Lakota Country Times: Senate committee approves tribal justice bill

Sen. Jon Tester (D-Montana) serves as vice chairman of the Senate Committee on Indian Affairs. Photo from SCIA

Reservation Law Enforcement Bill Passes Committee
By Brandon Ecoffey
Lakota Country Times Editor

WASHINGTON – Crime in Indian Country has been a hot topic in Washington for a several years. Last month, the Senate’s Committee on Indian Affairs passed a bill that could strengthen the ability of tribal courts to hold offenders accountable.

"Tribal communities must have every tool they need to protect themselves from folks who traffic illegal drugs and harm children in Indian Country," said Sen. Jon Tester (D-MT). said. "This bill gives tribes certainty and provides tribal law enforcement with the tools they need to police and prosecute every criminal in their community."

The bill mentioned by Tester is the Tribal Youth and Community Protection Act. The bill was passed unanimously by the Senate’s committee on Indian Affairs and could reshape the way crimes are prosecuted across Indian Country as it allows for tribal courts to punish non-citizens living on reservations for crimes involving drugs and against children or cops.

In 2013, Congress passed two pieces of legislation that allowed for tribal courts to sentence offenders to extended jail sentences in tribal facilities and also gave tribes a mechanism for holding non-citizens accountable for crimes of domestic violence against their partner.

"It is time to address the growing drug epidemic that is plaguing communities in Indian Country. This bill will restore tribes' ability to arrest and prosecute the folks who bring drugs into their communities or try and harm their children. We are now one step closer to locking up drug dealers, protecting children, and increasing safety in Indian Country," said Sen. Tester.

At the moment most criminals accused of committing non-violent drug offenses or crimes against children can only be held accountable by state or federal law enforcement officials. As a result of Supreme Court precedent and Congress most major crimes committed on Indian Reservations can only be prosecuted by federal prosecutors. Although federal criminal law does allow for severe punishment against offenders this step has often resulted in many cases never making it to the court room.

Both Pine Ridge and Rosebud are located far away from federal offices in Rapid City and Pierre. The distance between the entities has proven to be difficult for both victims and prosecutors to receive justice. Former US Attorney for South Dakota, Brendan Johnson, advocated for the Tribal Law and Order Act that enabled tribal courts to dole out extended sentences at local tribal-detention centers. At the time he spoke at length of the difficulty facing investigators working cases in Indian Country due to the rural locations of many tribal communities.

For offenders this also means that they may find relief from harsh mandatory minimum sentences used at the federal level as tribal courts could potentially settle these matters before they reach that point.

The National Congress of American Indians praised the bill.

"NCAI appreciates Senator Tester's attention to criminal jurisdiction issues in Indian Country, especially in protecting our native youth. Restoration of tribal criminal jurisdiction is an essential governmental service that all tribes need to protect their communities and create social well-being throughout Indian Country," said Jacqueline Pata, Executive Director of the National Congress of American Indians.

New facilities built in Pine Ridge are equipped to house offenders for extended periods of time.

Individuals suspected of committing crimes against children will need to have ties like those currently applicable to domestic violence crimes, which include:
• Living on the tribe’s lands, or
• Being employed by the tribe, or
• Having a relationship (as defined in federal law) with a tribal member or Native American living on the tribe’s lands.

The Tribal Youth and Community Protection Act maintains current federal law, which requires tribal courts to provide constitutional protections to defendants when exercising criminal jurisdiction related to the bill. These protections provide a check on controversial or uncertain charges against a suspect/defendant.

Additionally, if a tribal court issues a controversial decision, a defendant can request that a federal court review the legality of his or her detention.

All non-Indian defendants in tribal court will have the same constitutional protections as they would have in federal court, including:
• Right to a speedy and public trial.
• Right to counsel.
• Right to not incriminate oneself.

Tester's bill, the Tribal Youth and Community Protection Act, will reestablish the ability for tribes to arrest and prosecute any offender for drug related crimes, domestic violence against children, and crimes committed against tribal law enforcement officers.

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"Tribal communities must have every tool they need to protect themselves from folks who traffic illegal drugs and harm children in Indian Country," Tester said. "This bill gives tribes certainty and provides tribal law enforcement with the tools they need to police and prosecute every criminal in their community."

In Montana, the Northern Cheyenne, Blackfeet, and Fort Belknap Tribes have all recently declared states of emergency due to the increase in drug related crimes on their reservations.

In 1978, the Supreme Court decision, Oliphant v. Suquamish Indian Tribe, limited the tribes' criminal jurisdiction, gravely impacting tribes' ability to administer justice in Indian Country.

A fact sheet on Tester's Tribal Youth and Community Protection Act is available here.

Tribal court sentences are limited to a maximum of three years per offense, and multiple sentences can be stacked on one another.

If a non-Indian defendant is found guilty, they would serve jail time in a tribal correctional facility that has been approved by the Bureau of Indian A airs. Tribes are also free to enter into agreement with regional detention facilities that could be located on a reservation—in which case the guilty offender would serve time in that facility.

All defendants suspected of drug crimes on tribal lands will have to appear in tribal court.

The Tribal Youth and Community Protection Act builds on existing federal law that describes the ties a defendant must have to the tribe for the tribal court to hear a case that is not a drug offense.

(Contact Brandon Ecoffey at

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