United States Government Accountability Office

GAO

Report to Congressional Requesters

February 2011

INDIAN COUNTRY
CRIMINAL JUSTICE
Departments of the
Interior and Justice
Should Strengthen
Coordination to
Support Tribal Courts

GAO-11-252

February 2011

INDIAN COUNTRY CRIMINAL JUSTICE
Accountability • Integrity • Reliability

Departments of the Interior and Justice Should
Strengthen Coordination to Support Tribal Courts
Highlights of GAO-11-252, a report to
congressional requesters

Why GAO Did This Study

What GAO Found

The Department of Justice (DOJ)
reports from the latest available data
that from 1992 to 2001 American
Indians experienced violent crimes at
more than twice the national rate.
The Department of the Interior (DOI)
and DOJ provide support to federally
recognized tribes to address tribal
justice issues. Upon request, GAO
analyzed (1) the challenges facing
tribes in adjudicating Indian country
crimes and what federal efforts exist
to help address these challenges and
(2) the extent to which DOI and DOJ
have collaborated with each other to
support tribal justice systems. To do
so, GAO interviewed tribal justice
officials at 12 tribes in four states and
reviewed laws, including the Tribal
Law and Order Act of 2010, to
identify federal efforts to assist
tribes. GAO selected these tribes
based on court structure, among
other factors. Although the results
cannot be generalized, they provided
useful perspectives about the
challenges various tribes face in
adjudicating crime in Indian country.
GAO also compared DOI and DOJ’s
efforts against practices that can help
enhance and sustain collaboration
among federal agencies and
standards for internal control in the
federal government.

The 12 tribes GAO visited reported several challenges in adjudicating crimes
in Indian country, but multiple federal efforts exist to help address some of
these challenges. For example, tribes only have jurisdiction to prosecute
crimes committed by Indian offenders in Indian country. Also, until the Tribal
Law and Order Act of 2010 (the Act) was passed in July 2010, tribes could only
sentence those found guilty to up to 1 year in jail per offense. Lacking further
jurisdiction and sentencing authority, tribes rely on the U.S. Attorneys’ Offices
(USAO) to prosecute crime in Indian country. Generally, the tribes GAO
visited reported challenges in obtaining information on prosecutions from
USAOs in a timely manner. For example, tribes reported they experienced
delays in obtaining information when a USAO declines to prosecute a case;
these delays may affect tribes’ ability to pursue prosecution in tribal court
before their statute of limitations expires. USAOs are working with tribes to
improve timely notification about declinations. DOI and the tribes GAO visited
also reported overcrowding at tribal detention facilities. In some instances,
tribes may have to contract with other detention facilities, which can be
costly. Multiple federal efforts exist to help address these challenges. For
example, the Act authorizes tribes to sentence convicted offenders for up to 3
years imprisonment under certain circumstances, and encourages DOJ to
appoint tribal prosecutors to assist in prosecuting Indian country criminal
matters in federal court. Federal efforts also include developing a pilot
program to house, in federal prison, up to 100 Indian offenders convicted in
tribal courts, given the shortage of tribal detention space.

What GAO Recommends
GAO recommends that the Secretary
of the Interior and the Attorney
General direct the relevant DOI and
DOJ programs to develop
mechanisms to identify and share
information related to tribal courts.
DOI and DOJ concurred with our
recommendation.
View GAO-11-252 or key components.
For more information, contact David Maurer at
(202) 512-9627 or maurerd@gao.gov.

DOI, through its Bureau of Indian Affairs (BIA), and DOJ components have
taken action to coordinate their efforts to support tribal court and tribal
detention programs; however, the two agencies could enhance their
coordination on tribal courts by strengthening their information sharing
efforts. BIA and DOJ have begun to establish task forces designed to facilitate
coordination on tribal court and tribal detention initiatives, but more focus
has been given to coordination on tribal detention programs. For example, at
the program level, BIA and DOJ have established procedures to share
information when DOJ plans to construct tribal detention facilities. This helps
ensure that BIA is prepared to assume responsibility to staff and operate tribal
detention facilities that DOJ constructs and in turn minimizes potential waste.
In contrast, BIA and DOJ have not implemented similar information sharing
and coordination mechanisms for their shared activities to enhance the
capacity of tribal courts to administer justice. For example, BIA has not
shared information with DOJ about its assessments of tribal courts. Further,
both agencies provide training and technical assistance to tribal courts;
however, they are unaware as to whether there could be unnecessary
duplication. Developing mechanisms to identify and share information related
to tribal courts could yield potential benefits in terms of minimizing
unnecessary duplication and leveraging the expertise and capacities that each
agency brings.

United States Government Accountability Office

Contents

Letter

Appendix I

Appendix II

Appendix III

Appendix IV

1
Background
Tribes We Visited Reported Challenges in Adjudicating Crime in
Indian Country; Various Federal Efforts Exist to Help Address
Those Challenges
BIA and DOJ Have Taken Action to Coordinate Their Efforts on
Tribal Justice Issues, but Should Strengthen Coordination on
Tribal Courts by Establishing Information Sharing Mechanisms
Conclusions
Recommendation for Executive Action
Agency Comments and Our Evaluation

30
36
37
37

Objectives, Scope and Methodology

39

Objectives
Scope and Methodology

39
39

Federal, State, and Tribal Jurisdiction over, and the
Prosecution of Crime in, Indian Country

43

Criminal Jurisdiction in Indian Country
Tribal Prosecutions under the Indian Civil Rights Act

43
45

Overview of Selected Tribal Courts

48

Cheyenne River Sioux Tribe
Gila River Indian Community
Pueblo of Isleta
Pueblo of Laguna
Navajo Nation
Oglala Sioux Tribe
Pueblo of Pojoaque
Rosebud Sioux Tribe
Standing Rock Sioux Tribe
Pueblo of Taos
Three Affiliated Tribes
Tohono O’odham Nation

48
51
54
57
60
63
66
69
72
75
78
81

Comments from the Department of Justice

84

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4

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GAO-11-252 Tribal Justice Systems

Appendix V

GAO Contact and Staff Acknowledgements

86

Tables
Table 1: Summary of Three Major Federal Laws Governing
Criminal Jurisdiction in Indian Country
Table 2: Criminal Jurisdiction in Indian Country Where Jurisdiction
Has Not Been Conferred on a State
Table 3: Judicial Personnel and Court Staff of Gila River Indian
Community
Table 4: Gila River Civil and Criminal Caseload Data for 2008
through 2010
Table 5: Judicial Personnel and Court Staff of Pueblo of Isleta
Table 6: Judicial Personnel and Court Staff of Pueblo of Laguna
Table 7: Pueblo of Laguna Civil and Criminal Caseload Data for
Calendar Years 2008 and 2009
Table 8: Judicial Personnel and Court Staff of Navajo Nation
Table 9: Navajo Nation Judicial Branch Civil and Criminal Caseload
Data for Fiscal Years 2008 through 2010
Table 10: Judicial Personnel and Court Staff of Oglala Sioux Tribe
Table 11: Pueblo of Pojoaque Civil and Criminal Caseload Data for
Calendar Years 2008 and 2009
Table 12: Judicial Personnel and Court Staff of Rosebud Sioux
Tribe
Table 13: Rosebud Sioux Civil and Criminal Caseload Data for
Calendar Years 2008 through 2010
Table 14: Judicial Personnel and Court Staff of Standing Rock
Sioux Tribe
Table 15: Standing Rock Sioux Tribal Court Caseload Data for
Calendar Years 2008 and 2009
Table 16: Pueblo of Taos Caseload Data for Calendar Years 2008
through 2010
Table 17: Judicial Personnel and Court Staff of Three Affiliated
Tribes
Table 18: Three Affiliated Tribes Civil and Criminal Caseload Data
for Calendar Years 2008 through 2010
Table 19: Judicial Personnel and Court Staff of Tohono O’odham
Nation
Table 20: Tohono O’odham Court Civil and Criminal Caseload Data
for Calendar Years 2008 through 2010

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8
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61
62
65
68
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80
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GAO-11-252 Tribal Justice Systems

Figures
Figure 1: Overview of DOI Responsibilities to Support Tribal
Justice Systems
Figure 2: Overview of DOJ Responsibilities to Support Tribal
Justice Systems
Figure 3: Warning against Unwarranted Judicial Contact
Figure 4: Location of Cheyenne River Indian Reservation
Figure 5: Location of Gila River Indian Community
Figure 6: Location of Pueblo of Isleta
Figure 7: Location of Pueblo of Laguna
Figure 8: Location of Navajo Nation
Figure 9: Location of Pine Ridge Indian Reservation of the Oglala
Sioux Tribe
Figure 10: Location of Pueblo of Pojoaque
Figure 11: Location of Rosebud Indian Reservation
Figure 12: Location of Standing Rock Reservation
Figure 13: Location of Pueblo of Taos
Figure 14: Location of the Fort Berthold Reservation of Three
Affiliated Tribes
Figure 15: Location of Tohono O’odham Nation

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20
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51
54
57
60
63
66
69
72
75
78
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GAO-11-252 Tribal Justice Systems

Abbreviations
AUSA
BIA
BJA
BOP
DOI
DOJ
FBI
ICRA
JABG
OJP
Recovery Act
SAUSA
SLEC
TLOA
USAO

Assistant U.S. Attorney
Bureau of Indian Affairs
Bureau of Justice Assistance
Bureau of Prisons
Department of the Interior
Department of Justice
Federal Bureau of Investigation
Indian Civil Rights Act
Juvenile Accountability Block Grant
Office of Justice Programs
American Recovery and Reinvestment Act
of 2009
Special Assistant U.S. Attorney
Special Law Enforcement Commission
Tribal Law and Order Act of 2010
U.S. Attorney’s Office

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GAO-11-252 Tribal Justice Systems

United States Government Accountability Office
Washington, DC 20548

February 14, 2011
The Honorable Daniel Akaka
Chairman
The Honorable John Barrasso
Vice Chairman
Committee on Indian Affairs
United States Senate
The Honorable John Thune
United States Senate
The Department of Justice (DOJ) has reported from the latest available
data that the crime rates experienced by American Indians nationwide are
two and a half times higher than those experienced by the general
population in the United States. Specifically, DOJ reported that from 1992
to 2001, American Indians, nationally, experienced violent crimes at an
estimated rate of 101 violent crimes per 1,000 Indians annually, which is
more than twice the estimated national rate of 41 per 1,000 persons. While
violent crime rate statistics specific to Indian country are not available, the
Tribal Law and Order Act of 2010 (TLOA) recognizes that Indian tribes
have faced significant increases of burglary, assault, child abuse, and
domestic violence as a direct result of increased methamphetamine use on
Indian reservations. 1 Further, it is estimated that 39 percent of American
Indian and Alaska Native women will be subjected to domestic violence
during their lifetime. Such crime levels can have a devastating effect on
the quality of life for tribal communities and signal a public safety crisis in
Indian country. 2 Tribal, state, or federal governments may have
jurisdiction to prosecute Indian offenders who commit crimes of a more
serious nature in Indian country; however, tribal governments do not have
jurisdiction to prosecute non-Indians, even if the victim is Indian. Rather,
non-Indian offenders who commit crimes against Indians may be
prosecuted by the federal government or, where jurisdiction has been

1

Tribal Law and Order Act of 2010 (TLOA), Pub. L. No. 111-211, tit. II, 124 Stat. 2258, 2261.

2

The term “Indian country” refers to all land within the limits of any Indian reservation
under the jurisdiction of the U.S. government, all dependent Indian communities within
U.S. borders, and all existing Indian allotments, including any rights-of-way running
through an allotment. See 18 U.S.C. § 1151.

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GAO-11-252 Tribal Justice Systems

conferred, a state government. 3 Although TLOA acknowledges that tribal
justice systems are often the most appropriate institutions for maintaining
law and order in Indian country, they face challenges in effectively
administering justice due to limited personnel and resources, increasing
volume and complexity of criminal caseload, and limited sentencing
authority. To that end and in light of the challenges that tribes face in
adjudicating crimes, tribal communities rely on the federal government to
investigate and prosecute a variety of crimes in Indian country.
The Department of the Interior (DOI) and DOJ are the two primary federal
agencies that provide support to federally recognized tribes to ensure safe
communities in Indian country and help tribes administer justice. First,
DOI, through the Bureau of Indian Affairs (BIA), provides funding to
entities of the tribal justice system including tribal courts, law
enforcement agencies, and detention facilities. Additionally, BIA
investigates crimes that occur in Indian country, and assists tribes in their
efforts to establish and maintain judicial systems, among other things.
Second, within DOJ, the Federal Bureau of Investigation (FBI) conducts
criminal investigations, while the U.S. Attorney’s Office (USAO) may
exercise its jurisdiction to prosecute crime in Indian country. A number of
DOJ components provide grant funding, training, and technical assistance
to tribes for the purpose of enhancing tribal justice systems. In 2010, DOI
and DOJ announced that public safety in tribal communities is to be a
priority for their respective agencies and launched a number of initiatives
intended to help address tribal justice issues. Further, TLOA was signed
into law on July 29, 2010, to help address the wide-ranging challenges
facing tribes and improve the response to and prosecution of crime in
Indian country.
You requested that we review the challenges facing selected tribal justice
systems in adjudicating crime in Indian country as well as federal
agencies’ efforts to coordinate their activities to support tribal justice
systems. We prepared this report to answer the following questions:
1. What challenges do tribes face in adjudicating crime in Indian country
and what federal efforts exist to help address those challenges?

3

Criminal jurisdiction in Indian country, including jurisdiction exercised by state
governments, will be discussed in more detail later in this report.

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GAO-11-252 Tribal Justice Systems

2. To what extent have DOI and DOJ components collaborated with each
other to support tribal justice systems?
To identify the challenges facing tribes in adjudicating criminal matters in
Indian country and federal efforts that exist to help address those
challenges, we met with tribal justice officials such as judges, prosecutors,
law enforcement officers, and court administrators from a nonprobability
sample of 12 federally recognized tribes in Arizona, New Mexico, North
Dakota, and South Dakota. 4 We selected the tribes based on several
considerations such as reservation and land size, types of tribal court
structures, and number of Indian country criminal matters referred to the
USAO. Given the breadth of public safety and justice issues underlying the
requests for this work as well as the recently enacted TLOA, we focused
on criminal rather than civil law matters within the tribes selected for
review. While the results of these interviews cannot be generalized to
reflect the views of all federally recognized tribes across the United States,
the information obtained provided us with useful information on the
perspectives of various tribes about the challenges they face in
adjudicating criminal matters. Additionally, we reviewed existing law,
including the recently enacted TLOA, to identify federal efforts to help
support tribes’ efforts to adjudicate criminal matters in Indian country. We
also interviewed officials and obtained documents from the BIA and
various DOJ components such as the FBI, the Executive Office of U.S.
Attorneys, select district USAOs, and the Bureau of Prisons (BOP) to
obtain information about their efforts to implement TLOA provisions and
other initiatives that address the challenges facing tribes in administering
justice in Indian country.
To assess the extent to which DOI and DOJ collaborate with each other to
support tribal justice systems, we identified practices that our previous
work indicated can help enhance and sustain collaboration among federal
agencies. 5 In this report, we primarily focused on tribal courts and, to
some extent, tribal detention programs. We compared the two agencies’
efforts to share information on their tribal justice programs to select

4
Nonprobability sampling is a method of sampling when nonstatistical judgment is used to
select members of the sample, using specific characteristics of the population as criteria.
Results from nonprobability samples cannot be used to make inferences about a
population because in a nonprobability sample, some elements of the population being
studied have no chance or an unknown chance of being selected as part of the sample.
5

GAO, Results-Oriented Government: Practices That Can Help Enhance and Sustain
Collaboration among Federal Agencies, GAO-06-15 (Washington, D.C.: Oct. 21, 2005).

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GAO-11-252 Tribal Justice Systems

criteria in Standards for Internal Control in the Federal Government as
well as select criteria on effective interagency collaboration. 6 We also
analyzed DOI and DOJ documents—such as tribal consultation and
coordination plans—that describe the two agencies’ efforts to consult and
coordinate with each other on public safety and justice issues. Further, we
interviewed officials from DOI and DOJ components including DOI’s
Office of Justice Services and DOJ’s Office of Tribal Justice and Office of
Justice Programs (OJP) to determine the extent to which they had (1)
implemented the practices we identified for effective interagency
collaboration, and (2) identified and shared information that could be
beneficial in addressing public safety and justice in Indian country.
We conducted this performance audit from September 2009 through
February 2011 in accordance with generally accepted government auditing
standards. 7 Those standards require that we plan and perform the audit to
obtain sufficient, appropriate evidence to provide a reasonable basis for
our findings and conclusions based on our audit objectives. We believe
that the evidence provides a reasonable basis for our findings and
conclusions based on our audit objectives. Appendix I contains more
details on our scope and methodology.

Background
Criminal Justice in Indian
Country

In 2004, DOJ estimated that American Indians experience rates of violent
crime that are far higher than most other racial and ethnic groups in the
United States. For example, DOJ estimated that across the United States,
the annual average violent crime rate among American Indians was twice
as high as that of African Americans, and 2-½ times as high as that of
whites, and 4-½ times as high as that of Asians. Also, domestic and sexual
violence against American Indian women is among the most critical public
safety challenges in Indian country, where, in some tribal communities,
according to a study commissioned by DOJ, American Indian women face

GAO-06-15 and GAO, Standards for Internal Control in the Federal Government,
GAO/AIMD-00-21.3.1 (Washington, D.C.: November 1999).
6

7
This is the second of two efforts related to tribal justice issues that we reviewed in
response to your request during this time. The results of the first effort were issued in
December 2010 and are focused on DOJ declinations of Indian country matters. See GAO,
U.S. Department of Justice Declinations of Indian Country Criminal Matters,
GAO-11-167R (Washington, D.C.: Dec. 13, 2010).

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GAO-11-252 Tribal Justice Systems

murder rates that are more than 10 times the national average. Oftentimes,
alcohol and drug use play a significant role in violent crimes in Indian
country. According to DOJ, American Indian victims reported alcohol use
by 62 percent of offenders compared to 42 percent for all races.
Tribal or BIA law enforcement officers are often among the first
responders to crimes on Indian reservations; however, law enforcement
resources are scarce. BIA estimates that there are less than 3,000 tribal
and BIA law enforcement officers to patrol more than 56 million acres of
Indian country. According to a DOJ study, the ratio of law enforcement
officers to residents in Indian country is far less than in non-tribal areas. In
the study, researchers estimated that there are fewer than 2 officers per
1,000 residents in Indian country compared to a range of 3.9 to 6.6 officers
per 1,000 residents in non-tribal areas such as Detroit, Michigan and
Washington, D.C. The challenge of limited law enforcement resources is
exacerbated by the geographic isolation or vast size of many reservations.
In some instances officers may need to travel hundreds of miles to reach a
crime scene. For example, the Pine Ridge Indian Reservation in South
Dakota has about 88 sworn tribal officers to serve 47,000 residents across
3,466 square miles, which equates to a ratio of 1 officer per 39 square miles
of land, according to BIA.
In total there are 565 federally recognized tribes; each has unique public
safety challenges based on different cultures, economic conditions, and
geographic location, among other factors. These factors make it
challenging to implement a uniform solution to address the public safety
challenges confronting Indian country. Nonetheless, tribal justice systems
are considered to be the most appropriate institutions for maintaining law
and order in Indian country. Generally, tribal courts have adopted federal
and state court models; however, tribal courts also strive to maintain
traditional systems of adjudication such as peacemaking or sentencing
circles.
Law enforcement, courts, and detention/correction programs are key
components of the tribal justice system that is intended to protect tribal
communities; however, each part of the system faces varied challenges in
Indian country. Shortcomings and successes in one area may exacerbate
problems in another area. For example, a law enforcement initiative
designed to increase police presence on a reservation could result in
increased arrests, thereby overwhelming a tribal court’s caseload or an
overcrowded detention facility.

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Federal, State, and Tribal
Jurisdiction over Crimes
Committed in Indian
Country

The exercise of criminal jurisdiction in Indian country depends on several
factors, including the nature of the crime, the status of the alleged offender
and victim—that is, whether they are Indian or not—and whether
jurisdiction has been conferred on a particular entity by, for example,
federal treaty or statute. As a general principle, the federal government
recognizes Indian tribes as “distinct, independent political communities”
that possess powers of self-government to regulate their “internal and
social relations,” which includes enacting substantive law over internal
matters and enforcing that law in their own forums. 8 The federal
government, however, has plenary and exclusive authority to regulate or
modify the powers of self-government that tribes otherwise possess, and
has exercised this authority to establish an intricate web of jurisdiction
over crime in Indian country. 9 The General Crimes Act, the Major Crimes
Act, and Public Law 280, which are broadly summarized in table 1, are the
three federal laws central to the exercise of criminal jurisdiction in Indian
country. 10 These laws as well as provisions of the Indian Civil Rights Act
related to tribal prosecutions are discussed more fully in appendix II. 11

8

See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978) (citing United States v.
Wheeler, 435 U.S. 313 (1978)). See also 25 U.S.C. § 1301(2) (defining an Indian tribe’s power
of self-government).
9
See United States v. Lara, 541 U.S. 193, 200-01 (2004) (referencing the Indian Commerce
Clause, U.S. CONST., art. I, § 8, cl. 3, and the Treaty Clause, U.S. CONST. art. II, § 2, cl. 2,
as authority for the federal regulation of Indian affairs).
10

See 18 U.S.C. §§ 1152 (codifying the General Crimes Act, as amended), 1153 (codifying
the Major Crimes Act, as amended), and 1162 (codifying Public Law 280, as amended).

11

See Pub. L. No. 90-284, tit. II, 82 Stat. 73, 77 (1968) (codified as amended at 25 U.S.C. §§
1301-41).

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Table 1: Summary of Three Major Federal Laws Governing Criminal Jurisdiction in Indian Country
Federal law

Description

General Crimes Act

Enacted in 1817, the General Crimes Act (also referred to as the Federal Enclaves Act or Indian Country
Crimes Act), as amended, extended the criminal laws of the federal government into Indian country and
generally established federal criminal jurisdiction where either, but not both, the alleged offender or the
victim is Indian.

Major Crimes Act

Enacted in 1885, the Major Crimes Act, as amended, provides the federal government with criminal
jurisdiction over Indians charged with felony-level offenses enumerated in the statute, even when the victim
is Indian. 12 The tribes retained exclusive jurisdiction over other criminal offenses (generally, misdemeanorlevel) where both parties are Indian.

Public Law 280

Enacted in 1953, Public Law 280, as amended, confers criminal jurisdiction over offenses committed in
Indian country to the governments of six states—Alaska, California, Minnesota, Nebraska, Oregon, and
Wisconsin, except as specified by statute, thereby waiving federal jurisdiction in Indian country under the
General and Major Crimes Acts and subjecting Indians to prosecution in state court.
Source: GAO analysis of General Crimes Act, Major Crimes Act, and Public Law 280.

The exercise of criminal jurisdiction by state governments in Indian
country is generally limited to two instances, both predicated on the
offense occurring within the borders of the state—where both the alleged
offender and victim are non-Indian, or where a federal statute confers, or
authorizes, a state to assume criminal jurisdiction over Indians in Indian
country. Otherwise, only the federal and tribal governments have
jurisdiction. Where both parties to the crime are Indian, the tribe generally
has exclusive jurisdiction for misdemeanor-level offenses, but its
jurisdiction runs concurrent with the federal government for felony-level
offenses. Where the alleged offender is Indian but the victim is non-Indian,
tribal and federal jurisdiction is generally concurrent. Finally, federal
jurisdiction is exclusive where the alleged offender is non-Indian and the
victim is Indian. Table 2 summarizes aspects of federal, state, and tribal
jurisdiction over crimes committed in Indian country.

12

The enumerated offenses are: murder; manslaughter; kidnapping; maiming; felony
provisions of the Sexual Abuse Act of 1986, as amended; incest; assault with intent to
commit murder; assault with a dangerous weapon; assault resulting in serious bodily injury;
assault against an individual who has not attained the age of 16 years; felony child abuse or
neglect; arson; burglary; robbery; and felony larceny, theft, and embezzlement. See 18
U.S.C. § 1153(a). The federal government also has jurisdiction to prosecute crimes of
general applicability, such as violations of the Controlled Substances Act of 1970, 21 U.S.C.
§ 801 et seq., and crimes that relate specifically to Indian tribal organizations and resources
without regard for the Indian status of the alleged offender or victim. See generally 18
U.S.C. §§ 1154-70.

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Table 2: Criminal Jurisdiction in Indian Country Where Jurisdiction Has Not Been Conferred on a State
Identity
of the offender

Identity
of the victim

Indian

Indian

If the offense is listed in the Major Crimes Act, as amended, (18 U.S.C. § 1153), the tribal
and federal governments have jurisdiction; the states do not.
If the offense is not listed in the Major Crimes Act, tribal jurisdiction is exclusive.

Indian

Non-Indian

If the offense is listed in the Major Crimes Act, the tribal and federal governments have
jurisdiction; the states do not.
If the offense is not listed in the Major Crimes Act, under the General Crimes Act (18
U.S.C. § 1152) the tribal and federal governments have jurisdiction; the states do not.

Non-Indian

Indian

Federal jurisdiction is exclusive; tribal and state governments do not have jurisdiction.

Non-Indian

Non-Indian

States have exclusive jurisdiction; tribal and federal governments do not have jurisdiction.

Jurisdiction

Source: U.S. Attorney’s Manual and GAO analysis of relevant statutory provisions.

DOI and DOJ Are the Two
Primary Federal Entities
That Support Tribal Justice
Systems

DOI is one of two key federal agencies that have a responsibility to
provide public safety in Indian country. Within DOI, BIA is assigned
responsibility to support tribes in their efforts to ensure public safety and
administer justice within their reservations as well as to provide related
services directly or through contracts, grants, or compacts to 565 federally
recognized tribes with a service population of about 1.6 million Indians
across the United States. To that end, BIA’s Office of Justice Services
manages law enforcement, detention, and tribal court programs.
Specifically, within BIA’s Office of Justice Services, the Division of Law
Enforcement supports 191 tribal law enforcement agencies and the
Division of Corrections supports 91 tribal detention programs. 13 About 90
BIA special agents are responsible for investigating crimes that involve
violations of federal and tribal law that are committed in Indian country
including crimes such as murder, manslaughter, child sexual abuse,
burglary, and production, sale, or distribution of illegal drugs, among other
criminal offenses. Following completion of an investigation, BIA special
agents will refer the investigation to the USAO for prosecution.
BIA reported that it distributed approximately $260 million of its fiscal
year 2010 appropriation among tribal law enforcement and detention

13

Of the 191 tribal law enforcement agencies that BIA supports, 151 are operated by the
tribes through self-determination contracts or self-governance compacts, with the
remaining facilities operated directly by BIA. Additionally, BIA directly operates 19 of the
91 tribal detention programs, and 62 are operated by the tribes through self-determination
contracts or self-governance compacts. The remaining 10 detention facilities are
suspended or closed for services, according to BIA, due to lack of adequate staffing.

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programs. 14 Additionally, BIA reported that it funded maintenance and
repair projects at four tribal detention centers totaling $6.5 million from
amounts appropriated under the American Recovery and Reinvestment
Act of 2009 (Recovery Act). 15 Within BIA’s Office of Justice Services, the
Division of Tribal Justice Support for Courts works with tribes to establish
and maintain tribal judicial systems. This includes conducting assessments
of tribal courts and providing training and technical assistance on a range
of topics including establishing or updating law and order codes and
implementing strategies to collect and track caseload data. 16 BIA reported
that it distributed $24.5 million to support tribal court initiatives in fiscal
year 2010. Figure 1 depicts the key DOI entities and their respective
responsibilities related to supporting tribal justice systems.

14

See generally Department of the Interior, Environment, and Related Agencies
Appropriations Act, 2010, Pub. L. No. 111-88, 123 Stat. 2904, 2916 (2009).
15

See American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115,
168. The following tribal detention centers received Recovery Act funding for
improvement and repairs: Fort Belknap Detention Center in Montana, Hopi Detention
Center in Arizona, Turtle Mountain Detention Center in North Dakota, and Walter Minor
Detention Center in South Dakota.

16

BIA also operates Courts of Indian Offenses to provide judicial services for tribes that do
not have a tribal court.

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Figure 1: Overview of DOI Responsibilities to Support Tribal Justice Systems

Department

Office

Department of the
Interior

Responsibilities

Bureau of Indian
Affairs

Provides direct services and annual funding
through contracts, grants, or compacts to
federally recognized tribes to, among other
things, uphold law and justice in Indian
country.

Office of Justice
Services

Oversees the justice services that BIA
provides to tribes including law
enforcement, corrections, and tribal courts.

Division of
Law
Enforcement

Investigates crime in Indian country and
refers criminal investigations to U.S.
Attorneys’ Offices for prosecution.

Division of
Tribal Justice
Support for
Courts

Assesses tribal court functions and
capabilities for select tribes. Provides
funding, training, and technical assistance
to tribal courts.

Source: GAO analysis of DOI and BIA documents.

DOJ also plays a significant role in helping tribes maintain law and order
in Indian country and DOJ officials have stated that the department has a
duty to help tribes confront the dire public safety challenges in tribal
communities. Within DOJ, responsibility for supporting tribal justice
systems falls to multiple components, including the FBI, which
investigates crimes; 17 the U.S. Attorneys’ Offices, which prosecute crimes

17

Two additional DOJ components also play a role in investigating Indian country crimes.
First, the Bureau of Alcohol, Tobacco, Firearms and Explosives assists tribal governments
in combating gang violence and offenses involving firearms. Second, the Drug
Enforcement Administration works with tribes to combat smuggling, distribution, and
abuse of controlled substances.

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in Indian country; and the Office of Justice Programs, which provides
grant funding, training, and technical assistance to federally recognized
tribes to enhance the capacity of tribal courts, among other tribal justice
programs. Figure 2 depicts the key DOJ entities and their respective
responsibilities related to supporting tribal justice systems.
Figure 2: Overview of DOJ Responsibilities to Support Tribal Justice Systems

Department

Office

Department of
Justice

Federal Bureau of
Investigation

U.S. Attorneys’
Offices

Office of
Justice
Programs

Office of
Tribal Justice

Responsibilities

Investigates crime in Indian country and
refers criminal investigations to the U.S.
Attorneys’ Offices for prosecution.

Prosecutes crime in Indian country where
federal jurisdiction applies.

Provides grant funding, training, and
technical assistance to federally recognized
tribes for tribal correctional facilities and
tribal courts, among other things.

Serves as DOJ’s primary point of contact
for federally recognized tribes and
coordinates DOJ’s policy and legislative
agenda regarding Indian country.

Source: GAO analysis of DOJ documents.

•

The FBI works with tribal and BIA police and BIA criminal
investigators to investigate crime in Indian country. Currently, the FBI
dedicates more than 100 FBI special agents from approximately 16
field offices to investigate cases on over 200 reservations, nationwide.
According to the FBI, its role varies from reservation to reservation,
but generally the agency investigates crimes such as murder, child

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sexual abuse, violent assaults, and drug trafficking, among other
criminal offenses. FBI officials explained that approximately 75
percent of the crimes it investigates in Indian country include death
investigations, physical and sexual abuse of a child, and violent felony
assaults such as domestic violence and rape. Similar to BIA criminal
investigators, FBI special agents refer criminal investigations to the
USAO for prosecution; however, FBI officials explained that FBI
agents may elect not to refer investigations that, pursuant to
supervisory review, lack sufficient evidence of a federal crime or
sufficient evidence for prosecution.
•

Under the direction of the Attorney General, the USAO may prosecute
crimes in Indian country where federal jurisdiction exists. Of the 94
judicial districts located throughout the United States and its
territories, 44 districts contain Indian country. According to DOJ,
approximately 25 percent of all violent crime cases opened each year
by district USAOs nationwide occur in Indian country. In 2010, DOJ
named public safety in Indian country as a top priority for the
department. To that end, in January 2010, each USAO with Indian
country jurisdiction was directed to develop operational plans that
outline the efforts the office will take to address public safety
challenges facing tribes within its district—particularly violence
against women.

•

The Bureau of Justice Assistance (BJA) within OJP is one of several
DOJ components that provide grant funding, training, and technical
assistance designed to enhance and support tribal government’s efforts
to reduce crime and improve the function of criminal justice in Indian
country. 18 For example, BJA awards grant funding to tribes for the
planning, construction, and renovation of correctional facilities. In
fiscal year 2010, BJA awarded 25 grants to tribes totaling about $9
million to support tribal correctional facilities. Further, in fiscal year
2010, BJA awarded $220 million in grant funding provided through the
Recovery Act for 20 construction and renovation projects at
correctional facilities on tribal lands. 19 Additionally, BJA administers
the Tribal Courts Assistance Program—a grant program—which is
intended to help federally recognized tribes develop and enhance the

18

The Office on Community Oriented Policing Services, Office of Juvenile Justice and
Delinquency Prevention, and the Office on Violence Against Women also provide grant
funding, training, and technical assistance to tribes to help them address a range of public
safety issues.

19

See Pub. L. No. 111-5, 123 Stat. at 130.

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operation of tribal justice systems which may include activities such as
training tribal justice staff, planning new or enhancing existing
programs such as peacemaking circles and wellness courts and
supporting alternative dispute resolution methods. In fiscal year 2010,
BJA awarded 48 grants totaling $17 million to tribes to establish new
or enhance existing tribal court functions.
•

In its role as a policy and legal advisor regarding Indian country
matters within DOJ, the Office of Tribal Justice facilitates coordination
among DOJ components working on Indian issues. Additionally, the
office functions as the primary point of contact for tribal governments.

Tribes We Visited
Reported Challenges
in Adjudicating Crime
in Indian Country;
Various Federal
Efforts Exist to Help
Address Those
Challenges
Selected Tribes Face
Difficulties in Adjudicating
Crime in Indian Country

All 12 tribes we visited reported challenges that have made it difficult for
them to adjudicate crime in Indian country including: (1) limitations on
criminal jurisdiction and sentencing authority, (2) delays in receiving
timely notification about the status of investigations and prosecutions
from federal entities, (3) lack of adequate detention space for offenders
convicted in tribal court, (4) perceived encroachment upon judicial
independence by other branches of the tribal government, and (5) limited
resources for day-to-day court operations. Various ongoing and planned
federal efforts exist to help tribes effectively adjudicate crimes within their
jurisdiction. For example, TLOA, which was enacted in July 2010, attempts
to clarify roles and responsibilities, increase coordination and
communication, and empower tribes with the authorities necessary to
reduce the prevalence of crime in Indian country. 20

20

See Pub. L. No. 111-211, tit. II, § 202(b), 124 Stat. at 2263.

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Tribes Often Rely on the
Federal Government to
Prosecute Crime in Indian
Country because of Limited
Sentencing Authority, Tribal
Jurisdiction, and Resources

Tribal courts only have jurisdiction to prosecute crimes committed by
Indian offenders in Indian country, and their ability to effectively promote
public safety and justice is curtailed by their limited sentencing authority
and jurisdiction. As a result, even where tribal jurisdiction exists, tribes
will often rely on the federal government to investigate and prosecute
more serious offenses, such as homicide and felony-level assault, because
a successful federal prosecution could result in a lengthier sentence and
better ensure justice for victims of crime in Indian country. First, federal
law limits the general sentencing authority of tribal courts to a maximum
term of imprisonment not to exceed 1 year per offense. 21 Officials from 6
of the 12 tribes we visited told us 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. Second, tribes do not have any jurisdiction to prosecute nonIndian criminal offenders in Indian country including those who commit
crimes of domestic violence, assault, and murder. Therefore, tribes must
rely on the USAO to prosecute non-Indian offenders. 22 For example, in
instances where a non-Indian abuses an Indian spouse, the tribe does not
have the jurisdiction to prosecute the offender, and unless the USAO
prosecutes the case, the non-Indian offender will not be prosecuted for the
domestic violence offense. 23
The rate at which non-Indians commit crime on the reservations we visited
is unclear as the tribes were not able to provide related crime data.
Officials from 6 of the tribes we visited noted that non-Indians may be
more likely to commit crimes in Indian country because they are aware
that tribes lack criminal jurisdiction over non-Indians and that their
criminal activity may not draw the attention of federal prosecutors. For

21

TLOA authorizes tribal courts to sentence convicted offenders to prison for up to 3 years
per offense and sets forth conditions under which a tribal court may exercise this
authority. See 18 U.S.C. § 1302(b). Tribal courts have authority to impose fines instead of,
or in addition to, a term of imprisonment; however, officials noted that this is not a viable
form of punishment as Indian offenders typically lack the resources to pay a fine given the
dire economic conditions in Indian country.

22

Federal jurisdiction over non-Indian offenders in Indian country is generally limited to
circumstances where there is an Indian victim; if both parties are non-Indian, the state in
which the offense occurred, and not the federal government, has jurisdiction to prosecute
the offender.

23

BIA and FBI officials told us that they currently have efforts underway to collect and
track a range of Indian country crime data to include the status of victims and offenders as
Indian or non-Indian for reported crimes.

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example, an official from a South Dakota tribe that we visited told us that
the tribe has experienced problems with MS-13 and Mexican Mafia gangs
who commit illegal activities such as distribution or sale of illegal drugs on
the reservation because, as the official explained, they presume that
federal prosecutors may be more inclined to focus their resources on
higher-volume drug cases. Further, in 2006, the U.S. Attorney for the
Wyoming district testified about a specific instance where a Mexican drug
trafficker devised a business plan to sell methamphetamine at several
Indian reservations in Nebraska, Wyoming, and South Dakota that first
began with developing relationships with American Indian women on
these reservations who would then help to recruit customers. According to
a special agent involved in the case, the drug trafficker established drug
trafficking operations to exploit jurisdictional loopholes believing that he
could operate with impunity. According to a tribal justice official from a
New Mexico pueblo, small-scale drug trafficking operations in Indian
country can have an equally devastating effect on tribes as the effects of
large-scale operations in large cities; therefore, if the federal government
does not respond to small-scale operations in Indian country, the success
of such operations may contribute to the sense of lawlessness in Indian
country.

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Declination Rates for Select USAO District
Offices
For fiscal years 2005 through 2009, the rate
at which district USAOs declined to prosecute
criminal matters, which they categorize as
violent and nonviolent, varied for the tribes
we visited in Arizona, New Mexico, and North
and South Dakota. As shown in the table
below, we found that the Arizona USAO
declined to prosecute 38 percent of the
violent and nonviolent criminal matters that it
resolved, whereas the North Dakota USAO
declined to prosecute 64 percent of the
criminal matters that it resolved. Of the four
states, North and South Dakota were among
the five USAO districts with the highest
declination rates for the reporting period. It is
important to note that USAOs have the
discretion to determine which matters they
will prosecute and are not required to
prosecute all criminal investigations that are
referred to them—regardless of whether the
crime is committed in Indian country or
elsewhere in the United States and its
territories. According to DOJ officials, there is
great variation in how USAOs decide whether
to decline or prosecute a matter.
USAO decisions to decline a prosecution
may be driven by the quality of available
evidence and applicable law; therefore,
according to DOJ, declinations should not be
construed as a lack of commitment to or
unwillingness to enforce federal criminal law
in Indian country. Further, according to DOJ,
in some instances, a declination may reflect a
determination that: (1) no federal crime was
committed as the offense was not sufficient to
satisfy the Major Crimes Act, for example; (2)
there was no federal jurisdiction because the
crime did not occur in Indian country; (3) the
evidence or witnesses is unlikely to support a
conviction; and (4) a state or tribe was
proceeding with prosecution.
USAO
District

When we asked tribes that we visited about how they decide to prosecute
serious crimes over which they do have jurisdiction, 9 of the 12 tribes we
visited noted that they may exercise concurrent jurisdiction and prosecute
those crimes in tribal court. Some officials reported they would rather
preserve their tribe’s limited resources, recognizing that sentences
considered more commensurate with the crime may only result from
federal prosecution. Nonetheless, 5 of the 12 tribes we visited in Arizona,
New Mexico, North Dakota, and South Dakota perceive that the district
USAOs decline to prosecute the majority of Indian country matters that
are referred to them. Officials from the tribes we visited expressed
concerns about the rate at which USAOs decline to prosecute Indian
country crimes and noted that a high number of declinations sends a
signal to crime victims and criminals that there is no justice or
accountability. In December 2010, we reported that approximately 10,000
Indian country criminal matters were referred to USAOs from fiscal year
2005 through 2009. 24 During that period, USAOs declined to prosecute 50
percent of the approximately 9,000 matters that they resolved, while they
had not yet decided whether to prosecute or decline the remaining 1,000
matters. For criminal matters referred to USAOs, “weak or insufficient
admissible evidence” followed by “no federal offense evident” were among
the most frequently cited reasons associated with declinations based on
available data in DOJ’s case management system, Legal Information Office
Network System.

Declination percentage rate for
violent and nonviolent crimes
in Indian country

Arizona

38

New Mexico

40

North Dakota

64

South Dakota

61

Source: GAO-11-167R.

24

GAO-11-167R.

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Delays in Receiving Timely
Investigation and Declination
Information Could Affect
Tribes’ Ability to Prosecute an
Offender in Tribal Court

Eight of the twelve tribes we visited stated that they rely on the federal
government to investigate and prosecute serious crimes; however, officials
from the tribes we visited reported that their tribe had experienced
difficulties in obtaining information from federal entities about the status
of criminal investigations. For example:
•

Officials from 5 of the 12 tribes we visited told us that oftentimes they
did not know whether criminal investigators—most commonly, BIA or
FBI—had referred the criminal investigation to the USAO for
prosecution.

•

Officials from the tribes we visited expressed concern about the lack
of timely notification from local USAOs about decisions to prosecute a
criminal investigation.

•

Tribal justice officials from 4 of the 12 tribes we visited noted that they
have to initiate contact with their district USAOs to get information
about criminal matters being considered for prosecution and that only
upon request will the USAO provide verbal or written notification of
the matters they decline to prosecute; however, little detail is provided
about the reasons for the declination. We examined a declination letter
that was sent to one of the tribes we visited and found that the letter
stated that the matter was being referred back to the tribe for
prosecution in tribal court, but no additional information was provided
about the reason for the declination decision. The Chief Prosecutor
from one of the pueblos we visited noted that it can be difficult for the
USAO to share details about a criminal matter for fear that doing so
may violate confidentiality agreements or impair prosecutors’ ability to
successfully prosecute should the investigation be reopened at a later
date. However, according to tribal officials, it is helpful to understand
the reason for declining to prosecute a criminal matter so that tribal
prosecutors can better determine whether to expend its resources to
prosecute the matter in tribal court.

•

Officials from 6 of the 12 tribes we visited told us that when criminal
matters are declined, federal entities generally do not share evidence
and other pertinent information that will allow the tribe to build its
case for prosecution in tribal court. This can be especially challenging
for prosecuting offenses such as sexual assault where DNA evidence
collected cannot be replicated should the tribe conduct its own
investigation following notification of a declination, according to
officials.

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GAO-11-252 Tribal Justice Systems

•

When the federal government decides not to pursue a prosecution, a
tribe may decide to prosecute such a case provided that any tribal
statute of limitations has not expired. Officials from 6 of the 12 tribes
that we visited noted that it is not uncommon for the tribe to receive
notification of USAO declination letters after the tribe’s statute of
limitations has expired, which, ranges from 1 to 3 years. In addition to
affecting the tribe’s ability to administer justice in a timely manner—
that is, before the statute of limitations expires—officials also noted
that the absence of investigation or declination information makes it
difficult for tribal justice officials to successfully prosecute a criminal
matter in tribal court and assure crime victims that every effort is
being made to prosecute the offender.

Tribes Often Lack Adequate
Detention Space and Are
Sometimes Faced with Making
Difficult Tradeoffs

Officials from 6 of the 12 tribes we visited reported that they do not have
adequate detention space to house offenders convicted in tribal courts and
may face overcrowding at tribal detention facilities. Similarly, BIA and
DOJ have acknowledged that detention space in Indian country is
inadequate. One of the New Mexico pueblos we visited noted that the
detention facility has a maximum capacity of 43 inmates; however, as of
October 2010, there are more than 90 inmates imprisoned at the facility. In
some instances, tribal courts are forced to make difficult decisions such as
(1) foregoing sentencing a convicted offender to prison, (2) releasing
inmates to make room for another offender who is considered to be a
greater danger to the community, and (3) contracting with state or tribal
detention facilities to house convicted offenders, which can be costly.
According to an official from one of the New Mexico pueblos we visited, at
times, when the pueblo has reached its detention capacity—up to three
inmates—the pueblo has had to forego sentencing convicted juvenile or
adult offenders to prison because using a nearby tribal facility to house its
inmates would pose an economic hardship for the pueblo. Also, of the 12
tribes we visited, 5 noted that using detention facilities at another location
is not always a viable option for housing offenders. Housing offenders in
another entities’ detention facility can be costly for the tribe who has to
pay to transport inmates between the tribal court of jurisdiction and
detention facility for arraignments, trial, and other appearances.

Various Factors Could Affect
Judicial Independence

Generally, the tribes we visited have incorporated practices that help to
foster and maintain judicial independence—that is, the ability of the tribal
courts to function without any undue political or ideological influence
from the tribal government. Various factors such as a tribe’s approach to
removing judges and intervening on behalf of tribal members during an
ongoing criminal matter could affect internal and external perceptions of a
tribal court’s independence. The manner in which some tribes remove

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GAO-11-252 Tribal Justice Systems

judges serves as an example of the tribe’s efforts to foster and maintain
judicial independence. For example, at 11 of the 12 tribes we visited, a
tribal judge can only be removed from office for cause following a
majority vote by the Tribal Council. In another instance, the Chief Judge at
one of the tribes we visited explained that tribal members will often
approach the Tribal Council to intervene when members are not satisfied
with the tribal court’s decision. The Tribal Council subsequently issued
several reminders to tribal members that unsatisfied parties to a criminal
matter can appeal the trial court’s decisions in the tribe’s appellate court.
Decisions of this tribe’s appellate court; however, are final and not subject
to review by the Tribal Council, thereby upholding and preserving the
decisions and independence of the tribal court. The constitution for 4 of
the 12 tribes we visited, stated that, upon appointment, judges’ salaries
cannot be reduced while serving in office, thereby helping to protect the
independence of the judiciary.
Additionally, officials from the tribes we visited reported that certain
activities may undermine a tribal court’s independence. For example,
officials from 5 of the 12 tribes we visited noted that the tribal court is
viewed as a tribal program by tribal members rather than as a separate and
autonomous branch of government. For example, according to officials at
one of the tribes we visited, the constitution was amended in 2008 to
articulate the independence of the tribal court from the legislative and
executive branches of the tribal government. However, according to the
officials from this tribe, Tribal Council members continue to approach
criminal court judges to inquire about the status of ongoing cases and
Tribal Council members have intervened on behalf of tribal members to
discuss reversing the court’s decisions on certain criminal matters. Such
actions potentially add to the perception that the court is not autonomous
and is subject to the rule of the executive or legislative branch, which, in
turn can threaten the integrity of the tribal judiciary and create the
perception of unfairness. Figure 3 shows a sign at a tribal court designed
to serve as a measure to prevent people from engaging in ex parte
communications. 25

25

An “ex parte communication” is generally a communication between counsel and the
court when opposing counsel in not present. Black’s Law Dictionary, p. 316 (9th ed. 2009).

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GAO-11-252 Tribal Justice Systems

Figure 3: Warning against Unwarranted Judicial Contact

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Source: GAO.

Page 20

GAO-11-252 Tribal Justice Systems

Additionally, the manner in which tribal governments distribute federal
funding to tribal courts may limit courts’ control of their budgets.
According to a BIA official and judges from one of the tribes we visited,
the placement of the tribal court within the tribe’s overall budget
structure—that is, not separate from other tribal programs that BIA
funds—could contribute to the perception that the tribal court has little to
no autonomy and separation from other tribal programs.

Selected Tribes Reported
Various Resource Challenges

Officials at the 12 tribes we visited told us they face various resource
limitations resulting in reliance on federal funding, staffing shortages, and
limited capacity to conduct jury trials.
•

Tribes We Visited Reported They Rely on Federal Funding to
Operate Tribal Courts Regardless of Their Size or Economic
Condition. We found that all of the 12 tribes we visited rely fully or
partially on federal funding to operate their court systems regardless
of the size of the population the tribal court serves, its geographic
location, or economic conditions. For example, one of the tribes we
visited relies on federal funding for aspects of its court system even
though federal funding generally accounts for less than 10 percent of
the court system’s total budget, according to a senior tribal court
official. This official explained that federal funding is barely sufficient
to pay salaries for positions such as court clerks. Generally, of the 12
tribes we visited, the tribal government provided partial funding to 10
of the tribal courts; the remaining 2 were solely funded by federal
funding. 26 For further information about the funding levels for each of
the 12 tribes we visited, see appendix III.
Further, officials at 11 of the 12 tribes we visited noted that their tribal
courts’ budgets are inadequate to properly carry out the duties of the
court; therefore, the tribes often have to make tradeoffs, which may
include not hiring key staff such as probation officers or providing key
services such as alcohol treatment programs. According to BIA,
historically, federal funding for tribal courts has been less than what
tribes deemed necessary to meet the needs of their judicial systems.
While tribal courts we visited collect a range of fees and fines, which
can be an additional source of operating revenue, 6 of the 12 tribes
noted that the fees and fines the court collects are to be returned to
the tribal government’s general fund rather than retained for use by the

26

When this report refers to the tribal government as a source of funding it refers to funding
generated by tribal activities, not federal funding passed through the tribal government.

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GAO-11-252 Tribal Justice Systems

tribal court. Where possible, to help fill the courts’ budget shortfalls,
officials at 3 of the 12 tribes we visited told us that they have sought
funding from other sources such as state grants or partnered with
other tribal programs to provide treatment services for parties
appearing before their courts.
•

According to Tribes We Visited, Lack of Funding Affects Tribal
Courts’ Ability to Maintain Adequate Staffing Levels and
Provide Training to Court Personnel. Officials at 7 of the 12 tribes
we visited told us that their tribal courts are understaffed and that
funding is often insufficient to employ personnel in key positions such
as public defenders, prosecutors, and probation officers, among other
positions. Additionally, officials at three of the New Mexico pueblos
we visited told us that law enforcement officers also served as
prosecutors despite not being trained in the practice of law and not
having sufficient training to serve as prosecutors. The Chief Judges at
two of the New Mexico pueblos told us that the pueblos do not have
any other alternatives due to the lack of funding. For further
information about the staffing levels at each of the 12 tribes we visited,
see appendix III.
Tribal justice officials also stated that their tribal courts face various
challenges in recruiting and retaining qualified judicial personnel
including: (1) inability to pay competitive salaries, (2) housing
shortages on the reservation, and (3) rural and remote geographic
location of the reservation, among other things. For example, a tribal
justice official from one of the South Dakota tribes we visited noted
that the tribe is often forced to go outside its member population to
hire judges and attorneys because tribal members often lack education
beyond the eighth grade; however, the tribe often faces difficulties in
paying competitive salaries to hire legally trained non-Indians who
often command salaries that are higher than the tribe can afford.
Additionally, tribal justice officials noted that while some tribal
members do pursue higher education, they do not often always return
to work in tribal communities, thereby creating a shortage in available
talent to draw from within the tribe’s community. Further, officials
from two of the tribes we visited noted that they may not be able to
attract qualified applicants because of the rural location. Even if tribes
overcome recruitment challenges, tribal justice officials noted that
they may also face difficulties in retaining personnel—particularly,
non-Indians—because these candidates’ marketability often increases
after gaining experience in Indian country and they are able to pursue
opportunities that meet their compensation and quality-of-life needs
such as higher salaries and improved housing.

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Four of the twelve tribes we visited noted that the courts often use
DOJ grant funds to pay salaries for various positions without the
benefit of a sustainable funding source once the grant funds expire.
For example, one of the South Dakota tribes we visited used grant
funds to hire a compliance officer, probation officer, and process
server to focus exclusively on domestic violence cases, which were
occurring at a high rate on the reservation. Officials explained that
they saw a decrease in reported cases of domestic violence during this
time; however, once the grant funds expired, they were no longer able
to maintain these positions and perceived an increase in domestic
violence cases.
Additionally, lack of funding hinders tribes’ abilities to provide
personnel with training opportunities to obtain new or enhance
existing skills. For example, at one of the North Dakota tribes we
visited, court personnel explained that court clerks needed training to
enhance their knowledge of scheduling court proceedings, developing
case and records management systems, and familiarizing themselves
with criminal procedures, among other things. Additionally, because of
the increases in the number of cases involving illegal drugs, one of the
judges we met with also expressed a need for training to effectively
manage criminal proceedings that involve the use of
methamphetamines. In particular, 8 of the 12 tribes we visited noted
that they face difficulties in acquiring funds to register personnel for
training as well as to pay for related expenses such as mileage
reimbursement or other transportation costs, lodging, and per diem.
The Chief Judge from one of the tribes we visited noted that the tribe
has been able to acquire scholarships from various training providers
to help absorb full or partial costs for certain training. Further, training
providers such as the National Judicial College have begun to provide
web-based training which, according to officials, is more cost-effective.
•

27

Tribes We Visited Reported Having Limited Capacity to
Conduct Jury Trials. Upon request, any defendant in tribal court
accused of an offense punishable by imprisonment is entitled to a trial
by jury of not less than six persons. 27 However, officials from 7 of the
12 tribes we visited reported that their tribal courts have limited
capacity to conduct jury trials due to limited courtroom space,
funding, and transportation. For example, the courtroom for one of the
New Mexico pueblos that we visited does not have adequate space to

See 25 U.S.C. § 1302(a)(10).

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seat a six-person jury and, according to officials, there is not another
facility that can be used to set up a jury box. Additionally, tribal
officials at 2 of the 12 tribes we visited stated that their courts lack
funding to pay tribal members a per diem for jury duty. Additionally,
potential jurors’ lack of access to personal or public transportation can
hinder the courts’ ability to seat a jury. For example, officials from two
of the Arizona tribes we visited explained that there is no public
transportation on the reservations, and consequently it is difficult for
tribal members without access to personal transportation to travel to
court.

Multiple Federal Efforts
Exist to Help Address
Some of the Challenges
That Tribes Face in
Adjudicating Criminal
Matters

Various federal efforts exist that could help to address some of the
challenges that tribes face in effectively adjudicating crime in Indian
country. For example, TLOA: (1) authorizes tribal courts to impose a term
of imprisonment on certain convicted defendant in excess of 1 year; 28 (2)
authorizes and encourages USAOs to appoint Special Assistant U.S.
Attorneys (SAUSA), including the appointment of tribal prosecutors to
assist in prosecuting federal offenses committed in Indian country; 29 (3)
requires that federal entities coordinate with appropriate tribal law
enforcement and justice officials on the status of criminal investigations
terminated without referral or declined prosecution; 30 and (4) requires
BOP to establish a pilot program to house, in federal prison, Indian
offenders convicted of a violent crime in tribal court and sentenced to 2 or
more years imprisonment. 31 Additionally, to help address issues regarding
judicial independence, BIA has ongoing and planned training to help
increase tribes’ awareness about the significance of judicial independence.
Many of these initiatives directly resulted from the enactment of TLOA in
July 2010; and at this time, these initiatives are in the early stages of
implementation. As a result, it is too early to tell the extent to which these
initiatives are helping to address the challenges that tribes face in
effectively adjudicating crime in Indian country.

28

See 25 U.S.C. § 1302(b).

29

See 28 U.S.C. § 543; 25 U.S.C. § 2810(d).

30

See 25 U.S.C. § 2809.

31

See Pub. L. No. 111-121, tit. II, § 234(c), 124 Stat. at 2281-82 (defining “violent crime” as
one comparable to those listed in the Major Crimes Act (18 U.S.C. § 1153(a)) for which the
sentence includes a term of imprisonment of 2 or more years).

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Federal Efforts Are Underway
to Assist Tribes in Prosecuting
Crime in Indian Country and
Afford Tribal Courts Enhanced
Sentencing Authority

Various federal efforts are underway that provide additional resources to
assist tribes in the investigation and prosecution of crime in Indian
country including (1) additional federal prosecutors, (2) authorizing tribal
courts to impose longer prison sentences on certain convicted defendants,
(3) mandating changes to the program that authorizes BIA to enter into
agreements to aid in law enforcement in Indian country, and (4) affording
tribal prosecutors opportunities to become Special Assistant U.S.
Attorneys to assist in prosecuting federal offenses committed in Indian
country. First, to help address the high levels of violent crime in Indian
country, in May 2010, DOJ announced the addition of 30 Assistant U.S.
Attorneys (AUSA) to serve as tribal liaisons in 21 USAO district offices
that contain Indian country including the four states that we visited as part
of our work—Arizona, New Mexico, North Dakota, and South Dakota. 32
According to DOJ, these additional resources will help the department
work with its tribal law enforcement partners to improve public safety in
Indian country. DOJ also allocated 3 additional AUSAs to help support its
Community Prosecution Pilot Project which it launched at two of the
tribes we visited—the portion of Navajo Nation within New Mexico and
the Oglala Sioux Tribe in South Dakota. 33 Under this pilot project, the
AUSAs will be assigned to work at their designated reservation on a
regular basis and will work in collaboration with the tribe to develop
strategies that are tailored to meet the public safety challenges facing the
tribe.
Second, TLOA authorizes tribal courts to imprison convicted offenders for
up to a maximum of 3 years if the defendant has been previously convicted
of the same or a comparable crime in any jurisdiction (including tribal)
within the United States or is being prosecuted for an offense comparable
to an offense that would be punishable by more than 1 year if prosecuted
in state or federal court. To impose an enhanced sentence, the defendant
must be afforded the right to effective assistance of counsel and, if
indigent, the assistance of a licensed attorney at the tribe’s expense; a
licensed judge with sufficient legal training must preside over the
proceeding; prior to charging the defendant, the tribal government

32

DOJ allocated additional prosecutors in the four district offices as follows: Arizona (5),
New Mexico (2), North Dakota (1), and South Dakota (2). The remaining 20 prosecutors
were allocated among 17 district USAOs across the United States. See 25 U.S.C. § 2810
(requiring the USAO in each district that includes Indian country to appoint not less than
one AUSA to serve as a tribal liaison for the district).

33

The Menominee Indian Tribe in Wisconsin will also participate in the Community
Prosecution Pilot Project.

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criminal laws and rules of evidence and criminal procedure must be made
publicly available; and the tribal court must maintain a record of the
criminal proceedings. 34 Generally, tribal justice officials from 9 of the 12
the tribes we visited stated that they welcome the new sentencing
authority, but officials from 2 of the tribes noted that they would likely use
the new authority on a case-by-case basis because they lacked the
infrastructure to fully meet the requisite conditions. For example, the
Chief Judge from one of the New Mexico pueblos we visited noted that
rather than hiring a full-time public defender, the pueblo is considering
hiring an attorney on contract to be used on a case-by-case basis when the
enhanced sentencing authority may be exercised. 35
Third, TLOA mandates changes to the Special Law Enforcement
Commission (SLEC) program which authorizes BIA to enter into
agreements for the use of personnel or facilities of federal, tribal, state, or
other government agencies to aid in the enforcement of federal or, with
the tribe’s consent, tribal law in Indian country. 36 Specifically, within 180
days of enactment, the Secretary of the Interior shall develop a plan to
enhance the certification and provision of special law enforcement
commissions to tribal law enforcement officials, among others, that
includes regional training sessions held at least biannually in Indian
country to educate and certify candidates for the SLEC. The Secretary of
the Interior, in consultation with tribes and tribal law enforcement
agencies, must also develop minimum requirements to be included in
SLEC agreements. Under the SLEC program, administered by the BIA,
tribal police may be deputized as federal law enforcement officers, which
affords them the authorities and protections available to federal law
enforcement officers. According to BIA, given the potential difficulties
arresting officers face in determining whether a victim or offender is an
Indian or not or whether the alleged crime has occurred in Indian country
(for purposes of determining jurisdiction at the time of arrest) a tribal
officer deputized to enforce federal law is not charged with determining

34

See 25 U.S.C. § 1302(c).

35

The law, however, does not require that a tribe hire a full-time public defender to
exercise the sentencing authority extended under TLOA; rather defendants must be
afforded the right to effective assistance of counsel (enabling a defendant to appeal a
conviction due to the ineffective assistance of counsel) and an indigent defendant must be
provided the assistance of licensed defense attorney at the tribe’s expense. See 25 U.S.C. §
1302(c)(1)-(2).
36

See 25 U.S.C. § 2804.

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the appropriate jurisdiction for filing charges; rather this is to be
determined by the prosecutor or court to which the arresting officer
delivers the offender.
Lastly, among other provisions, TLOA explicitly authorizes and
encourages the appointment of qualified attorneys, including tribal
prosecutors, as Special Assistant U.S. Attorneys (SAUSA) to assist in the
prosecution of federal offenses and administration of justice in Indian
country. 37 If appointed as a SAUSA, a tribal prosecutor may pursue in
federal court an Indian country criminal matter with federal jurisdiction
that, if successful, could result in the convicted defendant receiving a
sentence greater than if the matter had been prosecuted in tribal court.
According to the Associate Attorney General, many tribal prosecutors
have valuable experience and expertise that DOJ can draw on to prosecute
crime and enforce federal criminal law in Indian country. Further, tribal
prosecutors at 4 of the 12 tribes we visited are in varying stages of
obtaining SAUSA credentials. The Chief Prosecutor at a New Mexico
pueblo who is in the process of obtaining a SAUSA credential cited various
benefits arising from a SAUSA appointment including increased: (1)
prosecution of criminal cases that involve domestic violence and child
sexual abuse; 38 (2) prosecution of misdemeanor-level offenses committed
by non-Indians against Indians that occur in Indian country; (3) ability to
directly present criminal investigations to the district USAO rather than
solely relying on BIA criminal investigators to do so; 39 and (4) cooperation
from tribal crime victims and witnesses who may be more forthcoming
with someone closely affiliated with the pueblo rather than federal
investigators or prosecutors, thereby helping to facilitate a more
successful investigation and prosecution of a federal crime.

37

See 28 U.S.C. § 543; 25 U.S.C. § 2810.

38

The SAUSA designation, however, only enables a tribal prosecutor to pursue an offense in
federal court if the federal government would otherwise have jurisdiction to prosecute the
offense.

39

While a tribe with a SAUSA-appointed prosecutor may be better situated to present
criminal investigations to the USAO, pre-TLOA law did not preclude tribal law enforcement
or prosecutors from presenting criminal investigations to the USAO.

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Investigative and Prosecutorial
Coordination Requirements
May Improve Timeliness and
Adequacy of Information
Shared by the Federal
Government with Tribes

TLOA provides that federal investigators and prosecutors must coordinate
with tribes to communicate the status of investigations and prosecutions
relating to alleged criminal offenses in Indian country crimes. 40 More
specifically, if a federal entity terminates an investigation, or if a USAO
declines to prosecute or terminates a prosecution of an alleged violation of
federal criminal law in Indian country, they must coordinate with the
appropriate tribal officials regarding the status of the investigation and the
use of evidence relevant to the case in a tribal court with authority over
the crime alleged. Individually and collectively, these requirements could
better enable tribes to prosecute criminal matters in tribal court within
their statute of limitations. Although TLOA does not prescribe how
coordination is to occur between federal entities—such as FBI and BIA
criminal investigators—and tribes, DOJ directed relevant USAOs to work
with tribes to establish protocols for coordinating with tribes. For
example, the USAO for the District of Arizona, in consultation with
Arizona tribes, has established protocols to guide its coordination with
tribes. Specifically, within 30 days of a referral of a criminal investigation
for prosecution, the Arizona district USAO plans to notify the relevant
tribe in writing if the office is declining to prosecute the matter. Officials
from one of the New Mexico pueblos we visited explained that they would
like to have an entrance conference with the USAO for the District of New
Mexico on each criminal investigation that is referred to the USAO for
which the tribe has concurrent jurisdiction and an exit conference to
discuss the USAO reasons for declining to prosecute the crime. Tribal
officials explained that the exit conference could serve to educate the
tribe about what it can do to better prepare an investigation for referral to
the USAO. According to DOJ, each USAO and FBI field office will make
efforts to reach agreements with tribes in their jurisdiction about
communicating the status of investigation and prosecutions based on the
unique needs of the tribe.

Federal Efforts Exist to Help
Tribes Address Detention
Space in Tribal Prisons and
Related Challenges

Pursuant to TLOA, on November 26, 2010, the Bureau of Prisons (BOP)
launched a 4-year pilot program to house at the federal government’s
expense up to 100 Indian offenders convicted of violent crimes in tribal
courts and sentenced to terms of imprisonment of 2 or more years. 41 DOJ

40

See 25 U.S.C. § 2809.

41

See Pub. L. No. 111-211, tit. II, § 234(c), 124 Stat. at 2281-82 (defining “violent crime” as
one comparable to those listed in the Major Crimes Act (18 U.S.C. § 1153(a)) for which the
sentence includes a term of imprisonment of 2 or more years). The statute further requires
BOP to notify Congress if the demand for participation in the pilot exceeds 100 tribal
offenders.

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considers the pilot program to be an important step in addressing violent
offenders and underresourced correctional facilities in Indian country.
BOP’s goal is to reduce future criminal activity of Indian offenders by
providing them with access to a range of programs such as vocational
training and substance abuse treatment programs that are designed to help
offenders successfully reenter their communities following release from
prison. It is unlikely that 5 of the 12 tribes we visited will immediately
begin participating in the pilot because they are not yet positioned to fully
meet the conditions that are required to imprison Indian offenders
convicted in tribal court for two or more years. Additionally tribal officials
expressed concern about placing convicted Indian offenders in federal
prison because tribal members would likely oppose having tribal members
sent to locations that are not in close proximity to the reservation, making
it difficult for family members to visit and ensure the convicted Indian
offender is able to maintain a connection with the tribal community—a
key aspect of tribes’ culture and values. While tribes expressed concern
about the placement of tribal members in federal prison, officials from 2 of
the tribes we visited stated that access to federal programs such as
substance abuse and mental health treatment programs and job training
would be a major benefit that offenders would likely not have access to
while imprisoned in tribal detention facilities. More broadly, TLOA
requires that BIA, in coordination with DOJ and in consultation with tribal
leaders, law enforcement and correctional officers, submit a long-term
plan to address incarceration in Indian country to Congress by July 29,
2011. 42 The long-term plan should also describe proposed activities for
constructing, operating, and maintaining juvenile and adult detention
facilities in Indian country and construction of federal detention facilities
in Indian country, contracting with state and local detention centers upon
the tribe’s approval, and alternatives to incarceration developed in
cooperation with tribal court systems. BIA and DOJ officials noted that
they have begun to conduct consultations with tribal entities to address
incarceration in Indian country.

BIA Has Efforts Underway to
Increase Awareness about
Judicial Independence in
Indian Country

BIA has taken steps to help increase awareness about the importance and
significance of judicial independence in tribal communities. For example,
officials from one of the tribes we visited told us that, at the request of the
tribal court, the BIA Superintendent is to conduct a workshop for tribal
leaders and community members to, among other things, provide
instruction on how interference with the tribal court’s decisions can

42

See 25 U.S.C. § 2802(f).

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threaten the judiciary’s ability to provide equitable adjudication of crimes.
Further, BIA’s Division of Tribal Justice Support for Courts has conducted
similar workshops in the past and expects to do so again in fiscal year
2011.

BIA and DOJ Have
Taken Action to
Coordinate Their
Efforts on Tribal
Justice Issues, but
Should Strengthen
Coordination on
Tribal Courts by
Establishing
Information Sharing
Mechanisms
BIA and DOJ Components
Have Taken Action to
Coordinate Their Efforts to
Support Tribal Court and
Detention Initiatives

According to BIA and DOJ officials, the two agencies have begun to
establish interagency coordinating bodies intended to facilitate the
agencies’ efforts to coordinate on tribal court and detention initiatives.
Officials noted that because Indian country issues are a top priority across
the federal government, federal departments and agencies are focused on
ensuring that, where appropriate, they work together to address the needs
of Indian tribes. For example, when DOI and DOJ developed tribal
consultation plans for their respective agencies in 2010, the two agencies
cited interagency coordination as a key element to meeting the tribes’
needs. 43 According to DOJ, interagency coordination is essential to holding
stakeholders accountable and achieving success. Similarly, DOI

43

A Presidential Memorandum dated November 2009 directed federal departments and
agencies to develop plans, after consultation with Indian tribes and tribal officials, for
implementing the policies and directives of Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments. See 74 Fed. Reg. 57,881 (Nov. 9, 2009)
(referencing Exec. Ord. No. 13,175, 65 Fed. Reg. 67,249 (Nov. 9, 2000)).

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acknowledged the importance of collaborating and coordinating with its
federal partners regarding issues that affect tribes.
BIA and DOJ officials told us that communication between the two
agencies has increased and their staff now know whom to call about
various tribal justice issues, which they commented is a significant
improvement over prior years when there was little to no communication.
For example, DOJ has begun to consult BIA about its future plans to fund
the construction of tribal correctional facilities, which has helped to
resolve past inefficiencies. BIA officials told us that they need to know
which tribes DOJ plans to award grants to construct correctional facilities
at least 2 years in advance so that they can plan their budget and
operational plans accordingly in order to fulfill their obligation to staff,
operate, and maintain detention facilities. According to BIA, there have
been instances where they were unaware of DOJ’s plans to award grant
funds to tribes to construct tribal detention facilities, which could result in
new facilities remaining vacant until BIA is able to secure funding to
operate the facility.
DOJ has implemented a process whereby when tribes apply for DOJ grants
to construct correctional facilities, DOJ consults BIA about each
applicant’s needs as BIA typically has firsthand knowledge about tribes’
needs for a correctional facility and whether the tribe has the
infrastructure to support a correctional facility, among other things. BIA
then prioritizes the list of applicants based on its knowledge of the
detention needs of the tribes. DOJ officials noted that the decision about
which tribes to award grants to rests solely with them; however, they do
weigh BIA’s input about the tribes’ needs for and capacity to utilize a
correctional facility when making grant award decisions. To help BIA
anticipate future operations and maintenance costs for new tribal
correctional facilities, each year DOJ’s Bureau of Justice Assistance (BJA)
provides BIA with a list of planned correctional facilities that includes the
site location, size, and completion date. BIA officials noted that this level
of coordination with DOJ is an improvement over past years as it helps to
facilitate planning and ensure they are prepared to assume responsibility
to staff, operate, and maintain tribal detention facilities.
BIA and BJA also serve on a governmentwide coordinating body, the
Planning Alternatives and Correctional Institutions for Indian Country
Advisory Committee, which brings together federal stakeholders who play

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a role in planning detention and correctional programs and facilities in
Indian country. 44 The advisory committee is responsible for developing
strategic approaches to plan the training and technical assistance that BJA
provides to tribes that receive grant funding to construct or renovate
juvenile and adult correctional facilities. 45 Specifically, among other things,
the agencies work together to plan the training and technical assistance to
be delivered to tribes on issues such as alternatives to help control and
prevent jail overcrowding, controlling costs to develop and operate
detention facilities, developing alternatives to incarceration, and
implementing substance abuse and mental health treatment programs at
correctional facilities. According to DOJ officials, the advisory committee
helps to provide a coordinated federal response that leverages the full
scope of agency resources needed to deliver services that meet the tribes’
needs.
BIA and DOJ officials have committed to working together to help meet
the two agencies’ shared goal to improve the criminal justice crisis in
Indian country. To that end, in 2009, DOI, through BIA, and DOJ
established both department level and program level coordinating bodies
to increase communication and information exchange between the two
agencies. At the department level, the Deputy Attorney General and the
Deputy Secretary of the Interior jointly chair a working group that meets
quarterly to facilitate governmentwide policymaking on tribal justice
issues and coordinate agency activities on a range of tribal justice issues
that are designed to help BIA and DOJ achieve their individual and shared
goal of improving public safety in Indian country. For example, the
working group is to oversee BIA and DOJ’s efforts to assess tribal
correctional and tribal court systems’ needs and to develop strategies such
as prisoner reentry programs in Indian country. In addition, the working
group will oversee the implementation of various provisions included in

44
The Planning Alternatives and Correctional Institutions for Indian Country Advisory
Committee comprises of federal stakeholders from the Indian Health Services and the
Substance Abuse and Mental Health Services Administration within the Department of
Health and Human Services; the Department of Housing and Urban Development; BIA
entities including the Division of Corrections, Office of Facilities Management and
Construction, Office of Justice Services, and Bureau of Indian Education within DOI; and
OJP entities such as BJA and Office of Juvenile Justice and Delinquency Prevention,
Executive Office of the U.S. Attorneys, the National Institute on Corrections, and Office of
Tribal Justice, among others, within DOJ.
45

In developing these approaches, the Advisory Committee is to draw on each agency’s
expertise and lessons learned.

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TLOA such as assessing the effectiveness of the enhanced sentencing
authority that tribal courts may exercise. 46
At the program level, in 2009, BIA and DOJ established task forces to
address key issues including tribal judicial systems and tribal detention,
among other issues. 47 The task forces that report to the department level
working group are chaired by senior officials from BIA and DOJ and serve
as a forum for BIA and DOJ to, where appropriate, jointly address a range
of public safety and justice issues in Indian country. For example, as part
of the detention task force, BIA and DOJ officials are now working
together, in consultation with tribes, to identify alternatives to
incarceration in Indian country. According to BIA and DOJ officials, the
task force’s activities are to, among other things, support the activities of
the department-level working group. For example, the work conducted by
the task forces is intended to help facilitate the two agencies’ efforts to
develop a long-term plan for submission to Congress in July 2011 that
includes proposals on how to address juvenile and adult detention
facilities.
Although BIA and DOJ have taken action to coordinate their activities,
according to officials the agencies’ coordination efforts are in the early
stages of development and it is too early to gauge how effective these
efforts will be based on six of the eight practices that we have identified
for ensuring that collaborating agencies conduct their work in a

46

TLOA requires that DOJ, in coordination with DOI, submit a report to the appropriate
committees of Congress not later than 4 years after the date of enactment (July 29, 2010)
describing the effectiveness of the enhanced tribal sentencing authority in curtailing
violence and improving the administration of justice on Indian lands, along with a
recommendation on whether the authority should be discontinued, enhanced, or
maintained. See Pub. L. No. 111-211, tit. II, § 234(b), 124 Stat. at 2281.

47

In addition to the tribal courts and tribal detention task forces, BIA and DOJ have
established three additional task forces that are to focus on Indian country law
enforcement training, violence against women in tribal communities, and Indian country
crime data collection.

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coordinated manner. 48 We found that the two agencies have defined a
common outcome—improving public safety and justice in Indian
country—which is one of the eight practices that we have identified for
enhancing and maintaining effective collaboration among federal
agencies. 49 In our previous work we have reported that it is a good practice
for agencies to have a clearly defined outcome, as doing so can help align
specific goals across agencies and help overcome differences in agency
missions, cultures, and established ways of doing business. Officials told
us that as they work toward defining approaches to achieve their common
goal there could be a need to take a more strategic approach that
incorporates the key collaboration practices that we have identified to
help achieve sustainable interagency coordination. To that end, BIA
officials told us that in January 2011, they expect to deploy a liaison to
DOJ’s Office of Tribal Justice to help foster ongoing sustainable
collaboration between the two agencies. The BIA liaison is to work with
staff from various DOJ components as the two agencies develop and
execute coordinated plans to implement various provisions in TLOA
regarding tribal detention and tribal courts, among other tribal justice
initiatives.

By Strengthening
Information Sharing, BIA
and DOJ Could Help
Ensure Efficient Use of
Limited Resources and
Enhance the Capacity of
Tribal Courts

To meet their respective responsibilities to support tribal courts, BIA and
DOJ provide funding, training, and technical assistance to tribal courts;
however, the two agencies do not leverage each other’s resources—one of
the eight collaboration practices that we have identified—by sharing
certain relevant information that could benefit each agency’s efforts to
enhance the capacity of tribal courts to effectively administer justice in
Indian country. In October 2009, DOJ told the leadership of the Senate
Indian Affairs Committee that it was taking action to provide better
coordination with DOI to ensure that the two agencies’ tribal courts
initiatives are coordinated to develop and support tribal courts to help

48

GAO-06-15. The collaboration practices that we have identified generally consist of two
or more agencies (1) defining and articulating a common outcome; (2) establishing
mutually reinforcing or joint strategies to achieve the outcome; (3) identifying and
addressing needs by leveraging resources; (4) agreeing upon agency roles and
responsibilities; (5) establishing compatible policies, procedures, and other means to
operate across agency boundaries; (6) developing mechanisms to monitor, evaluate, and
report the results of collaborative efforts; (7) reinforcing agency accountability for
collaborative efforts through agency plans and reports; and (8) reinforcing individual
accountability for collaborative efforts through agency performance management systems.
49

GAO-06-15. We will discuss our evaluation of another of the eight practices—leveraging
resources—in the next section of the report.

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tribal courts build the capacity needed to exercise the enhanced
sentencing authority proposed for tribes under TLOA. However, when we
met with OJP and BIA program officials in October 2010 and November
2010, respectively, they noted that the information sharing and
coordination mechanisms that are in place to support tribal detention
initiatives have not extended to tribal courts initiatives. For example:
•

Since 2005, BIA has commissioned reviews of about 90 tribal court
systems that include the collection of data such as court funding and
operating budget, training needs for court clerks and judges, and
technical assistance needs such as developing and maintaining a
complete collection of a tribal criminal code. DOJ officials told us that
they were vaguely aware of these court reviews but stated they had
never seen the reviews or the accompanying corrective action plans.
BIA officials told us that DOJ had never requested the court reviews or
corrective action plans and that they had never shared this information
with DOJ.

•

BIA officials stated that they were aware that DOJ awards competitive
grants to tribal courts; however, DOJ does not share information with
BIA about which tribal courts have applied for DOJ grants to establish
new or enhance existing tribal court systems. BIA officials noted that
DOJ could benefit from BIA’s insights and firsthand knowledge about
the needs of tribal courts including those tribal courts that BIA has
identified as having the greatest need for additional funding.

•

Further, BIA officials noted that they were unaware of the training and
technical assistance that DOJ provides to tribal courts and noted that
there could be potential unnecessary duplication with the training and
technical assistance that both agencies provide as well as inefficient
use of scarce resources. For example, according to BIA, there was an
instance where DOJ and BIA provided funding to a tribe to purchase
the hardware and software for a case management system, but neither
DOJ nor BIA consulted each other about the purchase. Ultimately, the
tribe did not have any funds to purchase software training and, as a
result never used the system. Sharing information about training and
technical assistance could help ensure that BIA and DOJ avoid such
situations.

•

DOJ officials stated that they frequently hear concerns from tribes that
tribal courts lack the funds needed to operate effectively; however,
DOJ does not have direct access to information about the funding that
BIA provides to tribal courts. According to DOJ officials, gaining
access to BIA’s annual funding data could be useful in DOJ’s efforts to

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implement a more strategic approach to meet the needs of tribal
courts. Specifically, officials told us that data on the annual funding to
tribal courts could help DOJ to first establish a baseline, then conduct
a needs assessment to identify overall needs and then use that
information to identify what additional funding, if any, is needed to
close the gap between the baseline and overall resource need.
We have previously reported that collaborating agencies are most effective
when they look for opportunities to leverage each other’s resources,
thereby obtaining benefits that may not otherwise be available if the
agencies work separately. 50 Further, Standards for Internal Control in the
Federal Government call for agencies to enhance their effectiveness by
obtaining information from external stakeholders that may have a
significant impact on the agency achieving its goals. 51 Developing
mechanisms for identifying and sharing information and resources related
to tribal courts could yield potential benefits in terms of leveraging efforts
already underway and minimizing the potential for unnecessary
duplication in federal agencies’ efforts to support tribal courts. Moreover,
by sharing information resources, BIA and DOJ could achieve additional
benefits that result from the different levels of expertise and capacities
that each agency brings. BIA and DOJ officials acknowledged that the two
agencies could benefit from working together to share information and
leverage resources to address the needs of tribal courts and stated that
they would begin taking steps to do so.

Conclusions

Because responsibilities for enhancing the capacity of tribal courts is
shared among two key federal agencies—DOI and DOJ—effective
collaboration is important to operating efficiently and effectively and to
producing a greater public benefit than if the agencies acted alone.
Although the two agencies have information regarding tribal courts that
could be of benefit to the other, they have not fully shared their
information with each other. As a result, they have missed opportunities to
share information that could be used to better inform decisions about
funding and development of training and technical assistance that meets

50

GAO-06-15.

51

GAO/AIMD-00-21.3.1.

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the tribes’ needs. Developing mechanisms for better sharing information
about tribal courts could help the agencies ensure they are targeting
limited federal funds to effectively and efficiently meet the needs of
federally recognized tribes.

Recommendation for
Executive Action

To maximize the efficiency and effectiveness of each agency’s efforts to
support tribal courts by increasing interagency coordination and
improving information sharing, we recommend that the Attorney General
and the Secretary of the Interior direct DOJ’s Office of Justice Programs
and BIA’s Office of Justice Services, respectively, to work together to
develop mechanisms, using GAO collaboration practices as a guide, to
identify and share information and resources related to tribal courts.

Agency Comments
and Our Evaluation

We provided a draft of this report to DOI and DOJ for review and
comment. The DOI audit liaison stated in an e-mail response received on
January 25, 2011, that DOI agreed with the report’s findings and concurred
with our recommendation; however, DOI did not provide written
comments to include in our report. DOJ provide written comments that
are reproduced in appendix IV. DOJ concurred with our recommendation
and noted that OJP’s Bureau of Justice Assistance has begun discussions
with BIA’s Office of Justice Services about plans to, among other things,
coordinate training activities and share funding information regarding
tribal courts.

As agreed with your offices, unless you publicly announce the contents of
this report earlier, we plan no further distribution until 30 days from the
report date. At that time, we will send copies of this report to the Attorney
General of the United States, the Secretary of the Interior, and appropriate
congressional committees. This report will also be available at no charge
on our website at http://www.gao.gov.

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If you or your staff have any questions concerning this report, please
contact me at (202) 512-9627 or maurerd@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on the
last page of this report. Key contributors to this report are listed in
appendix V.

David C. Maurer
Director, Homeland Security and Justice Issues

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Appendix I: Objectives, Scope and
Methodology

Appendix I: Objectives, Scope and
Methodology
Objectives

We were asked to review the challenges facing selected tribal justice
systems as well as federal agencies’ efforts to coordinate their activities to
support tribal justice systems. Specifically, we prepared this report to
answer the following questions:
1. What challenges do tribes face in adjudicating Indian country crimes
and what federal efforts exist to help address those challenges?
2. To what extent have the Department of the Interior (DOI) and
Department of Justice (DOJ) components collaborated with each other
to support tribal justice systems?

Scope and
Methodology

To identify the challenges facing tribes in adjudicating criminal matters in
Indian country and what federal efforts exist to help address those
challenges, we met with tribal justice officials such as judges, prosecutors,
law enforcement officers, and court administrators from a nonprobability
sample 1 of 12 federally recognized tribes in Arizona, New Mexico, North
Dakota, and South Dakota. 2 We selected the tribes based on several
considerations. First, we identified the U.S. Attorney district offices that
received the largest volume of Indian country criminal matters from fiscal
years 2004 through 2008, the five most recent years of available data at the
time we conducted our selection. We interviewed DOJ officials about the
data-entry process, performed electronic testing for obvious errors in
accuracy and completeness of the data, and reviewed database
documentation to determine that the data were sufficiently reliable for the
purpose of our review. Next, we considered a variety of factors including
(1) reservation land size, (2) population, (3) types of tribal court
structures, (4) number and type of courts, and (5) number of full-time
judicial personnel such as judges and prosecutors. The selected tribes
have a range of land and population size, court size, and tribal court

1

Nonprobability sampling is a method of sampling when nonstatistical judgment is used to
select members of the sample, using specific characteristics of the population as criteria.
Results from nonprobability samples cannot be used to make inferences about a
population because in a nonprobability sample, some elements of the population being
studied have no chance or an unknown chance of being selected as part of the sample.
2
We interviewed tribal justice officials from the following tribes in Arizona: Gila River
Indian Community, Navajo Nation, and Tohono O’odham Nation. New Mexico tribes we
covered included the Pueblos of Isleta, Laguna, Pojoaque, and Taos. In North Dakota, we
met with tribal justice officials from Standing Rock Sioux and Three Affiliated Tribes.
Lastly, the South Dakota tribes we covered included Cheyenne River Sioux, Oglala Sioux,
and Rosebud Sioux tribes.

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Appendix I: Objectives, Scope and
Methodology

structures such as traditional and modern court systems. We also obtained
documentation on the tribal courts’ operations, caseload, and funding.
Because we are providing the caseload and funding data for informational
purposes only, we did not assess the reliability of the data we obtained
from the tribes.
Additionally, we obtained the tribe’s perspectives on the federal process to
communicate declination decisions. In light of the public safety and justice
issues underlying the requests for this work and the focus in the Tribal
Law and Order Act of 2010 (TLOA) on criminal matters, we focused on
criminal rather than civil law matters during the course of this review. 3
While the results of these interviews cannot be generalized to reflect the
views of all federally recognized tribes across the United States, the
information obtained provided us with useful information on the
perspectives of various tribes about the challenges they face in
adjudicating criminal matters. Additionally, we identified federal efforts to
help support tribal efforts to adjudicate criminal matters in Indian country
based on new or amended statutory provisions enacted through TLOA. We
also interviewed cognizant officials from the Bureau of Indian Affairs and
various DOJ components such as the Federal Bureau of Investigation, the
Executive Office of U.S. Attorneys, and select U.S. Attorneys Offices to
obtain information about their efforts to implement TLOA provisions to
help address the challenges facing tribes in administering justice in Indian
country.
To determine the extent that DOI and DOJ collaborate with each other to
support public safety and justice in tribal communities, we first compared
the agencies’ efforts against criteria in Standards for Internal Control in
the Federal Government which holds that agencies are to share
information with external stakeholders that can affect the organization’s
ability to achieve its goals. 4 Next, we identified practices that our previous
work indicated can enhance and sustain collaboration among federal
agencies 5 and assessed whether DOI and DOJ’s interagency coordination
efforts reflected consideration of those practices. For purposes of this
report, we define collaboration as any joint activity by two or more
organizations that is intended to produce more public value than could be

3

Tribal Law and Order Act of 2010, Pub. L. No. 111-211, tit. II, 124 Stat. 2258, 2261.
GAO/AIMD-00-21.3.1.

4
5

GAO-06-15.

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Appendix I: Objectives, Scope and
Methodology

produced when the organizations act alone. We use the term
“collaboration” broadly to include interagency activities that others have
defined as cooperation, coordination, integration, or networking. Eight
practices we identified to enhance and sustain collaboration are as
follows:
(1) define and articulate a common goal;
(2) establish mutually reinforcing or joint strategies to achieve that goal;
(3) identify and address needs by leveraging resources;
(4) agree on roles and responsibilities;
(5) establish compatible policies, procedures, and other means to operate
across agency boundaries;
(6) develop mechanisms to monitor, evaluate, and report on results;
(7) reinforce agency accountability for collaborative efforts through
agency plans and reports; and
(8) reinforce individual accountability for collaborative efforts through
performance management systems.
In this report, we focused on two of the eight practices—defining and
articulating a common goal and identifying and addressing needs by
leveraging resources—that we previously identified for enhancing and
maintaining effective collaboration among federal agencies. We were not
able to address the remaining six practices because we found that DOI and
DOJ were in the early stages of implementing these two practices that
serve as the foundation for the remaining practices. For example, because
collaboration activities are in the early stages of development and the
agencies have not yet established joint strategies to achieve the goal of
enhancing the capacity of tribal courts, we did not expect the agencies to
have developed mechanisms to monitor and report on the results of their
collaboration, reinforce accountability by preparing reports, or establish
performance management systems. We selected examples that, in our best
judgment, clearly illustrated and strongly supported the need for
improvement in specific areas where the key practices could be
implemented. We met with officials from DOI and various DOJ
components such as the Office of Tribal Justice and Office of Justice

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Appendix I: Objectives, Scope and
Methodology

Programs to discuss the mechanisms they have put in place to enhance
and sustain collaboration between the two agencies.
We conducted this performance audit from September 2009 through
February 2011 in accordance with generally accepted auditing standards. 6
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence provides a reasonable basis for our findings and conclusions
based on our audit objectives.

6

This is the second of two efforts related to tribal justice issues that we reviewed in
response to your request during this time. The results of the first effort were issued in
December 2010 and are focused on DOJ declinations of Indian country criminal matters.
See GAO, U.S. Department of Justice declinations of Indian Country Criminal Matters,
GAO-11-167R (Washington, D.C.: Dec. 13, 2010).

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Appendix II: Federal, State, and Tribal
Jurisdiction over, and the Prosecution of
Crime in, Indian Country

Appendix II: Federal, State, and Tribal
Jurisdiction over, and the Prosecution of
Crime in, Indian Country
Criminal Jurisdiction
in Indian Country

The exercise of criminal jurisdiction in Indian country depends on several
factors, including the nature of the crime, the status of the alleged offender
and victim (that is, whether they are Indian or not) and whether
jurisdiction has been conferred on a particular entity by, for example,
federal treaty or statute. As a general principle, the federal government
recognizes Indian tribes as “distinct, independent political communities”
with inherent powers of self-government to regulate their “internal and
social relations,” which includes enacting substantive law over internal
matters and enforcing that law in their own forums. 1 The federal
government, however has plenary and exclusive authority to regulate or
modify the powers of self-government the tribes otherwise possess, and
has exercised this authority to establish an intricate web of jurisdiction
over crime in Indian country. 2
Enacted in 1817, the General Crimes Act (also referred to as the Federal
Enclaves Act or Indian Country Crimes Act), as amended, established
federal criminal jurisdiction in Indian country over cases where either the
alleged offender or the victim is Indian. 3 It did not, for example, establish
federal jurisdiction over cases where both parties are Indian and, in effect,
left jurisdiction over cases where both parties are non-Indian to the state. 4
Enacted in 1885, the Major Crimes Act extended federal criminal

1

See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978) (citing, among others,
United States v. Wheeler, 435 U.S. 313, 323-324 (1978)). See also 25 U.S.C. § 1301(2)
(defining an Indian tribe’s power of self-government).
2

See United States v. Lara, 541 U.S. 193, 200 (2004) (referencing the Indian Commerce
Clause, U.S. CONST., art. I, § 8, cl. 3, and the Treaty Clause, U.S. CONST., art. II, § 2, cl. 2,
as authority for the federal regulation of Indian affairs).

3

See 18 U.S.C. § 1152 (codifying the General Crimes Act, as amended). The Assimilative
Crimes Act, enacted in 1825 and subsequently amended, further extends federal criminal
jurisdiction into Indian country by authorizing the federal government to prosecute
offenses punishable as a violation of the law of the state in which it was committed if not
otherwise addressed by federal law. See 18 U.S.C. § 13 (codifying the Assimilative Crimes
Act, as amended). In effect, the federal government enforces a gap in federal law by
incorporating or applying state law to the offense.

4
Specifically, the General Crimes Act, as amended, precludes the exercise of federal
criminal jurisdiction in Indian country where both parties are Indian, the Indian offender
has already been punished by the local law of the tribe, and where, by treaty stipulation,
the offense is within a tribe’s exclusive jurisdiction. See 18 U.S.C. § 1152. Where both
parties are non-Indian, the state in which the offense occurs has criminal jurisdiction. See
U.S. v. McBratney, 104 U.S. 621 (1881) (holding that non-Indian against non-Indian crimes
are subject to state jurisdiction, based upon the state’s authority to exercise criminal
jurisdiction over its own citizens throughout its territorial limits, including any Indian
country within those limits).

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Appendix II: Federal, State, and Tribal
Jurisdiction over, and the Prosecution of
Crime in, Indian Country

jurisdiction in Indian country to Indians who committed so-called “major
crimes,” regardless of the victim’s status. 5 As amended, the Major Crimes
Act provides the federal government with criminal jurisdiction over
Indians charged with felony-level offenses enumerated in the statute. 6 The
tribes retained exclusive jurisdiction over other criminal offenses
(generally, misdemeanor-level) where both parties are Indian.
State governments, however, may not exercise criminal jurisdiction over
Indians or their property in Indian country absent a “clear and unequivocal
grant of that authority” by the federal treaty or statute. 7 Enacted in 1953,
Public Law 280 represents one example of a “clear and unequivocal” grant
of state criminal jurisdiction. 8 As amended, Public Law 280 confers
exclusive criminal jurisdiction over offenses committed in Indian country
to the governments of six states—Alaska, California, Minnesota, Nebraska,
Oregon, and Wisconsin, except as specified by statute, thereby waiving
federal jurisdiction under the General and Major Crimes acts in these
states and subjecting Indians to prosecution in state court. 9 Subsequent

5

See 18 U.S.C. § 1153 (codifying the Major Crimes Act, as amended).

6

The enumerated offenses are: murder; manslaughter; kidnapping; maiming; felony
provisions of the Sexual Abuse Act of 1986, as amended; incest; assault with intent to
commit murder; assault with a dangerous weapon; assault resulting in serious bodily injury;
assault against an individual who has not attained the age of 16 years; felony child abuse or
neglect; arson; burglary; robbery; and felony larceny, theft, and embezzlement. See 18
U.S.C. § 1153(a). The federal government also has jurisdiction to prosecute crimes of
general applicability, such as violations of the Controlled Substances Act of 1970, 21 U.S.C.
§ 801 et seq., and certain other crimes that relate specifically to Indian tribal organizations
and resources, without regard for the Indian status of the alleged offender or victim. See
generally 18 U.S.C. §§ 1154-70.
7

See Langley v. Ryder, 778 F.2d 1092, 1095-96 (5th Cir. 1985) (citing, among others, Oliphant
v. Saquamish Indian Tribe, 435 U.S. 191 (1978) and Fisher v. District Court, 424 U.S. 382
(1976)). See also Felix Cohen, Handbook of Federal Indian Law, § 6.03(1)(a), (2005 ed.)
(1941).
8

See 18 U.S.C. § 1162 (codifying Public Law 280, as amended).

9

Although § 1162 establishes certain exceptions to state criminal jurisdiction within each
state, this report focuses on the relationship between the federal and tribal governments
and therefore does not include a detailed discussion of the extent or exercise of state
criminal jurisdiction in Indian country. Section 221(b) of the recently enacted TLOA,
however, further amends § 1162 by enabling the federal government to assume jurisdiction
under the General Crimes Act and Major Crimes Act in the Indian Country areas of a
requesting tribe otherwise subject to exclusive state jurisdiction. Upon the request of such
a tribe and with the Attorney General’s consent, the federal government shall have
concurrent jurisdiction with that of the state and, where applicable, the tribe.

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Appendix II: Federal, State, and Tribal
Jurisdiction over, and the Prosecution of
Crime in, Indian Country

amendments to Public Law 280 and other laws further define state
criminal jurisdiction in Indian country. 10
To summarize the foregoing discussion, the exercise of criminal
jurisdiction by state governments in Indian country is generally limited to
two instances, both predicated on the offense occurring within the borders
of the state—where both the alleged offender and victim are non-Indian,
or where a federal treaty or statute confers, or authorizes a state to
assume, criminal jurisdiction over Indians in Indian country. Otherwise,
jurisdiction is distributed between federal and tribal governments. Where
both parties to the crime are Indian, the tribe generally has exclusive
jurisdiction for misdemeanor-level offenses, but its jurisdiction runs
concurrent with the federal government for felony-level offenses. Where
the alleged offender is Indian but the victim is non-Indian, tribal and
federal jurisdiction is generally concurrent. Finally, federal jurisdiction is
exclusive where the alleged offender is non-Indian and the victim is
Indian.

Tribal Prosecutions
under the Indian Civil
Rights Act

When a tribal government exercises its jurisdiction to prosecute an Indian
offender, it must do so in accordance with the Indian Civil Rights Act
(ICRA). Enacted in 1968, ICRA limited the extent to which tribes may
exercise their powers of self-government by imposing conditions on tribal
governments similar to those found in the Bill of Rights to the U.S.
Constitution. 11 For example, the act extended the protections of free
speech, free exercise of religion, and due process and equal protection
under tribal laws. 12 With respect to alleged criminal conduct, tribes are

10

See, e.g., 25 U.S.C. §§ 1321 (authorizing a state to assume criminal jurisdiction over areas
of Indian country with the consent of the Indian tribes occupying those areas, though such
jurisdiction is to be concurrent with the federal government at the request of an Indian
tribe and with the Attorney General’s consent) and 1323 (authorizing the United States to
accept a state decision to retrocede part or all of its jurisdiction over Indian country to the
federal government). See also, e.g., Act of May 31, 1946, ch. 279, 60 Stat. 229 (conferring
criminal jurisdiction over Devil’s Lake, now Spirit Lake, Indian Reservation to North
Dakota).
11

Pub. L. No. 90-284, tit. II, 82 Stat. 73, 77 (1968) (codified as amended at 25 U.S.C. §§ 130141). See Santa Clara Pueblo, 436 U.S. at 56-58 (explaining that tribes, as separate
sovereigns preexisting the Constitution, “have historically been regarded as unconstrained
by those constitutional provisions specifically as limitations on federal or state authority”
and that through 25 U.S.C. § 1302 (enacted as amended through Indian Civil Rights Act),
“Congress acted to impose certain restrictions upon tribal governments similar, but not
identical, to those contained in the Bill of Rights and the Fourteenth Amendment”).

12

See 25 U.S.C. § 1302(a)(1), (8).

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Appendix II: Federal, State, and Tribal
Jurisdiction over, and the Prosecution of
Crime in, Indian Country

prohibited from trying a person twice for the same offense (double
jeopardy), compelling an accused to testify against himself or herself in a
criminal case, and imposing excessive fines or inflicting cruel and unusual
punishment. 13 Tribes must also afford a defendant the rights to a speedy
and public trial, to be informed of the nature and cause of the accusation,
to be confronted by witnesses of the prosecution, to have compulsory
process for witnesses in his favor, and to be represented by counsel at his
own expense, among other things. 14
ICRA also governs the sentencing authority tribes exercise over convicted
Indian offenders. First, any person accused of an offense punishable by
imprisonment has the right, upon request, to a trial by jury of not less than
six persons. 15 Second, the act limits the maximum sentence a tribe may
impose. Prior to amendments made by the Tribal Law and Order Act
(TLOA) in July 2010, ICRA limited the maximum sentence for any one
offense to a term of 1 year imprisonment, a $5,000 fine, or both, regardless
of the severity of the alleged offense. 16 The July 2010 amendments,
however, authorize tribal courts to impose sentences in excess of 1 year
imprisonment or $5,000 fine if the tribe affords the defendant certain
additional protections specified in the statute. 17 Specifically, a tribal court
may subject a defendant to a maximum term of imprisonment of 3 years
(or a fine not to exceed $15,000, or both) for any one offense if the
defendant had been previously convicted of the same or a comparable
offense by any jurisdiction in the United States, or the defendant was
prosecuted for an offense comparable to one punishable by more than 1
year of imprisonment if prosecuted by the United States or any of the
states. 18 To exercise this enhanced sentencing authority, the tribe must
afford a criminal defendant the following additional protections: effective
assistance of counsel; if indigent, the assistance of a licensed defense
attorney appointed at the tribe’s expense; a presiding judge with sufficient

13

25 U.S.C. § 1302(a)(3)-(4), (7)(A).

14

25 U.S.C. § 1302(a)(6).

15

25 U.S.C. § 1302(a)(10).

16

See 25 U.S.C. § 1302(a)(7)(B).

17

See Pub. L. No. 111-211, tit. II, § 234(a)(3), 123 Stat. 2258, 2280-81 (2010) (codified at 25
U.S.C. § 1302(b)).

18

See 25 U.S.C. § 1302(a)(7)(C), (b). The maximum penalty or punishment that may arise
from any single criminal proceeding (e.g., if a defendant is convicted of multiple offenses)
may not exceed 9 years imprisonment. See 25 U.S.C. § 1302(a)(7)(D).

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Appendix II: Federal, State, and Tribal
Jurisdiction over, and the Prosecution of
Crime in, Indian Country

legal training and a license to practice law; prior to charging the
defendant, make publicly available the criminal laws and rules of evidence
and criminal procedure of the tribal government; and maintain a record
(audio or otherwise) of the criminal proceeding. 19 Finally, although ICRA
protects alleged offenders from double jeopardy in tribal courts, neither
the federal government nor the tribal government is precluded from
pursuing a prosecution if the other sovereign elects to prosecute the
case. 20 Therefore, by example, a criminal defendant prosecuted in tribal
court may still face prosecution, and a potentially more severe sentence if
convicted, in federal court.

19

See § 1302(c). This enhanced sentencing authority neither affects the preexisting tribal
authority to sentence defendants to prison for a period of up to 1 year for an offense nor
does it afford indigent defendants a right to counsel at the tribe’s expense when sentenced
for a period of up to 1 year for an offense.

20

See United States v. Lara, 541 U.S. 193, 210 (2004) (holding that the double jeopardy
clause did not prohibit the federal government from prosecuting a defendant where the
tribe had already prosecuted and convicted the defendant for an offense involving the same
instance and conduct for which the federal government sought to prosecute).

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Appendix III: Overview of Selected Tribal
Courts

Appendix III: Overview of Selected Tribal
Courts
This appendix summarizes information regarding the court systems of the
12 tribes we visited in Arizona, New Mexico, North Dakota, and South
Dakota. Specifically, in Arizona, we visited Gila River Indian Community,
Navajo Nation, 1 and Tohono O’odham Nation. New Mexico tribes we
covered include the Pueblos of Isleta, Laguna, Pojoaque, and Taos. In
North Dakota, we included Standing Rock Sioux 2 and Three Affiliated
Tribes. Lastly, the South Dakota tribes we visited include Cheyenne River
Sioux, Oglala Sioux, and Rosebud Sioux tribes. The 12 tribes that we
visited ranged in enrollment from 417 members to nearly 300,000 tribal
members. Tribal enrollment data showed that for 9 of the 12 tribes we
visited, more than 50 percent of the enrolled members live on the
reservation. 3
Enclosed in this appendix are individual summaries for each tribe that
include a description of: (1) land area and population data, (2)
establishment of the court system, (3) availability of tribal code and court
rules and procedures, (4) structure of the court system, (5) selection and
removal of judges as well as requisite qualifications, (6) judicial personnel
and court staff, (7) caseload levels, and (8) funding information.

Cheyenne River Sioux
Tribe
Land Area and Population

The Cheyenne River Indian Reservation of the Cheyenne River Sioux Tribe
covers 4,410 square miles in north-central South Dakota, as shown in
figure 4, and is between Delaware and Connecticut in size. Of the
estimated 16,622 enrolled members of the tribe, an estimated 8,000 live on
the reservation.

1

The Navajo Nation extends into three states: Arizona, New Mexico, and Utah. For
purposes of this report, we counted Navajo Nation among the Arizona tribes we visited
because the tribal government offices and the main district court of the tribe are
headquartered in Window Rock, Arizona.
2

The Standing Rock Sioux Reservation is situated in North Dakota and South Dakota. For
purposes of this report, we counted the Standing Rock Sioux Tribe among the North
Dakota tribes we visited because the tribal government offices and the tribal court are
headquartered in Fort Yates, ND.
3

An enrolled member is a person whose name appears on the formally approved
membership roll of a tribe. Enrolled members may reside anywhere in the world.

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Appendix III: Overview of Selected Tribal
Courts

Figure 4: Location of Cheyenne River Indian Reservation

Cheyenne River Indian Reservation

Pierre
Rapid City
South Dakota

Source: Census Bureau.

Establishment of Court
System and Relationship to
Tribal Council

The Cheyenne River Sioux Tribe’s constitution, which was adopted in
1935, assigned the duty of establishing a court to the Tribal Council. The
court system was established in the late 1930s. Tribal officials stated that
the tribe’s judiciary is a separate branch of government. Further, a 1992
amendment to the constitution stated that decisions of tribal courts shall
not be subject to review by the Tribal Council. Officials noted that the
Judiciary and Codification Committee of the Tribal Council and the Chief
Judge, among others, oversee the operations of the tribal court.

Tribal Code and Court
Rules and Procedures

The Cheyenne River Sioux Tribe’s Law and Order Code, established in
1978, has been amended a number of times and is available in electronic
format, according to officials. The Chief Judge reported that the Law and
Order Code is modeled after South Dakota laws. The Tribal Council’s
Judiciary and Codification Committee is responsible for updating the
criminal code. Additionally, members of the tribal court and the tribe’s
legal department also assist the Committee in updating the code.
According to officials, the tribe follows federal rules of evidence and has

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Appendix III: Overview of Selected Tribal
Courts

adopted rules of criminal and civil procedure as well as a Code of Judicial
Conduct that are modeled after federal and state courts.

Structure of the Court
System

The Cheyenne River Sioux Tribe’s court system is composed of a tribal
court, a juvenile court, a mediation court, and an appellate court. Tribal
officials consider the court system to be modern, though the mediation
court incorporates some traditional practices that promote tribal
traditions and values to resolve disputes. In 1992, according to tribal
officials, the tribe’s constitution was amended to include a provision that
states that decisions of the tribal court may be appealed to the tribe’s
appellate court, but shall not be subject to review by the Tribal Council.

Judicial Qualifications,
Selection, Term Limits, and
Removal

Tribal judges are elected by voting members of the tribe and must (1) be a
member of the Cheyenne River Sioux Tribe, (2) have resided on the
reservation for 1 year preceding the election, and (3) be over 25 years of
age. We were not able to obtain complete information about the required
qualifications for judges and the tribe’s process to select and remove
judges.

Judicial Personnel and
Court Staff

Information about judicial personnel and court staff are not reported as
we were not able to obtain complete information from the tribe.

Caseload Information

Data about the court’s caseload for fiscal years 2008 through 2010 are not
included as we were not able to obtain complete information from the
tribe.

Funding Information

BIA reported that for fiscal years 2008 and 2009, it did not distribute any
funding to Cheyenne River Sioux Tribe specifically for tribal court
programs. In fiscal year 2010, BIA distributed $190,503 to the tribe, but we
were not able to obtain information from the tribe on how much funding
was allocated to tribal court programs. Further, DOJ did not award any
grant funding to Cheyenne River Sioux Tribe as part of its Tribal Court
Assistance Program (TCAP) for fiscal years 2008 through 2010.

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Appendix III: Overview of Selected Tribal
Courts

Gila River Indian
Community
Land Area and Population

The Gila River Indian Reservation covers 584 square miles in Arizona, and
is between the District of Columbia and Rhode Island in size. Of the
estimated 20,590 enrolled members of the tribe, approximately 82 percent,
or 16,783, live on the reservation.
Figure 5: Location of Gila River Indian Community

Arizona
Phoenix

Gila River Indian Community
Tucson

Source: Census Bureau.

Establishment of Court
System and Relationship to
Tribal Council

The Gila River Indian Community’s constitution, adopted in 1960,
authorized but did not establish a court system or articulate its jurisdiction
or powers, leaving this to the Tribal Council. Although the council
exercised its authority to establish a court system, there is no formal
document marking when this occurred. The tribe has efforts underway to
adopt a revised constitution, which seeks to establish a separate judicial
branch that is autonomous and independent of other branches of the tribal
government. The draft constitution calls for a court system that is

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Courts

comprised of a tribal court known as the Community Court, Supreme
Court, and other lower courts, including forums for traditional dispute
resolution, as deemed necessary by the legislature.

Tribal Code and Court
Rules and Procedures

Gila River Indian Community has civil, criminal, traffic, and children’s
codes. Officials noted that the current criminal code may not be applicable
to address new uses of technology to commit crime. The children’s code
was most recently revised in 2010 and now addresses gang-related
offenses, according to officials. Some procedural guidance is provided by
legislation, but the tribal court does not have formal rules of criminal
procedures since the court has not been granted authority to promulgate
such rules. However, officials explained that the tribal court has
developed an administrative order and understanding between parties for
some rules. The court has not established rules of evidence; although it
will occasionally incorporate state or federal rules of evidence as
permitted by the criminal code.

Structure of the Court
System

Officials describe the court as modern because it is modeled after the state
of Arizona’s judicial system. The court system is composed of a tribal
court, children’s court, and appellate court. The children’s court was
officially established by statute in 1983. Gila River has two courthouses: a
main court located in Sacaton, Arizona, and another located in Laveen,
Arizona.

Judicial Qualifications,
Selection, Term Limits, and
Removal

The Chief Judge and five Associate Judges are elected by tribal members
to the general jurisdiction court for 3-year terms. Additionally, two judges
are appointed to the children’s court by the Tribal Council for 4-year
terms. The general jurisdiction court consists of six elected judicial
positions with all judges up for election at the same time. Judges must be a
member of the tribe and be at least 25 years old, among other
requirements. Certain residency requirements must also be met. The Tribal
Council can remove a judge from office for any reason it deems cause for
removal.

Judicial Personnel and
Court Staff of Gila River
Indian Community

One of the eight judges in the tribal court is law-trained; however, there
are no requirements that judges are to be law-trained or licensed by a state
or tribal bar association. Public defenders and prosecutors are required to
be law-trained and licensed by a state bar association. The tribe has six
public defenders and nine prosecutors.

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Table 3: Judicial Personnel and Court Staff of Gila River Indian Community
Position title

Number of staff

Tribal court judge

8

Prosecutor

9

Public defender

6

Probation officer

18

Bailiff

10

Process server

0

Court administrator

3

Court clerk

22

Other court staff

3

Source: Gila River Indian Community.

Caseload Information

Criminal cases accounts for the majority of the tribal court’s caseload.
Table 4: Gila River Civil and Criminal Caseload Data for 2008 through 2010
Type of case

New cases filed
2008

Civil
Criminal

2009

2010

579

614

667

8,620

8,204

8,244

Source: Gila River Indian Community.

Funding Information

For fiscal years 2008 through 2010, the tribal government funded at least
90 percent of the Gila River Indian Community Court, and the court did
not receive any funding from BIA. 4 According to tribal court officials, the
court was awarded $13,000 in fiscal years 2008 and 2009 through the
Juvenile Accountability Block Grant (JABG)—a grant program that is
administered by Office of Juvenile Justice and Delinquency Prevention

4

When this report refers to the tribal government as a source of funding it refers to funding
generated by tribal activities, not federal funding passed through the tribal government.

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within DOJ. 5 In fiscal year 2009, the tribal court was awarded $49,977 in
grant funding under DOJ’s Justice and Mental Health Collaboration
Program. Further, in fiscal year 2010, the Gila River court system was
awarded $499,586 in grant funding as part of DOJ’s Coordinated Tribal
Assistance Solicitation.

Pueblo of Isleta
Land Area and Population

The Pueblo of Isleta covers 331 square miles in New Mexico and is
between the District of Columbia and Rhode Island in size. Of the
estimated 3,496 enrolled members of the pueblo, 58 percent, or 2,013 live
on the pueblo’s lands.
Figure 6: Location of Pueblo of Isleta

Santa Fe
Albuquerque
Pueblo of Isleta
New Mexico

Source: Census Bureau.

5
Under the JABG, DOJ, through OJJDP, provides funds as block grants to qualifying states
and U.S. territories to implement accountability-based programs and services that are
designed to reduce juvenile crime and strengthen the juvenile justice system. The JABG is a
competitive bock grant program wherein local and tribal governments can apply to state
governments for funds to support local juvenile justice programs.

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Establishment of Court
System and Relationship to
Pueblo Council

The most recent revision to the constitution of the Pueblo of Isleta was
adopted in 1991; however, according to tribal officials, Isleta has efforts
underway to amend its constitution. In an effort to help address concerns
about the court’s perceived lack of autonomy, according to Isleta officials,
the Tribal Council established the Judicial Law and Order Committee to
conduct a review of the constitution that includes examining the
authorities of each branch of tribal government.

Tribal Code and Court
Rules and Procedures

The Pueblo of Isleta’s Law and Order Code was first adopted in 1965 and
revised in 2008. The Tribal Council established a committee to recommend
amendments regarding the code to the Council.

Structure of the Court
System

The Pueblo of Isleta’s court system is composed of a tribal and appellate
court. The tribal court is presided over by one or more judges and has
jurisdiction over all criminal and civil matters articulated in the Law and
Order Code. The majority of the court’s cases are adjudicated by applying
federal or state law; however, the court seeks first to apply traditional law
in cases where it may be applicable. The Tribal Council serves as the
appellate court, and appeals are granted as a matter of right. However, the
council may delegate its appellate authority to an appeal committee,
appellate judge, or other appellate body established by the council. The
constitution holds that all appeals decisions are final.

Judicial Qualifications,
Selection, Term Limits, and
Removal

Judges are appointed by the tribal governor with the concurrence of a twothirds majority of the council. According to the constitution, the Tribal
Council is to prescribe the qualifications and terms of office for judges.
The constitution states that judges’ salaries may not be modified during
the judges’ term in office. The council is currently drafting an ordinance
establishing qualifications and salaries for judges. Those convicted of
felonies are not eligible to serve as a judge. Judges can be removed from
office after a hearing and a two-thirds vote of the full council.

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Judicial Personnel and
Court Staff

Because of funding limitations, according to officials, criminal
investigators also serve as tribal prosecutors.
Table 5: Judicial Personnel and Court Staff of Pueblo of Isleta
Position title

Number of staff

Tribal court judge

1

Appellate judge

1

Prosecutor

0

Public defender

0

Probation officer

1

Bailiff

0

Process server

0

Court administrator

0

Court clerk

2

Other court staff

2

Source: Pueblo of Isleta.

Caseload Information

Data about the court’s caseload for 2008 through 2010 are not reported
here as we were not able to obtain this information from the tribe.

Funding Information

BIA told us that it distributed $76,923, $128,279, and $99,071 in fiscal years
2008, 2009, and 2010, respectively. We were not able to obtain information
from the tribe on how much of the funding was provided to the tribal
court. Our review of DOJ grants awarded under the Tribal Court
Assistance Program showed that the Pueblo of Isleta did not receive any
grant funding for tribal courts initiatives for fiscal years 2008 through 2010.

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Pueblo of Laguna
Land Area and Population

The Pueblo of Laguna reservation covers 779 square miles in New Mexico
and is between the District of Columbia and Rhode Island in size. Of the
estimated 8,413 enrolled members in the pueblo, 4,315 live on or near the
pueblo’s lands; Laguna’s total population, including nonpueblo members,
is estimated at 5,352.
Figure 7: Location of Pueblo of Laguna

Pueblo of Laguna
Albuquerque

New Mexico

Source: Census Bureau.

Establishment of Court
System and Relationship to
Pueblo Council

The Pueblo of Laguna’s constitution, adopted in 1908, empowered the
pueblo’s Governor and certain members of the Tribal Council to function
as the pueblo’s court. A subsequent version of the constitution, adopted in
1949, maintained this judicial structure. In 1958, the pueblo amended its
constitution and thereby vested the Pueblo’s judicial power in the Pueblo’s
tribal court, and in 1984, another constitutional amendment vested the
pueblo’s judicial power in the pueblo’s tribal court and in an appellate
court. Currently, the pueblo’s Governor and certain members of the Tribal
Council serve as the pueblo’s appellate court, according to tribal officials.

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Tribal Code and Court
Rules and Procedures

The pueblo has a written criminal code that was enacted in 1999,
according to officials. The Tribal Secretary is responsible for keeping
ordinances enacted by the Tribal Council. Revisions to the criminal code
were pending adoption by the Tribal Council as of October 2010. The
pueblo is in the process of adopting rules of judicial conduct and criminal
procedure.

Structure of the Court
System

The Pueblo of Laguna’s court system combines aspects of modern and
traditional courts. The court relies on the written codes and laws of the
pueblo, but they may also defer to the pueblo’s traditions, when possible.
The pueblo’s court system includes a tribal court that adjudicates both
civil and criminal matters, a juvenile court, and an appellate court that
reviews cases from the lower courts. The appellate court is composed of
the Governor and certain members of the Pueblo Council, though this
composition of the appellate court is not provided for by constitution or
code; rather it is to be established by ordinances passed by the Pueblo
Council.

Judicial Qualifications,
Selection, Term Limits, and
Removal

Judges must be law-trained, have a state bar license, and must have at
least 1 year of judicial experience or related law practice, among other
things. Judges are appointed by the Tribal Council for a term that does not
exceed 3 years, and may be removed from office if convicted of a felony or
if found to have grossly neglected the duties of the office.

Judicial Personnel and
Court Staff

The Pueblo of Laguna’s court system employs one full-time contract judge
and three part-time contract judges. In addition, the tribe employs two
prosecutors, and a public defender, among other staff.

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Table 6: Judicial Personnel and Court Staff of Pueblo of Laguna
Position title

Number of staff

Tribal court judge

4

Appellate judge

1

Prosecutor

2

Public defender

1

Probation officer

2

Bailiff

1

Court administrator

1

Court clerk

3

Other court staff

3

Source: Pueblo of Laguna.

Caseload Information

Traffic offenses, which are not reported in table 7 below, account for a
large portion of the court’s activity and are considered criminal offenses.
For example, there were 2,685 traffic cases opened in 2009.
Table 7: Pueblo of Laguna Civil and Criminal Caseload Data for Calendar Years
2008 and 2009
2008
Type of
case

2009

Carried over
from prior year

New
cases filed

Carried over
from prior year

New
cases files

Civil

Data not provided

308

284

238

Criminal

Data not provided

711

375

845

Source: Pueblo of Laguna.

Funding Information

The Pueblo of Laguna court system’s main funding sources are the tribal
government and funding from the BIA. Additionally, in fiscal year 2010 the
Pueblo of Laguna was awarded $350,000 for tribal courts initiatives under
DOJ’s Coordinated Tribal Assistance Solicitation grant program.

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Navajo Nation
Land Area and Population

The Navajo Nation’s land area totals 24,097 square miles and is mostly
situated in Arizona though its boundaries extends into parts of New
Mexico and Utah. The reservation is between Maryland and West Virginia
in size. Of the estimated 292,023 enrolled members of the Navajo Nation,
approximately 234,124, or about 80 percent, live on the reservation.
Figure 8: Location of Navajo Nation

Salt Lake City
Utah

Denver
Colorado

Albuquerque
Arizona Navajo Nation New Mexico
Phoenix

Source: Census Bureau.

Establishment of Court
System and Relationship to
Tribal Council

The Navajo Nation does not have a written constitution. However, the
duties of the court system are documented in the Navajo Nation Codes.
The tribal court was established in 1959.

Tribal Code and Court
Rules and Procedures

The Navajo Nation criminal code was created in 1959 and has been
amended as necessary. The Legislative Council, within the legislative
branch, is responsible for updating the code. The court system has rules of
judicial conduct, criminal procedure, as well as rules of evidence.

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Structure of the Court
System

Officials described the Navajo Nation court system as a modern system
that continues to embody Navajo customs and traditions. The Chief
Justice is the administrator of the judicial branch, which consists of 10
District Courts, the Supreme Court of the Navajo Nation, and other courts
that may be created by the Navajo Nation Council. The Navajo Nation
Supreme Court comprises one Chief Justice and two Associate Justices.

Judicial Qualifications,
Selection, Term Limits, and
Removal

The President of the Navajo Nation appoints Judges and Justices, who are
appointed for a 2-year probation period. The appointees are selected from
a panel recommended by the Judicial Committee of the Navajo Nation
Council. After 2 years, the Judicial Committee can recommend a
permanent appointment. If the Judge or Justice is recommended, the
President submits the name to the Navajo Nation Council for
confirmation. There are no term lengths; however, judges can be removed
for cause. All judicial appointments must meet certain qualifications,
including a higher education degree, preferably a law degree, and have
work experience in law-related fields and a working knowledge of Navajo,
state, and federal laws. Judges must be a member of the Navajo Nation Bar
Association.

Judicial Personnel and
Court Staff

Only members in good-standing with the Navajo Nation Bar Association,
including public defenders and prosecutors can provide legal
representation in the court system.
Table 8: Judicial Personnel and Court Staff of Navajo Nation
Position title
Tribal court judge
Appellate judge

Number of staff
17
3

Prosecutor

32

Public defender

12

Probation officer

30

Bailiff

16

Court administrator

12

Court staff attorney

12

Peacemaker staff
Other court staff

13
133

Source: Navajo Nation.

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Caseload Information

The data provided in table 9 below comprises caseload information from
the 10 District Courts, Family Courts, Probation, Peacemaking, and
Supreme Court. As shown in the table below, criminal offenses account
for much of the court’s activity.

Table 9: Navajo Nation Judicial Branch Civil and Criminal Caseload Data for Fiscal Years 2008 through 2010
Fiscal Year 2008
Type of case

Fiscal Year 2009

Fiscal Year 2010

Carried over
from prior year

New
cases filed

Carried over
from prior year

New
cases filed

Carried over
from prior year

New
cases filed

2,122

3,237

1,592

2,749

1,279

2,523

Civil
Criminal

8,874

8,843

6,366

7,826

6,670

7, 457

Civil traffic

5,269

26,789

6,924

23,634

3,612

16,372

Criminal traffic

2,534

2,402

2,222

2,209

2,112

2,230

Family civil

947

1,936

1,170

2,179

1,284

2,074

Domestic violence

723

3,803

716

4,572

860

4,478

Dependency

266

230

261

180

241

228

Delinquency

268

481

179

384

215

354

Child in need of
services
Probation
Peacemaking
Supreme Court

121

423

133

301

144

204

2,103

6,926

1,387

7,076

1,685

8,606

206

741

221

691

265

951

140

92

129

56

111

67

Source: Navajo Nation.

Funding Information

The Navajo Nation judicial branch is funded primarily by the tribal
government. It is important to note that the funding supports the
operations of the 10 districts courts, among other courts within the
judiciary branch of the Navajo Nation.

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Oglala Sioux Tribe
Land Area and Population

The Pine Ridge Indian Reservation of the Oglala Sioux Tribe covers 3,466
square miles in Southwest South Dakota, and is between Delaware and
Connecticut in size. Of the estimated 47,000 enrolled members of the tribe,
an estimated 29,000 Indian people live on the reservation.
Figure 9: Location of Pine Ridge Indian Reservation of the Oglala Sioux Tribe

Pierre
Rapid City

South Dakota

Pine Ridge Indian Reservation

Source: Census Bureau.

Establishment of Court
System and Relationship to
Tribal Council

The Oglala Sioux Tribe’s court system was established by the tribe’s
constitution in 1936. A 2008 amendment to the tribe’s constitution vests
the tribe’s judicial power in one Supreme Court and in other inferior tribal
courts established by the Tribal Council. As amended, the constitution
provides that the tribe’s judiciary is independent from the legislative and
executive branches of government. The Judiciary Committee of the Tribal
Council oversees the administrative function of the court.

Tribal Code and Court
Rules and Procedures

In September 2002, the Oglala Sioux Tribal Council passed an ordinance to
adopt its Criminal Offenses Code. In addition, the Oglala Sioux Tribe has
adopted criminal procedures and court rules, which includes a judicial
code of ethics. According to court officials, the tribal court generally

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applies federal rules of evidence. Further, the Tribal Council, through its
Judiciary Committee, is responsible for maintaining and updating the
Criminal Offenses Code.

Structure of the Court
System

The Oglala Sioux Tribe’s court system combines aspects of modern and
traditional approaches to administer justice, and is composed of the
Supreme Court, a tribal court, and a juvenile court. The Supreme Court
has appellate jurisdiction, and is composed of a Chief Justice, two
Associate Justices, and one Alternate Justice. 6 Given the vast size of the
reservation, the tribe operates two courthouses, which are located in Pine
Ridge, South Dakota and Kyle, South Dakota.

Judicial Qualifications,
Selection, Term Limits, and
Removal

The Oglala Sioux Tribe’s court system comprises a Chief Judge, associate
judges, 7 and Supreme Court justices. The Chief Judge of inferior courts,
who oversees the inferior courts, must be law-trained and bar-licensed in
any state or federal jurisdiction, and is elected by members of the tribe for
a 4-year term. Justices of the Supreme Court must be law-trained and barlicensed in any state or federal jurisdiction. They are appointed by the
Tribal Council for 6-year terms. Any judge may be removed by a two-thirds
vote of the Tribal Council for unethical judicial conduct, persistent failure
to perform judicial duties, or gross misconduct that is clearly prejudicial to
the administration of justice, among other things.

Judicial Personnel and
Court Staff

The Oglala Sioux Tribe’s court system employed a Chief Judge, three
associate judges, and two Supreme Court justices. The Oglala Sioux
Attorney General’s Office employed four tribal prosecutors—one of which
is law-trained and bar licensed.

6

Alternate Justices will hear cases where there are instances of conflicts or other
permanent judges are otherwise unavailable.

7
The Oglala Sioux Tribe’s constitution provides for “inferior court judges.” As many of the
other tribes use the term “associate judges” to describe analogous positions, we use the
term “associate judges” here.

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Table 10: Judicial Personnel and Court Staff of Oglala Sioux Tribe
Position title
Tribal court judge

Number of staff
5

Appellate judge

2

Prosecutor

1

Public defender

1

Bailiff

1

Court administrator

1

Court clerk

8

Other court staff

1

Source: Oglala Sioux Tribe.

Caseload Information

Officials estimated that in 2009, there were approximately 1,245 civil cases
and 7,470 criminal cases. Additional data about the court’s caseload for
fiscal years 2008 through 2010 are not reported as we were not able to
obtain this information from the tribe.

Funding Information

Based on data provided by the tribe, the Oglala Sioux court system did not
receive any funding from the tribal government for fiscal years 2008
through 2010. Rather, the main source of funding was from BIA.

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Pueblo of Pojoaque
Land Area and Population

The Pueblo of Pojoaque covers 21 square miles in New Mexico, and is
smaller in size than the District of Columbia. Of the estimated 417 enrolled
members of the pueblo, an estimated 325 enrolled members live on the
pueblo’s lands.
Figure 10: Location of Pueblo of Pojoaque

Pueblo of Pojaoque
Santa Fe
Albuquerque

New Mexico

Source: Census Bureau.

Establishment of Court
System and Relationship to
Pueblo Council

The Pueblo of Pojoaque has not adopted a constitution, and, according to
a court official, the tribal government operates in a traditional manner.
From 1932 to 1978, the Pueblo of Pojoaque’s Tribal Court operated
according to tradition. For example, the pueblo’s Governor or the Tribal
Council served as the tribal court. In 1978, the tribal code formally
established a court system. There are no distinct branches of government
within the Pueblo of Pojoaque and a court official stated that the Tribal
Council does not intervene in individual cases before the court. When the
tribal court has concerns about the direction of the Tribal Council
regarding court matters, such concerns are discussed openly at Tribal

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Council meetings and resolutions are passed and incorporated in the
Tribal Law and Order Code, as needed.

Tribal Code and Court
Rules and Procedures

According to a court official, the Pueblo of Pojoaque’s Tribal Law and
Order Code was adopted in 1978. One of the court officials explained that
the court’s judges are responsible for suggesting code revisions to the
Tribal Council, and that the Tribal Council amends the code by
resolutions. Further, complete copies of the Tribal Law and Order Code
are made available through the court. The Tribal Law and Order Code
includes a criminal code as well as basic rules of procedure and evidence
as many of the parties appearing before the court typically advocate on
their own behalf rather than being represented by an attorney. The court
system has adopted rules of judicial conduct, and, pursuant to the law and
order code, judges are permitted to defer to either state or federal rules of
procedure or evidence, and, according to the Chief Judge, this option is
often exercised when both parties appearing before the court have legal
representation.

Structure of the Court
System

The Pueblo of Pojoaque’s court system combines aspects of modern and
traditional courts, and includes a tribal court, a juvenile court, and
traditional methods of dispute resolution. The Tribal Council serves as the
pueblo’s appellate court.

Judicial Qualifications,
Selection, Term Limits, and
Removal

The Pueblo of Pojoaque’s court system includes two types of judges—a
Chief Judge and judges pro tempore—and the qualifications for these
positions are identical. Judges are appointed by the Tribal Council and
serve at the pleasure of the Pueblo Council and the Tribal Governor.
Though there are no set educational requirements for judges, prospective
judges who do not have a law degree must complete a specific training
course in judicial proceedings within 6 months after being appointed as a
judge. Age requirements and a background interview also apply. Given the
small population of the pueblo, the Tribal Council prohibits judges, who
are enrolled members of the pueblo, from hearing cases of other enrolled
members, according to a court official.

Judicial Personnel and
Court Staff

The Pueblo of Pojoaque court system employed one full-time Chief Judge,
one part-time judge pro tempore; two contract judges pro tempore, as
needed; one part-time court clerk; and one full-time court and traffic court
clerk. Tribal police, who are not law-trained, serve as prosecutors.

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Caseload Information

The caseload data reported below in table 11 does not reflect the number
of civil and criminal matters that are resolved through traditional means
and mediation. Traffic violations, which are not included in the table
below, account for much of the court’s activity. For example, in 2009,
there were 7,316 traffic citations docketed, of which 825 resulted in a court
hearing.
Table 11: Pueblo of Pojoaque Civil and Criminal Caseload Data for Calendar Years
2008 and 2009

Type of case

2008

2009

New cases filed

New cases filed

Civil

68

59

Criminal

70

76

Source: Pueblo of Pojoaque.

Funding Information

The Pueblo of Pojoaque court system’s main funding sources are the tribal
government and BIA funding. Generally, for fiscal years 2009 and 2010, the
BIA funding accounted for about 30 percent of the court’s total funding.

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Rosebud Sioux Tribe
Land Area and Population

The Rosebud Indian Reservation of the Rosebud Sioux Tribe covers 1,971
square miles in south-central South Dakota, as shown in figure 11 below,
and is between Rhode Island and Delaware in size. Of the estimated 29,710
enrolled members of the tribe, approximately 85 percent, or 25,254, live on
the reservation.
Figure 11: Location of Rosebud Indian Reservation

Pierre
Rapid City

South Dakota

Rosebud Indian Reservation

Source: Census Bureau.

Establishment of Court
System and Relationship to
Tribal Council

The Rosebud Sioux Tribe’s court was established in 1975, according to
officials, replacing the Court of Indian Offenses administered by BIA. A
2007 amendment to the tribe’s constitution, which was originally adopted
in 1935, established the tribal court as separate and distinct from the
legislative and executive branches of the tribal government and
established the Rosebud Sioux Tribe Supreme Court as the tribe’s
appellate court. The Tribal Council’s Judiciary Committee helps to oversee
the administration of court.

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Tribal Code and Court
Rules and Procedures

The Rosebud Sioux Tribe’s Law and Order Code was adopted in 1986 and
is available by request from the Tribal Secretary’s office, although tribal
court officials indicated that the status of the code has been an ongoing
concern. The Law and Order Code contains a criminal code and rules of
criminal procedure. Additionally, officials noted that the code adopts by
reference federal rules of evidence and requires tribal judges to conform
their conduct to the Code of Judicial Conduct as adopted by the American
Bar Association.

Structure of the Court
System

The Rosebud Sioux Tribe’s court system is composed of a tribal court, a
juvenile court, a limited mediation court, and an appellate court. While the
court applies traditional methods of dispute resolution, officials described
the court system as mostly modern in that it is modeled on federal and
state court systems and applies federal rules of evidence and judicial
conduct. It is traditional in that the Law and Order Code, which the courts
apply, contains references to tribal customs. Further, in some cases, tribal
courts include interested community members in the court proceedings.
For example, in some family disputes, members of the community such as
family members or concerned citizens may participate in the court process
even though they are not parties appearing before the court. Decisions of
the tribal court and juvenile court are subject to appellate review by the
Rosebud Sioux’s Supreme Court. The Supreme Court is composed of six
justices, three of whom sit as a panel to hear a case.

Judicial Qualifications,
Selection, Term Limits, and
Removal

The Rosebud Sioux Tribe’s court system includes a Chief Judge, associate
judges, and Supreme Court justices. The Chief Judge must be law-trained,
bar-licensed, and admitted to practice before the U.S. District Court for
South Dakota. The Chief Judge is appointed by the Tribal Council for a 4year term. Associate judges are appointed by the Tribal Council for 2-year
terms, and must have a high-school education or equivalent. Further, at
least one associate judge must be bilingual in English and Lakota—the
tribe’s traditional language. Of the three justices in an appellate panel, two
must be law-trained, bar-licensed, and admitted to practice in the U.S.
District Courts of South Dakota. One may be a lay judge who must have a
high-school education or equivalent. Supreme Court justices are appointed
by the Tribal Council for 5-year terms. Removal of any judge or justice
must be for cause after a public hearing by the Tribal Council and by a
two-thirds vote of Tribal Council members present at the hearing.

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Judicial Personnel and
Court Staff

As of October 2010, the Rosebud Sioux Tribe’s court system employed a
Chief Judge, two associate judges—one law-trained but not bar-licensed,
and the other a lay judge—and four Supreme Court justices. There is one
law-trained, bar-licensed tribal prosecutor, an assistant prosecutor who
works mainly in juvenile court, a public defender, and an assistant public
defender who works mainly in juvenile court. Additionally, in fiscal year
2010, the tribe received a DOJ grant to fund three additional attorney
positions, though tribal officials stated that these positions may be difficult
to fill because of recruitment and retention challenges. Tribal officials
stated that the numbers of prosecutors and public defenders is inadequate
for the tribes’ caseload and affects the tribe’s ability to effectively
administer justice.
Table 12: Judicial Personnel and Court Staff of Rosebud Sioux Tribe
Position title

Number of staff

Tribal court judge

3

Prosecutor

2

Public defender

2

Probation officer

4

Bailiff

1

Court administrator

1

Court clerk

5

Source: Rosebud Sioux Tribe.

Caseload Information

Criminal offenses account for much of the court’s caseload. Traffic
violations are considered criminal offenses; however, they are not
included in the data in the table below.
Table 13: Rosebud Sioux Civil and Criminal Caseload Data for Calendar Years 2008
through 2010

Type of case
Civil
Criminal

2008

2009

2010

New cases filed

New cases filed

New cases filed

808

771

805

4,865

2,270

2,173

Source: Rosebud Sioux Tribe.

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Funding Information

Based on data provided by officials for fiscal years 2008 through 2010, the
Rosebud Sioux Tribe court system is primarily funded by BIA, although
the court received funding from other sources.

Standing Rock Sioux
Tribe
Land Area and Population

The Standing Rock Reservation covers 3,654 square miles in south-central
North Dakota and north-central South Dakota, and is between Connecticut
and Delaware in size. Of the estimated 14,914 enrolled members of the
tribe, 8,656 live on the reservation.
Figure 12: Location of Standing Rock Reservation

North Dakota

Bismarck

Standing Rock Indian Reservation
Pierre
South Dakota

Source: Census Bureau.

Establishment of Court
System and Relationship to
Tribal Council

The Standing Rock Sioux Tribe Constitution, adopted in 1959, empowers
the Tribal Council to establish courts on the reservation and define those
courts’ duties and powers. Exercising this constitutional authority, the
Standing Rock Sioux Tribal Council established the tribal court system.

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Appendix III: Overview of Selected Tribal
Courts

Further, the constitution vests the tribe’s judicial authority in a Supreme
Court and in a Tribal Court and specifies the process by which judges for
these courts would be selected and removed, as described below.
Subsequent amendments to the tribe’s constitution did not alter these
provisions.

Tribal Code and Court
Rules and Procedures

The Standing Rock Sioux Tribe’s Code of Justice addresses criminal
offenses, criminal procedure, and civil procedure, among other things. In
addition, the Tribe’s Rules of Court include provisions regarding civil
procedure, criminal procedure, rules of evidence, among other things.
However, court officials reported challenges in keeping the code current
and stated that they do not have access to the entire code.

Structure of the Court
System

The court system is composed of a tribal court, a children’s court, and a
Supreme Court that has appellate jurisdiction over the tribe’s other courts.
The Supreme Court is composed of a chief justice and two associate
justices.

Judicial Qualifications,
Selection, Term Limits, and
Removal

The Code of Justice articulates the composition of the court as well as the
qualifications, selection, and removal of judges. Specifically, the Supreme
Court is to include a Chief Justice and Associate Justices. Additionally,
the tribal court is to include a Chief Judge, Associate Chief Judge, and
Associate Judges. The Chief Justice, Chief Judge, and Associate Chief
Judge must be law-trained and bar-licensed. Associate justices and judges
must have at least a high-school diploma or its equivalent. All justices and
judges are appointed by the Tribal Council and face a retention election at
the tribe’s next election. Justices and judges retained then serve 4-year
terms and may be removed from office for cause by a two-thirds vote of
the Tribal Council.

Judicial Personnel and
Court Staff

The Standing Rock Sioux Tribe’s court system employed three appellate
judges, four tribal court judges, six court clerks, two prosecutors, one
public defender, among other staff. Of the four tribal court judges, three
are bar-licensed and one is law-trained but not bar-licensed. Of the three
appellate judges, two are bar-licensed and one is a lay judge.

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Appendix III: Overview of Selected Tribal
Courts

Table 14: Judicial Personnel and Court Staff of Standing Rock Sioux Tribe
Position title

Number of staff

Tribal court judge

3

Appellate judge

3

Prosecutor

2

Public defender

1

Defense advocate

1

Probation officer

3

Bailiff

2

Process server

2

Court administrator

1

Court clerk

8

Other court staff

7

Source: Standing Rock Sioux Tribe.

Caseload Information

Criminal offenses account for much of the court’s caseload. Traffic
violations are considered criminal offenses; however, they are not
included in the data in the table below.
Table 15: Standing Rock Sioux Tribal Court Caseload Data for Calendar Years 2008
and 2009

2008
Type of case

Carried over
New
from prior year cases filed

Civil
Criminal

2009
Carried over
from prior year

New
cases filed

127

756

174

735

Data not provided

3,171

Data not provided

2,979

Source: Standing Rock Sioux Tribe.

Funding Information

For fiscal years 2008 through 2010, the Standing Rock Sioux Tribal Court
did not receive any funding from the tribal government and federal funding
is the primary source of funding for the court, based on data provided by
officials. The BIA funding has remained unchanged during this time.
Additionally, officials told us that they received grant funding from the

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Appendix III: Overview of Selected Tribal
Courts

South Dakota Department of Corrections totaling $15,000 and $25,000 in
fiscal years 2009 and 2010, respectively.

Pueblo of Taos
Land Area and Population

The Pueblo of Taos covers 156 square miles north of Santa Fe, New
Mexico, and is between the District of Columbia and Rhode Island in size.
Of the estimated 2,500 enrolled members of the pueblo, approximately
1,800 members live on the pueblo’s lands.
Figure 13: Location of Pueblo of Taos

Pueblo of Taos

Santa Fe
Albuquerque

New Mexico

Source: Census Bureau.

Establishment of Court
System and Relationship to
Pueblo Council

The Pueblo of Taos does not have a written constitution and has not
established a separate judicial branch within its tribal government. Rather,
according to officials, the pueblo has an unwritten social order that dates
back to the pueblo’s origins and continues to be practiced and adhered to.
Officials noted that they are exploring the possibility of establishing three
distinct branches within the tribal government that would include a

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Appendix III: Overview of Selected Tribal
Courts

judicial branch. The Pueblo is governed by a Tribal Governor and a War
Chief, both of whom are appointed by the Tribal Council for a 1-year term
and operate the pueblo’s traditional courts.

Tribal Code and Court
Rules and Procedures

In 1986, the Tribal Council adopted the pueblo’s law and order code. Tribal
officials explained that the tribal court is responsible for updating the
criminal code and the Tribal Council approves amendments or revisions.
The Pueblo has not fully revised the code since its adoption but has efforts
underway to update and revise the criminal code. The tribal court does not
have rules of judicial conduct or rules of evidence. However, the tribal
court applies federal rules of evidence and New Mexico state rules
regarding judicial conduct. Officials noted that rules of judicial conduct
and rules of evidence are to be developed as part of the law and order
code update. The code is available in hard copy only, and is generally
made available to parties appearing before the court. Officials expect that
the law and order code will be available in electronic format once
revisions are completed.

Structure of the Court
System

The Pueblo of Taos has two traditional courts and one tribal court. The
Lieutenant Governor of the tribe serves as a Traditional Court Judge to
hear both civil matters, such as contract violations, and family disputes.
The War Chief also serves as a Traditional Court Judge and generally hears
civil cases that involve disputes over land, natural resources, and fish and
wildlife. The tribal court was established in the late-1980s to provide tribal
members an alternative dispute resolution forum and to address the
changes in the types of crimes being committed on the pueblo’s lands.
Further, according to officials, the tribal court is intended to supplement
rather than replace the traditional courts. Officials explained that tribal
members may choose to have their case heard before the traditional or
tribal court; however, once the case is filed with either court, the parties
cannot then request a transfer to the other court. The Pueblo of Taos does
not have an appellate court. However, appeals can be made to the
Traditional Court Judge, usually the Lieutenant Governor, to challenge
tribal court decisions. In the future, the Pueblo of Taos may use the
Southwest Intertribal Court of Appeals. 8

8

The Southwest Intertribal Court of Appeals hears appeals from tribal courts for federally
recognized tribes located in Arizona, Colorado, New Mexico, and west Texas.

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Appendix III: Overview of Selected Tribal
Courts

Judicial Qualifications,
Selection, Term Limits, and
Removal

The Chief Judge is retained under contract, and the contract can be issued
for up to 12 months. The Pueblo of Taos has not yet established
requirements regarding selection, removal, and qualifications of judges,
but expects to do so in the future.

Judicial Personnel and
Court Staff

The pueblo employs one tribal court judge for the modern court, who is
not bar-licensed. Additionally, the pueblo does not have pubic defenders
or prosecutors; rather, the police, who are not law-trained, serve as
prosecutors in addition to their patrol duties.

Caseload Information

Criminal cases account for much of the court’s activity for fiscal years
2008 through 2010.

Table 16: Pueblo of Taos Caseload Data for Calendar Years 2008 through 2010
2008
Type of case
Civil

2009

2010 (as of October 2010)

Carried over
from prior year

New
cases filed

Carried over
from prior year

New
cases files

Carried over
from prior year

New
cases filed

Data not available

43

Data not available

69

20

25

394

Data not available

235

Criminal

468
Source: Pueblo of Taos.

Funding Information

Based on data provided by officials for fiscal years 2008 through 2010, with
the exception of fiscal year 2009, BIA funding accounted for much of the
court system’s entire budget.

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Appendix III: Overview of Selected Tribal
Courts

Three Affiliated
Tribes
Land Area and Population

The Fort Berthold Reservation of the Three Affiliated Tribes covers 1,578
square miles in northwest North Dakota, and is between Rhode Island and
Delaware in size. Of the 11,993 enrolled members of the tribe, about half
live on the reservation.
Figure 14: Location of the Fort Berthold Reservation of Three Affiliated Tribes

Minot

North Dakota
Fort Berthold Reservation
Bismarck

Source: Census Bureau.

Establishment of Court
System and Relationship to
Tribal Council

According to officials, the Three Affiliated Tribe’s court system was
established by the Tribal Business Council 9 in the 1930s. Further, officials
estimated that in the 1990s, an amendment to the constitution established
the court’s authority. The Tribal Business Council has a Judicial
Committee, composed of tribal council members, that regularly reviews
court operations such as funding, staffing, and evaluation, among other
things.

9

The Tribal Business Council is the Tribe’s governing body.

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Appendix III: Overview of Selected Tribal
Courts

Tribal Code and Court
Rules and Procedures

The Three Affiliated Tribes have a tribal code that, according to a court
official, was developed in 1935. The tribal code contains a criminal code,
although officials stated that the court does not have rules of criminal
procedure. The code also has a section that addresses federal rules of
evidence. According to court officials, it is not always clear what the
current law is because the tribal code is not kept up-to-date.

Structure of the Court
System

The Three Affiliated Tribes’ court system combines aspects of modern and
traditional courts. The court is modern in that it applies the tribal code; the
court is traditional in that tribal members and court staff are personally
acquainted, tribal members who appear before the court readily accept
tribal laws that regulate conduct on the reservation, and Indian language is
sometimes used in court. The court system includes a tribal court and a
juvenile court. Appeals from either of these courts are addressed by an
intertribal appeals court, the Northern Plains Intertribal Court. 10

Judicial Qualifications,
Selection, Term Limits, and
Removal

The Three Affiliated Tribe’s court system includes a Chief Judge and
associate judges, also called magistrate judges. Court officials reported
that all judges must be law-trained, bar-licensed members of the tribes.
However, at their discretion, the Tribal Council may overrule the
requirement that judges must be members of the tribe. The Chief Judge is
elected tribal members for a 4-year term. Associate Judges are appointed
by the Tribal Council for 1-year terms. All judges may be removed by the
Tribal Council for cause.

Judicial Personnel and
Court Staff

As of November 2010, the Three Affiliated Tribes’ court system employed a
law-trained Chief Judge, two law-trained associate judges, a prosecutor,
and a public defender, among other staff. Prosecutors are not required to
be law-trained or bar-licensed, according to officials.

10

The Northern Plains Intertribal Court of Appeals is a consortia court that hears appeals
from seven Indian tribes in North Dakota, South Dakota, and Nebraska including: Crow
Creek Sioux Tribe, Omaha Tribe of Nebraska, Ponca Tribe of Nebraska, Sisseton-Wahpeton
Sioux Tribe, Spirit Lake Tribe, Three Affiliated Tribes, and Yankton Sioux Tribe.

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Appendix III: Overview of Selected Tribal
Courts

Table 17: Judicial Personnel and Court Staff of Three Affiliated Tribes
Position title

Number of staff

Tribal court judge

2

Prosecutor

1

Public defender

1

Probation officer

2

Bailiff

1

Court administrator

1

Court clerk

4

Other court staff

4

Source: Three Affiliated Tribes.

Caseload Information

Criminal offenses account for the majority of the court’s caseload. Traffic
violations are considered civil matters; however, they are not included in
the data in the table below.

Table 18: Three Affiliated Tribes Civil and Criminal Caseload Data for Calendar Years 2008 through 2010
2008
Type of case

Carried over from
prior year

2009
New
cases filed

Carried over
from prior year

2010
New
cases files

Carried over
from prior year

New
cases filed

Civil

Data not provided

416

Data not provided

607

Data not provided

693

Criminal

Data not provided

Data not provided

Data not provided

2,362

97

3,000

Source: Three Affiliated Tribes.

Funding Information

Based on data provided by the tribe, the Three Affiliated Tribes court
systems’ main funding sources are the tribal government and BIA.

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Appendix III: Overview of Selected Tribal
Courts

Tohono O’odham
Nation
Land Area and Population

The Tohono O’odham Nation covers 4,456 square miles within Arizona,
although it encompasses land on both sides of the U.S.-Mexico border.
Tohono O’odham Nation is between Delaware and Connecticut in size. Of
the 29,974 members of Tohono O’odham Nation, approximately 13,035, or
43 percent, live on the reservation.
Figure 15: Location of Tohono O’odham Nation

Arizona

Phoenix
Tohono O’odham Indian Reservation

Tucson

Source: Census Bureau.

Establishment of Court
System and Relationship to
Tribal Council

The Tohono O’odham Nation adopted its most recent constitution in 1986,
which replaced an earlier constitution from 1937. The constitution
established a judicial branch and articulates the powers and duties of the
court. The judicial branch is an independent branch within the tribal
government, according to officials.

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Appendix III: Overview of Selected Tribal
Courts

Tribal Code and Court
Rules and Procedures

The Tohono O’odham Nation’s criminal code was adopted in 1985 and
subsequently has been updated by the legislative branch with input from
the Tohono O’odham Prosecutor’s Office and Attorney General’s Office.
The most updated code is available on the tribe’s website. The judicial
branch has adopted Arizona rules of criminal procedure, with
modification, and has also adopted Arizona rules of evidence.

Structure of the Court
System

The Tohono O’odham Nation’s court system is composed of a tribal court,
an appeals court, children’s court, family court, traffic court, and criminal
court. The chief judge is the constitutionally-mandated administrative
head of the judicial branch and oversees the operations and decisions of
the court. Appellate cases are heard by a three-judge panel, designated by
the chief judge. In order to hear the appeal, the appellate judges must not
have presided over the original case. Appeals panel decisions are final.

Judicial Qualifications,
Selection, Term Limits, and
Removal

The legislative branch of Tohono O’odham Nation is responsible for the
selection of tribal court judges. The judges of Tohono O’odham Nation
select a chief judge from among themselves, who serves as the chief
administrative officer for the judiciary and serves in that capacity for 2
years. Potential judges pro tempore are referred by the chief judge to the
Judiciary Committee of the Tribal Council. All judges are appointed by the
legislative branch. The six full time judges mandated by the constitution
are appointed for 6-year terms that are staggered. However, judges may be
reappointed to the bench upon application. Judges pro tempore are
typically appointed to a term of no more than 6 years. Judicial
qualifications, which changed in 2008, include preferences for members of
federally-recognized Indian tribes, with first preference given to qualified,
enrolled members of the Tohono O’odham Nation. Further, persons with
felony or recent misdemeanor convictions are not eligible. Finally, the
candidate must be either a bar-admitted, Indian-law experienced attorney,
or possess a bachelor’s degree and have work experience and training in
judicial or law-related fields. Judges may be removed by vote of the
Legislative Council upon the petition of a tribal member for felony
convictions, malfeasance in office, among other things.

Judicial Personnel and
Court Staff

Tohono O’odham Nation has 6 full-time judges, 6 prosecutors, 6 full-time
public defenders, and approximately 100 support staff, among other staff.

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Appendix III: Overview of Selected Tribal
Courts

Table 19: Judicial Personnel and Court Staff of Tohono O’odham Nation
Position title

Number of staff

Tribal court judge

10

Prosecutor

6

Legal advocates

10

Public defender

6

Probation officer

19

Bailiff/Court officer

4

Process server

1

Court administrator

1

Court clerk

1

Other court staff

61

Source: Tohono O’odham Nation.

Caseload Information

Criminal cases accounted for more than 85 percent of the court’s docket
as shown in table 20 below.
Table 20: Tohono O’odham Court Civil and Criminal Caseload Data for Calendar
Years 2008 through 2010
New cases filed
Type of case

2008

2009

2010

Civil
Criminal
Traffic
Children’s (Civil)
Child Offender
Appellate

278
3,747
1,304
168
458
2

255
4,641
1,782
192
472
0

279
3,940
1,858
149
342
2

Source: Tohono O’odham Nation.

Funding Information

Tohono O’odham Nation’s court was funded, for the most part, by the
tribal government during fiscal years 2008 through 2010, though the tribe
received BIA funding. Additionally, a court official explained that in fiscal
year 2006, DOJ awarded an Indian Alcohol and Substance Abuse grant
totaling $500,000 that permitted the tribe to implement the grant over a 3year period through fiscal year 2009.

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GAO-11-252 Tribal Justice Systems

Appendix IV: Comments from the Department
of Justice

Appendix IV: Comments from the
Department of Justice

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Page 84

GAO-11-252 Tribal Justice Systems

Appendix IV: Comments from the Department
of Justice

<:<plonna _ g i.. '" coordin3Ie fundi"ll r<Guost! duti"ll the "Wlioat,,,,, p/>a>< OJ roduco
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Page 85

GAO-11-252 Tribal Justice Systems

Appendix V: GAO Contact and Staff
Acknowledgements

Appendix V: GAO Contact and Staff
Acknowledgements
GAO Contact

David Maurer, (202) 512-9627 or maurerd@gao.gov

Staff
Acknowledgements

In addition to the contact named above, William Crocker and Glenn Davis,
Assistant Directors and Candice Wright, analyst-in-charge, managed this
review. Ami Ballenger and Christoph Hoashi-Erhardt made significant
contributions to the work. Christine Davis and Thomas Lombardi provided
significant legal support and analysis. David Alexander provided
significant assistance with design and methodology. Katherine Davis
provided assistance in report preparation. Melissa Bogar and Rebecca
Rygg made contributions to the work during the final phase of the review.

(440816)

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GAO-11-252 Tribal Justice Systems

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