Tribal Criminal Jurisdiction Over Non-Indians:
Violence Against Women Reauthorization Act of 2022
Resources: Judicial and Defense Counsel Requirements
Defense Counsel Requirements
VAWA 2022 Special Tribal Criminal Jurisdiction (25 U.S.C. §1304 (d)(2)) requires that if a term of imprisonment of any length may be imposed, the tribe must satisfy all the standards set forth in the Indian Civil Rights Act (ICRA), which includes the standards for defense counsel.
25 U.S.C. § 1302 (c) Rights of Defendants
The Indian tribe shall— (which applies to VAWA 2022 cases if a term of imprisonment of any length may be imposed)
(1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and
(2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
Judicial Requirements
VAWA 2022 Special Tribal Criminal Jurisdiction (25 U.S.C. §1304 (d)(2)) requires that if a term of imprisonment of any length may be imposed, the tribe must satisfy all the standards set forth in the Indian Civil Rights Act (ICRA), which includes the standards for judges.
25 U.S.C. § 1302 (c) Rights of Defendants
The Indian tribe shall—(which applies to VAWA 2022 cases if a term of imprisonment of any length may be imposed)
(3) require that the judge presiding over the criminal proceeding—
(A) has sufficient legal training to preside over criminal proceedings; and
(B) is licensed to practice law by any jurisdiction in the United States;
Resources, Tribal Law and Policy Institute
The Tribal Law and Order Act of 2010 (TLOA) and the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) amended the Indian Civil Rights Act (ICRA) to impose qualification requirements on tribal court judges presiding over the prosecution and sentencing of certain cases. In two circumstances this exists: (1) when a tribal court prosecutes a non-Indian defendant (under VAWA 2022’s Special Tribal Criminal Jurisdiction) and the defendant faces the possibility of incarceration or (2) when a tribal court sentences any defendant to greater than one year imprisonment (under TLOA’s Enhanced Sentencing Authority), the presiding judge must meet two requirements proscribed by Federal law:
(1) have “sufficient legal training to preside over [a] criminal proceeding[],” and
(2) be “licensed to practice law by any jurisdiction in the United States.”
This publication focuses on the first requirement, that a judge presiding over a criminal case involving a non-Indian defendant (or presiding over a TLOA Enhanced Sentencing Authority case) have “sufficient legal training to preside over criminal proceedings.”
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Facilitated Discussions
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Fourth Facilitated Discussion: Child Violence and Other Issues Including Habeas Corpus and Exhaustion of Tribal Court Remedies: Fourth Facilitated Discussion: Child Violence and other issues including Habeas Corpus and Exhaustion of Tribal Court Remedies (YouTube) and Fourth Facilitated Discussion: Child Violence and other issues including Habeas Corpus and Exhaustion of Tribal Court Remedies(PDF)
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Tribal Domestic Violence Courts Fact Sheet
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This fact sheet discusses various tribal domestic violence court models; benefits of establishing a tribal domestic violence court; why a tribal community should consider establishing a tribal domestic violence court and how a tribal domestic violence court can benefit a tribe exercising the Violence Against Women Reauthorization Act of 2013 regarding special domestic violence criminal jurisdiction over non-Indians. (2017)
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Please note that this code resource has not yet been updated to reflect VAWA 2022
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Tribal Domestic Violence Dockets Fact Sheet
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This fact sheet discusses positive outcomes from having domestic violence cases on a specific docket/day; why tribal domestic violence dockets are needed; benefits of establishing a tribal domestic violence docket; why a tribal community should consider establishing a tribal domestic violence docket and how a tribal domestic violence docket can benefit a tribe exercising the Violence Against Women Reauthorization Act of 2013 – Special Domestic Violence Criminal Jurisdiction over non-Indians. (2017)
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Please note that this code resource has not yet been updated to reflect VAWA 2022
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Tribal Domestic Violence Courts and Tribal Domestic Violence Dockets
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Tribal Domestic Violence Courts and Tribal Domestic Violence Dockets - Guide for Development of a Tribal Victim-Centered Specialized Court or Docket to More Effectively Address Domestic Violence Cases. Tribal Domestic Violence Courts are specialized courts comprised of judges, court staff and a multi-disciplinary core case team highly trained in the power and control dynamics of domestic violence and focused on victim safety and batterer accountability. Domestic Violence Dockets are specialized docket days with judges and court personnel trained in dynamics of domestic violence and enhanced security measures. This unique resource was drafted to guide Native nations through a series of exercises resulting in a tribal domestic violence court or docket specifically designed by the tribe to address the domestic violence issues in a particular tribal community.
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Please note that this code resource has not yet been updated to reflect VAWA 2022
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Prosecutor Sexual Assault Protocol - Resource Guide for Drafting or Revising Tribal Prosecutor Protocols on Respond to Sexual Assault
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The Prosecutor Sexual Assault Protocol is a tool for improving the prosecution of sexual assault crimes through the development of an internal protocol for tribal prosecution, and includes a model sexual assault protocol. Holding offenders accountable for their actions is a key part of making your community safe. A prosecutor protocol can enhance the efforts of all community agencies. (2008) This publication was developed in partnership with the Southwest Center for Law and Policy.
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Please note that this code resource has not yet been updated to reflect VAWA 2022
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Tribal Court Judges Bench Book: Tribal Judicial Guide for Navigating Sexual Assault Cases
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This publication is a resource for tribal judges who hear sexual assault cases in tribal courts. It provides background information on important sexual assault and tribal jurisdictional issues, as well as providing guidance in handling key issues at various stages of a sexual assault criminal trial. (2011)
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Please note that this code resource has not yet been updated to reflect VAWA 2022
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Resources, generally
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Article on Protecting Sovereignty: The Role of Tribal Courts
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This publication is intended to serve as a resource for the planning, implementation and enhancement of Tribal justice systems and to:
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provide general information relevant to Tribal sovereignty and the role that Tribal courts play in the protection and preservation of Tribal sovereignty
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introduce the reader to the separation of powers doctrine and provide general points of discussion relevant to separation of powers
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introduce the reader to the concept of judicial independence, offer suggestions on means to achieve judicial independence and provide general points of consideration relevant to judicial independence
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Tulalip Tribes Domestic Violence Court
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The Tulalip Tribes are committed to a safe, healthy and non-violent community for all tribal members and the Legacy of Healing Advocacy Center provides broad advocacy services for domestic and dating violence, sexual assault and stalking.
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Criminal Domestic Violence Courts: Key Principles
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These key principles are based on the Center for Court Innovation’s experience developing domestic violence courts in a variety of jurisdictions.
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Domestic violence is one of the most pressing problems facing Native American and Alaska Native communities. Although the reauthorized Violence Against Women Act recognizes the authority of Tribes to prosecute non-Native offenders, more tools are needed. This paper explores whether specialized domestic violence courts, which focus on enhancing victim safety and promoting offender accountability, can be part of a multi-faceted approach for Tribal justice systems to address domestic violence.
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