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(Violence Against Women Reauthorization Act of 2013, S.
47, 113th Congress, 2013-2015.) VAWA of 2013 included Title IX—Safety for Indian Women.
Section 908(b)(1) of the Violence Against Women Reauthorization Act (VAWA) of 2013 provides that tribes generally cannot exercise special domestic violence criminal jurisdiction (SDVCJ) until after March 7, 2015. Department of Justice (DOJ) has published proposed procedures for an Indian tribe to request designation as a participating tribe under the Pilot Project, and also proposes procedures for the Attorney General to act on such a request.
However, section 908(b)(2) establishes a “Pilot Project” that authorizes the Attorney General, in the exercise of his discretion, to grant a tribe’s request to be designated as a “participating tribe” on an accelerated basis and to commence exercising SDVCJ on a date set by the Attorney General (prior to March 7, 2015), after coordinating with the Secretary of the Interior, consulting with affected tribes, and concluding that the tribe’s criminal justice system has adequate safeguards in place to protect defendants’ rights. This notice also invites public comment on the proposed procedures and solicits preliminary interest to participate in the Pilot Program.
In addition to sexual assault, the expanded criminal jurisdiction does not include the crimes of child abuse or elder abuse.
“Special domestic violence criminal jurisdiction” is reserved only for certain defendants.
(See our General Guide to Criminal Jurisdiction in Indian Country.) A "participating tribe," or a tribe that elects to utilize the special domestic violence criminal jurisdiction, may prosecute a non-Indian defendant for acts of "Domestic violence," "dating violence," and "protection orders," are defined within the Text of the Law Here.
It is important to note that the “special domestic violence criminal jurisdiction” does NOT include the crime of sexual assault.
They therefore prohibit the prosecution of a defendant for sexual assault that occurred during a “hook up,” or any other instance in which the defendant and the victim do not have a prior romantic relationship.Native women are battered, raped, and stalked at far greater rates than any other population of women in the United States: 34% of Native women will be raped in their lifetimes and 39% will be the victim of domestic violence. Amnesty International’s Maze of Injustice Report (2007) similarly noted that American Indian and Alaska Native women continue to experience high levels of sexual violence.Violence in Indian country is compounded by a systemic failure to prosecute offenders.One of the more debilitating factors, however, is that tribal courts are without any recourse against non-Indian offenders in Indian country due to a 1978 Supreme Court case. Among its other provisions, Congress amended the Indian Civil Rights Act (ICRA) of 1968 to authorize "special domestic violence criminal jurisdiction" to tribal courts over non-Indian offenders who commit (1) domestic violence, (2) dating violence, or (3) violate a protection order. Note that due to jurisdictional frameworks in existence prior to VAWA, either the federal or state government will continue to have concurrent jurisdiction over these same non-Indian offenders, for the same crime prosecuted by the tribal court.Note that because tribes are distinct sovereigns from the states and from the federal government, there are no double jeopardy concerns for dual prosecutions.
The expanded jurisdiction does NOT apply when: Note that while a defendant must have certain connections to the tribe in order to be prosecuted by the tribal court, these restrictions pertain to "Indians," rather than "tribal-members." Therefore, a non-Indian defendant may be prosecuted for domestic violence involving an Indian victim, regardless of whether the victim is a member of the prosecuting tribal court, so long as the crime took place in the Indian country of the prosecuting tribe, and the defendant satisfies at least one of the three factors for sufficient ties.