In Oliphant v. Suquamish Indian Tribe, 435 U.S. 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 (VAWA) 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.

  1. VAWA’s Jurisdiction Limiting Definitions
  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. VAWA’s Procedural Requirements (Due Process)

Congress also specified several procedural protections that a tribe must provide non-Indian criminal defendants under VAWA.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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 (ICRA), including equal protection.

  1. 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.

  1. Additional Issues
  1. 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.

  1. Geographic Limits

Congress chose not to extend VAWA’s special domestic violence criminal jurisdiction to tribes in Alaska, except for the Metlakatla Indian Community.

  1. 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.

  1. 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 (TLOA), 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.

  1. Conclusion

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.