Due Process Requirements

VAWA 2013 requires that any tribe exercising SDVCJ must provide due process protections to SDVCJ defendants. First, the tribe must provide all of the protections specified in the Indian Civil Rights Act, which mirror almost every civil right that would be available in state court.  Second, SDVCJ defendants have the right to a jury trial drawn from a jury pool that does not systematically exclude non-Indians, as well as any other rights necessary under the Constitution.  Finally, for any SDVCJ defendant who faces a term of imprisonment, VAWA 2013 requires implementing tribes to provide all those rights required for enhanced sentencing under the Tribal Law and Order Act of 2010. 

TLOA and VAWA 2013 require tribes to:

“provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution”;

“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”;

“require that the judge presiding over the criminal proceeding has sufficient legal training to preside over the criminal proceedings and is licensed to practice law in any jurisdiction in the United States”;

make publicly available the tribe’s “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)”; and

maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.”

VAWA 2013 also guarantees a defendant in a SDVCJ case:

“the right to a trial by an impartial jury that is drawn from sources that reflect a fair cross section of the community and do not systematically exclude any distinctive group in the community, including non-Indians”; and 

“all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise SDVCJ over the defendant.”

For more information about these requirements, please visit our resources page, which includes guidance documents, webinars, and materials to help you understand these requirements and turn them into a reality for your community.