WHAT CAN TRIBES DO UNDER THE NEW LAW?
In addition to the jurisdictional power to prosecute Indians who commit crimes within their territory, Tribes can now choose to exercise their sovereign power to investigate, prosecute, convict, and sentence non-Indians who commit domestic violence against 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 DID THE LAW TAKE EFFECT & WILL IT EXPIRE?
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 exercise criminal jurisdiction over non-Indians, tribal governments must comply with VAWA's statutory requirements when prosecuting non-Indian offenders.
The grant programs in the Violence Against Women Act is up for reauthorization in 2018. Tribal jurisdiction does not need to be re-authorized by Congress, and will continue to be the law of the land without any further Congressional action.
WHAT CRIMINAL CONDUCT IS COVERED?
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 or working within the tribe’s Indian Country or having an intimate relationship with an Indian who resides there or is a tribal member.
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 who face imprisonment by providing:
Law-trained tribal judges who are also licensed to practice law by the tribe or another jurisdiction;
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.
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.