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Updates: Judicial, Legislative, and Administrative

Judicial Updates

United States of America v. Rahimi:

  • The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

  • Zackey Rahimi levies a facial challenge to § 922(g)(8). The district court and a prior panel upheld the statute, applying this court’s pre-Bruen precedent. See United States v. Rahimi, No. 21-11001, 2022 WL 2070392 at *1 n.1 (5th Cir. June 8, 2022). Rahimi filed a petition for rehearing en banc; while that petition was pending, the Supreme Court decided Bruen. The prior panel withdrew its opinion and requested supplemental briefing on the impact of that case on this one. Considering the issue afresh, we conclude that Bruen requires us to re-evaluate our Second Amendment jurisprudence and that under Bruen, § 922(g)(8) fails to pass constitutional muster. We therefore reverse the district court’s ruling to the contrary and vacate Rahimi’s conviction.

Counterman v. Colorado: 22-138 Counterman v. Colorado (06/27/2023) (

  • This case asks the Supreme Court to determine whether “true threats,” which are unprotected by the Free Speech Clause of the First Amendment, may be established under a subjective or objective test. Billy Raymond Counterman argues that historical common law practice and Supreme Court precedents require that a speaker subjectively know or intend their speech to be threatening in order for the speech to be a “true threat” unprotected by the First Amendment. On the other hand, Colorado argues that a context-driven objective test is supported by precedent and permissible under the First Amendment. This case has implications for the balance between protecting people from the harmful effects of threatening speech and preventing unjust censorship of political, religious, and artistic expression.

Reimbursement Program

Administrative Updates

Special Tribal Criminal Jurisdiction Reimbursement Program 

  • The Office on Violence Against Women (OVW) published a regulation on April 11, 2023, governing the Special Tribal Criminal Jurisdiction (STCJ) Reimbursement Program, a new program authorized under the Violence Against Women Act Reauthorization Act of 2022 (VAWA 2022) to reimburse Tribal governments for expenses incurred in exercising STCJ over non-Native individuals who commit certain covered crimes on tribal lands.

  • This regulation is an interim final rule, which means that it takes effect on the day of publication. OVW will take into consideration the comments received during the 60-day comment period as well as tribes’ reaction to the implementation of the first year of the program before issuing a final rule.

  • You can also watch a webinar that OVW conducted to provide detail about the reimbursement program.

US Department Of Justice Tribal Consultation | VAWA 2022 Alaska Pilot Project Framing Paper

This paper supports the Department of Justice (DOJ) government-to-government consultations to discuss implementation of the Alaska Pilot Program, established in the Violence Against Women Act Reauthorization Act of 2022, for the designation of participating Alaska Tribes to exercise special Tribal criminal jurisdiction pursuant to section 813 of the Act. Information about how to participate in these discussions is described in the invitation letter, which is available on the DOJ’s Tribal Justice and Safety Website,

VAWA 2022 also includes a provision specific to Tribes in Alaska that “recognizes and affirms the inherent authority of any Indian tribe occupying a Village in the State [of Alaska] to exercise criminal and civil jurisdiction over all Indians present in the Village” and establishes a pilot program for that would enable Alaska Tribes designated by the Attorney General to exercise special Tribal criminal jurisdiction over persons who are not Indians.

Office on Violence Against Women (OVW) Government to Government Tribal Consultation 

The Office on Violence Against Women is a grant-making agency in the U.S. Department of Justice. Under §903 of Title IX of the United States Department of Justice Reauthorization and Violence Against Women Act of 2005 (VAWA 2005), OVW is responsible for conducting annual government-to-government consultations with the leaders of all Federally recognized Indian tribal governments on behalf of the United States Attorney General.

The purpose of each consultation is to solicit recommendations from tribal government leaders on the following topics

(1) Administering tribal funds and programs;
(2) Enhancing the safety of Indian women from domestic violence, dating violence, sexual assault, homicide, stalking, and sex trafficking;
(3) Strengthening the federal response to such crimes; and,
(4) Improving access to local, regional, state, and federal crime information databases and criminal justice information systems.


View 2022 Update on the Status of Tribal Consultation Recommendations:

Not Invisible Act Commission Report (2023) 

Pursuant to Section 4 of the Not Invisible Act of 2019 (Public Law 116-166), the Commission transmitted this report with findings and recommendations of the Not Invisible Act Commission (“the Commission”).

On Oct. 10, 2020, the Not Invisible Act of 2019 was signed into law as the first bill in history to be introduced and passed by four U.S. congressional members enrolled in their respective federally recognized Tribes, led by Secretary Deb Haaland during her time in Congress.

Secretary Haaland, in coordination with Attorney General Merrick Garland, is now working to implement the Not Invisible Act. They established the Not Invisible Act Commission, a cross jurisdictional advisory committee composed of law enforcement, Tribal leaders, federal partners, service providers, family members of missing and murdered individuals, and most importantly — survivors.

The Commission’s purpose is to develop recommendations through the work of six subcommittees focused on improving intergovernmental coordination and establishing best practices for state, Tribal and federal law enforcement to bolster resources for survivors and victim’s families, and combatting the epidemic of missing persons, murder and trafficking of American Indian and Alaska Native peoples, as specified under the law. 

As part of its work, the Commission held seven in-person field hearings across the United States and one multi-day virtual national hearing. The Commission received testimony from victims, survivors, family members, advocates, law enforcement officers, and others through in-person and written testimony. In all, almost 600 attended the hearings and 260 individuals gave testimony to the Commission, sharing their expertise, their experiences, their suffering and hope, and their recommendations to address and reduce the tragic consequences of the crisis of missing, murdered, and trafficked American Indians and Alaska Natives.

Legislative Updates

The Violence Against Women Reauthorization Act of 2022

The Violence Against Women Reauthorization Act of 2022 (VAWA 2022),  was signed into law on March 15, 2022, and built on the framework in VAWA 2013 to further expand recognition of Tribal authority to prosecute non-Indians. VAWA 2022 builds on VAWA 2013’s Tribal jurisdiction provision by including additional categories of criminal conduct that can be prosecuted in Tribal Courts against non-Indians. Specifically, Section 804 of VAWA 2022 reaffirms Tribal jurisdiction over non-Indians for certain crimes involving violence against children, sexual violence, stalking, sex trafficking, obstruction of justice, and assaults against Tribal justice personnel. These changes are effective as of October 1, 2022.

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