Eastern Band of Cherokee Indians Tribal Law and Order Act Enhanced Sentencing

• EASTERN BAND OF CHEROKEE INDIANS TRIBAL LAW AND ORDER ACT ENHANCED SENTENCING
  
• PROGRAM DESCRIPTION
• PLANNING & IMPLEMENTATION
• PROGRAM OUTCOMES

Summary: Congress passed the Tribal Law and Order Act (TLOA) in July 2010 and President Obama signed it into law on July 29, 2010. TLOA is a comprehensive statute focused on investigating and prosecuting crime in Indian country with a primary purpose of reducing crime in Indian country and increasing public safety. Among its numerous provisions, TLOA amended the Indian Civil Rights Act such that if a tribe complies with certain prerequisites, the tribe’s court system is able to exercise enhanced sentencing authority and can sentence a defendant up to three years and a $15,000 fine for a single offense and can stack those sentences up to a cumulative total of nine years.

The Eastern Band of Cherokee Indians was one of the first tribes to implement the enhanced sentencing provision under the TLOA.

Tribe:

Eastern Band of Cherokee Indians

Program Running Length:

enhanced sentencing in August 2012 – Present

Contact:

Hon. Kirk G. Saunooke, Chief JusticePhone – 828-359-1078

[email protected]

Cherokee Courts

PO Box 1629

Cherokee, NC 28719

https://nc-cherokee.com/government/

Location:

Eastern Band Cherokee Indian Reservation, Cherokee, North Carolina

Land Characteristics:

The Eastern Band of Cherokee Indians is located in a rural area. It is comprised of 51,000 acres located in the mountainous region of the eastern ridge in the Great Smoky Mountains. Most of the land is forested and there are over 124 miles of streams and rivers that run through tribal lands. The Village of Cherokee is 15 miles from Bryson City, North Carolina, 60 miles west of Asheville, North Carolina and 33 miles from Gatlinburg, Tennessee.

Population:

The total enrolled membership of the Eastern Band of Cherokee Indians is 15,758 with approximately 8,213 members living on the reservation.
Under the Indian Civil Rights Act (25 U.S.C. §§ 1301 – 1303) a tribe’s sovereign authority to impose incarceration on convicted offenders is limited to one year for a single offense. Within the Eastern Band of Cherokee Indian’s jurisdiction, the results were crimes that were not being adequately punished. In particular, there was a community outcry regarding drug-related break-ins. On the reservation many homes and storage sheds were being repeatedly vandalized by defendants looking for items to steal and sell for drugs. These cases could only be charged as breaking and entering and not as burglaries within tribal court.Therefore, cases were referred to federal prosecutors for prosecution within federal court. However, more and more, federal prosecutors were failing to do so. This situation was similar instances across Indian country, in which federal prosecutors decline cases because the crime is not deemed serious enough for federal court, yet is nevertheless a problem plaguing the tribal community. As a result the only recourse was to charge the defendant in tribal court. However, due to the nature of most defendants wouldnot plead to the one year maximums and most sentences for breaking and entering were less than one year. This situation resulted in a revolving door of defendants committing breaking and entering crimes, going to jail for a short time, and then committing another crime shortly after being released.Similarly, the drug court had challenges with their potential participants. If a defendant was facingone year of jail time, then it was difficult to persuade participants to enter the Healing to Wellness Court, which could last longer than one year, depending on the treatment needs of the defendant.Enhanced sentencing is for defendants who (1) have previously been convicted of the same or a comparable offense by any jurisdiction in the United States, or (2) are being prosecuted for an offense comparable to a felony (25 USC §1302 (b)).Eastern Cherokee started preparing to implement enhanced sentencing authority immediately upon TLOA’s enactment. Jason Smith, Chief Prosecutor at the time, drafted the new tribal criminal code, ensuring compliance with TLOA’s requirements as well as conformity with existing Cherokee law. The Chief Justice, two trial judges and other members of the court then became involved with the implementation and planning process. They presented the option of enacting enhanced sentencing to the Tribal Council. The Tribal Council’s support was unanimous. Nevertheless, the process of planning and implementing took two years. The Tribe began exercising enhanced sentencing in August 2012.The Eastern Band of Cherokee Indians wanted to make their community safer. Through increased criminal penalties, Eastern Cherokee wanted to ensure that crimes were prosecuted for adequate lengths of time, especially when federal prosecutors declined to prosecute the case, as well more effectively encourage offenders to participate in restorative and healing alternatives to incarceration, such as Healing to Wellness Court.The Tribal Law and Order Act of 2010 addressed many justice issues in Indian country, one of which was to reaffirm tribal court authority to implement enhanced sentencing. However, tribes are not required to implement enhanced sentencing under the Tribal Law and Order Act; it is completely voluntary. TLOA increased the maximum possible punishments that a tribal court may hand down from one year of imprisonment and a $5,000 fine per offense to three years of imprisonment and a $15,000 fine per offense, with a provision for stacking up to three offenses in certain criminal cases which could result in a maximum possible punishment of nine years of imprisonment (25 U.S.C. § 1302).The TLOA process is overseen by the Eastern Cherokee Court and Judges. For the court to continue implementing TLOA, they must abide by the rules and regulations set forth in the statue.In order for a tribe to process cases under TLOA, they must provide certain prerequisites:

2. The tribe must provide the defendant with an attorney and:
   1. that attorney must be licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys; and
   2. that attorney must provide the defendant with effective assistance of counsel at least equal to that guaranteed by the U.S. Constitution.
3. The judge presiding over the case must have sufficient legal training to preside over a criminal trial and be licensed to practice law by any jurisdiction in the U.S.
4. The tribe must make publicly available the tribe’s:
   1. criminal laws,
   2. rules of evidence, and
   3. rules of criminal procedure.
5. The tribal court must also maintain a record of the criminal proceeding, including audio or other recording.

Even when a tribe satisfies these prerequisites,enhanced sentencing authority applies only to defendants who (1) have previously been convicted of the same or a comparable offense by any jurisdiction in the United States, or (2) are being prosecuted for an offense comparable to a felony.

If the defendant is sentenced under the enhanced sentencing, the tribe has various sentencing options. The defendant can serve the sentence in a tribal correctional center that has been approved by the Bureau of Indian Affairs for long-term incarceration, in accordance with guidelines to be developed by the Bureau of Indian Affairs (in consultation with Indian tribes) not later than 180 days after July 29, 2010 (Bureau of Indian Affairs, Office of Justice Services, BIA Adult Detention Facility Guidelines(Draft), (2010)); or in the nearest appropriate federal facility, at the expense of the United States pursuant to the Bureau of Prisons tribal prisoner pilot program; or in a State or local government-approved detention or correctional center pursuant to an agreement between theIndian tribe and the State or local government; or in an alternative rehabilitation center of an Indian tribe; or the defendant can serve another alternative form of punishment, as determined by the tribal court judge pursuant to tribal law. Eastern Cherokee places their inmates in the tribal jail which has been approved by the Bureau of Indian Affairs.

As of June 2016 the Bureau of Prisons tribal prisoner pilot program has expired and has not been renewed. However, S. 2920, The Tribal Law and Order Reauthorization Act, currently in the Senate Committee of Indian Affairs as of June 21, 2016, is proposing to renew the Bureau of Prisons Pilot Program.The Eastern Band of Cherokee Indians provides the funding to exercise the Tribal Law and Order Act enhanced sentencing.John Dossett, General Counsel for the National Congress of American Indians, provided assistance during the planning phase. The planning committee had calls with John to discuss concerns and to ask him questions. For example, Eastern Cherokee had questions regarding the Bureau of Prisons tribal prisoner pilot program. The Bureau of Prisons required a lengthy full pre-sentence report that the tribal probation office was not prepared to complete. Eastern Cherokee also had questions regarding release rules, they wanted to know whether tribal release rules applied or if the Bureau of Prisons release rules applied. The difference being that when Eastern Cherokee sentences an individual for two years, the inmate serves the full two years. Whereas the Bureau of Prisons might allow an inmate out early if certain conditions were met (e.g. good behavior, completing drug treatment, etc.). After discussions and research, Eastern Cherokee decided to allow the Bureau of Prisons release rules apply.Pertaining to TLOA’s enhanced sentencing prerequisites, Eastern Cherokee already had the requirements in place. Tribal court already utilized state bar certified judges and defense attorneys/court appointed council. The Tribe only had to re-write ordinances/tribal code to fully implement enhanced sentencing. The Tribal Council was very supportive of the process.

Additionally, the Tribe had an American Recovery and Reinvestment Act (Public Law 111-5) grant to build a justice center that included a jail, courthouse and police station, which is currently being utilized as the primary incarceration tool. Finally, one of their tribal prosecutors becamea Special Assistant United States Attorney (SAUSA) and was helpful in prosecuting cases and working with the federal side of law enforcement.

The Tribal Law and Order Act also established the SAUSA program. Each US Attorney is authorized and encouraged to appoint SAUSAs and should consult with tribal officials in determining who to appoint. The goal of this appointment is to enhance the prosecution of minor crimes in tribal communities. The US Attorney’s office provides SAUSAs with appropriate training, supervision and staff support. Additionally, the US Attorney provides technical and other assistance to tribal governments and tribal court systems to ensure that the aforementioned goals are met (Public Law 111-211 (section 213 (d)).The Tribe has not received any Coordinated Tribal Assistance Solicitation (CTAS) (Department of Justice, https://www.justice.gov/tribal) grants or other non-tribal funding to support enhanced sentencing or tribal justice in general.In retrospect, the Tribe wouldhave purchased amore robust data management system. A data management system can aid in generating the court calendar, subpoenas, and easily access the data needed for applying for grants. The Tribe could use technical support on obtaining a comprehensive database that is sufficient for Indian country.

The jurisdictional gaps frustrating the criminal justice in Eastern Cherokee exist in every tribal community. Whenever a federal prosecutor and federal courts decline to prosecute because cases are not severe enough or do not have “good enough” facts, tribes must be able to prosecute themselves.

Specifically, tribes should consider getting a Special Assistant United States Attorney (SAUSA) certification. The SAUSA can aid in prosecution and can facilitate effective communication between the federal prosecution and tribes. Before Eastern Cherokee had its own jail facility, the inmates were essentially warehoused in the local jail and many programs were not available for the inmates. Now in the tribal jail, inmates can utilize GED programs and drug addiction programs. The Tribal Council is happy with the progress that has been made with enhanced sentencing and all involved want the system to keep growing and improving.On average twelve people each year are sentenced in Eastern Cherokee under the Tribal Law and Order Act’s enhanced sentencing provision. These defendants have typically violated probation.The defendants who were chronically committing robbery and breaking and entering have been convicted under enhanced sentencing and are serving long sentences. The community is happy with the results and feel safer.

EBCI Tribal Code: https://library.municode.com/tribes_and_tribal_nations/eastern_band_of_cherokee_indians/codes/code_of_ordinances