April Day and Paul C. Echo Hawk in Native Condition Discussion »
In Oliphant v Suquamish Indian Tribe, 435 US 191 1978, the Supreme Court held that tribes do not have inherent authority to prosecute crimes committed by non-Indians in Indian country. Oliphant is a judge made, non-constitutional law and generally remains the current law.
The Violence Against Women Act partially reverses the Oliphant rule by recognizing the inherent authority of federally recognized tribes to prosecute non-Indians in tribal court for domestic violence crimes against tribal members or Indians residing in Indian country.
In VAWA's tribal provisions, Congress requires tribes to have certain processes and protection to qualify for the recognition of jurisdiction. VAWA also provides procedural safeguards to domestic violence criminal defendants that must be observed by implementing tribes.
VAWA allows tribes to elect whether to take advantage of these tribal provisions permitting the assertion of tribal jurisdiction over domestic violence crimes committed by non-Indians. Tribes who do not wish to take advantage of VAWA's tribal provisions do not have to implement any changes. Also, regardless of whether a tribe decides to take advantage of VAWA, federal and state authorities, where applicable, can still prosecute the same non-Indian defendant for the same crime.
A. Types of Crimes
To satisfy the requirements of VAWA, tribes may have to amend their tribal codes to recognize special domestic violence crimes as different from assault between two strangers. VAWA requires a "dating or domestic relationship" between the perpetrator and victim for VAWA's special criminal jurisdiction provisions to apply.
Tribes that implement VAWA also can prosecute non-Indians in tribal courts for violation of a protective order, but the violation must occur in Indian country. Additionally, the protective order on which criminal jurisdiction is based must be issued: 1 to prevent violent or threatening acts, or 2 contact, communication, or physical proximity with or to the victim. Given this definition, VAWA likely does not permit prosecution of a non-Indian spouse for violating a domestic violence protective order outside of the tribe's Indian country lands. Such crimes remain under the state or county's exclusive criminal jurisdiction.
B. Types of Defendants
A non-Indian can be subject to VAWA's special tribal domestic violence jurisdiction only if he or she: 1. resides in Indian Country, 2. is employed in Indian Country, 3. is the spouse, intimate partner, or dating partner of a tribal member, or 4. is the spouse, intimate partner, or dating partner of an Indian living in Indian Country. In the case of employment within Indian Country, it is an open question whether the employer must be the tribe or can be a company owned by the tribe or a tribal member or even a company owned by a non-Indian.
C. Types of Victims
To take advantage of VAWA's special domestic violence criminal jurisdiction, the victim must be a tribal member or an Indian that resides in the prosecuting tribe's Indian Country. If both the perpetrator and the victim are non-Indians, VAWA does not recognize tribal jurisdiction over the non-Indian perpetrator.
D. Place of Criminal Act that Serves as the Basis for Special Criminal Jurisdiction
The alleged criminal act or violation of the protective order must occur in Indian Country. See Pub. L. 113-4, 904 c. VAWA's tribal provisions adopt the definition of Indian Country found in the federal criminal code, 18 U.S.C. 1151, meaning that acts that a non-Indian committed against a tribal member off reservation cannot provide the basis for a tribal court prosecution under VAWA. Additionally, any attempts to exercise special domestic violence criminal jurisdiction over crimes that occur on non-Indian owned fee land within a reservation may be rejected if challenged.
Congress also specified several procedural protections that a tribe must provide non-Indian criminal defendants under VAWA.
A. Right to a Jury Selected from a Fair Cross-Section of the Community
A tribe must provide and protect a defendant's right to trial by a jury selected from a fair cross section of the community, including non-Indians. Accordingly, tribes seeking to implement VAWA's tribal jurisdiction provisions will need to ensure that they can summon an adequately representative pool of potential jurors. Non-Indian tribal employees may be considered as part of the community for this purpose.
B. Right to Counsel for Indigent Defendants
A tribe must provide indigent defendants with effective counsel if any term of imprisonment is imposed. This means that if the tribe wants to imprison someone for a domestic violence crime, even for a day, and the person cannot afford an attorney, the tribe must pay for a law trained attorney.
C. Law Trained Judges
To qualify for this jurisdictional grant, the presiding judge of the criminal proceeding must be: 1. law trained and 2. a state licensed attorney. While not express, this requirement likely applies to appellate judges reviewing trial court decisions.
D. Inform of Right to File Writ of Habeas Corpus in Federal Court
The tribal court must also inform a detained defendant that he/she has the right to have a federal court review the defendant's case by petitioning for a writ of habeas corpus at any point.
E. Other Provisions of the Indian Civil Rights Act
A tribe also must ensure that it provides all the rights to the defendant required under the Indian Civil Rights Act, including equal protection.
F. Catch All Procedural Safeguard Provision
Congress included opaque language that requires tribes to recognize and protect "all other rights whose protection is necessary for Congress to recognize and affirm" the tribes' inherent authority to prosecute non-Indians for crimes of domestic violence against tribal members or Indians residing on reservation.
It is unclear what these "other rights" are. This lack of clarity likely will provide a source for future federal court challenges to tribal court prosecutions under VAWA. But this catch all, vague phrase will likely prove beneficial, as it may give federal courts the ability to recognize the constitutionality of VAWA as a whole while striking down or overturning particular tribal court prosecutions on a case by case basis.
A cautious approach would be to interpret this provision as requiring tribes to provide the same protections that federal courts require of states. For instance, the Congressional Research Service has indicated that these "other rights" may include the right to indictment by a grand jury, a right not included in ICRA, or required of the states. It may also require that tribes make publicly available laws, rules of evidence and procedures. This is not an exhaustive list. Tribes should consult with legal counsel to determine the likely extent of this provision.
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posted July 27, 2013 8:20 am edt