Special Domestic Violence Criminal Jurisdiction

Section 904 and 908 of the Violence Against Women Reauthorization Act of 2013
VAWA 2013 was signed into law by President Obama on March 7, 2013. Title IX of the VAWA 2013 is entitled “Safety for Indian Women” and Section 904 specifically addresses the tribal exercise of Special Domestic Violence Criminal Jurisdiction over non-Indians to address the jurisdictional gap created by Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). VAWA 2013 amended the Indian Civil Rights Act.

The purpose of Section 904 is to decrease the incidence of crimes of domestic violence in Indian Country, to strengthen tribal sovereignty and to ensure that perpetrators of domestic violence are held accountable in tribal courts for their crimes of domestic violence, violations of protection orders and dating violence that have occurred in Indian Country. Note that the terms domestic violence, protection order and dating violence are defined in VAWA 2013. Tribal codes may need to be amended to reflect the federal definitions and note that the actions must violate tribal criminal law.

Section 904 applies only to cases involving Indian victims and requires the tribe to meet certain benchmarks before exercising Special Domestic Violence Criminal Jurisdiction. Section 904 sets forth that the defendant must have sufficient ties to the community, which could be either

1. residence on the reservation,
2. employment on the reservation, or
3. a relationship with a tribal member or Indian resident.

Further benchmarks for the tribe to meet in order to exercise Special Domestic Violence Criminal Jurisdiction include:

1. the defendant must be provided with effective assistance of counsel equal to at least that guaranteed by the U.S. Constitution;
2. tribal governments must provide, at their expense, indigent defendants a defense attorney licensed to practice by any jurisdiction in the United States;
3. defense attorney must be licensed by a jurisdiction that applies appropriate licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
4. Judges presiding over criminal proceedings subject to enhanced sentencing/non-Indian defendants must have sufficient legal training to preside over criminal trials;
5. Judges presiding over criminal proceedings subject to enhanced sentencing/non-Indian defendants have sufficient legal training to preside over criminal trials;
6. the tribe’s criminal law, rules of evidence, and rules of criminal procedure are made available to the public prior to charging the defendant;
7. Tribal court must maintain a record of the criminal proceeding, including an audio or other recording;
8. Tribal court must provide the defendant the right to a trial by an impartial jury;
9. Tribal court ensures that the jury pool reflects a fair cross section of the community;
10. Tribal court ensures that juries are drawn from sources that do not systematically exclude any distinctive group in the community, including non-Indians;
11. Tribal court ensures that anyone detained under the special domestic violence criminal jurisdiction is “timely notified” of his/her rights and responsibilities;
12. Tribal court ensures that a defendant is notified of their right to file “a petition for a writ of habeas corpus in a court of the United States.”;
13. Tribal court ensures that “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 special domestic violence criminal jurisdiction over the defendant” are provided; and
14. Tribal court ensures that “all applicable rights under the special domestic violence criminal jurisdiction provisions” are provided.

However, Section 908 of VAWA 2013 allowed tribes to opt in to a pilot program to exercise Special Domestic Violence Criminal Jurisdiction prior to March 7, 2015. Currently there are three tribes in the United States exercising Special Domestic Violence Criminal Jurisdiction: Tulalip Tribe, Confederated Band of Umatilla Indians, Pascua Yaqui Tribe.

With the enactment of Section 904 of VAWA 2013, the drafting of protection order that will form the basis of a criminal action for violations have become even more critical. Careful and specific drafting of protection order language that specifically sets out the terms of the protection order so a violation can be adequately determined is crucial.

Tribal Law and Order Act (TLOA) and Protection Orders
The Tribal Law and Order Act may also be useful in domestic violence cases in tribal courts. The Tribal Law and Order Act is an example of another federal law that relaxed federal restrictions placed on tribal sovereignty. The Tribal Law and Order Act relaxed the tribal court’s sentencing authority set out in the Indian Civil Rights Act. Tribal Courts that can meet certain benchmarks set forth below now have option of the following sentencing authority: Up to 3 years of imprisonment for any one offense and a $15,000 fine or both, with no more than a total of 9 years imprisonment.