INTRODUCTION 

The Tribal Law & Order Act of 2010 (TLOA)1 was signed into law on July 29, 2010 by President Obama. The 

TLOA amends the Indian Civil Rights Act2 by allowing felony sentencing for certain crimes through the provision 

of enhanced sentencing authority, establishes new minimum standards for protecting defendants’ rights in the 

tribal court system, and encourages federally-recognized Indian tribes (tribes) to consider the use of alternatives 

to incarceration or correctional options as a justice system response to crime in their communities. Further, the 

Act authorizes the Attorney General to permit tribes access to National Crime Information Center (NCIC) 

data, and to grant concurrent jurisdiction/retrocession to the federal government by tribes in Public Law 83-280 

as amended, often referred to as PL 280 states. 

1 Public Law (Pub.L.) 111–211, H.R. 725, 124 Stat. 2258, enacted July 29, 2010.

2 25 U.S.C.§§ 1301 et seq.

ENHANCED 

SENTENCING IN 

TRIBAL COURTS: 

LESSONS LEARNED FROM T RIBES 

by Christine Folsom-Smith, Director, The National Tribal Judicial Center

January 2015
2 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES

The decision to implement enhanced sentencing authority is left up to each individual tribe. A handful of 

tribes have begun or have completed establishing the mechanisms required under TLOA to pronounce enhanced 

sentences. This publication is designed to provide 

a brief overview, not a comprehensive review, 

of the changes under TLOA regarding enhanced 

sentencing authority, offer considerations 

for correctional/detention and community 

corrections programming related to enhanced 

sentences, and provide tribes with a checklist to 

help guide discussions around implementation 

of enhanced sentencing authority. Additionally, 

this publication explores the adoption of TLOA’s 

enhanced sentencing authority through interviews 

with several tribal court judges and personnel 

who have been intricately involved in establishing 

the provisions required to convey enhanced 

sentences, highlighting the beginning of change 

at the tribal level, the processes and challenges 

faced by these courts, the current status of the 

implementation as of the date of the interviews, 

and any other aspects of implementation that the 

interviewees shared3. Finally, this publication will 

provide information on financial resources to fund 

enhanced sentencing authority implementation.

ENHANCED SENTENCING 

AUTHORITY

In order to exert enhanced sentencing 

authority, tribal courts will be required to make 

and adopt criminal codes and rules of evidence, 

make rules of criminal procedure available to 

the public, provide qualified legal counsel to 

defendants, have law-trained judges, and record 

any criminal proceedings4. Figure 1 on the next 

page provides a quick reference of the changes 

related to enhanced sentencing authority under 

TLOA.

3 Chief Judge Theresa Pouley of the Tulalip Tribes, Gary LaRance who was at the time employed by the Salt River Pima Maricopa 

Community Public Defender’s Office, and Chief Judge Richard Trujillo and Court Administrator Wilbur Maho of the Hopi Tribe were 

interviewed for this publication. 

4 Pub.L. 111–211, H.R. 725, 124 Stat. 2258, enacted July 29, 2010.

TRIBAL CIVIL AND 

CRIMINAL LEGAL 

ASSISTANCE 

PROGRAM

The Tribal Civil and Criminal Legal Assistance (TCCLA) 

Program provides resources to: 

1. Enhance the operations of tribal justice systems and 

improve access to those justice systems, and 

2. Provide training and technical assistance (TTA) 

for development and enhancement of tribal justice 

systems. 

The TTA services in the area of tribal civil and criminal 

assistance help tribal communities with the provision 

of procedural justice in tribal civil and criminal legal 

procedures, legal infrastructure enhancements, public 

education, and the development and enhancement of tribal 

justice systems. Services focus on topics that include:

• Indigent defense services; 

• Civil legal assistance; 

• Public defender services; and

• Strategies for implementing the enhanced 

sentencing authority under the Tribal Law and 

Order Act (TLOA).

For more information on the TCCLA Program, visit 

www.bja.gov/ProgramDetails.aspx?Program_ID=102.
 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES 3

FIGURE 1

CHANGES UNDER TLOA RELATED TO 

ENHANCED SENTENCING AUTHORITY

1. Sentences are increased from 1 year to 3 years for the maximum penalty per offense (25 USC 1302(a)(7)(C) 

and 25 USC 1302 (b));

2. Punishment for multiple offenses can be “stacked” to a maximum of 9 years (25 USC 1302(a)(7)(D));

3. Court is required to be a “court of record” (25 USC 1302(c)(5));

4. Judge must meet certain requirements (25 USC 1302(c)(3));

5. Defense counsel must meet certain requirements (25 USC 

1302(c)(1));

6. Make the tribe’s laws publicly available (25 USC 1302(c)(4)); 

and

7. Pilot program through November 2014 for housing inmates in 

federal custody at federal expense (25 USC 1302(d)(1)).

WHAT CRIMES SHOULD QUALIFY FOR 

ENHANCED SENTENCING?

Tribes should carefully consider and choose which crimes will qualify for enhanced sentencing in their tribal 

courts. Crimes identified as appropriate for enhanced sentencing will vary among tribes; however, only certain 

crimes should be re-classified as eligible for enhanced sentencing. Some crimes have traditionally been treated 

as misdemeanors, for example thefts of property under $500, fighting words or statutory crimes like speeding 

and should remain classified as such. Tribes may want to look at other jurisdictions to research crimes commonly 

accepted as misdemeanors and felonies and then decide what is most reasonable for their community. Figure 

2, on the next page, provides an overview of examples of crimes that tribes may want to consider for enhanced 

sentencing.
4 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES

FIGURE 2

CRIMES THAT TRIBES MAY WANT TO CONSIDER 

FOR ENHANCED SENTENCING AUTHORITY

•	 Murder

•	 Vehicular manslaughter (including Driving Under the Influence (DUI) causing death) 

•	 Repeat offender DUI – perhaps on fourth or fifth DUI within 10 years

•	 DUI causing substantial bodily harm

•	 Rape (spousal or otherwise); forcible sodomy; forcible oral copulation; forcible sexual 

penetration

•	 Assault with intent to commit rape

•	 Robbery – armed or strong-arm 

•	 Kidnapping

•	 Child molestation 

•	 Human trafficking (particularly use of children as sex workers)

•	 Repeat offender of domestic violence (states and federal consider at third offense)

•	 Battery (domestic violence or any) with deadly or dangerous weapon, or causing 

“substantial bodily harm” or “great bodily harm” or “protracted pain” 

•	 Assault, battery or threats to Tribal Officials such as Tribal Council members, Community 

Council members

•	 Assault, battery or threats to key employees such as Tribal Administrator, police officers, 

judge, prosecutor, defense attorney, domestic violence advocate, Court Appointed Special 

Advocates (CASA) or CASA worker, etc.

•	 Assault, battery or threats to tribal elders

•	 Financial abuse of tribal elders above a certain dollar level

•	 Failure to register as a sex offender (or repeated failure to register; or failure to register by 

only those who have been convicted of one of these offenses)

•	 Manufacturing or sales of controlled or hypnotic substances; particularly manufacturing 

that endangers children or elders; particularly sales to children

•	 Desecration of graves or sacred sites

•	 Other offenses that the Tribe finds particularly appropriate for felony prosecution
 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES 5

CORRECTIONS/DETENTION

A significant consideration for tribes seeking to implement enhanced sentencing authority has to be not only 

where individuals will be housed, both pre-trial and post-sentence, but how the tribe will pay for it. The cost of 

housing for inmates, whether long-term or not, would fall under the same funding scheme the tribe currently uses 

for inmate housing costs. For example, if there is a contract with the Department of the Interior’s Bureau of Indian 

Affairs (BIA) to house inmates for the tribe, the contract would not necessarily include those inmates housed 

for extended sentences as it has in the past. However, if the tribe has its own detention facility, the cost would 

be covered by the tribe in the same manner as the cost of housing inmates for shorter terms in the same facility, 

assuming the facility meets sufficient standards for long-term housing of inmates5. Tribes have funded their inmate 

housing costs in a variety of ways in the past, including imposing fines, filing fees, and general funds allocations. 

These same funds could be used for the enhanced inmate housing costs, but are likely not sufficient in volume to 

cover all costs. 

Many tribes are seeking to build their own detention facilities—or multi-purpose facilities—to be responsive 

to the changing needs of their communities. The Bureau of Justice Assistance (BJA) provides a limited amount of 

funds to tribes seeking to renovate or construct new facilities. Purpose Area 4 of the Coordinated Tribal Assistance 

Solicitation should be explored if your tribe is interested in planning for, renovating, or constructing a new facility. 

Another avenue for tribes may be to develop a Memorandum of Understanding (MOU) or Memorandum of 

Agreement (MOA) with other jurisdictions (local, state, tribal) to assist them in housing their members sentenced 

under their new authority. The MOU/MOA should clearly state the agreed upon daily rate and what is included 

in that daily rate (such as shelter, food, medical care, services such as treatment, educational, mental health, 

rehabilitative, etc. as well as reentry planning for community release).

COMMUNITY CORRECTIONS

Enhanced sentencing authority is not limited solely to incarcerating an individual for a longer period of 

time. The authority can include a combination of time served in a secure facility as well as time on supervised 

community release (probation/parole). The impact of enhanced sentencing authority on community corrections 

should not be overlooked when planning for anticipated costs of implementing this new authority. Community 

corrections personnel will not only be supervising a potentially higher number of individuals on their caseloads as 

a result of this new authority, but they will also be supervising a higher-risk level of individuals which is very time 

intensive. Tribal communities will need to ensure that a menu of services is available for individuals serving longer 

community based sentences as well as for individuals who plan to return to their communities following a period 

of secure confinement (such as transitional housing, family reunification services, and continuation of treatment, 

medical, and mental health services initiated during confinement).

5 For more information on these standards, please see the BIA Adult Detention Facility Guidelines here http://tloa.ncai.org/

documentlibrary/2011/02/BIA%20Adult%20Detention%20Facility%20Guidelines%20Dec%202010%20SOL.pdf 
6 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES

The Bureau of Justice Assitance (BJA) has provided funds to agencies to provide training and technical 

assistance to tribes seeking to develop or enhance their community corrections and correctional alternative 

programs6. Services such as pretrial, probation, and reentry should be included as an integral planning 

consideration for tribes seeking to implement enhanced sentencing authority. Purpose area 3 under CTAS can 

be used to seek funding for community corrections personnel and programming; Purpose area 4 under CTAS can 

be used to seek funding for alternatives to incarceration personnel and programming; and Purpose area 9 under 

CTAS can be used to seek funding for community corrections personnel and programming specific to juvenile 

populations. 

LESSONS LEARNED ALONG THE PATH TO IMPLEMENTATION:

In August and September 2013, the National Tribal Judicial Center conducted interviews with tribal judges 

and tribal leaders that had either completed or were in the midst of TLOA implementation related to enhanced 

sentencing authority. The tribes contacted and interviewed were the Salt River Pima-Maricopa Indian Community 

(SRPMIC), the Tulalip Tribes, and the Hopi Tribe.

6 To request technical assistance for your community corrections programming, please visit the American Probation & Parole Association 

Tribal Justice Capacity Building Training and Technical Assistance Project Page at http://www.appa-net.org/eweb/Dynamicpage.

aspx?webcode=IV_ProjectDetail&wps_key=7414391d-e5db-4bf6-b9b1-5648c496bdc7 

POSITIVE COMMUNITY 

INVOLVEMENT

can be essential to achieving change in your community. Collaborative 

transformations are more effective than those forced on a group. If you can create 

consensus with your stakeholders, your chances of success increase as you seek 

to implement change in your system. A first step in this process is community 

education. 

Another component of this process is sharing information about the legislative 

process of your tribe and why action is necessary to amend the law of the tribe. 

You may be able to accomplish this through tribal newspaper or newsletter 

announcements or articles, community forums or meetings. Regular updates 

on the process are also an effective way of keeping the community engaged and 

informed. As the process continues, your tribe may seek public comment on any 

code revisions or changes. 
 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES 7

 The next section includes a discussion of lessons learned from their experiences that hopefully will guide 

other tribes to success in their own implementation. Additionally, a checklist of considerations is provided to 

guide other tribes in their decision- making processes related to enhanced sentencing authority implementation.

BEGINNINGS

Implementation of TLOA has created some challenges for tribal communities ranging from interpreting the 

language used in the Act to garnering community support. For example, TLOA states, in part, that the judge 

handling cases that are eligible for enhanced sentencing must be “licensed to practice law by any jurisdiction in 

the United States.” (25 USC 1302 (c)(3)(b)). The lack of definitive guidance on phrases such as “any jurisdiction” 

has led to multiple interpretations in the field. One jurisdiction could choose to interpret the language as 

requiring a state licensed attorney in the position; whereas, another jurisdiction might interpret that to mean a 

tribally licensed attorney. The widely accepted interpretation of this language suggests that the judge could be 

licensed by the tribe only and there is no strict requirement that the judge be licensed by any jurisdiction.

Another critical factor involved in making changes to codes or procedures is commitment to the process by 

the tribal governing body. Sometimes the decision-making process is slow and there is a certain level of lobbying 

for change that should occur. Additionally, marshaling the involvement of the proper parties who should be 

involved in the process of changing codes to accommodate the modification and addition of procedures required 

by TLOA can make this a time-consuming project.

In addition, tribes must make the financial commitment to the judicial branch as well as the policing, 

corrections, and community corrections departments necessary to effectuate the requirements of TLOA. 

While tribes now work within ICRA pre-TLOA amendments and have set tribal “hard funds” and budget goals 

accordingly, the TLOA amendments require increased expenditures that are difficult to quantify because the law 

is new, and tribes may be hesitant to take on the burden without more certainty.

PROCESS

The process for each court is and will be unique to individual community needs. At the SRPMIC, for 

example, the County Manager and Tribal President met with certain department directors to ask what each 

thought was needed in order to implement the TLOA requirements. The first step for them was to amend The 

Rules of Court followed by drafting a new criminal code. This process was spread over 25 months. 

In contrast, the Tulalip Tribes amended their code in September 2012 to add a layer of enhanced prosecutions 

to the base code provisions. Due to the new class being felonies, they chose to designate these offenses as “Class 

F” offenses. BIA first approved then rescinded approval of the amendments because the code did not explicitly 

state that the tribe published their codes. The requirements of TLOA do not specifically state that a tribe has to 
8 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES

include, within the code itself, notice of where a defendant can access the codes but rather the tribe has to make 

the code available, which Tulalip Tribes had, for some time before this change was proposed. The Tulalip Tribes 

continue to make all of their codes publicly available on the tribal website. The Tulalip Tribes have prosecuted 

cases under this code since January 2013.

At Hopi Tribe, they initially sought to amend their code but determined it was best to write an entirely new 

criminal code to adopt the TLOA changes. The tribe 

held a series of meetings to gather community input 

before amending the code. The law was adopted in 

September 2012, and technical amendments were 

made in April 2013. The tribe also adopted all federal 

rules of evidence and procedure to provide familiarity 

for any federal judges who may be tasked with appeals 

from the tribal court in these cases. 

Any tribe wishing to pursue enhanced sentencing 

will have to formulate a plan that addresses foremost, 

the community’s self-identified needs. The community 

should be represented by the most inclusive 

amount of shareholders as possible, even though the 

inclusiveness may initially slow the process. Next, the 

tribe will have to audit its codes to comply with the 

requirements of TLOA. An essential element of the 

code audit is to make sure other codes, not only the 

criminal code, reflect any changes necessitated by 

TLOA criminal code changes, such as social services 

codes, personnel codes, and children’s codes, to name 

a few, as well as the tribe’s constitution. The tribe will 

then have to make a “best guess” of the fiscal impact 

of the code changes going forward and budget monies 

accordingly if the revisions are voted on and accepted 

by the community.

Each tribe, being sovereign, has the privilege and responsibility to design its own budget priorities and 

may choose to exercise its governance at a level less than permitted by TLOA. Tribes funded through “selfgovernance” funds in particular enjoy this privilege, and “638” funded tribes must negotiate for its funds for every 

department and program. Tribal “hard funds”, or monies derived from its own businesses, may already be assigned 

or budgeted and the government will have to make the political choices it deems necessary for the community. 

Therefore, the uncertainties of the increased costs weigh heavily upon the communities.

AT THE DATE OF 

THESE INTERVIEWS,

it should be noted that other tribes have sentenced 

inmates under the federal pilot program. The Tribes 

exercising enhanced sentencing and incarcerating 

inmates under the TLOA include:

• Hopi Tribe

• Tulalip Tribes

• Cherokee Nation of Oklahoma

• Confederated Tribes of the Umatilla 

Reservation

• Eastern Band of Cherokee Nation

• Fort Peck Assiniboine & Sioux Tribes

• Muscogee (Creek) Nation of Oklahoma

• Salt River Pima Maricopa Indian 

Community 

• Pascua Yaqui

Several other tribes are close to implementation.

http://tloa.ncai.org//tribesexercisingTLOA.cfm
 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES 9

CHALLENGES

The Hopi code requires state bar licensed attorneys for defense and prosecution, as well as for its judges 

in all TLOA enhanced sentencing cases. Non-attorney judges are permitted to hear other matters under Hopi 

law. The cost for hiring state-licensed attorneys was a concern of the community and council prior to passage. 

The additional cost was one of the reasons the Hopi community expressed some resistance to adoption of the 

enhanced sentencing. To address this resistance, a group of Hopi women appeared at a tribal council meeting to 

tell their stories and explain why the changes were needed. Stories told were of unprosecuted crimes against 

the women of the tribe and the resulting injustices. The changes 

passed easily after their very personal presentations. 

The Tulalip Tribes reported one external challenge to 

implementation that was due to the process issues they 

experienced getting their code changes approved by BIA. 

Ultimately, the tribe was able to resolve the issue and moved 

forward. However, it was a challenge that required extra time to 

process changes they sought to implement in their justice system. 

The challenges from within the Tulalip Tribes included: (1) 

getting the tribe to focus on the needed changes to implement 

enhanced sentencing authority; (2) determining additional cost 

to the tribe for processing enhanced sentencing cases and 

determining who would pay for the costs; and (3) getting the 

federal authorities to use appropriately licensed and capable trial 

prosecutors, such as Special Assistant United States Attorneys 

(SAUSAs). Once the tribe focused on how few crimes would fall 

under these amendments, the delays were overcome at the tribal 

level. Tulalip Tribes experienced minimal additional cost since 

they already used state-licensed attorneys for judges and defense 

counsel. The U.S. Attorney in the Western District in Washington 

State does not use tribal prosecutors as SAUSAs and this has not 

changed since TLOA was enacted.

For the SRPMIC, the challenges were more internal in that the public defender’s office was not included in 

the decision-making process. The resulting code amendments do not include several critical provisions, including: 

(1) flexibility for the court to depart from mandatory minimum sentences; (2) mitigation factors for sentencing 

considerations; or (3) an option for alternative sentencing for offenses where the court may determine it is 

appropriate. The tribe addressed their internal challenges and is moving forward in this new era of enhanced 

sentencing.

Ultimately, 

the tribe was 

able to resolve 

the issue and 

moved forward 

but it was a 

challenge that 

added required 

extra time to the 

process changes 

they sought to 

implement in 

their justice 

system. 
10 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES

STATUS

As of June 2013:

• At SRPMIC, approximately 10-15 people have been prosecuted under the enhanced sentencing 

provisions. At the time of the interview, no tribal members have received enhanced sentences. 

• Hopi Tribe has filed approximately 10-15 cases under its enhanced sentencing authority. As of the date 

of the interview, none of these cases had been set to trial. Hopi is actively pursuing housing a number of 

its defendants in the Bureau of Prisons pilot program7.

 As of August 2014:

• Tulalip Tribes, under the Class F Offenses category or TLOA offenses, have filed 23 cases (with 26 total 

charges). Eleven cases remain open. Twelve cases (with 14 total charges) have been disposed of with 

nine guilty pleas, two not guilty pleas and three cases dismissed (two were dismissed in conjunction with 

a Class F charge). One defendant has been sent to federal prison and another defendant will be sent in 

the near future8.

OTHER POINTS OF INTEREST

Hopi Tribe is considering amending its code to include special criminal jurisdiction in domestic violence cases 

under the changes in the Violence Against Women Re-Authorization Act (VAWA) of 2013, but a serious concern 

for the tribe is whether it would want to include non-Hopis on their juries. The Tulalip Tribes is already in the 

process of amending its codes to implement the special criminal jurisdiction in domestic violence cases under 

VAWA 2013. They currently have a process for utilizing non-Indian employees of the tribe for jurors. SRPMIC is 

also in the process of amending its code to include prosecution of non-Indians under VAWA of 2013.

FUNDING RESOURCES 

One of the key barriers for tribes choosing to exert enhanced sentencing authority continues to be the lack 

of funding. Much of the funding available begins at the federal level. The Bureau of Indian Affairs (BIA) provides 

funding for law enforcement services in Indian Country, and for support of certain court operations, including 

corrections operations. Tribes can access this funding through the Office of Justice Services at: www.bia.gov/

WhoWeAre/BIA/OJS/index.htm.

One-time funding and individualized training and technical assistance for Tribal Justice Systems is also available 

through the Division of Tribal Justice Support, Office of Justice Services (TJS). TJS conducts voluntary tribal court 

assessments intended to evaluate tribal court needs and provide tribal courts with a 3-5 year strategic plan 

focused on improving court operations. In many instances, additional one-time funding and on-site training and 

technical assistance is provided as TJS works with BJA in an effort to provide training and technical assistance 

which is individualized to the Tribe. Purpose Area #39, Justice Systems and Alcohol and Substance Abuse, of 

the Coordinated Tribal Assistance Solicitation (CTAS) provides funding to federally-recognized Indian tribes 

7 Please see http://tloa.ncai.org/documentlibrary/2010/11/BOP%20Pilot%20Program.pdf for more detailed information on the federal 

pilot program.

8 Updated information provided by Tulalip Tribal Court, Court Projects Supervisor Nicole Sieminski.

9 Violence Against Women Reauthorization Act of 2013, S. 47, 113th Congress, 2013-2015.
 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES 11

FIGURE 3

COORDINATED 

TRIBAL 

ASSISTANCE 

SOLICITATION1

CTAS is administered by the U.S. Department of Justice 

(DOJ), Office of Justice Programs (OJP), the Office of 

Community Oriented Policing Services (COPS)and the Office 

on Violence Against Women (OVW). The funding can be used 

to conduct comprehensive planning, enhance law enforcement, 

bolster justice systems, support and enhance efforts to prevent 

and control delinquency and strengthen the juvenile justice 

system, prevent youth substance abuse, serve sexual assault 

and elder victims, and support other efforts to combat crimes. 

For more information on the CTAS, visit the CTAS Factsheet or 

the CTAS FAQs. The 9 purpose areas covered under the CTAS 

grant opportunity are:

1. Public Safety and Community Policing (COPS)

2. Comprehensive Tribal Justice System Strategic Planning 

(BJA)

3. Justice Systems and Alcohol and Substance Abuse (BJA)

4. Corrections and Correctional Alternatives (BJA)

5. Violence Against Indian Women-Tribal Governments 

Program (OVW)

6. Children’s Justice Act Partnerships for Indian 

Communities (OVC)

7. Comprehensive Tribal Victim Assistance Program 

(OVC)

8. Tribal Juvenile Healing to Wellness Courts (OJJDP)

9. Tribal Youth Program (OJJDP)

Tribes or tribal consortia may also be eligible for nontribal national grant programs and are encouraged to explore 

other funding opportunities for which they may be eligible. 

Additional funding information may be found at www.grants.

gov or the websites of individual agencies.

1 Please see http://www.justice.gov/tribal/open-sol.html.
12 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES

and authorized consortia to develop, enhance and continue tribal justice systems. This includes tribal courts, 

corrections and reentry. Language in this purpose area specifically mentions that funding can be used to support 

enhanced sentencing authority implementation. See Figure 3, on the preceding page, for a more information 

on CTAS funding and the process10. Tribes may also look to their own budgets for funding this kind of system 

change. 

CHECKLIST

Many tribal communities are holding off on deciding whether to move toward enhanced sentencing authority 

for a variety of reasons. Some indicate they are waiting to see the impact the new authority has in other 

communities while others cite lack of financial resources to designate for implementation. 

Because this law is so new and so few tribes have moved towards implementation, there are very few 

resources and/or tools available to guide tribes seeking direction in how to implement enhanced sentencing 

in their courts. To meet this need, the following checklist has been developed, based upon the experiences 

of tribes that have led the way with implementation, to assist other tribes in auditing their own laws, codes, 

competencies / capabilities to meet the provisions required under TLOA to enact enhanced sentencing authority. 

While this checklist is not exhaustive, it does provide interested tribes with a starting point in moving toward 

implementation.

What are the existing competencies/capabilities of the tribe to implement enhanced 

sentencing under the TLOA?

Determine if there will be an increased cost to the tribal justice system.

For a judicial officer that meets the qualifications of TLOA:

Will this judge be used for all cases or just enhanced sentencing cases?

Do the enhanced sentence cases include any case where stacked sentences exceed a year or where the base crime 

itself is punishable by more than a year, or both?

Will the tribe establish its own laws and regulations for determining if the judge meets the TLOA requirements?

Is the tribe setting up judicial licensing and training? What are the requirements?

Is a program that certifies tribal court judges competent to hear TLOA enhanced sentencing cases in existence and if 

so, has the tribal judge been certified by it? What are the requirements?

For defense counsel that meets the qualifications of the TLOA:

Will this counsel be used for all cases or just enhanced sentencing cases?

Do the enhanced sentencing cases include any case where stacked sentences exceed a year or where the base crime 

itself is punishable by more than 1 year, or both?

Will the tribe establish its own laws and regulations for determining if defense counsel meets the TLOA 

qualifications?

10 http//www.justice.gov/tribal/grants.html 
 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES 13

Are grants available to hire indigent defense counsel?

Are there regional non-profits or other agencies that are willing to provide this service at low or no cost to the tribe? 

Can the tribe pull from the pool of available attorneys who may already practice in the tribal court system?

Is the tribe setting up attorney licensing and training? What are the requirements?

Is the tribe setting up a Tribal Bar Association? What are the requirements?

Does a program exist that certifies defense counsel as competent to defend these TLOA enhanced sentencing cases, 

and if so, has defense counsel been certified by it? What are the requirements?

For inmate incarceration for enhanced sentences:

How is housing currently paid for with non-TLOA sentenced inmates?

For ensuring the court is a “court of record”:

What mechanism is used to record hearings?

Can this be accessed and searched?

For ensuring the tribe’s laws are publically made available:

Are the tribal laws online?

Are they available in hard copy?

Are they available on CD-ROM?

Are they otherwise available? If so, how?

Codes:

Which crimes will be subject to TLOA enhanced sentences (see Figure 2 for suggested offenses)?

What code sections would need to be amended/drafted to be in compliance:

a. Criminal code: the entire criminal code or just sections (punishments, certain offenses)?

b. Criminal procedures: the entire code or just sections (related to certain punishments or certain offenses)

1. Notices

2. Procedures before, during, and after trial

3. Statutes of limitations

4. Probation/Parole administration

5. Alternative sentences

6. Appeals

7. Rules of court

8. Ethics Codes (for judges, prosecutors, defenders and other attorneys and advocates and court staff)

9. Fee schedules

10. Establishment of licensure standards for court (judges and attorneys in TLOA enhanced sentencing 

cases)
14 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES

CONCLUSION 

Tribes considering implementation of enhanced sentencing authorized by TLOA face a number of 

considerations and challenges; none of which are insurmountable. The tribes at the forefront of these changes 

serve as a valuable resource to other tribes planning to make the same changes in their own communities. The 

successes and difficulties faced by these tribes offer a lesson in perseverance to further develop the jurisdiction 

of their courts. Tribal government involvement at all levels and community support for this transformative 

process are fundamental in securing a positive move forward. Tribes may encounter additional barriers in 

financing this evolution of the tribal justice system, but support through competitive grant funding can be found 

through DOJ and BIA. Tribes may also choose to access other funding streams through their governmental 

budgets. TLOA offers tribes an opportunity to strengthen their justice systems and emphasize their commitment 

to providing their citizens with a higher level of justice.
 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES 15

This publication is part of a series of publications being developed through a Cooperative Agreement with the Bureau 

of Justice Assistance and the 2012 Tribal Civil & Criminal Legal Assistance (TCCLA) Training and Technical Assistance 

Project Partners, The American Probation and Parole Association (APPA), the Tribal Judicial Institute at the University of 

North Dakota School of Law (TJI/UND), and the National Tribal Judicial Center, National Judicial College (NTJC/NJC).

Project Overview: Tribal communities face a daunting task of providing safety for tribal communities where violent 

crime is, according to a 2004 Department of Justice, Bureau of Justice Statistics Report, 2.5 times higher than 

the national norm. The Tribal Law and Order Act of 2010 (TLOA) sought to enhance the provision of justice in 

Indian Country as a means to address the increasing crime rates by allowing for tribes to enhance their sentencing 

authority and encouraging tribes to seek out alternatives to incarceration/correctional options. However, while these 

provisions are necessary and welcomed by many tribal justice agencies, little guidance has been developed on how to 

implement the strategies encouraged by TLOA.

Throughout this 24-month project, the 2012 TCCLA Training & Technical Assistance partners will:

•	 Develop and disseminate a training needs assessment to adequately assess the training and technical 

assistance needs of grantees funded under the Tribal Civil and Criminal Legal Assistance Grant;

•	 Deliver two national/regional trainings comprised of jurisdictional teams (prosecutors, judges, defense and 

community corrections personnel);

•	 Provide on-site technical assistance to up to three tribal jurisdictions ready to take the next step, beyond 

training, to implementation;

•	 Provide office-based technical assistance for up to 30 tribes; 

•	 Develop and disseminate three project-related publications; and

•	 Deliver 6 webinars.

For more information on this project, including the above deliverables, please visit our project page by clicking the link: 

Tribal Civil & Criminal Legal Assistance Program
16 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES

ADDITIONAL RESOURCES

American Probation and Parole Association

www.appa-net.org

Bureau of Justice Assistance Grants/Funding Page

https://www.bja.gov/funding.aspx

Bureau of Justice Assistance Tribal Law and Order Act 

https://www.bja.gov/ProgramDetails.aspx?Program_ID=88

Bureau of Prisons, Tribal Law & Order Pilot Program

http://www.bop.gov/inmate_programs/docs/tloa.pdf

Grants.gov Page

www.grants.gov

National Congress of American Indians TLOA website

http://tloa.ncai.org/

National Tribal Judicial Center/National Judicial College

http://www.judges.org/ntjc/

Office of Justice Services, Bureau of Indian Affairs Page 

www.bia.gov/WhoWeAre/BIA/OJS/index.htm

Tribal Civil & Criminal Legal Assistance Project

http://www.appa-net.org/eweb/Dynamicpage.aspx?webcode=IV_ProjectDetail&wps_key=49d0989a-0f8a-4644-ba62-2cedacc704bc

Tribal Judicial Institute

http://law.und.edu/tji/

Tribal Law & Order Resource Center

http://tloa.ncai.org//tribesexercisingTLOA.cfm

United States Department of Justice, Coordinated Tribal Assistance Solicitation (CTAS) Page

http://www.justice.gov/tribal/grants.html

United States Department of Justice:

http://www.justice.gov/tribal/tloa.html

United States Department of Justice, Bureau of Justice Assistance TLOA Website:

https://www.bja.gov/ProgramDetails.aspx?Program_ID=88

Walking on Common Ground

http://www.walkingoncommonground.org/
 ENHANCED SENTENCING IN TRIBAL COURTS: LESSONS LEARNED FROM TRIBES 17

This publication is supported by Cooperative Agreement 2012-AL-BX-K003 awarded by the Bureau of Justice 

Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also 

includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice & 

Delinquency Prevention, the Office for Victims of Crime, and the Office for Sex Offender Sentencing, Monitoring, 

Apprehending, Registering, and Tracking. Points of view or opinions in this document are those of the author and 

do not necessarily represent the official position or the policies of the U.S. Department of Justice.