2013
On March 7, 2013, President Barack H. Obama signed the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) into law. Title IX Safety For Indian Women contained historic provisions recognizing and affirming the inherent sovereign authority of tribes to exercise special domestic violence criminal jurisdiction over all persons.
Title IX Safety For Indian Women
Section 901: Grants to Indian Tribal Governments
Section 902: Grants to Indian Tribal Coalitions
Section 903: Consultation
Section 904: Tribal Jurisdiction over Crimes of Domestic Violence
Section 905: Tribal Protection Orders
Section 906: Amendments to the Federal Assault Statute
Section 907: Analysis and Research on Violence Against Indian Women
Section 908: Effective Dates; Pilot Project
Section 909: Indian Law and Order Commission; Report on the Alaska Rural Justice and Law Enforcement Commission
Section 910: Special Rule for the State of Alaska
Section 904 Tribal Jurisdiction Over Crimes of Domestic Violence
Perhaps the most pivotal section of Title IX’s Safety for Indian Women is Section 904: Tribal Jurisdiction over Crimes of Domestic Violence. Section 904 identifies the inherent rights of tribal governments to protect their women.
In classifying the three categories—domestic violence, dating violence, and certain violations of protection orders—Section 904 establishes a foundation upon which to build doors to close the jurisdictional loopholes non-Indian abusers have utilized. The keys to these doors are sufficient ties to an Indian tribe. A tribe may exercise special domestic violence jurisdiction over non-Indian defendant only if defendant:
• Resides in the Indian country of the tribe;
• Is employed in the Indian country of the tribe; or
• Is a spouse or intimate partner, or dating partner of:
- A tribal member; or
- A non-member Indian who resides in the Indian country of tribe.
After establishing one of the three sufficient ties to a tribe, certain rights must be afforded to the defendant. Tribes exercising Special Domestic Violence Criminal Jurisdiction (SDVCJ) must provide defendants all rights under Indian Civil Rights Act of 1968, similar to Federal Bill of Rights, including right to due process. SDVCJ requires ALL of same due process protections Congress required in 2010 when it passed the Tribal Law & Order Act (TLOA): effective assistance of counsel that would be available in federal or state court; free appointed licensed attorneys for indigent defendants; law-trained tribal judges who are licensed to practice law; publicly available tribal criminal laws and rules of evidence and criminal procedure; and maintain a record of criminal proceeding, including audio or video recording of trial proceedings.
And the SDVCJ of VAWA 2013 also requires additional protections, including:
• Defendants have the right to petition a federal court for habeas corpus to challenge any conviction and to stay detention prior to review.
• Any non-Indian defendant has the right to a trial by jury drawn from sources that do not systematically exclude any distinctive group in the community, including non-Indians.
• Any Indian tribe that has ordered the detention of anyone under the special domestic violence criminal jurisdiction provision has a duty to notify that person of all their rights.
• Defendants must be provided “all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe”.