Since the 2013 reauthorization of the Violence Against Women Act, non-Native Americans can be brought to tribal courts in domestic violence cases. But attorneys still face a minefield of jurisdictional issues, according to a study in the Winter 2018 issue of Criminal Justice.
Tribal courts are the “latest battleground” for reforming the way domestic violence cases are handled in Indian Country, a new study says.
The study, published in the Winter 2018 issue of Criminal Justice, examines the jurisdictional issues relating to criminal law and Native Americans in the aftermath of the 2013 reauthorization of the Violence Against Women Act (VAWA), specifically in the handling of domestic violence cases involving non-Native Americans in tribal courts.
The 2013 amended version of VAWA gives tribal courts enhanced jurisdiction over criminal cases brought by tribes against nonmembers, including non-Native Americans. Yet Congress’s recognition of tribal criminal jurisdiction is accompanied by limitations and sets obligations on tribes.
Tribes that want to make use of VAWA’s jurisdictional provisions may be required to amend tribal law, and hire new judges and public defenders.
The article summarizes the limitations of the enhanced jurisdiction under VAWA according to types of offenses, types of defendants, types of victims, and procedural safeguards. For instance, non-native defendants in VAWA cases can only be prosecuted in tribal cases if they have one of the three following connections to the tribe’s reservation or lands:
- They reside in Indian Country;
- They’re employed in Indian country; or
- They are “the spouse, intimate partner, or dating partner of an Indian living in Indian country or a tribal member.”
In February 2013, the Justice Department announced a pilot program giving three tribes jurisdiction over non-Native Americans in domestic violence cases that occur on their reservations.
Since 2015, another ten tribes were granted the same special domestic violence jurisdiction over non-Native Americans in tribal territory. Beginning in February, 2014 the original three jurisdictions began to put into practice their new strengthened jurisdiction.
Most likely, all of the courts approved in the pilot program will commence prosecuting cases shortly, if they haven’t already.
“It is extremely likely that many more tribes will soon adopt the enhanced VAWA domestic violence jurisdiction,” the paper said.
“Attorneys wishing to appear in tribal courts must be admitted to practice in those courts, which have their own rules for admission.”
Some tribes have their own bar exams, including two tribes currently applying the special domestic violence jurisdiction. Attorneys who appear in tribal courts shouldn’t anticipate the applicable rules of evidence or civil procedure of state or federal courts to be applicable in tribal court. Tribal courts have their own rules, procedures, and practices.
The paper concludes with the author admonishing attorneys to thoroughly prepare in advance before entering tribal courts in any domestic violence case.
Sexual violence continues to be an epidemic in tribal territory and until it subsides Indian nations will act vigilantly to protect their people and work toward a solution, the study said.
“Attorneys, as always, will be on the frontlines,” it added.
The paper was written by James D. Diamond, director of the Tribal Justice Clinic and professor of practice at the University of Arizona James E. Rogers College of Law.
The complete study can be downloaded here.
This summary was prepared by TCR news intern John Ramsey. Readers’ comments are welcome.