On February 28, 2013 the House of Representatives approved Senate Bill 47, which reauthorizes and amends the Violence Against Women Act of 1994 (VAWA). The Bill, already approved in the Senate, became law when the President signed it on March 7th.

The VAWA is a major legislative achievement for Indian country. The Supreme Court held in 1978 that tribes lack inherent power to exercise criminal jurisdiction over non-Indians. For the first time since that decision, Congress has authorized tribes to exercise such jurisdiction. Title IX of the VAWA amends the Indian Civil Rights Act (ICRA) to permit tribes to exercise “special domestic violence criminal jurisdiction” over non-Indians who are charged with domestic violence, dating violence, and violations of protective orders that occur on their lands. Features of special domestic violence criminal jurisdiction include:

• either the perpetrator or victim must be Indian
• the tribe must prove that the defendant has ties to the tribal community
• tribal jurisdiction is concurrent with state and federal jurisdiction
• the defendant has the right to a trial by an impartial jury that is drawn from sources that –
  • reflect a fair cross section of the community; and
  • do not systematically exclude any distinctive group in the community, including non-Indians
• In the event that a sentence of imprisonment “may” be imposed, the tribe must guarantee the defendant the enhanced procedural rights added to the ICRA by the Tribal Law and Order Act of 2010, including:
  • effective assistance of counsel, paid for by the tribe if the defendant is indigent
  • a legally trained judge licensed to practice law
  • published laws and rules of criminal procedure
  • recorded proceedings

Copyright © 2013 Godfrey & Kahn S.C.

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