, S. 1953, contains other provisions to improve
justice within Indian Country.
NEED FOR LEGISLATION
Based on testimony received at the Committee on Indian
Affairs' hearings, roundtables, and meetings, since passage of
the TLOA, some crime rates have diminished, but the overall
levels 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, overcrowded jail conditions, and recidivism and
address justice for Indian youth.
BACKGROUND
The TLOA was introduced on April 2, 2009 in the 111th
Congress. It was incorporated into the bill, 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.
The 2010 law, passed in response to the public safety
crisis in Indian communities, 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 among Federal and state agencies
and to better manage public safety concerns in Indian Country.
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\1\See also S. Rep. No. 111-93, at 1 and 4 (2009).
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The intent of the TLOA was aimed at reducing violent crime,
drug trafficking, and rates of drug and alcohol addition,
combating sexual and domestic violence against American Indian
and Alaska Native women, and standardizing interagency
information sharing among Federal, state, and tribal
stakeholders. It also encouraged the hiring, training, and
support of more law enforcement officers, whether tribal or
Federal, to assist in preventing and addressing unacceptably
high rates of crimes in Indian communities.
Since the enactment of TLOA, the Committee has held three
hearings and one roundtable on the implementation of the
TLOA.\2\ While some reductions in crimes have occurred, the
levels still remain high as reflected in the following chart
(based on information from the Department of Justice Bureau of
Statistics).\3\
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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.
----------------------------------------------------------------------------------------------------------------
2017, 152
Type of Offense 2010, 143 Tribes 2013, 158 Tribes Tribes\4\
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
\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.
The TLOA required the following key reports:
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 Department of Justice (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;
The Indian Health Service capability to
collect and secure domestic and sexual assault
evidence, which was completed by the U.S. Government
Accountability Office (GAO) 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.1953. Specifically, the DOJ Office of the
Inspector General (DOJ-OIG) and the GAO have published four
additional reports related to public safety in Indian Country
since the TLOA's enactment:
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;
Native American Youth: Involvement in
Justice Systems and Information on Grants to Help
Address Juvenile Delinquency Highlights, completed by
the GAO in 2018;
Human Trafficking: Action Needed to Identify
the Number of Native American Victims Receiving
Federally-Funded Services, completed by the GAO in
2017; and
Human Trafficking: Information on Cases in
Indian Country or that Involved Native Americans,
completed by the GAO in 2017.
Tribal Law and Order Act: Long Term Plan to Build and Enhance Tribal
Justice Systems report
The intent for the Tribal Law and Order Act: Long Term Plan
to Build and Enhance Tribal Justice Systems report was to
obtain information on alternatives to incarceration for jails
and other public safety buildings. The major focus was to
critically assess and improve tribal public safety
infrastructure and institutional methods to develop
alternatives to incarceration.
From this report, both the DOJ and the BIA have 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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
Tribal leaders have encouraged establishing culturally
sensitive alternatives to incarceration. These types of
alternatives would allow offenders to remain close to their
Native communities and focus on treating the root causes of
criminal behavior with an emphasis on rehabilitation rather
than retribution. As a result, Indian tribes may now use the
DOJ funding for electronic alcohol/offender monitoring devices
and related equipment as an alternative to incarceration. The
DOJ has also provided training and capacity building for tribes
to implement and develop these intervention efforts.\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. 1953 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, one such approach
is based on 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, the efforts need to be 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 investigations and prosecutions
that were terminated or declined in Indian Country. The reports
should outline the following information: types of crimes
alleged, status of accused as Indian or non-Indian, status of
victim as Indian or non-Indian, and the reason for deciding
against referring the investigation for prosecution by the FBI
or the reason for deciding to decline or terminate the
prosecution.
In CY2014, the FBI closed 2,064 Indian Country cases--an
increase of 7 cases from CY2013.\8\ The most common reason
noted 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.
---------------------------------------------------------------------------
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 DOJ, including the Executive
Office of U.S. Attorneys, should provide further clarification
and detail 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 in order 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
Department 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 report. As a result, the total
numbers in the report would 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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Tribal Law and Order Act report on enhanced tribal-court sentencing
authority
Section 234(B) of the TLOA required 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) required 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 exercised 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
In this pilot program, Indian prisoners sentenced by tribal
courts for violent offenses may be accepted by and housed
within the Bureau of Prisons (BOP) 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. According to the BOP, all
six offenders were accepted and transferred 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 an assessment of the services available to those
prisoners and the effectiveness of those services is needed as
part of any program extension.
Annual U.S. Department of Justice: Tribal Crime Data Collection
Activities Report
Section 251(g) of the TLOA required the Bureau of Justice
Services (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 has advanced as more tribal law enforcement agencies
have participated 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 2016-2018 report indicated a 1.2 percent
increase between the midyear 2015 and 2016 total number of
inmates held in Indian Country jails.\20\ The number of jails
or detention centers being utilized in Indian Country has
increased from 68 facilities in 2004 to 80 in 2016.\21\
According to the 2016-2018 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--1.4% of total inmate
jail populations and 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 have 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. 1953, 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 report to
the Committee on Indian Affairs of the Senate and the Committee
on Natural Resources of the House of Representatives on certain
capabilities of the Indian Health Service (IHS). Congress
directed the GAO to conduct a study of IHS's capabilities 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 in cases of
sexual assault and domestic violence from patients 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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
Before March 2011, the IHS did not have an agency wide
standardized plan on how to conduct these services. The agency
is now reportedly making progress to improve their capacity for
these services by completing 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 how
many staffers within the agency have the appropriate training
or certification to conduct those 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,
continued work on appropriate and adequate responses to these
types of crimes is still needed within these communities. Data
from DOJ shows that ``[a]t midyear 2016, domestic violence
(14%) and aggravated or simple assault (10%) accounted for
nearly a quarter of all inmates'' held in Indian Country
jails.\27\ In addition, ``[i]nmates held for rape or sexual
assault (1%) and other violent (5%) offenses accounted for an
additional 6 [percent] of the jail population.''\28\ While
these statistics do not include the inmates in Federal
detention, this information indicates that these types of
crimes continue to occur in Indian communities.
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\27\Tribal Crime Data Collection Activities, 2016-2018, Bureau of
Justice Statistics, Department of Justice (2018) at 5.
\28\Id.
---------------------------------------------------------------------------
Community Oriented Policing Services grants
Section 243 of the TLOA required the Attorney General to
provide a report to Congress describing the extent and
effectiveness of the Community Oriented Policing Services
(COPS) grants in Indian communities. The COPS grants in Indian
Country focus primarily on activities for combating drugs, for
substance abuse and mental health-related programs, and for
increasing the capacity of the tribal justice system overall.
The report provided data on the grant programs that assist
Indian tribes through program activities, training, and
technical assistance.
From 1994 to 2009, COPS grants were awarded to over 2,000
tribal grant recipients consisting of Indian tribes and tribal
organizations and totaled more than $400 million. In FY2010,
the last year data is available in the report, $48.6 million in
grants were awarded to 141 entities. However, the majority of
FY2010 funds were used for non-officer related expenditures
since only 23 officers were funded through COPS.
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.1953,
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 Commission was required 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 Commission was required 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.
Most disturbing about this report is 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. The Commission
reported 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. Generally, there is no requirement that an
incarcerated Indian child's tribe be contacted 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\ however, 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, communication with and training
by the Department 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.
---------------------------------------------------------------------------
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
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. 1953 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 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 race
of the Native 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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Most notably, 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.
However, the GAO consulted with various tribal and Federal
experts to ascertain possible reasons for such declines.
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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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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 the youth.
However, from 2013 to 2016, the Office of Juvenile Justice and
Delinquency Prevention (OJJDP) had apparently not been
enforcing that requirement,\40\ so it is unclear 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).
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Title II of the S. 1953 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. The 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 largest numbers of Native youth involvement.
The GAO 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, which becomes more troubling as they enter
the Federal system.
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 against the person, including
sex offenses, than other youth. Consequently, the terms of
confinement were more onerous for Native youth than other
youth. The DOJ officials indicated that these higher rates were
due to the Federal jurisdiction in Indian lands and for major
crimes.
The GAO also reviewed Federal grant resources and
cooperative agreement resources related to the risk or
protective factors for youth for FY2015 to FY2017 from the DOI,
DOJ, and the Department of Health and Human Services (DHHS).
The GAO found that 122 grants could be used by Indian tribes to
address juvenile delinquency, 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 $1.2 billion was available from these grants.
However, only $207.7 million was awarded to Indian tribes and
tribal organizations ($106.5 million from the DHHS and $101.2
million from the DOJ).\41\ Most of these funds were from the 27
tribal specific grants.
---------------------------------------------------------------------------
\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 Departments to
apply for certain juvenile justice grants. Making this
challenge even more difficult is the ever-increasing
requirement to demonstrate evidence-based approaches for
Federal grant applications.
Indian tribes have sought to employ more restorative
justice approaches which are based in tradition or culture.
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. 1953,
takes action to address this challenge. Title II of the Tribal
Law and Order Reauthorization and Amendments Act of 2017
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, if any, methods
to reduce bureaucratic demands on Indian tribes exist in these
programs. One method that has fostered administrative
efficiencies and reduced costs is the integration approach
modeled by the ``477 program.''\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 2017 also seeks to build upon this more efficient approach
for public safety-related programs. This bill would require the
Secretaries of the Interior, DHHS, 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\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) (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:
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 GAO-17-325 report 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.\46\
---------------------------------------------------------------------------
\46\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.\47\
---------------------------------------------------------------------------
\47\Id at 17.
---------------------------------------------------------------------------
In comparison to the United States as a whole during that
same time frame, data showed over 6,100 Federal human
trafficking investigations and approximately 1,000 Federal
human trafficking prosecutions.\48\ 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.
---------------------------------------------------------------------------
During the FY2014-FY2016 period, the DOJ, DHHS, and the
Department of Homeland Security administered at least fifty
grant programs to address human trafficking in Indian Country
or of Native Americans.\49\ These programs allow funding to be
used for:
---------------------------------------------------------------------------
\49\Id. at 21.
---------------------------------------------------------------------------
Collaboration and partnerships;
Data, research, and evaluation;
Provision of services directly to victims;
Public awareness; and
Training or technical assistance.\50\
---------------------------------------------------------------------------
\50\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 22 (2017).
---------------------------------------------------------------------------
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.''\51\ 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 is not useful in determining how many
Native American victims are served by these programs.\52\
---------------------------------------------------------------------------
\51\Id. at 24.
\52\Id.
---------------------------------------------------------------------------
``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.''\53\ Additionally, knowledge regarding a victim's
status as a Native American ``can be helpful to ensure
culturally appropriate practices are made available.''\54\ 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.''\55\
---------------------------------------------------------------------------
\53\Id. at 27.
\54\Id. at 28.
\55\Id.
---------------------------------------------------------------------------
In its March 30, 2017, report on 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.''\56\ 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.
---------------------------------------------------------------------------
\56\Id. at 29.
---------------------------------------------------------------------------
This GAO report issued on July 24, 2017, addresses:
``[T]the 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.''\57\
---------------------------------------------------------------------------
\57\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.
Reasons given by the LEAs for why human trafficking is
going unreported, regardless of ethnicity, include: victim fear
of retaliation, victim trauma, embarrassment, feelings of
shame, distrust of law enforcement, and drug addiction. The
LEAs 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.\58\
---------------------------------------------------------------------------
\58\U.S. Gov't Accountability Office, GAO-17-624, Human
Trafficking: Information on Cases in Indian Country or That Involved
Native Americans 13 (2017).
---------------------------------------------------------------------------
The GAO report found that officers may not recognize human
trafficking is occurring, particularly when it may occur with
other crimes, such as drug trafficking. 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 GAO report from July 24, 2017 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.\59\ The GAO report notes that
there are Federally-developed training programs to aid service
providers who work with Native American human trafficking
victims. Improvements in the effectiveness in these programs
are in order to improve cost efficiencies and better use of
resources.
---------------------------------------------------------------------------
\59\Id. at 20.
---------------------------------------------------------------------------
THE TRIBAL LAW AND ORDER REAUTHORIZATION ACT
To continue the public safety improvements facilitated by
the TLOA, the bill aims to reauthorize the provisions within
TLOA from FY2018 to FY2022 and to secure improvements related
to interagency coordination and information sharing, among
other things.
Principles
The bill, S. 1953, 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.''\60\
---------------------------------------------------------------------------
\60\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)
---------------------------------------------------------------------------
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.'''\61\
---------------------------------------------------------------------------
\61\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 2014, according to the DOJ, the expected average length
of stay in an Indian Country jail was about six days. However,
these jails are primarily designed for short term stays and
many do not provide treatment services. 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 indicates that ``Native American youth are more
likely to face conviction in adult court, especially for drug-
related crimes.''\62\
---------------------------------------------------------------------------
\62\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).
---------------------------------------------------------------------------
Clearly, reducing recidivism would require significant
efforts in addressing drug and alcohol abuse. To that end, S.
1953 is intended to require more efforts, coordination, and
participation from the DHHS agencies in addressing such
substance abuse and recidivism.\63\ If successful, preventing
recidivism in a Native community can reduce a host of costs
(financial and otherwise) as well as Federal and tribal
transportation costs. Cost reduction is only one benefit of
reducing recidivism.
---------------------------------------------------------------------------
\63\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 certain grant funding to be used 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.\64\ 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.''\65\ 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.
---------------------------------------------------------------------------
\64\Juvenile Justice in Indian Country: Challenges and Promising
Strategies, Hearing Before the S.Comm. on Ind. Affairs, 114th Cong.
(2015).
\65\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 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.\66\ The
unacceptably disproportionate rate of incarceration of Indian
youth is compounded by this disturbing finding. These
particular children are exposed to trauma after trauma,
seemingly without appropriate intervention or services.
---------------------------------------------------------------------------
\66\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 bill, S. 2920, provided for extensive enhancements
to the Juvenile Justice and Delinquency Prevention Act of 1974
and other laws which affect Indian juveniles. These provisions
were based upon tribal recommendations which had been proposed
in 2008 when the Juvenile Justice and Delinquency Prevention
Act of 1974 was being considered for reauthorization.
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. This concept is carried forward in S. 1953.
During the 114th and 115th Congresses, Senate and the House
of Representatives considered several proposals to reauthorize
the Juvenile Justice and Delinquency Prevention Act of 1974.
While a few tribal recommendations were modified and included
in these bills, a majority of the proposals were not.
In response to the discussions regarding the tribal
proposals in the context of the Juvenile Justice and
Delinquency Prevention Act of 1974 reauthorization, the current
bill, S. 1953, 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 between the 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 require more robust consultation by
the OJJDP Administrator. Moreover, the bill would also require
the OJJDP Administrator include in her report to Congress the
recommendations from the Coordinating Council on Juvenile
Justice and Delinquency Prevention (Council) regarding
improving service delivery to Indian communities.
The TLOA required that an Indian representative be
appointed to the Council. In 2016, that representative, the
Honorable William A. Thorne, a member of the Federated Indians
of Graton Rancheria, distinguished jurist, and expert on Indian
children's issues, was appointed by the Chairman of the
Committee on Indian Affairs, in consultation with the Vice
Chairman of the Committee on Indian Affairs of the Senate, and
the Chairman and Ranking Member of the Natural Resources of the
House of Representatives. It stands to reason that the
recommendations from the Council be included in the report.
LEGISLATIVE HISTORY
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 and Senator Daines
joined as a co-sponsor on October 30, 2017.
On October 25, 2017, the Committee held a legislative
hearing on the bill at which officials from the DOI and DOJ
testified. No objections to the bill were raised by the
witnesses.
On February 14, 2018, the Committee held a duly called
business meeting at which S. 1953 was considered. 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 remaining amendments were withdrawn by their respective
sponsors. The Committee favorably ordered the bill reported, as
amended, by voice vote.
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. One substitute amendment was
offered by then-Chairman Barrasso to address the
recommendations from the DOI and DOJ, the Federal Defenders
Organization, tribal organizations, and Indian tribes. The
substitute amendment was adopted by a voice vote.
An additional amendment was offered by Senator McCain 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. This amendment was
also adopted by a voice vote. The Committee then ordered the
bill, as amended, to be reported favorably to the Senate by a
voice vote. No further action was taken.
AMENDMENTS
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
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,\67\ which allows
for streamlining budgets and reporting requirements and
a single audit, and on what processes the Departments
should consult with Indian tribes;
---------------------------------------------------------------------------
\67\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 of 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 2018.''
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. 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 FY2022.
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 to take individuals into protective custody. These BIA law
enforcement officers will 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--Persons involuntarily committed
This section makes persons ordered involuntarily committed
by an Indian tribe eligible to receive treatment, on the same
basis as other state residents, at hospitals, clinics, or other
outpatient mental health treatment facilities in the same state
as the tribe issuing the commitment order. States accepting
Medicaid funding shall develop procedures to accept these
individuals and give full faith and credit to tribal orders of
commitment. Not later than one year after enactment, states,
Indian tribes, and, where relevant, BIA law enforcement shall
enter into MOAs to carry out this section. This section also
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.
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 certification from the BIA and the Indian tribe has
the required policies and procedures. 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, not later than eighteen months
after enactment, the Attorney General and the Secretaries of
the Interior and the 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. Not less than one year after
enactment of this Act, a joint report is required to be
submitted to Congress on the findings under this section.
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 BIA, IHS, 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 FY2018 to
FY2022.
Section 112--Public defenders
Similarly to the tribal liaison and Special Assistant U.S.
Attorney provisions for U.S. Attorneys' Offices established in
the Tribal Law and Order Act of 2010, this section requires
that at least one Assistant Federal Public Defender serve as a
tribal coordinator for Federal Public Defender Offices located
in a district that includes Indian Country. It provides a Sense
of Congress that the tribal coordinator to consult with tribal
justice officials from each affected Indian tribe.
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--Trespass on Indian lands
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
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 FY2018 to FY2022.
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 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 certain grants awarded under 22 U.S.C. 7105
that the Secretary of DHHS and the Attorney General, in
consultation with the Secretary of Labor, submit to Congress a
report that lists the total number of entities that directly
serve or are Indian tribal governments or tribal organizations
and 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 requires the Directors of the OVW and OVC, and
the OJJDP Administrator require each grantee report on the
number of human trafficking victims, as appropriate, served
with grant funding, and, in the aggregate, whether the victims
were members of an Indian tribe. This section provides that
nothing in this section shall require an individual victim to
report on any personally identifiable information and a 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 II--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 FY2018 to FY2022.
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.
This section requires the OJJDP Administrator to include in
the annual report information regarding whether the offenses
occurred in Indian Country, the tribal membership or
affiliation of the juvenile, a description of the types of
funding provided to Indian tribes, and recommendations from 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 FY2022.
COST AND BUDGETARY CONSIDERATIONS
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 20, 2018.
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. 1953, the Tribal Law
and Order Reauthorization and Amendments Act of 2018.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Robert Reese.
Sincerely,
Keith Hall,
Director.
Enclosure.
S. 1953--Tribal Law and Order Act Reauthorization and Amendments Act of
2018
Summary: S. 1953 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.
CBO estimates that implementing S. 1953 would cost $810
million over the 2019-2023 period, assuming appropriation of
the authorized and necessary amounts.
Enacting the bill could affect direct spending and
revenues; therefore, pay-as-you-go procedures apply. However,
CBO estimates that any such effects would be insignificant.
CBO estimates that enacting S. 1953 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
S. 1953 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
However, the bill would provide benefits to Indian tribes, and
any costs to tribal governments would result from those tribes'
compliance with conditions of assistance.
Estimated cost to the Federal government: The estimated
budgetary effect of S. 1953 is shown in the following table.
The costs of the legislation fall within budget functions 450
(community and regional development) and 750 (administration of
justice).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
----------------------------------------------------------------
2019-
2018 2019 2020 2021 2022 2023 2023
----------------------------------------------------------------------------------------------------------------
INCREASES IN SPENDING SUBJECT TO APPROPRIATION
Indian Law Enforcement, Courts, and Detention
Facilities:
Authorization Level....................... 150 152 150 150 150 0 602
Estimated Outlays......................... 0 66 103 124 138 85 516
Prevention of Alcohol and Drug Abuse and
Juvenile Delinquency:
Authorization Level....................... 58 58 58 58 58 0 232
Estimated Outlays......................... 0 23 38 47 53 35 196
Other Programs:
Estimated Authorization Level............. 0 28 28 28 29 4 117
Estimated Outlays......................... 0 12 18 22 25 21 98
Total Costs:
Estimated Authorization Level......... 208 238 236 236 237 4 951
Estimated Outlays..................... 0 101 159 193 216 141 810
----------------------------------------------------------------------------------------------------------------
The bill would authorize appropriations totaling $201 million in 2018. CBO does not estimate any outlays for
those authorizations because appropriations for 2018 have already been enacted. The Congress provided $370
million for similar purposes in 2018.
Basis of estimate: For this estimate, CBO assumes that S.
1953 will be enacted near the end of 2018 and that the
authorized and necessary amounts will be appropriated for each
year beginning in 2019. Estimated outlays are based on
historical spending patterns for similar programs.
S. 1953 would specifically authorize the appropriation of
about $800 million over the 2018-2022 period for BIA and DOJ to
carry out the bill's provisions. Of that amount $0.2 billion
would be for 2018. CBO does not estimate any outlays for those
authorizations because appropriations for 2018 have already
been enacted. 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 $117 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. 1953
that would authorize funding for Indian law enforcement,
courts, and detention facilities would cost $516 million over
the 2019-2023 period.
For each year through 2022, 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 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 $1.5 million to be
appropriated in 2019 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. 1953
that concern programs to reduce alcohol and drug abuse and
juvenile delinquency on tribal lands would cost $196 million
over the 2019-2023 period.
For each year through 2022, 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
Section 101 would authorize the appropriation of such sums
as are necessary for BIA to provide training for Indian law
enforcement and judicial personnel on matters relating to
substance abuse and illegal narcotics. In 2017, about $22
million was allocated for all Indian police and judicial
training by BIA. Using information from BIA about the
components of that training, CBO estimates about $2 million of
that sum was used for training concerning substance abuse and
illegal narcotics. Continuing such training at the current
level and accounting for anticipated inflation would require
appropriations totaling $10 million over the 2019-2022 period
that would lead to spending of the same amount over that
period, CBO estimates.
Sections 106 and 108 would require BIA, DOJ, and the
Department of Health and Human Services to consult with Indian
tribes on the effectiveness of tribal law enforcement. Using
information from BIA about the level of effort expected for
that activity, CBO estimates those requirements would cost $2
million in 2019 and $1 million in 2020.
Section 111 would authorize the appropriation of such sums
as are necessary through 2022 for two DOJ grant programs to
improve tribal courts and to provide technical and legal
assistance to tribes. In 2017, about $19 million was provided
for such programs. CBO estimates that continuing those programs
through 2022 would require appropriations totaling $84 million
that would lead to spending of $64 million over the 2019-2022
period.
Section 112 would require offices of federal public
defenders in judicial districts that 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 costs for
travel, technology, and training. CBO estimates that
implementing section 112 would cost about $4 million annually,
or $20 million over the 2019-2023 period.
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 such a person's
normal domicile. 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. Based on our
understanding of the law and the bill, 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.
The uncertainty around CBO's estimate of section 103 arises
from differences between IHS and CBO over what the bill
requires. IHS has expressed the belief 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
thus would require additional clinic hours and medical
personnel. Although CBO considers BIA's interpretation of the
statute to be more consistent with the statutory language,
should IHS's interpretation ultimately prove correct, the
provision would 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. 1953 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. Because
those prosecuted and convicted under S. 1953 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: CBO
estimates that enacting S. 1953 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2029.
Mandates: S. 1953 contains no intergovernmental or private-
sector mandates as defined in UMRA.
However the bill would provide several benefits to Indian
tribes: The bill 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; Robert Reese, Department of the
Interior; Janani Shankaran, Judiciary; Robert Stewart, Indian
Health Service. Mandates: Rachel Austin.
Estimate reviewed by: Kim P. Cawley, Chief, Natural and
Physical Resources Cost Estimates Unit; Susan Willie, Chief,
Mandates Unit; H. Samuel Papenfuss, Deputy Assistant Director
for Budget Analysis.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 1953.
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. 1953 will
have a minimal impact on regulatory or paperwork requirements.
CHANGES IN EXISTING LAW (CORDON RULE)
In accordance with Committee rules, compliance with
subsection 12 of rule XXVI of the Standing Rules of the Senate
is waived. In the opinion of the Committee, it is necessary to
dispense with this rule to expedite the business of the Senate.
[all]
