VAWA 2013 requires that a tribal judge overseeing a SDVCJ case has:
- 1. “sufficient legal training to preside over criminal proceedings”; and be
- 2. “licensed to practice law by any jurisdiction in the United States.”
However, the broad language of these requirements leaves much still undefined. It is clear that a license to practice in any jurisdiction in the United States includes tribal jurisdictions, and so a tribe could license their own judges as long as they also have sufficient legal training. However, there is no federal guidance as to what constitutes “sufficient legal training.” It is not even clear whether license from a state jurisdiction implies sufficient legal training or whether additional training could be required beyond state bar membership.
Without further federal guidance, most tribes have drafted their codes to require their judges have “sufficient legal training” and that their judges are state-court barred. Some tribes have just imposed a state or tribal bar membership requirement, assuming that membership is also sufficient to meet the training requirement. A few tribes have added further requirements to their judicial qualifications, such as age minimums or experience working in criminal justice.
All five of the Pilot Project tribes have at least one state-barred judge. Although the Fort Peck Tribes hired a state-barred judge to meet this requirement, the long-time chief judge of the Fort Peck Tribal Court is not state-barred. Instead, this judge has an undergraduate degree, is licensed in tribal court, and has two certificates from judicial college for “Tribal Judicial Skills” and “Special Court Trial Skills.” This judge also completes 40 hours of annual training and presides over criminal trials on a weekly basis. Another of the current judges at the Fort Peck Tribes is not state-barred. However, he completed the same judicial college courses as the other non-state barred judge. This judge just presided over the Fort Peck Tribes’ first SDVCJ trial in early 2018.
The tribes that implemented SDVCJ after the law took general effect took a more diverse approach to their judicial qualifications, as summarized below.