VAWA tribal jurisdiction provisions

Harvard Law Review Profile of the VAWA Tribal Jurisdiction Provisions

Matthew L.M. Fletcher3 Comments

The Harvard Law Review has published “Congress Recognizes and Affirms Tribal Courts’ Special Domestic Violence Jurisdiction over Non-Indian Defendants. — The Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, tit. IX, 127 Stat. 54, 118–26 (to be codified in scattered sections of the U.S. Code)” (PDF).

From the conclusion:

From a practical standpoint, section 904 does not release a substantial amount of power back to the tribes; it is a cautious experiment, not a revolution. Indeed, section 904 is primarily a statement about values — the value of tribal sovereignty, the value of liberal ideals, the proper balance between them, and above all, Congress’s role in fixing that balance. By aligning section 904 so closely with the Court’s previously expressed concerns, Congress leaves the Court with no choice but to accept its calibration of these important values, and consequently, its privileged role in setting federal Indian policy.

WaPo Article on VAWA Tribal Pilot Projects

Matthew L.M. Fletcher

Here.

NCAI Discussion Webinar on VAWA Pilot Project

Matthew L.M. Fletcher

NCAI Discussion Webinar on the VAWA Pilot Project Final Notice and Application Questionnaire

The Department of Justice has posted its Final Notice establishing Procedures for the VAWA 2013 Tribal Pilot Project for tribal governments to implement special domestic violence criminal jurisdiction on an accelerated basis.

NCAI will be hosting a discussion webinar regarding the Final Notice and the Application Questionnaire on Tuesday, December 3rd at 2:30 p.m. Eastern. Register for the webinar here.  We have invited Sam Hirsch, Deputy Associate Attorney General, to join us and answer questions.

VAWA Pilot Project Final Notice

Matthew L.M. Fletcher

Here:

VAWA Pilot Project Final Notice November 29 2013

Summary:

This final notice establishes procedures for Indian tribes to request designation as participating tribes under section 204 of the Indian Civil Rights Act of 1968, as amended, on an accelerated basis, under the voluntary pilot project described in the Violence Against Women Reauthorization Act; establishes procedures for the Attorney General to act on such requests; and solicits such requests from Indian tribes.

“Sliver of a Full Moon” to be Presented at NCAI on Monday, October 14, 2013

Matthew L.M. Fletcher

Website here.

Sliver of a Full Moon-tulsa-sm

White House Blog Post on VAWA 2013 and Indian Health

Matthew L.M. Fletcher

Here.

An excerpt:

Because of the successful 2013 Reauthorization of the Violence Against Women Act, which President Obama signed into law on March 7, 2013, tribal courts and law enforcement will soon be able to exercise the sovereign power to investigate, prosecute, convict, and sentence those who commit acts of domestic violence or dating violence or violate certain protection orders in Indian country, regardless of the defendant’s Indian or non-Indian status. The tribal provisions of this landmark legislation were originally proposed by the Department of Justice in 2011 to address alarming rates of violence against native women.  We believe today, as we did then, that this is not only constitutionally sound law, but it is also a moral prerogative and an essential tool to ensure that non-Indian men who assault Indian women are held accountable for their crimes.

New Paper on the Availability of Tribal Law

Matthew L.M. Fletcher1 Comment

Bonnie J. Shucha posted her paper, “Whatever Tribal Precedent There May Be’: The (Un)Availability of Tribal Law” on SSRN. Here is the abstract:

This article explores the costs and benefits of publishing tribal law. Part I analyzes why tribal law is not more widely available; part II illustrates the benefits of making tribal law more accessible, and part III describes publication options for tribes. An appendix lists currently available tribal law collections.

VAWA Pilot Project Notice in Federal Register, Plus Supporting Materials

Matthew L.M. Fletcher1 Comment

Here is the link to the notice. And a pdf: Federal Register Notice on DOJVAWA Tribal Pilot Project June 14 2013

VAWA 2013 and Tribal JurisdictionOver Crimes of Domestic Violence (revised 06-14-13)

VAWA Tribal Pilot Project FAQs June 13 2013

 

DOJ Publishes Notice of VAWA Pilot Program

Matthew L.M. Fletcher

Here.

Description:

This notice proposes procedures for an Indian tribe to request designation as a participating tribe under section 204 of the Indian Civil Rights Act of 1968, as amended, on an accelerated basis, pursuant to the voluntary pilot project described in section 908(b)(2) of the Violence Against Women Reauthorization Act of 2013 (“the Pilot Project”), and also proposes procedures for the Attorney General to act on such a request. This notice also invites public comment on the proposed procedures and solicits preliminary expressions of interest from tribes that may wish to participate in the Pilot Project.

Columbia Law Review Article on Constitutionality of VAWA/TLOA-Type Statutes

Matthew L.M. Fletcher

Zachary S. Price has published “Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction” in the Columbia Law Review.

Here is the abstract:

In both federal Indian law and the law regarding United States territories, the Supreme Court in recent decades has shown increasing skepticism about previously tolerated elements of constitutionally unregulated local governmental authority. This Article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in these areas. Focusing on the criminal context, where the stakes are highest both for individual defendants and for the affected communities, this Article considers three issues: (1) whether and under what circumstances Congress may confer criminal jurisdiction on tribal and territorial governments without requiring that those governments’ enforcement decisions be subject to federal executive supervision; (2) whether double jeopardy should bar successive prosecution by both the federal government and a tribal or territorial government exercising federally authorized criminal jurisdiction; and (3) what, if any, constitutional procedural protections apply when a tribal or territorial government exercises criminal jurisdiction pursuant to such federal authorization.

Through close examination of these three questions, this Article aims to show that framing the analysis in terms of divided sovereignty, and recognizing the close parallels between tribal, territorial, and related federal-state contexts, may yield the most attractive resolutions that are viable in light of the Supreme Court’s recent decisions. This Article contrasts this approach with an alternative framework that would organize the analysis around a distinction between “inherent” and “delegated” governmental authority.

Looks like a fascinating paper from a former OLC attorney. Will study with interest.