The increase in tribal courts' sentencing authority from one year to three years for a single crime came two years ago under the federal Tribal Law and Order Act. But a U.S. Government Accountability Office report released Wednesday showed that none of the 109 tribes who responded to a survey about the sentencing increase were taking advantage of it.
Nearly all of those tribes said they need more money and technical help from the federal government to provide public defenders, establish or update criminal codes, and have sufficiently trained judges as the law requires.
The report shows 36 of the tribes surveyed are working toward the new authority. Another 34 tribes were unsure whether they would go in that direction, while 31 said they had no plans to do so, the report said. The enhanced sentencing isn't mandatory for tribes.
Troy Eid, chairman of the Indian Law and Order Commission born out of the Tribal Law and Order Act, said tribes across the country are exploring the authority but it will take time to get all the elements in place if that's the path they choose.
"My impression is that within the next year, you'll start to see some tribes actually implementing the system," he said. "Tribes are being super careful. No tribe wants to get this issue wrong; it has to be legally correct."
The GAO cautioned the report isn't representative of all tribes. Congressional investigators identified 171 of the 566 federally recognized tribes that received federal funding for tribal courts to include in the survey, but not all of them responded.
Tribal leaders have said a year in jail for any crime under tribal law, including homicide, hasn't served as much of a deterrent on reservations. Members of the Navajo Nation Council have been debating whether the enhanced sentencing provision would help send a message that tribal officials are serious about combatting crime.
"The bad guys are saying they could get away with anything on the rez, which now pretty much is true," said Edmund Yazzie, chairman of the Navajo Nation Council's Law and Order Committee, and a former sheriff's deputy. "But now the committee is trying to take another look at it."
Seventy of the tribes surveyed said they had at least half the requirements in place to hand down lengthier sentences, but some are choosing not to because of associated costs, like probation. One unnamed tribe said it has had an effective criminal and civil justice system for 40 years without the requirement of a law-trained judge, and that hiring one from outside the community would be unreasonable.
The Hopi Tribe in Arizona set aside funds from its own budget to hire law-trained judges and a prosecutor last year to meet the requirements of the tribal law and order act, said tribal Chairman Le Roy Shingoitewa. The tribal council is expected to vote on an updated criminal code next month that Shingoitewa says could help ensure that victims get justice.
"Now we have some teeth in enforcing our laws. Previous to this, all we did is slap the hands of perpetrators," he said.
Tribes receive funding, training and other assistance through the U.S. Bureau of Indian Affairs and the U.S. Department of Justice, but it's not always enough.
The BIA said it has provided more than 60 recording devices to tribes to help them meet another requirement that they maintain a record of criminal proceedings. The agency said it has plans to give 15 more to tribes that request them and also has asked for $1 million more in funding for tribal courts in its 2013 budget justification.
The GAO recommended that the federal government clarify to tribes the funding sources available to help them pursue the enhanced sentencing.
Mato Standing High, attorney general of the Rosebud Sioux Tribe in South Dakota, said the tribe is fortunate in that it has the financial resources to meet many of the requirements under the Tribal Law and Order Act. The only thing missing is an updated tribal code that would reflect a new class of crimes, like rape, arson or homicide, with lengthier sentences, he said.
The tribe hasn't decided officially whether to move forward with the enhanced sentencing authority, he said, but is considering how to classify crimes after comparing them to state and federal crimes and penalties.
"Tribes really need to see it as an opportunity to exercise sovereignty and have more local control," Standing High said. "That's the goal of it, and I understand also that it takes a lot of resources that a lot of tribes don't have."
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