|9-20.115||Prosecution of Military Personnel|
|9-20.116||Military Extraterritorial Jurisdiction Act|
|9-20.220||Investigative Jurisdiction—Indian Country Offenses|
|9-20.230||Supervising Section—Indian Country Offenses|
|9-20.240||Tribal Consultation Policy|
9-20.100 - Introduction
This chapter contains the Department's policy relating to maritime, territorial and Indian jurisdiction.
[updated January 2020]
9-20.115 - Prosecution of Military Personnel
Many violations of Federal criminal law are also violations of the Uniform Code of Military Justice (U.C.M.J.) for which military personnel are subject to court martial (e.g., drug offenses, theft of government property, etc.). The U.C.M.J. also punishes a number of acts which are not otherwise specifically declared to be Federal crimes, but which may become such when committed on a facility over which the United States exercises legislative jurisdiction as a result of the assimilation of state law under the Assimilative Crimes Act.
To avoid conflict over investigative and prosecutive jurisdiction, the Attorney General and the Secretary of Defense executed a memorandum of understanding (MOU) relating to the investigation and prosecution of crimes over which the Department of Justice and Department of Defense have concurrent jurisdiction. The agreement provides generally that all crimes committed on military reservations by individuals subject to the Uniform Code of Military Justice shall be investigated and prosecuted by the military department concerned, with certain exceptions. The agreement permits civil investigation and prosecution in Federal district court in any case when circumstances render such action more appropriate. If questions arise concerning the operation of the agreement, the United States Attorney should contact the section of the Criminal Division having responsibility over the Federal statute allegedly violated.
[updated January 2020]
9-20.116 - Military Extraterritorial Jurisdiction Act
The Military Extraterritorial Jurisdiction Act ("MEJA") was enacted on November 22, 2000, and amended on October 28, 2004. MEJA is codified at 18 U.S.C. §§ 3261-67. MEJA subjects certain individuals to federal prosecution for felony offenses committed outside the United States, provided the offense would have been subject to federal prosecution within the special maritime and territorial jurisdiction of the United States.
MEJA permits the exercise of criminal jurisdiction over crimes committed outside the United States if at the time of the offense the offender was (1) employed by the Armed Forces outside the United States; (2) accompanying the Armed Forces outside the United States; or (3) a member of the Armed Forces. No prosecution may be commenced against a member of the Armed Forces, however, unless at the time of prosecution the member is no longer subject to the Uniform Code of Military Justice ("UCMJ") or the member is charged with committing the offense with one or more other defendants not subject to the UCMJ.
Under MEJA, a person "employed by the Armed Forces outside the United States" is defined as (1) a civilian employee, contractor (including a subcontractor at any tier), or employee of a contractor of the Department of Defense; or (2) a civilian employee, contractor (including a subcontractor at any tier), or employee of a contractor of any other federal agency or a provisional authority, but only to the extent that the person's employment "relates to supporting the mission of the Department of Defense overseas."
A person "accompanying the Armed Forces outside the United States" is defined as a dependent or other qualified family member residing overseas with (1) a member of the Armed Forces, (2) a civilian employee of the Department of Defense, (3) a Department of Defense contractor (including a subcontractor at any tier), or (4) an employee of a Department of Defense contractor.
- Statutory Limitations on Prosecution
MEJA does not cover an offense committed by a person who is either a national of the foreign country where the offense occurred or who ordinarily resides in the foreign country where the offense occurred (see 18 U.S.C. § 3267). Prosecution is further prohibited against a member of the Armed Forces unless the offender subsequently ceases to be subject to the UCMJ or is charged with one or more codefendants not subject to the UCMJ (see 18 U.S.C. § 3261(d)). Additionally, prosecution under MEJA may be limited regarding certain military retirees.
- National Coordination
Matters arising under MEJA may raise issues of national and international concern. Successful prosecution of these matters requires both careful coordination within the Department of Justice and careful coordination between the Department and senior officials in the foreign affairs and military communities. The Department's responsibility for this coordination is assigned to the Assistant Attorney General ("AAG") for the Criminal Division acting through the Division's Human Rights and Special Prosecutions Section ("HRSP").
- Notification Requirements
HRSP Referral to USAO. HRSP is the Department's designated point of contact for federal law enforcement agencies seeking to refer a MEJA offense for federal prosecution. When HRSP receives a MEJA referral from a federal law enforcement agency, HRSP shall (1) make a preliminary determination whether the matter falls within MEJA; (2) ensure that there is sufficient information to gauge whether further investigation and prosecution is appropriate; and (3) make a preliminary decision regarding venue. HRSP shall then assign an attorney to work on the matter or promptly notify the USAO with venue over the offense and refer the case to that USAO to determine whether further investigation and prosecution is warranted. All information HRSP has concerning the case shall be forwarded as soon as possible to the appropriate USAO. Where appropriate, HRSP may provide simultaneous notification to other Department components with subject matter jurisdiction over the offense. HRSP shall provide contact information sufficient to allow the USAO to locate contact points in the theater of operations or command which referred the prosecution to the Department of Justice.
USAO Notification to HRSP. Upon receipt of a MEJA referral from HRSP, the USAO shall review the matter promptly and determine whether or not continued investigation or prosecution is warranted. The USAO shall then notify HRSP of (1) whether the USAO intends to decline or accept the matter and (2) whether the USAO seeks the subject of the investigation's overseas arrest, detention, or removal pursuant to the specific procedures provided at 18 U.S.C. §§ 3262-65. The USAO may also request that HRSP provide the USAO with legal advice or, subject to HRSP resources, prosecutorial assistance.
If a USAO receives any MEJA matter independently from the HRSP process described above, the USAO shall promptly notify HRSP. The notification should include the names and biographic information, if known, of the subjects of the investigation and a general overview of the investigation. The notification should also address (1) whether the USAO intends to decline or accept the matter and (2) whether the USAO seeks the subject of the investigation's overseas arrest, detention, or removal pursuant to the specific procedures provided at 18 U.S.C. §§ 3262-65.
Notification to HRSP may be made by email or telephone (or by secured means where necessary), and may use the standard Case Notification Form (available from HRSP online at https://dojnet.doj.gov/criminal/hrsp/ivc/meja.html) if preferred. If HRSP determines from the notification that there are related matters pending in another district that could be affected by the new matter, HRSP will so inform the notifying USAO and will advise the other district of the new matter.
In the event that detention is contemplated outside of the district handling the prosecution, the prosecuting USAO shall contact the HRSP MEJA point of contact immediately.
HRSP can be contacted via email at MEJA@usdoj.gov. The DOJ command center (202) 514-5000 is available at all other times.
- Matters Involving Uncertain Venue or Issues of National or International Significance
Matters Involving Uncertain Venue. If HRSP receives a MEJA referral from a law enforcement agency in which venue is uncertain, HRSP may open the matter for purposes of further investigation and prosecution. In all such matters, HRSP shall assign an attorney to work on the matter, refer the matter to another Department component with subject matter jurisdiction over the offense to assign an attorney to work on the matter, or promptly notify the relevant USAO when venue appears proper in a district and again when venue becomes clear.
Matters Involving Issues of National or International Significance. If HRSP receives a MEJA referral involving a legal issue or offense of particular significance to the Department or the federal government, the AAG may consult with the appropriate United States Attorney so that HRSP may pursue the matter in conjunction with that USAO.
- Statutory Approval Requirements
Statutory Approval Requirements. 18 U.S.C. § 3261(b) requires the prior, express approval of the Attorney General or Deputy Attorney General before any prosecution may be commenced against a person under MEJA if a foreign government has prosecuted or is prosecuting the same person for the same conduct.
Approval Procedures. Any USAO or other Department component seeking approval to bring a prosecution under this paragraph shall promptly notify HRSP and submit a written request for approval to HRSP well in advance of the proposed prosecution. The written request must include—
- a prosecution memorandum;
- a copy of the proposed indictment, information, complaint;
- documentation relating to the foreign prosecution (i.e. foreign charging documents; judgment and sentence records, etc.)
- a detailed explanation as to the U.S. federal interest in prosecution; and
- a proposed timeline for submission of the indictment / superseding indictment to the grand jury.
AAG Concurrence Requirement for Certain Plea Agreements
A USAO or other Department component must seek the concurrence of the AAG before entering into a plea agreement in any MEJA prosecution authorized under paragraph F of this section.
- Department Approval Requirements.
The use of MEJA to prosecute an individual who is not a U.S. citizen or a lawful permanent resident ("LPR") may raise serious legal, practical, and policy concerns. Thus in addition to any statutory requirements set forth in Section F, as a matter of Department policy, prior, express approvalof the United States Attorney or the AAG for the Criminal Division is required before any USAO or other Department component may bring a prosecution against a foreign national who is not an LPR.
Ordinarily, the United States Attorney or the AAG will authorize the prosecution of an individual who is not a U.S. citizen or LPR only if the individual's misconduct—
(1) resulted in the death, physical injury, attempted injury, or threatened injury to a U.S. national, an LPR, or a person employed by or accompanying the Armed Forces outside of the United States;
(2) resulted in actual or attempted fraud upon or financial loss to a U.S. national, an LPR, or a person employed by or accompanying the Armed Forces outside of the United States;
(3) resulted in harm, attempted harm, or threatened harm to the property, programs, or activities of the United States;
(4) adversely affected the readiness, morale, discipline, or health of the Armed Forces or its members;
(5) adversely affected the foreign policy or national security interests of the United States;
(6) was part of a conspiracy for which a U.S. citizen or an LPR is being prosecuted; or
(7) represents a serious crime that, if unaddressed, would result in a miscarriage of justice.
- Exigent Circumstances
If exigent circumstances require a USAO or other Department component to take immediate action in a MEJA matter without complying with the notification, concurrence, or prior approval requirements set forth above, the USAO or other Department component must promptly notify HRSP of any action taken and of the exigent circumstances that precluded adherence to this section. The USAO or other Department component shall also provide HRSP copies of any court filings made. If the AAG determines that further review or action appears appropriate, the AAG and the USAO will confer on how best to proceed.
[updated June 2018]
9-20.220 - Investigative Jurisdiction—Indian Country Offenses
In 1993, the Department of Justice and the Department of the Interior entered into a memorandum of understanding (MOU) that established guidelines regarding the respective jurisdictions of the Bureau of Indian Affairs (BIA) and the Federal Bureau of Investigation (FBI). Part IV of the MOU requires each United States Attorney whose criminal jurisdiction includes Indian country to develop local written guidelines outlining the responsibilities of the BIA, FBI, and the Tribal Criminal Investigators, if applicable.
[updated January 2020]
9-20.230 - Supervising Section—Indian Country Offenses
The Office of Enforcement Operations of the Criminal Division has general supervisory responsibility for Indian country offenses. However, the Child Exploitation and Obscenity Section has responsibility for child abuse offenses, and other Sections, such as Organized Crime and Gang Section and the Human Rights and Special Prosecutions Section, should be consulted on questions involving the substantive elements of offenses within their areas of responsibility. The Appellate, Indian Resources, and Natural Resources Sections of the Environment and Natural Resources Division have Indian country expertise and should be consulted on questions of tribal rights, treaties, boundaries and related matters. The Criminal Section of the Civil Rights Division has expertise and should be consulted regarding color of law, hate crime, and human trafficking offenses.
[updated April 2018]
9-20.240 - Tribal Consultation Policy
Consultation is the formal process through which the Department of Justice seeks Tribal input regarding the development of new or amended policies, regulations, and legislative actions initiated by the Department (referred to collectively as “policies” and further described below). The principle of consultation has its roots in the unique relationship between the Federal Government and the governments of federally recognized Tribes. This government-to-government relationship has a more than 200-year history, and is built on the foundation of the U.S. Constitution, treaties, legislation, executive action, and judicial rulings. Tribal consultation was recognized as formal Federal policy in Executive Order 13175 of November 6, 2000.
Coordination between Tribes and the Department of Justice encompasses a variety of forms of communication that include formal consultation, listening sessions, meetings with individual Tribes, and informal discussions with Tribal leaders. Executive Order 13175 and this Policy focus on the more formal aspects of consultation. However, communication between Tribes and the Department of Justice is not limited to formal consultation. To this end, the Department of Justice will engage in ongoing communication with Tribes beyond formal consultation.
II. Initiating Consultation
The Department of Justice will consult with federally recognized Tribes before adopting policies that have Tribal implications. The term “ policies” includes: (1) regulations or regulatory policies; (2) proposed legislation; (3) decisions regarding whether to establish Federal standards; and (4) other policies for which the Department determines consultation is appropriate and practicable. The term “policies” does not include matters that are the subject of investigation, anticipated or active litigation, or settlement negotiations. Nor does it include individual grants or contracts. Executive Order 13175 explains that policies have Tribal implications if they “have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” The requirements of Executive Order 13175 and this policy statement generally will be construed liberally in favor of consultation on any given policy with Tribal implications. All decisions regarding whether and how to conduct a consultation, or whether a given policy or topic has Tribal implications, will be coordinated with the Department’s Office of Tribal Justice.
In addition, the Office of Tribal Justice—in conjunction with affected Department components—will consider requests from Tribes to engage in consultation on any new policy initiated by the Department of Justice, even if the Department has not previously identified that policy as having Tribal implications. Tribes may contact the Office of Tribal Justice to request a consultation. The affected component, in coordination with the Office of Tribal Justice, will prepare and send to the requesting Tribe or Tribes a written response to the request.
III. Consultation Guiding Principles
Given the wide variety of topics that may be the subject of consultation between Tribes and the Department of Justice, the structure of any individual consultation may vary. However, there are four guiding principles for all Tribal consultations conducted by the Department of Justice:
• Consultation will involve timely, adequate notice to the appropriate parties.
• Consultation will be accessible and convenient to Tribal participants.
• Consultation will be a meaningful process involving appropriate participants.
• Consultation will be conducted through a transparent and accountable process.
- Adequate Notice
Adequate notice has two components. First, adequate notice means that relevant Tribal parties will be made aware of an upcoming consultation sufficiently in advance of the event to ensure an opportunity for participation. Second, adequate notice entails providing a full description of the topics to be discussed and typically should include draft materials if they are available at the time of the notice.
Generally, every effort will be made to provide notice at least 30 days prior to a scheduled consultation. If exceptional circumstances, such as legislative deadlines or other factors beyond the Department’s control warrant a shorter period of advance notice, the consulting component will provide an explanation for the abbreviated notification in the invitation letter. Invitations to consultations will be published on the Office of Tribal Justice and the Tribal Safety and Justice Web sites and sent by e-mail to appropriate individual Tribal leaders using an up-to-date Tribal leaders list, or sent by other means reasonably designed to reach all affected federally recognized Tribes.
Adequate notice of a consultation should include sufficient detail about the topic to be discussed to allow Tribal leaders an opportunity to engage meaningfully in the consultation. The Department’s experience has been that providing Tribes with specific information about the issues and questions the Department deems most relevant to the topics of a particular consultation benefits both Tribal participants and the Department by helping ensure that Tribal comments are focused enough to be useful in the Department’s decision-making process. This does not mean that the affected Department component has reached a preliminary decision on the issue that is the topic of the consultation. However, the Department should provide a brief discussion of the issues, a timeline of the process, potential outcomes, and, if possible, an overview of any specific questions on which the Department would like Tribal input.
Consultations should be accessible to the relevant Tribal audience. Depending on the circumstances, consultation may be conducted in person, via video conferencing, conference calls, interactive Web technology, or similar means. Written comments will also be accepted. If an issue that is the subject of the consultation primarily affects an individual reservation or region, the consulting component within the Department should ensure that the consultation will be accessible to the tribes that will be primarily affected. This will sometimes mean holding multiple consultation sessions. If the consultation involves joint action with other Federal agencies, the consulting component should attempt to hold a joint consultation with the other agencies.
- Meaningful Process
Whenever possible, a consultation should involve individuals who have decision-making authority on the issue that is the subject of the consultation. This will generally mean that the component should make every effort to ensure that elected Tribal leaders or their designees will be substantively involved in the consultation. Also, the component should ensure that political leadership or other relevant decision-makers for the Department of Justice are substantively involved in the consultation even if they are not personally able to attend. If the ultimate decision-makers are not present for the consultation, the Department representatives should ensure that those decision-makers are aware of the relevant issues in advance of the consultation and are apprised of Tribal input after the consultation and before relevant decisions are made. A meaningful process includes providing a full description of the topics to be discussed, and in most cases it will include written materials in advance of the event.
Consultation will occur at a point in the deliberative process before the affected Department component has arrived at a decision. Consultation is not meaningful if the component has already decided the issue, and Tribal input is only pro forma. To this end, components need to be aware as early as possible of their duty to consult with Tribes and factor consultation into their deliberative process.
At the conclusion of a consultation event, and after due consideration, the component will prepare, in consultation with the Office of Tribal Justice and any other component likely to have a specific interest in the subject matter of the consultation, a summary of the consultation. This will include a synopsis of Tribal concerns and issues and a description of the component’s consideration of these concerns and issues. After input from the Office of Tribal Justice, the component will timely convey to all participants this summary of the issues discussed during the consultation.
IV. Development of Supplemental Consultation Guidance
The Department of Justice is made up of nearly 40 components. Some of these components have frequent and substantive contact with Tribal governments, while other components have limited interaction with Tribes. The Office of Tribal Justice is available to assist components with implementing this Policy for their Tribal consultation process. Components with frequent and substantive contact with Tribes may wish to supplement this section with more specific consultation guidance. Those components are encouraged to develop such guidance to assist in accomplishing their mission as it affects Tribes. Supplemental guidance shall be reviewed by the Office of Tribal Justice to ensure consistency and compatibility with Executive Order 13175 and this Department-wide Policy.
V. Interagency Consultation
Beyond issues requiring Tribal consultation by the Department of Justice, there may be overarching topics involving other Federal agencies that merit a broad policy discussion. Examples of such topics might include sacred sites, courts, law enforcement, crime-data collection, taxation, and juvenile justice. As necessary and appropriate, the Department may initiate an interagency Tribal consultation on such topics. Relevant Federal agencies will be invited, along with representatives from interested Tribes. This interagency consultation will ordinarily be convened in Washington, D.C.; however, the Department will also consider other venues where appropriate. The purpose of such a consultation is to fully consider important existing policies with Tribal implications, many of which may pre-date Executive Order 13175. The Office of Tribal Justice will consult with the Tribal Nations Leadership Council to develop appropriate topics.
[added December 2017]