Expanding special criminal jurisdiction of Tribal courts to cover non-Native perpetrators of sexual assault, child abuse, stalking, sex trafficking, and assaults on tribal law enforcement officers on tribal lands; and supporting the development of a pilot project to enhance access to safety for survivors in Alaska Native villages.
Section 903 of H.R. 1602 (which is what I assume Congress adopted) includes the additional crimes that Indian tribes may not prosecute against non-Indians:
James D. Diamond just published “Practicing Indian Law in Federal, State, and Tribal Criminal Courts and an Update on Recent Expansion of Criminal Jurisdiction Over Non-Indians” in the ABA’s Criminal Justice Magazine. PDFSSRN
FRED URBINA: In 19 of our cases, we had 18 children involved; the average age being around 4 years old. Some of them were assaulted. A lot of times it was the children that were calling to report these domestic violence incidents. MORALES: The Justice Department chose the Pascua Yaqui to pilot the program because they have state certified judges and lawyers and a brand new courthouse and jail. Police Chief Michael Valenzuela says the old jail was a two-bedroom house with a cage. M. VALENZUELA: In the past, if someone was in jail people could go outside and knock on the window and talk – yeah and they did. We’d have to shoo them away. It was not safe. We had people assaulted. MORALES: Now, thanks to federal stimulus money, they have a 65,000-square-foot justice complex.
Tribal Governments Able to Take Criminal Action on Non-Indians
Washington, DC- On March 7, 2015, Tribal governments may elect to begin exercising jurisdiction over non-Indians who commit crimes of domestic violence, dating violence, or violate a protection order against a Native victim on tribal lands.
“This is a major step forward to protect the safety of Native people, and we thank all Members of Congress for passing the Violence Against Women Act of 2013 and recognizing tribal authority,” said Brian Cladoosby, President of the National Congress of American Indians and Chairman of the Swinomish Tribe.
So far three Tribes, the Confederated Tribes of the Umatilla Indian Reservation, the Pascua Yaqui Tribe, and the Tulalip Tribes have been able to exercise jurisdiction over non-Indians under a Pilot Project since February 6, 2014. To date the Tribes have charged a total of 26 Special Domestic Violence Criminal Jurisdiction cases.
“I want to encourage all tribal governments to get this law on their books,” said Juana Majel, Chair of the NCAI Task Force on Violence Against Women. “The main goal is deterrence of domestic violence. On most reservations there are a handful of bad actors who have figured out how to slip between jurisdictional boundaries. They need to get the message. If they continue to assault our women we will prosecute and put them in jail.”
Violence against Native women has reached epidemic proportions. The root cause is a justice system that forced tribal governments to rely on distant federal — and in some cases, state —officials to investigate and prosecute misdemeanor crimes of domestic violence committed by non-Indians against Native women. However, outside law enforcement has proven ineffective in addressing misdemeanor level reservation-based domestic violence. The Justice Department has found that when non-Indian cases of domestic violence go uninvestigated and unpunished, offenders’ violence escalates. The 2013 VAWA Reauthorization authorizes tribal governments to investigate and prosecute all crimes of domestic and dating violence regardless of the race of the offender.
Tribes choosing to exercise Special Domestic Violence Criminal Jurisdiction must provide the same rights guaranteed under the Constitution as in state court. This includes the appointment of attorneys for indigent defendants and a jury drawn from the entire reservation community. “Many tribal courts are already providing these protections to defendants, and it isn’t a big step to provide indigent counsel to all. Just like county courts, tribal courts can contract for public defenders on a case-by-case basis,” encouraged President Cladoosby.
NCAI, NCJFC, and TLPI are hosting this webinar for tribes considering exercising the Special Domestic Violence Criminal Jurisdiction under VAWA 2013. One way to meet the equal protection requirements is to establish a Domestic Violence Court/Docket. Under the current CTAS RFP purpose area #5 tribes (who do not currently have a CTAS grant from OVW) can apply for funding to support a Domestic Violence Court/Docket.
Honorable Steven D. Aycock, (Ret.), Judge-in-Residence, National Council of Juvenile and Family Court Judges
Kelly Gaines Stoner, Victim Advocacy Legal Specialist, Tribal Law & Policy Institute
Ginger Baran Lyons, Program Specialist, Office on Violence Against Women
Virginia Davis, Senior Policy Advisor, National Congress of American Indians
Chia Halpern Beetso, Tribal Court Specialist, Tribal Law & Policy Institute
Below are some possible resources relevant to creating a domestic violence court:
Now it’s getting tight. We’re down to the last 16.
Category 1 — Indian nations
#1 Alaska Native tribes v. #12 Oneida Tribe of Wisconsin
Alaska Native tribes once again won handily, earning 86 percent of the votes over the Omaha Tribe. The Wisconsin Oneidas continue to surprise, knocking off the Cayugas and their impressive Second Circuit tax victory with two-thirds of the vote.
Interesting matchup here, with two contenders that had a big year facing off against state and local governments.
#7 Gun Lake Tribe v.#3 Bay Mills Indian Community
Enrollment numbers don’t matter! The Gun Lakers earn 61 percent of the vote and take out the Sault Tribe and its vast membership. It can’t be that there’s no internet in the UP, right?
Well, the internet worked for Bay Mills, winning by one vote over LCO and the Wisconsin treaty tribes. Bay Mills makes a living winning by one vote.
So another ‘Nish matchup. Will Gun Lake be able to get past another Upper Peninsula Chippewa community?
Category 2 — Laws, Doctrines, and the Like
#1 Indian Child Welfare Act v. #5 Intra-tribal disputes
In the battle for Indian civil rights, nonvoters prevailed over voters, and ICWA moves on with 57 percent of the vote. Maybe that TT post on South Dakota came a day too late.
Well, intra-tribal disputes took down Indian gaming, with 58 percent of the vote. I hope that won’t be true in real life.
#2 Tribal sovereign immunity v. #3 VAWA
With 72 percent of the vote, it turns out sovereignty does predate knowledge of sovereignty. Cool, I guess.
VAWA and the hopes it encourages for tribal governance in the future (as well as its 67 percent vote tally) easily defeated tribal court exhaustion, which wilted with fatigue near the end.