Congress Keeps Giving Tribes Powers They Can’t Afford to Use
Three federal laws. One pattern. The same broken promise.
In 2007, Amnesty International published “Maze of Injustice,” documenting widespread sexual violence against Native American women on reservations.¹ That same year, the National Congress of American Indians passed a resolution calling on Congress to empower tribal law enforcement.² In 2008, the Denver Post ran “Lawless Lands,” a four-part investigation into the crisis of crime in Indian Country.³ In 2009, tribal leaders urged Attorney General Holder to act, telling him they needed federal legislation and resources to address public safety.⁴
Tribal leaders asked for expanded authority and better federal engagement. Congress heard them. What Congress delivered was something different: authority conditioned on tribes building, at their own expense, the institutional infrastructure to exercise that authority.
In 2010, the Tribal Law and Order Act told tribes they could sentence Indian offenders to up to three years in prison instead of one. For context, state judges routinely impose sentences of 10, 20, or 30 years for serious violent crimes. Federal judges can sentence offenders to life. The one-year tribal cap had no equivalent anywhere else in the American legal system.
TLOA’s increase to three years was a step, but a modest one, and the conditions attached to it were not modest at all: law-trained judges, licensed defense attorneys for indigent defendants, publicly available criminal codes. These are protections defendants deserve. But Congress did not appropriate funds to help tribes build the systems that would deliver those protections.⁵ States built their judicial infrastructure over decades, with sustained tax revenue and large budgets. Tribes were expected to achieve comparable results on their own.
Two years later, in 2012, the number of tribes exercising enhanced sentencing authority was zero.⁶
Across Indian Country, tribal judges continued sentencing violent offenders to a maximum of one year. Federal prosecutors continued declining more than half the cases referred to them.⁷
Consider what Congress was asking. For the right to impose two additional years of sentencing, a tribe had to establish or expand a public defender system, recruit licensed attorneys willing to practice in often remote locations, hire or retrain judges to meet federal standards, and formalize every rule of evidence and criminal procedure in writing. The institutional price of two additional years was enormous.
By 2015, eight tribes had adopted enhanced sentencing. Since then, the number has grown but remains small relative to the hundreds of tribes that could benefit. As of 2022, the Tribal Law and Policy Institute documented 17 tribes exercising enhanced sentencing, and additional tribes have implemented since.
In 2013, Congress went further. The Violence Against Women Act reauthorization gave tribes the power to prosecute non-Indians who committed domestic violence on tribal land. This was not a new grant of authority. It was a partial restoration. In 1978, the Supreme Court’s decision in Oliphant v. Suquamish Indian Tribe had stripped tribal courts of criminal jurisdiction over non-Indians entirely.⁸ For 35 years, a non-Indian could assault a tribal member on her own reservation, and the tribal court could do nothing.
VAWA 2013 began to reverse that, but only for domestic violence, dating violence, and protection order violations. And only if tribes met conditions that went beyond what TLOA required. In addition to licensed defense attorneys and law-trained judges, VAWA required tribes to guarantee trial by an impartial jury drawn from a fair cross-section of the community, including non-Indians, and to notify defendants of their right to federal habeas review.
Of the 329 reservations in the lower 48, 134 have fewer than 50 non-Indian adult residents.¹⁵ Some tribes address this by drawing jury pools from non-Indian employees and others with ties to the community, not just residents. But for the most remote reservations with limited non-Indian presence of any kind, the cross-section requirement remains a significant practical challenge.
Today, 31 tribes in the lower 48 states exercise that jurisdiction.⁹
In 2012, Congress passed the HEARTH Act, allowing tribes to approve their own land leases without routing every transaction through the Bureau of Indian Affairs. Tribes had to develop their own leasing regulations, hire realty staff, and assume the liability that the federal government had previously carried. After 13 years, 27 percent of reservations in the lower 48 have adopted it.¹⁰
Three laws. Three invitations to self-governance. And in every case, the tribes that accepted the invitation were ones with institutional foundations strong enough to absorb the cost. Even among those tribes, many chose not to. The rest faced building from scratch, at their own expense, with no clear path to get there.
This is not a story about tribal capacity. It is a story about how Congress writes laws. Congress keeps handing tribes the keys to a car that is still up on blocks. And the pattern compounds: the same tribes keep showing up across every program. The rest adopt nothing. For the modest increase in sentencing authority shown above, Congress asked tribes to build an entire court system. The adoption rates tell the rest of the story.
The Price of Admission
What does it actually take for a tribe to exercise these new authorities?
For a tribe with an existing, well-funded court system, the requirements are manageable additions. For a tribe operating a judicial system on a few hundred thousand dollars a year, with part-time judges and no public defender, they are a mountain.
Consider the Pascua Yaqui Tribe in Arizona, one of the first three tribes to implement STCJ. Pascua Yaqui was better positioned than most: the tribe already employed law-trained judges, already recorded its court proceedings, and had operated a public defender’s office with four licensed attorneys since 1995. Even so, implementation required hiring additional prosecutors and public defenders, purchasing new court technology, revising the tribal criminal code, and holding public forums to notify the community. The tribe’s chief prosecutor estimated that the full annual cost of maintaining STCJ-compliant courts could easily exceed a million dollars, once you account for salaries, detention facilities, administrative staff, expert witnesses, forensic testing, and the increased complexity of multi-jurisdictional cases. After implementation, the tribe’s domestic violence caseload rose 12 percent, and operational costs for the court system increased 10 to 20 percent.¹¹
That was a tribe that already had most of the infrastructure in place. For a tribe without an existing public defender’s office, without law-trained judges, without formalized rules of evidence, the cost is not incremental. It is foundational. And for small reservation communities, assembling a jury pool that reflects a fair cross-section, including non-Indians, raises logistical challenges that larger jurisdictions never face.
The Same Tribes Keep Showing Up
The pattern across TLOA, VAWA, and HEARTH is not random. The median STCJ-adopting tribe has a population nearly six times the size of the median non-adopter. But adopters are not wealthier, and they are no more likely to operate gaming facilities. What distinguishes adopters is scale, not wealth. A tribe needs enough people to staff a court, draw a jury pool that reflects a fair cross-section, recruit licensed attorneys, and sustain the institutional overhead that Congress requires.
The overlap across programs tells the deeper story. Of the 329 reservations in the lower 48, I examined adoption patterns across five federal opt-in authorities: TLOA enhanced sentencing, VAWA special tribal criminal jurisdiction, the HEARTH Act, Title IV self-governance compacts with the Department of the Interior, and Title V self-governance compacts with the Indian Health Service.
Nearly half, 161 reservations, have not adopted any of the five. Zero. They have not opted in to enhanced sentencing, special criminal jurisdiction, independent leasing authority, or self-governance compacting of any kind. Meanwhile, 40 reservations appear on three or more of the five lists.
The pattern suggests that institutional capacity, once established, compounds. Tribes that negotiate self-governance compacts are the same tribes that adopt HEARTH leasing authority and exercise criminal jurisdiction over non-Indians. Sixty-two percent of STCJ-adopting tribes hold Title IV compacts. Forty-two percent of Title IV compact holders have also adopted the HEARTH Act, compared to 27 percent of all reservations.
Congress keeps designing opt-in reforms as if each law exists in isolation. The data say otherwise. The tribes that can navigate one complex federal framework are the same tribes that navigate all of them. The tribes that cannot navigate any are left behind by every new law Congress passes.
TLOA: The Law Nobody Used
The Tribal Law and Order Act of 2010 was supposed to address a crisis. Tribal courts had been limited to imposing maximum sentences of one year, even for serious violent crimes. Congress itself had imposed that cap in 1968.¹² The worst a tribal court could do was one year, no matter how serious the crime. Offenders knew it.
TLOA’s solution was elegant on paper. Tribes could opt in to enhanced sentencing authority, imposing up to three years per offense and up to nine years total. In exchange, tribes had to guarantee a set of due process protections for defendants.
The problem was not the principle. The problem was the cost.
By 2012, zero tribes had adopted. By 2015, eight had. Since then, the number has grown. The Tribal Law and Policy Institute documented 17 tribes exercising enhanced sentencing as of late 2022, and additional tribes have implemented since.¹³ But out of hundreds of tribes that could benefit, adoption remains in the single digits as a percentage. The law has been available for sixteen years. Congress created a tool and priced most tribes out of using it.
What Congress Gets Wrong
The pattern is consistent. Congress identifies a real problem. Tribes lack leasing authority. Tribes cannot adequately sentence violent offenders. Tribes cannot prosecute non-Indian domestic abusers. The diagnosis is correct every time.
Then Congress writes a solution that requires tribes to build institutional infrastructure comparable to what states built over decades, with sustained federal funding, large tax bases, and established legal professions to draw from. Tribes are expected to achieve the same result with a fraction of the resources, in a fraction of the time, and often with no dedicated federal appropriation to cover the cost.
The HEARTH Act expected tribes to develop leasing regulations through a multi-tiered BIA approval process, hire specialized realty staff, and accept federal liability. TLOA expected tribes to establish public defender systems and to train judges to meet federal standards. VAWA expected the same, plus jury systems that satisfy constitutional-level cross-section requirements. In each case, the legislation assumed that tribes either already had these systems or could create them on their own.
Most could not.
This is not an argument against expanding tribal authority. Tribes should have the power to manage their own land, sentence criminals appropriately, and protect their citizens from violence. The evidence consistently shows that self-governance improves outcomes.¹⁴
The argument is about design. When Congress creates an opt-in framework that only well-resourced tribes can use, it is not expanding self-governance. It is rationing it. The federal bureaucracy that tribes are trying to escape has, in effect, built the cost of escape into the exit.
But the design can be changed.
A Different Approach
The solution is not more federal spending. It is a simpler institutional design. Three questions can guide the way.
Does the policy fund implementation, or just authorize it?
The Ho-Chunk Nation in Wisconsin runs its HEARTH program with six full-time realty staff. The Pueblo of Isleta in New Mexico estimates that $77,000 per year is required for a single HEARTH specialist. The Pascua Yaqui Tribe’s chief prosecutor estimated that STCJ-compliant courts could easily cost over a million dollars annually. But the Congressional Budget Office scored the HEARTH Act at zero cost to the federal government. TLOA appropriated no funds. The sovereignty is free. The ability to exercise it is not. If Congress does impose institutional requirements, it should bear the cost of its own mandates rather than silently shifting them to tribal governments. That is not an argument for larger federal programs. It is an argument against unfunded mandates.
How many steps does a tribe have to take before it can act?
STCJ implementation could include model criminal codes, template rules of evidence, and standardized procedural frameworks that tribes adopt with minimal customization. The HEARTH Act could have included template leasing regulations. TLOA could have provided model public defender arrangements. When Congress requires institutional infrastructure, it should provide the blueprints, not just the mandate. The goal should be to make exercising new authority a manageable administrative step, not an institutional construction project. And Congress should allow tribes to phase in requirements over time rather than demanding full compliance on day one. The current design forces a binary choice: full institutional capacity or no authority at all.
Who actually ends up adopting?
Not every tribe needs its own standalone public defender office. In fact, many tribes already share courts. Small and remote tribes pool resources through inter-tribal court consortia, sharing judges, prosecutors, and court services. The Bureau of Justice Statistics documented roughly 234 tribal courts serving 574 federally recognized tribes in 2014, meaning hundreds of tribes either share a court or rely on federal CFR courts operated by the BIA. Congress could build on these existing cooperative structures rather than ignore them. Inter-tribal public defender agreements, circuit-riding defense attorneys, and shared jury pools across tribal boundaries could meet the same due process standards at a fraction of the cost of standalone systems. Congress writes these laws as if every tribe were an island. Most are not, and the ones that are need cooperative models most of all.
If only tribes that already have strong institutions can navigate the process, the policy will widen the gap between the best-resourced tribal governments and those most in need. Good policy design asks not just whether it works for the tribes that can use it, but whether it reaches the tribes that need it.
None of this requires novel legal authority. It requires Congress to stop designing reforms that assume every tribe has the administrative capacity of a midsize state, and start designing reforms that most tribes can actually use.
Data Notes
The sentencing comparison chart shows maximum sentencing authority for serious violent crimes across tribal, state, and federal courts. The adoption rates chart shows adoption across TLOA enhanced sentencing (~2% of eligible tribes), VAWA STCJ (~9%), and the HEARTH Act (27% of reservations in the lower 48). The distribution chart shows reservations by the number of federal opt-in programs adopted.
¹ Amnesty International, “Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA” (2007).
² National Congress of American Indians, resolution passed at Midyear Conference, Anchorage, Alaska (2007), calling on Congress to redirect DOJ law enforcement priorities on reservations and empower tribal government law enforcement.
³ Michael Riley, “Lawless Lands: The Crisis in Indian Country,” Denver Post (2008). The series won the American Bar Association’s Silver Gavel Award.
⁴ U.S. Department of Justice, Tribal Nations Listening Tour (October 2009). Attorney General Holder and DOJ officials met with tribal leaders who described the pressing need for federal legislation and resources to address public safety.
⁵ TLOA authorized expanded sentencing authority but included no dedicated appropriations for tribal courts to meet its requirements. See Native American Rights Fund, Tribal Law and Order Act Resources; Government Accountability Office, GAO-12-658R (2012) (96% of surveyed tribes reported funding limitations as a challenge).
⁶ Government Accountability Office, “Tribal Law and Order Act: None of the Surveyed Tribes Reported Exercising the New Sentencing Authority,” GAO-12-658R (May 2012).
⁷ FBI Legal Digest, “Indian Country and the Tribal Law and Order Act of 2010,” citing DOJ data showing 52% of violent cases and 40% of nonviolent cases declined for prosecution between 2005 and 2009.
⁸ Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). The Court held that tribal courts do not have inherent criminal jurisdiction over non-Indians. VAWA 2013 partially reversed this for domestic violence, dating violence, and protection order violations.
⁹ Sidorsky and Schiller, “Special Tribal Criminal Jurisdiction,” Perspectives on Politics (2024), documenting 31 tribes exercising STCJ. The BIA maintains an internal count of approximately 35; discrepancies reflect the absence of a formal notification requirement. These figures reflect tribes in the lower 48 states; most Alaska tribes lack Indian Country jurisdiction and were excluded from the STCJ provisions of VAWA 2013 until VAWA 2022 created a separate Alaska pilot program. Cross-tabulation analysis in this post matched 29 of these tribes to reservation-level Census data; unmatched tribes have Census geographies that do not align cleanly with reservation boundaries.
¹⁰ Stratmann, “Why 73% of Tribes Can’t Use a Law Designed to Help Them,” Rules & Results (February 2026). Analysis of 329 reservations in the lower 48 states.
¹¹ Cost estimate from O.J. Flores, Chief Prosecutor, Pascua Yaqui Tribe, as reported in Tribal Justice Exchange, “Pascua Yaqui Tribe VAWA Special Domestic Violence Criminal Jurisdiction” (2018). Caseload and operational cost increases from Alfred Urbina, Pascua Yaqui Attorney General, quoted in Indian Law Resource Center, “Tribal Leaders Call for Expanded Jurisdiction” (2016). Background on Pascua Yaqui’s pre-existing infrastructure from NCAI, “SDVCJ Implementing Tribes: Pascua Yaqui Tribe.”
¹² The Indian Civil Rights Act of 1968 originally capped tribal court sentences at six months. Congress raised the limit to one year in 1986.
¹³ Tribal Law and Policy Institute, 'Implementation Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced Sentencing,' revised December 2022. The original eight tribes were documented in a 2015 Senate Committee on Indian Affairs oversight hearing. TLPI tracks implementation on an ongoing basis; the current count may be higher. I am grateful to Virginia Davis for this correction.
¹⁴ See Kalt, Medford, and Taylor, “Tribal Self-Government” (preliminary draft, January 2025); Stratmann, “Reservation Economic Freedom Index,” Public Choice (2024).
¹⁵ Author's analysis of American Community Survey 5-year estimates (2019-2023). Non-Indian adults estimated as non-AIAN residential population aged 18 and over. Actual jury pools may be larger, as some tribes include non-Indian employees who work on but do not reside on the reservation.