President Obama signed into law the reauthorization of the Violence Against Women Act (VAWA), a federal statute that addresses domestic violence and other crimes against women. As initially conceived in 1994, VAWA created new federal crimes and sanctions to fill in gaps, provided training for federal, state and local law enforcement and courts to address such crimes, and funded a wide array of community services aimed to protect and support victims. In a historic move, this new version of VAWA recognizes and affirms that tribal courts have jurisdiction over criminal cases brought by tribes against non-members—including non-Indians—that arise under VAWA. This is the first time since the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), that Congress has recognized and affirmed tribal courts’ criminal jurisdiction over non-Indians.
This change in the law represents a huge victory for native communities and especially native women. Native American and Alaska Native women experience sexual violence at a rate two and a half times higher than other women in the United States. Yet, in more than half of these cases, the federal government—which in many cases has had the sole authority to prosecute such crimes when committed by non-Indians—has declined to prosecute. The special domestic violence criminal jurisdiction conferred under the VAWA reauthorization not only provides an additional tool to address violence in Indian country, but also strengthens and affirms tribal courts and tribal sovereignty.
Congress’s recognition of tribal criminal jurisdiction comes with some limitations and preconditions, however. Tribes wishing to take advantage of VAWA’s jurisdictional provisions may need to amend current tribal codes, hire new judges, and devote resources to pay for public defenders in order to qualify. Moreover, there remain significant limitations on who can be prosecuted in tribal courts. Here is a brief summary of the new law’s requirements and limitations:
Limitations on Types of Crimes
Tribes can prosecute any type of violence committed by a person who is or has been in a “dating or domestic relationship” with the victim. Simply committing the crime of sexual violence against a tribal member is not sufficient for tribal courts to invoke jurisdiction over a non-Indian defendant. Tribal codes must be clear that the court’s jurisdiction is based on the presence of this “dating or domestic relationship,” and not just the commission of the violent act alone. Tribes also can prosecute violations of protection orders that occur in Indian country (defined as on-reservation, in dependant Indian communities, and Indian allotments), as long as those protection orders were issued to prevent (a) violent or threatening acts, or (b) contact, communication or physical proximity with or to the victim.
Limitations on Types of Defendants
Tribes can only prosecute VAWA cases against a non-Indian defendant if he or she has one of the following connections to the tribe’s reservation or lands: (a) resides in Indian country (b) is employed in Indian country, or (c) is the spouse, intimate partner, or dating partner of an Indian living in Indian country or a Tribal member. The last category includes former spouses, individuals who share a child in common, and individuals in social relationships of a romantic or intimate nature. Tribal codes should be clear that prosecutors must prove these facts as part of any VAWA case.
Limitations on Types of Victims
Tribes can only use the jurisdictional provisions of VAWA to prosecute crimes against Indian victims. This new law does not recognize tribal authority to prosecute non-Indians for violent acts against non-Indian victims.
Tribes will need to ensure that their criminal codes and rules of criminal procedure provide defendants with certain procedural protections. For example, tribes must provide a right to a trial by an impartial jury of members of the community. Tribes cannot categorically exclude any distinctive group from the jury pool, including non-Indians. If a tribe intends to impose any term of imprisonment, it must provide the right to effective assistance of counsel, including a public defender for any indigent defendant, as well as a law-trained judge. Moreover, tribes must provide notice to any detained defendant that he or she has the right to file a petition for writ of habeas corpus in federal court, which would allow for federal review of tribal court jurisdiction.
Tribes must also comply with the provisions of the Indian Civil Rights Act (ICRA), and protect and uphold “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” this jurisdiction. It is not entirely clear what “other rights” this requirement refers to, and thus this provision will likely be the source of future litigation. For instance, the Congressional Research Service has suggested that the Fifth Amendment’s indictment-by-grand-jury requirement, which is not included in ICRA, might be one such procedure that tribes will have to provide. In light of this uncertainty, one step tribes can take to comply with this requirement is to follow federal court decisions addressing the constitutional rights of criminal defendants when applying ICRA’s due process and equal protection provisions.
For most Indian tribes, VAWA’s criminal jurisdiction provisions will not come into effect until 2015. However, tribes can take advantage of a pilot program, in effect immediately, by making a request to the Attorney General and demonstrating that their criminal justice system has adequate safeguards in place to protect defendants’ rights. The Attorney General also has grants available to assist tribes with implementing this special domestic violence criminal jurisdiction.
Limitations on Which Tribes Can Assert Jurisdiction
Finally, these new jurisdictional rules have limited impact on non-recognized tribes and Alaska Natives. Within Alaska, special domestic violence criminal jurisdiction is conferred only to the Metlakatla Indian Community, Annette Island Reserve.
Winter King and Sara Clark are attorneys at Shute, Mihaly & Weinberger LLP who specialize in representing tribal governments on a wide array of issues, including jurisdictional, environmental, cultural resource, and land use issues.