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A. Time Limits
Most tribes will have until 2015 to make any necessary institutional changes to take advantage of VAWA's tribal provisions. And any tribe can petition the Attorney General to exercise VAWA's special domestic violence criminal jurisdiction immediately under a pilot program. Any tribe wishing to participate in the pilot program must show that the tribal system provides adequate procedural safeguards.
B. Geographic Limits
Congress chose not to extend VAWA's special domestic violence criminal jurisdiction to tribes in Alaska, except for the Metlakatla Indian Community.
C. Non-Jurisdictional Provisions in VAWA
VAWA also provides several grants to tribal governments and tribal coalitions to protect victims of domestic violence before criminal prosecutions occur. Unsupported victims, statistically, will not testify in a domestic violence prosecution.
D. Tribes in Public Law 280 States
Tribes can also take advantage of other recent legislation related to criminal jurisdiction in Indian Country. Under Section 221 of the Tribal Law and Order Act, Tribes in mandatory Public Law 280 states can request that the United States reassume criminal jurisdiction over that tribe's fee or trust land. If the federal government grants the tribe's request, the federal government can prosecute cases that fall under the Indian Country General Crimes Act and Major Crimes Act on that reservation. But the re-assumption of federal criminal jurisdiction does not alter state or tribal jurisdiction. This means that the state still has the same criminal jurisdiction over Indian Country delegated to it under Public Law 280. Additionally, tribes that have sought and obtained a re-assumption of federal jurisdiction will not benefit from VAWA, such a tribe will still have to implement separate procedures to take advantage of VAWA's tribal provisions.
The federal re-assumption would allow federal, state, and tribal prosecutors to prosecute the same criminal defendant for the same act. Coordination among the different law enforcement officers is one of the keys to successfully implementing TLOA's re-assumption provisions.
Having federal prosecutions means longer and more severe sentencing possibilities for crimes when compared to state and tribal penalties. But federal prosecutions represent fewer prosecutions numerically.
If a tribe wants the federal government to reassume jurisdiction, the tribe must send a written request to the U.S. Department of Justice, Office of Tribal Justice. The request must be signed by the tribe’s chief executive officer. Tribes, as well as federal, state, and local entities, have a chance to make comments on the request. The Deputy Attorney General makes the decision whether to reassume jurisdiction based on an evaluation of whether re-assumption will make the tribal community safer. The decision takes about five months. If a decision is denied, the tribe can resubmit a request.
For "optional" Public Law 280 states, Section 221 of TLOA is irrelevant because federal and state prosecutors already have concurrent jurisdiction in those states. TLOA also does not change tribal jurisdiction. A tribe could not exercise criminal jurisdiction over a non-Indian for any reason under TLOA. Optional Public Law 280 states that tribes can request retrocession if the tribe does not want the state to exercise criminal jurisdiction in Indian Country, but the state must concur with that request. Retrocession is rarely used today and this option is not available for mandatory Public Law 280 states.
Because constitutional challenges to VAWA's tribal provisions are expected, tribes that implement VAWA need to take great care to carefully observe all its procedural as well as other requirements. Understandably, in the inevitable cases that follow, tribal proponents fear that bad facts may make bad law. So it is incumbent on Indian Country to ensure adherence to the highest standards universally to protect the hard won tribal jurisdiction provisions in VAWA.
Ms. Day is a citizen of the Cherokee Nation. She earned her J.D. from Columbia University School of Law. Ms. Day joins the firm as an associate in the Litigation Department on the Native American Affairs Team.
Mr. Echo Hawk is a member of the Pawnee Tribe of Oklahoma. Mr. Echo Hawk earned his J.D., cum laude, from Brigham Young University Law School. Mr. Echo Hawk has over 14 years of experience representing tribal governments in complex litigation in federal, state, and tribal courts.
Editor's Note: This Legal Alert was originally posted on the Kilpatrick Townsend Attorneys at Law website and is used here with permission. Kilpatrick Townsend retains ownership of the alert's copyright.
posted July 27, 2013 8:20 am edt