Tribal Law and Order Act: None of the Surveyed Tribes Reported Exercising the New Sentencing Authority, and the Department of Justice Could Clarify Tribal Eligibility for Certain Grant Funds

What GAO Found

Among the tribes that responded to our survey (109), none reported that they were exercising TLOA’s new sentencing authority, and, in open-ended responses, many tribes (86 of 90, or 96 percent) reported challenges to exercising this authority due to funding limitations. Tribes were relatively evenly split among those that reported that they have plans to exercise the new authority (36 of 101, or 36 percent); that they did not know the tribe’s plans to exercise the new authority (34 of 101, or 34 percent) because, for instance, the tribal council has not yet made a decision; and that they did not have plans to do so (31 of 101, or 31 percent). In addition, 64 percent of selected tribes (70 of 109) reported implementing at least half of the requirements necessary for exercising the new sentencing authority, but reported challenges in implementing other requirements. Specifically, these tribes most frequently reported implementing the requirement to maintain a record of the criminal proceeding, and least frequently reported providing the defendant a licensed defense attorney. For example, 8 tribes that described challenges to exercising the new sentencing authority reported challenges with the costs of implementing the requirements associated with the sentencing authority. In particular, 3 tribes reported challenges with the costs of providing a licensed judge with sufficient legal training as required under TLOA. As a result, tribal courts may be unable to impose prison sentences of over 1 year to 3 years per offense—as TLOA provides—and possibly provide a more effective deterrent to criminal activity in Indian country.

DOJ and BIA provide funding and technical assistance to tribes that can be used to help them exercise the new sentencing authority, and tribes reported that they desire additional funding and technical assistance from the federal government for this purpose. However, tribes do not always have a clear understanding about their eligibility for federal funding sources available to help them exercise the new sentencing authority. In its fiscal year 2011 solicitation for the Tribal Civil and Criminal Legal Assistance (TCCLA) grant, DOJ stated that consistent with its authorizing statute, eligibility is “limited to tribal and non-tribal non-profit (Internal Revenue Code (I.R.C.) § 501(c)(3)) entities that provide legal assistance services for federally recognized Indian tribes, members of federally recognized Indian tribes, or tribal justice systems pursuant to the federal poverty guidelines.” However, 6 of the 9 tribes or tribal entities that applied for TCCLA in fiscal year 2011 were ineligible—because they were not 501(c)(3) non-profit entities—yet DOJ did not explain to the tribes that they were ineligible for funding because they were not such entities. As a result, these tribes used resources to prepare applications explaining their intended use of the funding—which, for 4 of the 6 tribes, was to meet requirements necessary for exercising the new sentencing authority—when they were not eligible for the funding. DOJ officials agreed that they could update the letter used to inform applicants that they were not selected for funding to make it clearer that only 501(c)(3) nonprofit entities are eligible. Further, internal control standards state that agency management should ensure that there are adequate means of communicating with external stakeholders that may have a significant impact on the agency achieving its goals. By taking actions to better clarify that applicants must be 501(c)(3) non-profit entities to be eligible for TCCLA, both during the application process and when applicants are notified of their ineligibility, DOJ could better ensure that the tribes and DOJ will not use resources to prepare, review, and deny applications for grants for which tribes or certain tribal entities are not eligible. Moreover, tribes would also be better positioned to make informed decisions about the available funds to pursue.

Why GAO Did This Study

The Tribal Law and Order Act of 2010 (TLOA) recognizes that instances of crime have increased on Indian reservations, and concerns have been raised as to whether tribal courts are able to impose sentences stringent enough to help deter such criminal activity. Prior to the enactment of TLOA, federal law limited tribal courts to imposing prison terms of no greater than 1-year per offense for convicted defendants. We reported in February 2011 that tribal officials said that the 1-year limit on prison sentences did not serve as an effective deterrent against criminal activity and may have contributed to the high levels of crime and repeat offenders in Indian country.

We also reported that, as a result of the limited sentencing authorities of tribal courts, tribes will often rely on the federal government to investigate and prosecute more serious offenses, such as homicide, because a successful federal prosecution of such offenders could result in a lengthier prison sentence and better ensure justice for victims of crime in Indian country. However, acknowledging that tribal justice systems are often the most appropriate institutions for maintaining law and order in Indian country, TLOA states that its purpose is to, among other things, empower tribal governments to effectively provide public safety and reduce the prevalence of violent crime in Indian country. For example, TLOA authorizes tribal courts to impose upon certain convicted defendants terms of imprisonment of up to 3 years per offense, provided the tribes afford certain rights to defendants.

We reported in May 2012 on the extent to which the Department of Justice (DOJ) and the Bureau of Indian Affairs (BIA) within the Department of the Interior (DOI) provide federal funding and other assistance that may be used to support indigent defense, including in Indian country. Federal law does not entitle an indigent Indian defendant prosecuted in a tribal court to a licensed defense attorney provided at the tribal government’s expense unless a sentence in excess of 1-year per offense as authorized under TLOA is sought. Therefore, as part of our indigent defense review and in response to your request, we asked tribes about their plans to implement this as well as the other requirements necessary to exercise TLOA’s new sentencing authority. Specifically, this report addresses the following questions:

(1) To what extent did selected tribes report that they exercise, or have plans to exercise, TLOA’s new sentencing authority, and that they implement, or have plans to implement its associated requirements, and what challenges, if any, did the selected tribes report in doing so?

(2) What types of assistance did federal agencies report that they provide to assist tribes in exercising TLOA’s new sentencing authority, and what, if any, federal assistance did selected tribes report that they would like to receive?