Sec. 234. TRIBAL COURT SENTENCING AUTHORITY
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## SEC. 234 TRIBAL COURT SENTENCING AUTHORITY ###
(a)Individual Rights Section 202 of the Indian Civil Rights Act of 1968 (25 U.S.C. 1302), is amended— ####
(1)in the matter preceding paragraph (1), by striking “ No Indian tribe ” and inserting the following: > > ### “(a) In general > > No Indian tribe” > ; ####
(2)in subsection
(a)(as designated by paragraph (1))— #####
(A)in paragraph
(6)by inserting “(except as provided in subsection (b)) after “assistance of counsel for his defense”; and #####
(B)by striking paragraph
(7)and inserting the following: > > #### “(7) > > > #####
(A)> > require excessive bail, impose excessive fines, or inflict cruel and unusual punishments; > > > ##### “(B) > > except as provided in subparagraph (C), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 1 year or a fine of $5,000, or both; > > > ##### “(C) > > subject to subsection (b), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 3 years or a fine of $15,000, or both; or > > > ##### “(D) > > impose on a person in a criminal proceeding a total penalty or punishment greater than imprisonment for a term of 9 years;” > ; and ####
(3)by adding at the end the following: > > ### “(b) Offenses Subject to Greater Than 1-year Imprisonment or a Fine Greater Than $5,000 > > A tribal court may subject a defendant to a term of imprisonment greater than 1 year but not to exceed 3 years for any 1 offense, or a fine greater than $5,000 but not to exceed $15,000, or both, if the defendant is a person accused of a criminal offense who— > > > #### “(1) > > has been previously convicted of the same or a comparable offense by any jurisdiction in the United States; or > > > #### “(2) > > is being prosecuted for an offense comparable to an offense that would be punishable by more than 1 year of imprisonment if prosecuted by the United States or any of the States. > > > ### “(c) Rights of Defendants > > In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall— > > > #### “(1) > > provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and > > > #### “(2) > > at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney 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; > > > #### “(3) > > require that the judge presiding over the criminal proceeding— > > > ##### “(A) > > has sufficient legal training to preside over criminal proceedings; and > > > ##### “(B) > > is licensed to practice law by any jurisdiction in the United States; > > > #### “(4) > > prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and > > > #### “(5) > > maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding. > > > ### “(d) Sentences > > In the case of a defendant sentenced in accordance with subsections
(b)and (c), a tribal court may require the defendant— > > > #### “(1) > > to serve the sentence— > > > ##### “(A) > > 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 the date of enactment of the Tribal Law and Order Act of 2010; > > > ##### “(B) > > in the nearest appropriate Federal facility, at the expense of the United States pursuant to the Bureau of Prisons tribal prisoner pilot program described in section 304(c) of the Tribal Law and Order Act of 2010; > > > ##### “(C) > > in a State or local government-approved detention or correctional center pursuant to an agreement between the Indian tribe and the State or local government; or > > > ##### “(D) > > in an alternative rehabilitation center of an Indian tribe; or > > > #### “(2) > > to serve another alternative form of punishment, as determined by the tribal court judge pursuant to tribal law. > > > ### “(e) Definition of Offense > > In this section, the term ‘offense’ means a violation of a criminal law. > > > ### “(f) Effect of Section > > Nothing in this section affects the obligation of the United States, or any State government that has been delegated authority by the United States, to investigate and prosecute any criminal violation in Indian country.” > . ###
(b)Report Not later than 4 years after the date of enactment of this Act, the Attorney General, in coordination with the Secretary of the Interior, shall submit a report to the appropriate committees of Congress that includes— ####
(1)a description of the effectiveness of enhanced tribal court sentencing authority in curtailing violence and improving the administration of justice on Indian lands; and ####
(2)a recommendation of whether enhanced sentencing authority should be discontinued, enhanced, or maintained at the level authorized under this title. ### (c)1 Bureau of Prisons Tribal Prisoner Pilot Program **[**[25 U.S.C. 1302 note](/us/usc/t25/s1302)**]** ####
(1)In general Not later than 120 days after the date of enactment of this title, the Director of the Bureau of Prisons shall establish a pilot program under which the Bureau of Prisons shall accept offenders convicted in tribal court pursuant to section 202 of the Indian Civil Rights Act of 1968 (25 U.S.C. 1302) (as amended by this section), subject to the conditions described in paragraph (2). 1 Effective on October 1, 2022, section 234(c) is amended by section 803 of division W of Public Law 117–103. See 2nd version below reflecting the execution of these amendments. ####
(2)Conditions #####
(A)In general As a condition of participation in the pilot program described in paragraph (1), the tribal court shall submit to the Attorney General a request for confinement of the offender, for approval by the Attorney General (or a designee) by not later than 30 days after the date of submission. #####
(B)Limitations Requests for confinement shall be limited to offenders convicted of a violent crime (comparable to the violent crimes described in section 1153(a) of title 18, United States Code) for which the sentence includes a term of imprisonment of 2 or more years. #####
(C)Custody conditions The imprisonment by the Bureau of Prisons shall be subject to the conditions described in section 5003 of title 18, United States Code, regarding the custody of State offenders, except that the offender shall be placed in the nearest available and appropriate Federal facility, and imprisoned at the expense of the United States. #####
(D)Cap The Bureau of Prisons shall confine not more than 100 tribal offenders at any time. ####
(3)Rescinding requests #####
(A)In general The applicable tribal government shall retain the authority to rescind the request for confinement of a tribal offender by the Bureau of Prisons under this paragraph at any time during the sentence of the offender. #####
(B)Return to tribal custody On rescission of a request under subparagraph (A), a tribal offender shall be returned to tribal custody. ####
(4)Reassessment If tribal court demand for participation in this pilot program exceeds 100 tribal offenders, a representative of the Bureau of Prisons shall notify Congress. ####
(5)Report Not later than 3 years after the date of establishment of the pilot program, the Attorney General shall submit to Congress a report describing the status of the program, including recommendations regarding the future of the program, if any. ####
(6)Termination Except as otherwise provided by an Act of Congress, the pilot program under this paragraph shall expire on the date that is 4 years after the date on which the program is established. **[**Note: Effective on October 1, 2022, section 803 of division W of Public Law 117–103 provides for amendments to section 234(c). Upon such date, subsection
(c)(as so amended) will read as follows:**]** ###
(c)Bureau of Prisons Tribal Prisoner Program **[**[25 U.S.C. 1302 note](/us/usc/t25/s1302)**]** ####
(1)In general Not later than 120 days after the date of enactment of the Violence Against Women Act Reauthorization Act of 2022, the Director of the Bureau of Prisons shall establish a program under which the Bureau of Prisons shall accept offenders convicted in tribal court pursuant to section 202 of the Indian Civil Rights Act of 1968 (25 U.S.C. 1302) (as amended by this section), subject to the conditions described in paragraph (2). ####
(2)Conditions #####
(A)In general As a condition of participation in the program described in paragraph (1), the tribal court shall submit to the Attorney General a request for confinement of the offender, for approval by the Attorney General (or a designee) by not later than 30 days after the date of submission. #####
(B)Limitations Requests for confinement shall be limited to offenders convicted of a violent crime (comparable to the violent crimes described in section 1153(a) of title 18, United States Code) for which the sentence includes a term of imprisonment of 1 or more years. #####
(C)Custody conditions The imprisonment by the Bureau of Prisons shall be subject to the conditions described in section 5003 of title 18, United States Code, regarding the custody of State offenders, except that the offender shall be placed in the nearest available and appropriate Federal facility, and imprisoned at the expense of the United States. #####
(D)Cap The Bureau of Prisons shall confine not more than 100 tribal offenders at any time. ####
(3)Rescinding requests #####
(A)In general The applicable tribal government shall retain the authority to rescind the request for confinement of a tribal offender by the Bureau of Prisons under this paragraph at any time during the sentence of the offender. #####
(B)Return to tribal custody On rescission of a request under subparagraph (A), a tribal offender shall be returned to tribal custody. ####
(4)Reassessment If tribal court demand for participation in this program exceeds 100 tribal offenders, a representative of the Bureau of Prisons shall notify Congress. ###
(d)Grants and Contracts Section 1007(b) of the Economic Opportunity Act of 1964 (42 U.S.C. 2996f(b)) is amended by striking paragraph
(2)and inserting the following: > > #### “(2) > > to provide legal assistance with respect to any criminal proceeding, except to provide assistance to a person charged with an offense in an Indian tribal court;” > .
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