Overview

 
The Violence Against Women Reauthorization Act of 2013 (VAWA 2013) includes significant provisions addressing tribal jurisdiction over perpetrators of domestic violence.

 
WHAT CAN TRIBES DO UNDER THE NEW LAW?

Tribes can choose to exercise their sovereign power to investigate, prosecute, convict, and sentence both Indians and non-Indians who assault Indian spouses or dating partners or violate a protection order in Indian country. VAWA 2013 also clarifies tribes’ sovereign power to issue and enforce civil protection orders against Indians and non-Indians. The law is voluntary and does not change the responsibility of the federal or state governments to prosecute crimes in Indian country.
 

WHEN DOES THIS NEW LAW TAKE EFFECT?
As of March 7, 2015, Indian tribes have general authority to implement special domestic violence criminal jurisdiction under VAWA 2013. Several tribes began prosecuting non-Indian abusers before this date by participating in the VAWA Pilot Project, which required approval by the U.S. Attorney General. Although tribes no longer need federal approval to implement this jurisdiction, tribal governments must ensure VAWA's statutory requirements are met before prosecuting non-Indian domestic violence offenders.

As of March 7, 2015, five tribes were approved under the Pilot Project to prosecute non-Indian abusers:

 

WHAT CRIMES ARE COVERED?
Covered offenses will be determined by tribal law.  But tribes’ criminal jurisdiction over non- Indians is limited to the following, as defined in VAWA 2013:

  • Domestic violence;
  • Dating violence; and
  • Criminal violations of protection orders.

The crime must occur within Indian country, the victim must be a Native person, and the defendant must have sufficient ties, such as living, working or having an intimate relationship on the reservation.
 

WHAT MUST A TRIBE DO TO PROTECT DEFENDANTS RIGHTS UNDER THE NEW LAW?

A tribe must—

  • Protect the rights of defendants under the Indian Civil Rights Act of 1968, which largely tracks the U.S. Constitution’s Bill of Rights, including the right to due process.

  • Protect the rights of defendants described in the Tribal Law and Order Act of 2010, by providing:

    • Law-trained tribal judges who are also licensed to practice law;
    • Effective assistance of counsel for defendants;
    • Free, appointed, licensed attorneys for indigent defendants;
    • Publicly available tribal criminal laws and rules; and
    • Recorded criminal proceedings.
  • Include a fair cross-section of the community in jury pools and not systematically exclude non-Indians.

  • Inform defendants ordered detained by a tribal court of their right to file federal habeas corpus petitions.