Tribal Law and Court Systems

Sovereignty and Justice – Tribal Law and
Court Systems
Ron Whitener (Squaxin Island), Center for Indigenous Research & Justice
Jerry Gardner (Cherokee), Tribal Law and Policy Institute
Sovereignty, Development and Human Security – May 2015
Sovereignty & Justice:
Tribal Law and Court
Systems
Sovereignty, Development and Human Security
Colloquium
May 28, 2015 – Seattle, Washington
Ron J. Whitener
Affiliated Assistant Professor – UW Law School
President – Center of Indigenous Research &
Justice
Personal/Economic Legal Security
• Personal legal security
• Personal safety
• Criminal law enforcement and sanctions
• Protection orders (DV, Anti-harassment, Restraining Orders)
• Property protection (landlord tenant, nuisance)
• Personal domestic relationships
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Dissolution of marriage
Custody of children
Protection of children
Protection of vulnerable adults
Personal/Economic Legal Security
• Economic legal security
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Takings
Business dealings rules
Zoning
Taxation
Protection of wealth
Access to lending
Goal for this presentation:
• Explore how subject matter jurisdiction improves tribal member
security
• Explore ways that federal and state law interfere with tribal member
security
• Explore potential fixes for those barriers
Tribal Community Economic Security vs
Individual Tribal Member Legal Security
• Cost of legal security
• Judicial Staff
• Attorneys
• Stakeholder staffing
• Facilities
• Staff safety
• And on and on and on…..
Benefits of Tribal Legal Security to Individuals
by Subject Matter
Personal Legal Security - Criminal
• Tribal Law enforcement and probation services
• Local to those they are protecting
• Knowledge of family ties and dynamics
• Knowledge of best responses to “frequent flyers”
• Tribal criminal codes
• Reflective of cultural and community priorities
• Can allow alternatives to incarceration
• Treatment and sober living
• Community accountability
• Can provide right to counsel for low-income
• Protects against governmental over-reach
• Shows the system is not biased
Personal Legal Security - Criminal
• Personal security for criminal defendants
• Access to treatment
• chemical dependency
• mental health
• medical
• domestic violence
• sexually aggressive behaviors
• Life skills training
• Harm reduction oversight
Personal Legal Security – DV Protection
Orders
• Allows local and faster law enforcement response
• Leverages local law enforcement familiarity with the community
• Legal system can work with DV advocacy system to maximize
protections
Personal Legal Security – Anti-Harassment/ROs
• Allows protection in non-intimate/family relationships
• Heads off festering disputes and allows a cool-down period
• Leverages local law enforcement community knowledge
Personal Legal Security – Dissolution/Custody/Child
Support
• Allows divorce in courts knowledgeable about trust property issues
• Courts have more knowledge of Parties and family dynamics
• Excellent area for traditional peacemaking (assuming no DV)
Personal Legal Security – Child Protection
• Tribal courts can emphasize long-term relative guardianships over
termination of parental rights
• Familiarity with parties and family dynamics
• Can use tribal services to increase services to parents, supporting
reunification
• Provides parents who are unable to reunify with children prior to
guardianship to regain custody later
Personal Legal Security – Vulnerable Adults
• Better able to access family supports for elderly or disabled adults
• Familiarity with parties and family dynamics
• Can use tribal services to maintain Vulnerable Adults in least
restrictive means
• Can maximize services from IHS and tribal resources
• Can encourage family involvement in their lives
Economic Legal Security – Takings Protections
• Allows due process before any takings of property or
rights
• Notice of the intent of the takings
• Opportunity to be heard prior to decision
• Decision by an impartial, but culturally and community
informed judge
Economic Security – Business Dealings
• Contract dispute litigation/mediation
• Recourse for torts, with limits to insurance maximums
• Systems for permitting of commercial activities under
tribal law
• Tribal Uniform Commercial Codes
• Provides predictability for parties engaging in business
dealings
Economic Security – Zoning
• Provides consolidation of like activities
• Allows protection of personal security by limiting
commercial activity in residential areas
• Provides security for outside interests to do business
on-reservation
Economic Security – Protection of Wealth
• Increased flexibility to use individual trust resources
• Ability to leverage tribal trust lands for personal use
• The ability to use per-capita payments for collateral
for micro loans from the tribe
Barriers to Economic and Personal Legal Security
and Mitigating Those Barriers
Barrier - Jurisdictional Morass
• Major Crimes Act
• Indian Country Crimes Act
• Public Law 280
• VAWA Special Domestic Violence Jurisdiction
Mitigation - Jurisdictional Morass
• Increased tribal jurisdiction over non-member
reservation residents
• Delegation of federal authority to tribes to exercise
federal law
• Better coordination of tribal/state/federal existing
jurisdiction
Barriers and Mitigation - Jurisdictional Morass
Your contributions?
Barrier – Tribal Inability to Access Federal
Databases
• Databases controlled by the FBI
• Who is protected by protection orders and who is restrained
• Who has been arrested, who is charged and what is the
disposition
• The FBI delegates tribal access to processes controlled by
the states
• Very patchwork whether POs are entered.
• Tribal arrests, charging and dispositions are not able to be
entered
Mitigation – Tribal Inability to Access Federal
Databases
• Allow Tribes to directly enter their POs, arrests,
charging and dispositions directly into the federal
database; or
• Create a tribal-only database for the same things that
are accessible by tribal, state and federal law
enforcement, child protection and judicial officials
Barriers and Mitigation – Inability to Access
Federal Databases
Your contributions?
Barrier – Lack of Tribal Taxation Authority
• Inability to tax non-member on-reservation property
or activities
• United States Supreme Court requirements for tribes
to remit state sales and excise taxes from nonmember transactions
Mitigation – Lack of Tribal Taxing Authority
• Federal delegation of authority to tribes to tax
property/activities on – reservation
• Federal requirement of compacting (similar to Indian
Gaming Regulatory Act) which provides taxation sharing of
taxes from on-reservation sales to non-members
• Increased access to federal funds going to states
Barriers and Mitigation – Taxing Authority
Your contributions?
Barrier - Trust Allotment Fractionation
• Allotment of lands to individual Indians without
planning for inheritance
• Inability of the US to efficiently probate trust estates,
and joint federal/state jurisdiction over probate
• Continued federal government direct control over
reservation lands
Mitigation- Trust Allotment Fractionation
• Increased use of land corporations to control trust
allotment lands for the benefit of the owners
• Continued federal and tribal funding for interest
consolidation
• Increased authority for tribal court probate of trust
and non-trust estates
Barriers and Mitigation – Trust Allotment Fractionation
Your contributions?
Other Barriers and Mitigations of Personal and
Economic Legal Security?
Your Contribution?
Thank You!
Sovereignty and Justice Tribal Law and Court
Systems
Jerry Gardner
Executive Director
Tribal Law and Policy Institute
May 28, 2015 ~ University of Washington
Colloquium
Best Roadmap to address
Oliphant in the room
Oliphant v. Suquamish, 435 U.S. 191 (1978)
ILOC’s Grand Bargain or
One crime at a time like VAWA 2013
“Special Domestic Violence Criminal
Jurisdiction” over non-Indians .
Jurisdiction in Indian Country
TRIBAL LAW AND ORDER ACT
Public Law 111-211 (2010)
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TLOA Purposes
•Make Federal agencies more accountable
•Provide greater freedom for tribes to design
and run their own justice systems.
•Enhance cooperation in law enforcement,
interoperability, and access to criminal
justice information.
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TLOA Means
•Enhanced Funding for Tribal Justice Systems
• authorization rather than appropriation
•Enhanced Authority for Tribal Justice
Systems
• enhanced Tribal court sentencing authority
•Enhanced Federal Cooperation and
Accountability
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Expanding Tribal Court Sentencing Authority
•Enhanced tribal court sentencing authority
• 1-3 years imprisonment, $15,000 fine, or
both
• Tribal courts can stack sentences
• 9-year cap on stacked sentencing
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TLOA also created Indian Law and Order Commission
Indian Law and Order Commission
Chapter 1: Jurisdictional Reform: Bringing
Clarity Out of Chaos
1. Congress should clarify that any tribe
that so chooses can opt out immediately,
fully, or partially, of Federal Indian
country criminal jurisdiction and/or
congressionally authorized State
jurisdiction, except for Federal laws of
general application.
Indian Law and Order Commission
Chapter 1: Jurisdictional Reform: Bringing
Clarity Out of Chaos
2. Upon a Tribe’s exercise of opting out,
Congress would immediately recognize
the Tribe’s inherent criminal jurisdiction
over all persons within the exterior
boundaries of the Tribe’s lands as
defined in the Federal Indian Country
Act.
Indian Law and Order Commission
Chapter 1: Jurisdictional Reform: Bringing
Clarity Out of Chaos
3. This recognition, however, would be
based on the understanding that the
Tribal government must also immediately
afford all individuals charged with a
crime with civil rights protections
equivalent to those guaranteed by the
U.S. Constitution
Indian Law and Order Commission
Chapter 1: Jurisdictional Reform: Bringing
Clarity Out of Chaos
4. Ensure a direct appeal from Tribal court
to new Federal court- the U.S. Court of
Indian Appeals- for all criminal
defendants for alleged Federal
Constitution rights violations.
5. Amend the Indian Civil Rights Act to
permit Tribal governments to define their
own criminal laws and sentences.
VAWA: A Historic Victory
“Tribal governments have an inherent right
to protect their people, and all women
deserve the right to live free from fear.”
- President Obama. March 7, 2013
The Violence Against Women
Reauthorization Act of 2013
Special Domestic Violence Criminal Jurisdiction
VAWA 2013 – Section 904
•Authorizes tribes to exercise “special domestic
violence criminal jurisdiction” over non-Indians
for
•Acts of domestic violence or dating violence
that occur in the Indian country of the
participating tribe; and
•Violations of Protection Orders that are
violated in the Indian country of the
participating tribe.
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What VAWA 2013 Section 904
Does NOT Cover:
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Victim and Defendant are both non-Indian.
Non-Indian Defendant Lacks Sufficient Ties to the Indian Tribe. Defendant
must either:
− Reside in the Indian country of the participating tribe;
− Be employed in the Indian country of the participating tribe; or
− Be a spouse, intimate partner, or dating partner of a tribal member, or an
Indian who resides in the Indian country of the participating tribe.
The crime did not take place in the Indian country of a participating tribe.
The crime is not DV, dating violence, or a protection order violation (child
abuse and elder abuse are not covered).
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Limitations on Utilizing TLOA Enhanced Sentencing and/or
VAWA Special Domestic Violence Criminal Jurisdiction
Limitations
Particular Offenses Only:
Defendant must either (1) previously have been convicted of same or
comparable offense by any jurisdiction in U.S.; or (2) is being prosecuted for a
“felony” (an offense that would be punishable by more than 1 year
imprisonment if prosecuted by U.S. or any of the States).
Particular Offenses Only:
Defendant must be prosecuted for either (1) domestic violence, (2) dating
violence, or (3) violation of a protection order.
Particular Defendants Only:
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.
TLOA
VAWA
Due Process Protections Required by TLOA and/or VAWA
TLO A and V AWA Due Process Requirements
1.
Defendants are provided with effective assistance of counsel equal to at least
that guaranteed in the U.S. Constitution.*
2.
Tribal government provides, at their expense, to an indigent defendant a
defense attorney licensed to practice by any jurisdiction in the United
States.*
3.
Defense attorney is 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 have sufficient legal training to preside
over criminal trials.*
5.
Any judge presiding over criminal proceedings subject to enhanced
sentencing/non-Indian defendants are licensed to practice law by any
jurisdiction in the United States.*
TLO A
V AWA
*Note: These due process protections are required under TLOA. But, they are only required under VAWA if a term of
imprisonment of any length may be imposed.
*Note: These due process protections are required under TLOA. But, they are only required under
VAWA if a term of imprisonment of any length may be imposed.
*Note: These due process protections are required under TLOA. But, they are only required under
VAWA if a term of imprisonment of any length may be imposed.
Intertribal Technical-Assistance
Working Group (ITWG)
The DOJ launched the ITWG as a key part of the
Pilot Project.
The ITWG is a voluntary working group of tribal
representatives who exchange views, information,
and advice about how tribes may best exercise
special domestic violence criminal jurisdiction
(SDVCJ) and combat domestic violence.
• Multiple in-person meetings
• Webinar series on jury selection, defendant’s rights,
indigent defense, domestic violence best practices
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Tribes Represented on the ITWG
1.Cherokee Nation
2.Chickasaw Nation
3.Colorado River Indian Tribes
4.Confederated Tribes of the Umatilla Indian Reservation
5.Eastern Band of Cherokee Indians
6.Eastern Shawnee Tribe of Oklahoma
7.Gila River Indian Community
8.Fort Peck Assiniboine & Sioux Tribes
9.Hopi Tribe of Arizona
10.Kickapoo Tribe of Oklahoma
11.Menominee Tribe of Wisconsin
12.Mississippi Band of Choctaw Indians
13.Muscogee (Creek) Nation
14.Nez Perce Tribe
15.Nottawaseppi Huron Band of Potawatomi
16.Oneida Tribe of Indians of Wisconsin
17.Pascua Yaqui Tribe of Arizona
18.Passamaquoddy Tribe
19.Pauma Band of Mission Indians
20.Penobscot Nation
21.Pokagon Band of Potawatomi Indians
22.Prairie Band Potawatomi Nation
23.Pueblo of Isleta
24.Pueblo of Laguna
25.Pueblo of Santa Clara
26.Quapaw Tribe
27.Quinault Indian Nation
28.Sac and Fox Nation
29.Salt River Pima-Maricopa Indian Community
30.Sault Ste. Marie Tribe of Chippewa Indians
31.Seminole Nation of Oklahoma
32.Sisseton-Wahpeton Oyate
33.Spokane Tribe
34.Standing Rock Sioux Tribe
35.Suquamish Indian Tribe
36.Three Affiliated Tribes
37.Tulalip Tribes of Washington
38.White Earth Nation
39.Winnebago Tribe of Nebraska
VAWA 2013 Pilot Project
Pilot Project Tribes Approved February 6, 2014
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Pascua Yaqui Tribe (AZ)
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Confederated Tribes of Umatilla (OR)
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Tulalip Tribes (WA)
Pilot Project Tribes Approved March 6, 2015
Ft. Peck (MT)
• Sisseton-Wahpeton Oyate (SD)
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Confederated Tribes of Umatilla –
Feb. 20, 2014
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SDVCJ cases involving 3 offenders
3 guilty pleas
1 case pending
Those who have been convicted are subject to
tribal probation, including the requirement to
undergo batterer intervention treatment
provided by the tribe
In 2012, 60% of the cases seen by the Umatilla
Victims Services Program were non-Indian
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Tulalip Tribes- Feb 20, 2014
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5 SDVCJ cases
•3 cases resulted in guilty pleas
•1 was dismissed for insufficient evidence
•1 was transferred for federal prosecution
primarily because children were involved
and SDVCJ does not include assault of a
child.
Tulalip operates a DV court and these cases are handled there
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Pascua Yaqui - Feb 20, 2014
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18 SDVCJ cases, involving 15 separate offenders.
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1 jury trial resulted in an acquittal; a 2nd jury trial will begin in April
4 guilty pleas
4 referrals for federal prosecution
10 cases dismissed for various reasons
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In the past year, 25% of the tribe’s total domestic violence
caseload has involved non-Indian abusers.
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18 children under the age of 11 were involved as witnesses or
victims.
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The 15 non-Indian defendants had over 80 documented tribal
police contacts, arrests, or reports attributed to them over the
past 4 years.
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Pascua Yaqui - Lessons Learned
Most Pascua Yaqui VAWA SDVCJ cases involving
defendants with significant ties to the community.
• Domestic Violence crimes committed by non-Indians
are a significant problem on our Reservation (average of 6
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prior police contacts per defendants).
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Pascua Yaqui VAWA offenders are a diverse group
(3
Hispanic descent including 2 Mexicans, 2 Caucasian, 3 African American, and 1
Asian American).
Pascua Yaqui children are being exposed to violence
and at high risk of physical abuse, neglect, and
witnessing intimate partner violence.
• Implementation is complex but we are learning.
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Children Exposed to Violence
Attorney General Advisory Committee on AI/AN children
Exposed to Violence (final report: November 2014)
• Recommendation 1.3: “Congress should restore the inherent
authority of American Indian and Alaska Native (AI/AN) tribes to
assert full criminal jurisdiction over all persons who commit
crimes against AI/AN children in Indian country.”
• Recommendation 1.3 also provides that: “Congress has restored
criminal jurisdiction over non-Indians who commit domestic
violence, commit dating violence, and violate protection orders.
Congress should now similarly restore the inherent authority of
AI/AN tribes to assert full criminal jurisdiction over all persons
who commit crimes against AI/AN children in Indian country
including both child sexual abuse and child physical abuse.”
ILOC Grand Bargain - Advantages:
• global in scope – covers all criminal jurisdiction
rather than just limited subject matter
• applies only to tribes which opt in
• tribes can opt in fully or partially at tribal option
• eliminates the “maze of Injustice”
(If tribe fully opts in, then only tribe has jurisdiction - no federal or state jurisdiction)
• would amend ICRA to permit Tribal governments to
define their own criminal laws and sentences
ILOC Bargain -Disadvantages:
• Not currently politically feasible
• Even if becomes politically feasible, not likely that it would become law exactly as set
forth by ILOC and thereby upset delicate balance that ILOC strove to achieve
• Requiring that full Bill of Rights apply rather than ICRA could change nature of tribal
courts and potentially lose what makes tribal courts unique
• Imposing Anglo-American notions of “due process” onto indigenous justice system
• Changing entire tribal court system to handle what could be limited number of cases
• Many – if not most – tribes are not likely going to have the funding needed to
implement at least fully implement
Crime by Crime (like VAWA) - Advantages:
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Much more politically feasible than ILOC grand bargain (though still a heavy lift)
Allows tribes to focus on subject matter (DV, SA, child abuse) most politically feasible
Allows for legal challenges and issue to be raised in context of most politically feasible crimes
Tribes can prove that it works and survive federal test cases before going for grand bargain
The ITWG and pilot project process allowed many tribes to come together to collectively address the
wide range of challenging issues posed by the many requirements
While only one subject matter at a time, sends message to the community that non-Indians are no
longer above the law
TLOA enhanced sentencing and VAWA enhanced jurisdiction have established clear series of required
rights to implement – making it easier to apply same standards to additional crimes
Does not require that the full Bill of Rights apply – preserves indigenous justice systems
Easier to avoid changing entire tribal court system to handle what could be limited number of cases
Applies only to tribes that opt in
Crime by Crime (like VAWA) -Disadvantages:
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Not global in scope – covers only limited subject matter
Not as clear that Tribes can opt in fully or partially at tribal option
Requirements are actually very complex and challenging
Does not eliminate “maze of injustice” since federal and state jurisdiction would
still exist
Creates potential equal protections concerns
Does not amend ICRA to permit Tribal governments to define their
own
criminal laws and sentences beyond the specific offenses
Does not allow tribe to prosecute collateral crimes Like child abuse
Many tribes not likely going to have the funding needed to implement
Possible Approach Going Forward:
• Going for crime by crime approach initially does not prohibit grand bargain later
• More politically feasible to go with crime by crime approach while maintain longer term goal of
ILOC grand bargain
• Focus on subject matter (DV, SA, child abuse) most politically feasible
• Tribes can prove that it works and survive federal test cases before going for grand bargain
• Encourage collaborative processes (like ITWG) going forward which encourage many tribes to
come together to collectively address challenging issues
• Pilot project process more politically feasible (grand bargain tribal demonstration project?)
• Ensure publicity sends message to the community that non-Indians are no longer above the law
• Preserve indigenous justice systems – do not change entire tribal court system to handle what
could be limited number of cases
• Share creative approaches, lessons learned, and resources so more tribes are able to implement
How Can I Find More Information and
Resources??
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RESOURCES
• Tribal Code Checklist• Tribal Legal Resource TLOA and VAWA
• SDVCJ Model Code • Join the ITWG, email:
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www.tribalprotectionorder.org
Learn more at
www.ncai.org/tribal-vawa
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Issue List
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Tribal Code Development
Jury Selection and Judicial Requirements
Criminal Defense and Defendant’s Rights
Law Enforcement Arrest Authority Guidance
Law Enforcement Training
Detention Policies at Interior
Habeas Corpus and Legal Challenges
Coordination with U.S. Attorneys
Victims’ Rights and Victims’ Safety
Access to Criminal Databases
RESOURCES
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November 2013
About the Roadmap
TLOA has three basic purposes. First, it was intended to make
Federal departments and agencies more accountable for serving Tribal
lands. Second, the Act was designed to provide greater freedom for Indian
Tribes and nations to design and run their own justice systems. This
includes Tribal court systems generally, along with those communities that
are subject to full or partial State criminal jurisdiction under
P.L. 83-280. Third, the Act sought to enhance cooperation among Tribal,
Federal, and State officials in key areas such as law enforcement training,
interoperability, and access to criminal justice information. This Roadmap
assesses the effectiveness of these provisions.
Additionally, the Roadmap recommends long-term improvements
to the structure of the justice system in Indian country. This includes the
basic division of responsibility among Federal, State, and Tribal officials
and institutions. Some of these recommendations require legislative action.
Others are matters of executive branch policy. Still others will require
action by the Federal judiciary. Finally, much of what the Commission
has proposed will require enlightened and energetic leadership from
the governments of the several States and, ultimately, Indian Tribes and
nations themselves.
A major theme of this Roadmap is that public safety in Indian
country can improve dramatically once Native nations and Tribes have
greater freedom to build and maintain their own criminal justice systems.
The Commission sees breathtaking possibilities for safer, strong Native
communities achieved through homegrown, tribally based systems
that respect the civil rights of all U.S. citizens. The Commission rejects
Executive Summary
vii
outmoded command-and-control policies, favoring increased local control,
accountability, and transparency.
The Roadmap contains six chapters, addressing: (1) Jurisdiction; (2)
Reforming Justice for Alaska Natives; (3) Strengthening Tribal Justice; (4)
Intergovernmental Cooperation; (5) Detention and Alternatives; and (6)
Juvenile Justice.
Each chapter contains a full discussion of the aforementioned topics,
providing background information, data, and on-the-ground examples
about the current challenges facing Indian country. Below is a summary
of each chapter. All recommendations in this Roadmap represent the
unanimous views of all nine members of the Commission, Republicans
and Democrats alike.
Chapter 1 - Jurisdiction: Bringing Clarity Out of Chaos
Under the United States’ Federal system, States and localities have
primary responsibility for criminal justice. They define crimes, conduct
law enforcement activity, and impose sanctions on wrongdoers. Police
officers, criminal investigators, prosecutors, public defenders and criminal
defense counsel, juries, and magistrates and judges are accountable to the
communities from which victims and defendants hail. Jails and detention
centers are often located within those same communities.
This framework contrasts with Indian country, where U.S. law
requires Federal or State governments’ control of the vast majority
of criminal justice services and programs over those of local Tribal
governments. Federal courts, jails, and detention centers are often located
far from Tribal communities.
Disproportionately high rates of crime have called into question the
effectiveness of current Federal and State predominance in criminal justice
jurisdiction in Indian country. Because the systems that dispense justice in
their communities originate in Federal and State law, rather than in Native
nation choice and consent, Tribal citizens tend to view them as illegitimate:
they do not align with Tribal citizens’ perceptions of the appropriate way to
organize and exercise coercive authority.
The current framework is institutionally complex. Deciding which
jurisdiction delivers criminal justice to Indian country depends on a variety
of factors, including but not limited to: where the crime was committed,
whether or not the perpetrator is an Indian or non-Indian, whether or not
the victim is Indian or non-Indian, and the type of crime committed.
The extraordinary waste of governmental resources resulting from
the so-called Indian country “jurisdictional maze” can be shocking, as is
the cost in human lives.
viii
A Roadmap for Making Native America Safer
While problems associated with institutional illegitimacy and
jurisdictional complexities occur across the board in Indian country, the
Commission found them to be especially prevalent among Tribes subject
to P.L. 83-280 or similar types of State jurisdiction. Distrust between Tribal
communities and criminal justice authorities leads to communication
failures, conflict, and diminished respect.
Many Tribal governments have been active in seeking ways to make
do with the current jurisdictional structure. However, working around
the current jurisdictional maze will continue to deliver suboptimal justice
because of holes in the patchwork system and these “work-arounds” still
do not provide Tribal governments with full authority over all crime and all
persons on their lands.
The Commission has concluded that criminal jurisdiction in Indian
country is an indefensible morass of complex, conflicting, and illogical
commands, layered in over decades via congressional policies and court
decisions and without the consent of Tribal nations.
Ultimately, the imposition of non-Indian criminal justice institution
in Indian country extracts a terrible price: limited law enforcement;
delayed prosecutions, too few prosecutions, and other prosecution
inefficiencies; trials in distant courthouses; justice system and players
unfamiliar with or hostile to Indians and Tribes; and the exploitation
of system failures by criminals, more criminal activity, and further
endangerment of everyone living in and near Tribal communities. When
Congress and the Administration ask why the crime rate is so high in
Indian country, they need look no further than the archaic system in place,
in which Federal and State authority displaces Tribal authority and often
makes Tribal law enforcement meaningless.
The Commission strongly believes, as the result of listening to Tribal
communities, that for public safety to be achieved effectively in Indian
country, Tribal justice systems must be allowed to flourish, Tribal authority
should be restored to Tribal governments when they request it, and the
Federal government, in particular, needs to take a back seat in Indian
country, enforcing only those crimes that it would otherwise enforce on or
off reservation.
Accordingly, the Commission recommends:
1.1: Congress should clarify that any Tribe that so chooses can opt
out immediately, fully or partially, of Federal Indian country criminal
jurisdiction and/or congressionally authorized State jurisdiction,
except for Federal laws of general application. Upon a Tribe’s exercise
of opting out, Congress would immediately recognize the Tribe’s
inherent criminal jurisdiction over all persons within the exterior
boundaries of the Tribe’s lands as defined in the Federal Indian
Country Act.2 This recognition, however, would be based on the
Executive Summary
ix
understanding that the Tribal government must also immediately
afford all individuals charged with a crime with civil rights
protections equivalent to those guaranteed by the U.S. Constitution,
subject to full Federal judicial appellate review as described below,
following exhaustion of Tribal remedies, in addition to the continued
availability of Federal habeas corpus remedies.
1.2: To implement Tribes’ opt-out authority, Congress should establish
a new Federal circuit court, the United States Court of Indian Appeals.
This would be a full Federal appellate court as authorized by Article
III of the U.S. Constitution, on par with any of the existing circuits,
to hear all appeals relating to alleged violations of the 4th, 5th,
6th, and 8th Amendments of the U.S. Constitution by Tribal courts;
to interpret Federal law related to criminal cases arising in Indian
country throughout the United States; to hear and resolve Federal
questions involving the jurisdiction of Tribal courts; and to address
Federal habeas corpus petitions. Specialized circuit courts, such as
the U.S. Court of Appeals for the Federal Circuit, which hears matters
involving intellectual property rights protection, have proven to be
cost effective and provide a successful precedent for the approach
that the Commission recommends. A U.S. Court of Indian Appeals is
needed because it would establish a more consistent, uniform, and
predictable body of case law dealing with civil rights issues and
matters of Federal law interpretation arising in Indian country.
Before appealing to this new circuit court, all defendants would first
be required to exhaust remedies in Tribal courts pursuant to the
current Federal Speedy Trial Act, 18 U.S.C. § 3161, which would be
amended to apply to Tribal court proceedings so as to ensure that
defendants’ Federal constitutional rights are fully protected. Appeals
from the U.S. Court of Indian Appeals would lie with the United States
Supreme Court according to the current discretionary review process.
1.3: The Commission stresses that an Indian nation’s sovereign choice
to opt out of current jurisdictional arrangements should and must
not preclude a later choice to return to partial or full Federal or
State criminal jurisdiction. The legislation implementing the opt-out
provisions must, therefore, contain a reciprocal right to opt back in if
a Tribe so chooses.
1.4: Finally, as an element of Federal Indian country jurisdiction,
the opt-out would necessarily include opting out from the sentencing
restrictions of the Indian Civil Rights Act (IRCA). Critically, the rights
protections in the recommendation more appropriately circumscribe
Tribal sentencing authority. Like Federal and State governments do,
Tribal governments can devise sentences appropriate to the crimes
they define. In this process of Tribal code development, Tribes may
find guidance in the well-developed sentencing schemes at the State
and Federal levels.
Executive Summary
xi
VAWA’s 2013
Special Domestic Violence Criminal Jurisdiction
Authorizes participating tribes to exercise “special domestic violence criminal jurisdiction” (SDVCJ) over nonIndian defendants for
 the acts of domestic violence or dating violence; and
 violations of certain protection orders.
However,
 the victim must be Indian;
 the crime must take place in the Indian Country of the participating tribe; and
 the non-Indian defendant must have “sufficient ties to the Indian Tribe,” which could include either:
o residing in the Indian country of the participating tribe;
o being employed in the Indian country of the participating tribe; or
o being a spouse, intimate partner, or dating partner of a tribal member, or an Indian who resides
in the Indian country of the participating tribe.
Required Due Process Protections (many of which mirror the due process protections required to exercise the
enhanced sentencing provisions of the Tribal Law and Order Act (TLOA) of 2010):
TLOA and VAWA Due Process Requirements
TLOA VAWA
Defendants are provided with effective assistance of counsel equal to at least that guaranteed in the
U.S. Constitution.
Tribal government provides to an indigent defendant a defense attorney licensed to practice by any
jurisdiction in the United States.
Defense attorney is licensed by a jurisdiction that applies appropriate licensing standards and
effectively ensures the competence and professional responsibility of its licensed attorneys.
Judges presiding over criminal proceedings subject to enhanced sentencing/non-Indian defendants
have sufficient legal training to preside over criminal trials.
Any judge presiding over criminal proceedings subject to enhanced sentencing/non-Indian
defendants is licensed to practice law by any jurisdiction in the United States.
The tribe’s criminal law, rules of evidence, and rules of criminal procedure are made available to the
public prior to charging the defendant.
Tribal court maintains a record of the criminal proceeding, including an audio or other recording.
Any defendant sentenced under either Act is sentenced to a facility that passes the BIA jail
standards for enhanced sentencing authority.
Tribal court provides the defendant the right to a trial by an impartial jury.
Tribal court ensures that the jury reflects a fair cross section of the community.
Tribal court ensures that juries are drawn from sources that do not systematically exclude any
distinctive group in the community, including non-Indians.
Tribal court ensures that anyone detained under SDVCJ is “timely notified” of his/her rights and
responsibilities.
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.”
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.
Tribal court ensures that “all applicable rights under the special domestic violence criminal
jurisdiction provisions” are provided.
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
All Tribes have been authorized to start exercising SDVCJ starting March 7, 2015.
As of December 19, 2014, Alaska Native tribes are now also be authorized to exercise SDVCJ.
Between March 7, 2013, the date VAWA was reauthorized, and March 7, 2015, tribes were required to apply
to the Department of Justice to participate in a “Pilot Project.” The following three tribes were approved as
pilot project tribes on February 6, 2014 (two additional tribes – Fort Peck and Sisseton Wahpeton – were
approved on March 6, 2015 which was the last day of the pilot project period):
Confederated Tribes of the Umatilla Indian Reservation
Tribe’s website: http://ctuir.org/
Reservation land base: 173,470 acres ~ Population: 2,927 (as of 2000 Census)
The Cayuse, Umatilla and Walla Walla people make up the Confederated Tribes of the Umatilla Indian
Reservation. The three bands were brought together on the Umatilla Indian Reservation, established by a
Treaty with the U.S. Government in 1855. The bands were united as a single tribal government in 1949
when their leaders adopted a constitution and by-laws. The Umatilla Tribes began exercising special
domestic violence criminal jurisdiction on February 20, 2014. During the pilot project period, Umatilla
convicted two non-Indians, one for assault and one for violation of a protection order. A third assault case
was pending, with a guilty pleas anticipated.
Pascua Yaqui Tribe
Tribe's website: http://www.pascuayaqui-nsn.gov
Reservation land base: 1,194 acres ~ Population: 3,315 (as of 2000 Census)
The Pascua Yaqui Tribe is located in southwest Arizona on a land base of 1194 acres. With a tribal
population of 3315 (and over 90% American Indian), the Pascua Yaqui Tribe began exercising special
domestic violence criminal jurisdiction on February 20, 2014. During the pilot project period, Pascua Yaqui
has processed 18 SDVCJ cases. There was one jury trial, resulting in an acquittal and subsequent
extradition to the State of Oklahoma for an outstanding arrest warrant. The second jury trial was
scheduled for April 28, 2015.
Tulalip Tribes
Tribe's website: http://www.tulaliptribes-nsn.gov/
Reservation land base: 22,567 acres ~ Population: 9,246 (as of 2000 Census)
The Tulalip Tribes are the successors in interest to the Snohomish, Snoqualmie, Skykomish and other allied
tribes and bands signatory to the 1855 Treaty of Point Elliott. The Tulalip Tribes began exercising special
domestic violence criminal jurisdiction on February 20, 2014. During the pilot project period, the Tulalip
Tribes processed five SDVCJ cases. Three cases resulted in guilty pleas, one was dismissed for insufficient
evidence, and one was transferred for federal prosecution primarily because children were involved and
SDVCJ does not include assault of a child.
Learn more at:


www.ncai.org/tribal-vawa
www.tribal-institute.org/lists/vawa_2013.htm
TRIBAL LAW AND POLICY INSTITUTE
8235 SANTA MONICA BLVD., SUITE 211 ~ WEST HOLLYWOOD, CA 90046
P: 323.650.5467 ~ F: 323.650.8149
TRIBAL COURT CLEARINGHOUSE ~ www.tlpi.org
Learn more at:
 Resource Center for Implementing Tribal Provisions of VAWA: www.ncai.org/tribal-vawa
 Tribal Court Clearinghouse: The Violence Against Women Act:
www.tribal-institute.org/lists/vawa_2013.htm
 Tribal Court Clearinghouse: Domestic Violence: www.tribal-institute.org/lists/domestic.htm
 www.tribalprotectionorder.org
 National Indigenous Women’s Resource Center: www.niwrc.org
Resources:
 Tribal Legal Code Resource: Tribal Laws Implementing TLOA Enhanced Sentencing and VAWA
Enhanced Jurisdiction Guide for Drafting or Revising Tribal Laws to Implement the Enhanced
Sentencing Provisions of the Tribal Law and Order Act (TLOA) and the Special Jurisdiction
Provisions of the Violence Against Women Reauthorization of 2013 (VAWA 2013)
Available at: www.tlpi.org
This resource provides an overview of the enhanced powers recognized by each statute and explores
ways that tribes can comply with the requirements of the federal statutes.



Sharing our Stories of Survival: Native Women Surviving Violence
Available at www.tlpi.org
This textbook is a general introduction to the social and legal issues involved in acts of violence
against Native women. The stories and case-studies presented here are often painful and raw, and the
statistics are overwhelmingly grim; but a countervailing theme also runs through this extremely
informative volume: Many of the women who appear in these pages are survivors, often
strengthened by their travails, and the violence examined here is human violence, meaning that it can
be changed, if only with much effort and education.
Tribal Legal Code Resource: Domestic Violence Laws
Available at www.tlpi.org
This Victim-Centered Approach to Domestic Violence Against Native Women resource guide
includes exercises, examples, and discussion questions to help you customize your laws to meet the
needs of your community. This resource was revised and updated January 2012, including changes
addressing issues concerning the 2010 enactment of the Tribal Law and Order Act.
Responses to the Co-Occurrence of Child Maltreatment and Domestic Violence in Indian Country:
Repairing the Harm and Protecting Children and Mothers December 2011 (Draft)
This study is an initial inquiry into the issue of the co-occurrence of domestic violence and child
maltreatment in Indian country. Using a mixed method approach, this investigation sought to
identify those practices that seem to be moving toward Native-specific promising practices, and to
develop recommendations for further action in Indian country.


Amnesty International’s Maze Of Injustice Report (July 15, 2008). Available at
www.amnestyusa.org
The Attorney General’s Task Force on American Indian/Alaska Native Children Exposed to
Violence: Ending Violence So Children Can Thrive (Nov. 2014). Available at:
www.justice.gov/defendingchildhood
This project addresses the epidemic levels of exposure to violence faced by our nation's children.
The task force was created in response to a recommendation in the Attorney General's National
Task Force on Children Exposed to Violence December 2012 final report. The report noted that
American Indian and Alaska Native children have an exceptional degree of unmet needs for
services and support to prevent and respond to the extreme levels of violence they experience.
Tribal Law and Policy Institute
8235 Santa Monica Blvd. Ste. 211
West Hollywood, CA 90046
(323) 650-5467
www.tlpi.org
Implementation Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced Sentencing
Revised 5/26/2015
State
Implementation Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced Sentencing
Indian Tribes
ITWG* or
Exploring
VAWA
Confederated Tribes of the Umatilla
1 OR Indian Reservation
ITWG
2 AZ Pascua Yaqui
ITWG
3 WA Tulalip Tribes Of Washington
ITWG
4 MT Fort Peck Tribes
ITWG
5 SD Sisseton-Wahpeton Oyate
Little Traverse Bay Band of Odawa
6 MI Indians
7 NC
8 OK
ITWG
Interested in
Joining
Implemented
VAWA
Close to VAWA
Implementation
Pilot Project
2/6/14
Pilot Project
2/6/14
Pilot Project
2/6/14
Pilot Project
3/6/15
Pilot Project
3/6/15
ITWG
Within 6 months
Exploring
VAWA
Within 6 months
ITWG
ITWG
ITWG
6-12 months
6-12 months
6-12 months
ITWG
6-12 months
Exploring
VAWA
6-12 months
18 SD Cheyenne River Sioux
Exploring
VAWA
Exploring
VAWA
Exploring
VAWA
19 WA Yakama Nation
Exploring
VAWA
6-12 months
Exploring
VAWA
6-12 months
20
21
22
23
24
MN
AZ
AZ
AZ
OK
25
26
MI Pokagon Band of Potawatomi Indians
WA Puyallup Indian Tribe
NM San Carlos Apache Nation
WA Quinault Indian Nation
WA The Suquamish Tribe
CO Ute Mountain Ute
NM Pueblo of Laguna
NM Pueblo of Zuni
KS Prairie Band Potawatomi Nation
WI Menominee Nation
OK Chickasaw Nation
WA Chehalis Tribe
OK Iowa Nation
WA Makah Nation
LA Chitimacha
OK Comanche Nation
WI St. Croix
WI Ho-Chunk Nation
MT Crow Nation
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
Red Lake Nation
Hopi Tribe
Salt River Indian Community (AZ)
Gila River Indian Community
Muscogee Creek Nation
ITWG
ITWG
ITWG
ITWG
●
●
●
●
●
●
●
6-12 months
●
6-12 months
6-12 months
●
●
●
ITWG
ITWG
ITWG
ITWG
ITWG
ITWG
ITWG
ITWG
●
Code revision needed for TLOA
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
concurrent jurisdiction approved
by DOJ under TLOA PL 280
provision
ITWG
44 MN White Earth Band of Ojibwe
45 AZ Colorado River Indian Tribes
WA granted retrocession, 2001
http://www.indianz.com/New
s/2015/016818.asp
3/7/15
Within 6 months
16 WA Shoalwater Bay
Grand Traverse Band of Ottawa &
17 MI Chippewa Indians
●
●
ITWG
15 MN Mille Lacs Band of Ojibwe
Notes
●
Cherokee Nation of Oklahoma
Nottawaseppi Huron Band of the
14 MI Potowatomi
Utilized
Bureau
of
Prisons
●
●
Within 6 months
Three Affiliated Tribes of the Fort
11 ND Berthold Reservation
12 WA Port Gamble S'Klallam Tribe
13 ND Standing Rock Sioux
Exploring or
Implementing
Enhanced
Sentencing³
●
ITWG
10 CA Hopland Band of Pomo Indians
Close to TLOA
Enhanced
Sentencing
Implementation²
●
Eastern Band of Cherokee Indians
9 MS Mississippi Band of Choctaw Indians
TLOA Enhanced
Sentencing
Implemented¹
ITWG
Please send revisions, updates or corrections to Virginia Davis (Vdavis@NCAI.org) and Chia Halpern Beetso (Chia@tlpi.org).
●
Implementation Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced Sentencing
Revised 5/26/2015
State
Indian Tribes
46
47
48
49
50
51
52
OK
ID
WI
ME
CA
NM
NM
Kickapoo Tribe of Oklahoma
Nez Perce
Oneida Tribe of Wisconsin
Passamoquoddy Tribe
Pauma Band of Mission Indians
Pueblo of Isleta
Pueblo of Santa Clara
58 AZ Tohono O'odham Nation
59 OR Warm Springs Confederated Tribes
60 MT Fort Belnap
61 AZ Navajo Nation
62 OK Osage Nation
ITWG* or
Exploring
VAWA
Implemented
VAWA
Close to VAWA
Implementation
TLOA Enhanced
Sentencing
Implemented¹
ITWG
ITWG
ITWG
ITWG
ITWG
ITWG
ITWG
Exploring
VAWA
Exploring
VAWA
Exploring
VAWA
Exploring
VAWA
Exploring
VAWA
KEY:
TLOA = Tribal Law and Order Act
VAWA = Violence Against Women Act of 2013
ITWG= InterTribal Working Group: tribes that have
been involved in pilot project process since 2013
Exploring VAWA= Tribes expressing interest recently
but not in ITWG pilot project process since 2013
Please send revisions, updates or corrections to Virginia Davis (Vdavis@NCAI.org) and Chia Halpern Beetso (Chia@tlpi.org).
Close to TLOA
Enhanced
Sentencing
Implementation²
Exploring or
Implementing
Enhanced
Sentencing³
●
Utilized
Bureau
of
Prisons
Notes