VAWA 2022 Special Tribal Criminal Jurisdiction (STCJ)

This website is intended to serve as an online resource pertaining to drafting and enforcing tribal protection orders. Each Tribe is unique with respect to Tribal constitutions and codes. The reader should consult the specific Tribal constitution and Tribal codes for additional requirements regarding drafting and enforcement of Tribal protection orders.

When discussing the Violence Against Women Act (VAWA), this website will address the relevant sections of the 2013 VAWA Reauthorization (VAWA 2013) and the 2022 VAWA Reauthorization (VAWA 2022). Please note that Tribes may vary in implementation status.

On March 15, 2022, President Biden signed the Violence Against Women Act Reauthorization bill (VAWA 2022) as a part of the Omnibus funding bill (H.R. 2471). VAWA 2022 builds on VAWA 2013’s Tribal jurisdiction provision (covering domestic violence, dating violence, and protection order violations) by incorporating additional categories of criminal conduct that can be prosecuted by Tribes against non-Indians including sexual violence, stalking, sex trafficking, child violence, obstruction of justice, and assault against Tribal justice personnel. VAWA 2022 also creates a pilot program for Indian Tribes in Alaska to exercise Special Tribal Criminal Jurisdiction within Alaska Native villages; provides formal authorization for the Tribal Access Program (TAP); Additionally, VAWA 2022 established a Reimbursement Program that Tribal governments will be able to access to cover some costs related to the investigation, prosecution and incarceration of non-Indians, and reestablishes the U.S. Bureau of Prisons (BOP) Tribal Prisoner Program first authorized as a pilot in the 2010 Tribal Law and Order Act.

For additional information, please see the resource publication Tribal Criminal Jurisdiction over Non-Indians: Violence Against Women Act Reauthorization of 2022 and www.TribalVAWA.org.

 

1. Why is VAWA 2022 Special Tribal Criminal Jurisdiction (STCJ) important?

According to the National Institute of Justice, U.S. Department of Justice, Office of Justice Programs at least 97% of American Indian/Alaska Native female victims experienced violence at the hand of at least one person not of the same race.[1] In fiscal years 2005 through 2009, U.S. Attorney’s Office (USAOs) resolved about 9,000 of the approximately 10,000 Indian country matters referred to their offices by filing for prosecution, declining to prosecute, or administratively closing the matter. USAOs declined to prosecute 50% of the 9,000 matters. In addition, (1) about 77% of the matters received were categorized as violent crimes, and 24% as nonviolent crimes and (2) declination rates tended to be higher for violent crimes, which were declined 52% of the time, than for nonviolent crimes, which were declined 40% of the time.[2]

Congress responded by passing The Violence Against Women Reauthorization Act of 2013 (VAWA 2013) included historic provisions reaffirming the inherent sovereign authority of Tribes to prosecute non-Indians who commit certain crimes in Indian country.  VAWA 2013 created a framework for Tribal prosecution of non-Indians for the first time since the Supreme Court removed that authority in Oliphant v. Suquamish[3] in 1978.  However, under VAWA 2013 Tribes could only prosecute crimes of Domestic Violence, Dating Violence and Violations of a Protection Order committed on Tribal lands in certain circumstances.  Please note that some Tribes are still prosecuting non-Indians for committing Domestic Violence, Dating Violence and Violation of a Protection Order under VAWA 2013 as they posture to implement VAWA 2022. Tribes still prosecuting under VAWA 2013 should look to their applicable Tribal codes for guidance on applicable crimes and statutory requirements.

Both VAWA 2013 and VAWA 2022 amended the Indian Civil Rights Act and the Tribal jurisdiction provisions discussed here are codified at 25 U.S.C. 1301-1304. The Violence Against Women Reauthorization Act of 2022 (VAWA 2022), which was signed into law on March 15, 2022[4], built on the framework in VAWA 2013 to further expand recognition of Tribal authority to prosecute non-Indians.

VAWA 2022 expanded Tribal criminal authority over non-Indians committing nine covered crimes in Indian country.  Specifically, VAWA 2022 reaffirms Tribal criminal authority over non-Indians who commit covered crimes in Indian country.  These changes are effective as of October 1, 2022, and are optional for Tribes.

 

2. What are the Special Tribal Criminal Jurisdiction (STCJ) Covered Crimes?

As amended by VAWA 2022, 25 USC 1304 allows Tribes that meet the statutory requirements  under Special Tribal Criminal Jurisdiction (STCJ) to now prosecute non-Indians for nine categories of conduct.

Categories of Conduct That Can Be Charged in Tribal Court against Non-Indians:

1. Domestic violence
2. Stalking
3. Dating violence
4. Sex trafficking
5. Certain protection order violations (discussed more fully in Question #6 below)
6. Obstruction of justice
7. Sexual violence
8. Assaults against Tribal justice personnel
9. Child violence

These categories of conduct are all defined by federal law but defer to “the criminal law of the Indian Tribe that has jurisdiction over the Indian country where the violation occurs” for the specific charges (except for sex trafficking, which defers to the federal sex trafficking law).  The statute also requires that the victim be Indian[5], except if the crime involved obstruction of justice or assault of Tribal justice personnel.

 

3. Does VAWA 2022 alter existing state or Federal jurisdiction over crimes committed in Indian country?

VAWA 2022 does not alter existing state or Federal jurisdiction over crimes committed on Tribal lands. Tribal governments that choose to exercise STCJ must comply with a number of procedural requirements such as providing an attorney to defendants who cannot afford one, including non-Indians in jury pools, and ensuring that presiding judges are sufficiently law trained.  The due process protections that must be afforded to non-Indian defendants in Tribal courts are codified at 25 U.S.C. 1304(d) please see chart below for easy reference.

 

4. Does VAWA 2022 address Alaska Tribes and Maine, which were previously omitted in VAWA 2013?

VAWA 2022 also included a pilot project for Tribes in Alaska, the majority of whom were left out of VAWA 2013. The law also clarified that Tribes in Maine are eligible to exercise jurisdiction over non-Indians, a point that has been the subject of confusion and disagreement.

 

5. What are the Indian Civil Rights applicable to exercising STCJ?

Tribes exercising criminal jurisdiction over non-Indians must provide the defendant with all the applicable rights under the Indian Civil Rights Act.  The Indian Civil Rights Act, 25 USC 1302 (a) places restrictions on Indian Tribes indicating that no Indian Tribe exercising powers of self-government shall:

• Make or enforce any law prohibiting:
  • free exercise of religion
  • freedom of speech
  • freedom of press
  • right of people to peacefully assemble
  • to petition for a dress of grievances
• Violate the right of the people to be secure in their persons, houses, papers and effects against unreasonable search and seizures:
  • issue warrants unless based upon probable cause supported by oath/affirmation which particularly describes the place to be searched and the person or thing to be seized
• Subject any person for the same offense to be twice put in jeopardy
• Compel any person in any criminal case to be a witness against himself
• Deny any person in a criminal proceeding the right to a speedy and public trial:
  • to be informed of the nature and cause of the accusation
  • to confront witnesses against him
  • to have compulsory process for obtaining witnesses in his favor
  • at his own expense to have assistance of counsel for his defense (except as provided in (b) below.
• Require excessive bail, impose excessive fines, or inflict cruel and unusual punishments
• Deny to any person within their jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law
• Pass any bill of attainder or ex post facto law
• Deny any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.

VAWA 2022 requires the following due process requirements only if the accused is facing the possibility of jail time.  It may be difficult for the prosecutor to determine at the outset of a criminal case what the criminal sanctions may be, Tribes who are exercising over non-Indians generally provide these rights in all their STCJ cases. 25 USC 1304(c).

• The effective assistance of counsel at least equal to that guaranteed by the U.S. Constitution
• At the expense of the Tribe provide an indigent defendant to the assistance of a licensed defense attorney
• Require the presiding judge to have sufficient legal training to preside over criminal proceedings and be licensed to practice law by any jurisdiction in the United States
• Prior to charging the defendant, make publicly available the criminal laws, rules of evidence and criminal procedure
  • Maintain a record of the criminal proceeding

25 U.S.C. 1304(d) adds to the due process for STCJ defendants:

• The Tribe must also provide the defendant with 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.
• The defendant may petition a Federal court for a writ of habeas corpus, to challenge the legality of one’s detention by the Tribe but only after exhausting Tribal court remedies in most instances.
• The Tribe that has ordered the detention of any person has a duty to timely notify such person in writing of their rights and privileges under 25 U.S.C. 1302, 1303 and 1304.
• The Tribe must also provide to defendants “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 Tribal criminal jurisdiction over the defendant.”

 

6. What does the STCJ covered crime of Violation of a Protection Order require?

This segment provides a deeper look at the Special Tribal Criminal Jurisdiction Covered Crime (STCJ) of Violation of a Protection Order.  For more information on STCJ please see:  Special Tribal Criminal Jurisdiction and www.TribalVAWA.org.

VAWA 2022 made no substantive changes to the VAWA 2013 version of “Violation of a Protection Order” that Tribes can use to prosecute non-Indians violating certain provisions of a protection order in Indian country with an Indian victim.

For purposes of STCJ, Federal law defines “violation of a protection order” as follows:

(17) The term “violation of a protection order” means an act that—

(A) occurs in the Indian country of a participating Tribe; and

(B)violates a provision of a protection order that—

(i) prohibits or provides protection against violent or threatening acts or harassment against, sexual violence against, contact or communication with, or physical proximity to, another person;

(ii) was issued against the defendant;

(iii)  is enforceable by the participating Tribe; and

(iv) is consistent with section 2265(b) of title 18.

Section (B) above sets out the provisions in a protection order that form a predicate for the prosecution of this covered crime.  Additionally, the act must have occurred in Indian country of a participating Tribe^[6]. Next, the protection order must fall within the federal definition of a protection order found at 25 USC 1304 (a)(11).

(11) Protection order

The term “protection order”—

(A) means any injunction, restraining order, or other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence against, contact or communication with, or physical proximity to, another person; and

(B) includes any temporary or final order issued by a civil or criminal court, whether obtained by filing an independent action or as a pendent lite order in another proceeding, if the civil or criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection^[7].

The protection order must meet the requirements of the federal Full Faith and Credit statute^[8]. The requirements that activate the federal Full Faith and Credit clause can be found at 18 U.S.C. 2265(a) and (b).

(a)Full Faith and Credit.—

Any protection order issued that is consistent with subsection (b) of this section by the court of one State, Indian Tribe, or territory (the issuing State, Indian Tribe, or territory) shall be accorded full faith and credit by the court of another State, Indian Tribe, or territory (the enforcing State, Indian Tribe, or territory) and enforced by the court and law enforcement personnel of the other State, Indian tribal government or Territory as if it were the order of the enforcing State or Tribe.

(b)Protection Order.—

A protection order issued by a State, Tribal, or territorial court is consistent with this subsection if—

(1) such court has jurisdiction over the parties and matter under the law of such State, Indian Tribe, or territory; and

(2) reasonable notice and opportunity to be heard is given to the person against whom the order is sought, sufficient to protect that person’s right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State, Tribal, or territorial law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent’s due process rights.

Note that there are different full faith and credit requirements for cross/counter petitions for a protection order^[9].  For more information on full faith and credit please see https://tribalprotectionorder.org/federal-law-full-faith-and-credit/.

Checklist

To determine whether a particular offense fits within the “Violation of a Protection Order”, the key questions are whether:

1. The protection order fits within the federal definition of a protection order found at 18 USC
2. The act was committed in the Indian country of a participating Tribe;
3. The act violates a provision of a protection order that prohibits or provides protection against violent or threatening acts or harassment against, sexual violenceagainst, contact or communication with, or physical proximity to, another person;
4. The protection order was issued against the defendant;
5. The protection order is enforceable by the participating Tribe; and
6. The protection order is consistent with 18 U.S.C. 2265(b).

It is important to note that the act of committing a violation of a protection order is not restricted to domestic violence protection orders unless the applicable Tribal code requires the elements of domestic violence be demonstrated. For example, “violation of a protection order” may apply to protection orders issued to prevent or prohibit harassment, sexual assault, and/or stalking. In addition to the federal statute above, determining what types of protection orders qualify as a covered crime of “violation of a protection order” will be governed by applicable Tribal law and some Tribal codes may require a certain relationship between the petitioner and defendant but that relationship is not required by Federal law.

 

 

 

[1] André B. Rosay, “Violence Against American Indian and Alaska Native Women and Men,” NIJ Journal 277 (2016): 38–45, http://nij.gov/journals/277/Pages/violence-againstamerican-indians-alaska-natives.aspx.

[2] U.S. Department of Justice Declinations of Indian Country Criminal Matters, GAO-11-167R: Published December 13, 2010. Publicly released December 13, 2010. https://www.gao.gov/assets/gao-11-167r.pdf

[3] Oliphant v. Suquamish Indian Tribe, 435 US 191 (1978).

[4] VAWA 2022 was enacted as part of the Consolidated Appropriations Act ( H.R. 2471).

[5] 25 USC §1304 (b)(4)(A).

[6] The term “participating Tribe” means an Indian Tribe that elects to exercise special Tribal criminal jurisdiction over the Indian country of that Indian Tribe. 25 USC 1304 (a)(10).

[7] Note that the definition of a protection order found at 25 USC 1304(11) varies slightly from the federal definition of a protection order found at 18 U.S.C. 2266(5).

[8] Full faith and credit requires that the Tribal protection order be enforced as it is written by and according to the laws of the enforcing jurisdiction.

[9] (c) Cross or Counter Petition.—A protection order issued by a State, Tribal, or territorial court against one who has petitioned, filed a complaint, or otherwise filed a written pleading for protection against abuse by a spouse or intimate partner is not entitled to full faith and credit if— (1) no cross or counter petition, complaint, or other written pleading was filed seeking such a protection order; or (2)a cross or counter petition has been filed and the court did not make specific findings that each party was entitled to such an order. 18 U.S.C. 1125 (c).