The Violence Against Women Reauthorization Act of 2013 (VAWA 2013) included a historic provision that recognized the inherent authority of “participating Tribes” to exercise “special domestic violence criminal jurisdiction” (SDVCJ) over certain defendants, regardless of their Indian or non-Indian status, who commit acts of domestic violence or dating violence or violate certain protection orders in Indian country. This provision enabled Tribes to exercise criminal jurisdiction over non-Indian offenders for the first time since the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe, which held that, absent express Congressional authorization, Tribes lack jurisdiction over all crimes committed by non-Indians. The Act also specified the rights that a participating Tribe must provide to defendants in SDVCJ cases.
In 2022, Congress amended this provision to recognize “special Tribal criminal jurisdiction” (STCJ) over an expanded list of “covered crimes” that includes, in addition to the VAWA 2013 crimes, assault of Tribal justice personnel, child violence, obstruction of justice, sexual violence, sex trafficking, and stalking. This expanded recognition of Tribal sovereignty was enacted by the Violence Against Women Act Reauthorization Act of 2022 (VAWA 2022), signed into law by President Biden on March 15, 2022. VAWA 2022 also specifically refers to participating Tribes as including those in the state of Maine and establishes a pilot program under which the Attorney General is to designate up to five Alaska Tribes per calendar year as participating Tribes to exercise STCJ over all persons present in the Tribe’s Village.
SPECIAL TRIBAL CRIMINAL JURISDICTION
Tribes are able to exercise their sovereign power to investigate, prosecute, convict, and sentence both Indian and non-Indians who commit covered crimes in Indian country against Indian victims. In cases of obstruction of justice and assault of Tribal justice personnel, the victim need not be Indian. Tribes may exercise this jurisdiction regardless whether the non-Indian defendant has ties to the participating Tribe. VAWA 2022 also includes provisions recognizing and affirming Alaska Tribes’ inherent authority to exercise criminal and civil jurisdiction over all Indians present in their Villages and their courts’ full civil jurisdiction to issue and enforce protection orders in matters arising within the Village or otherwise within their authority. More information on VAWA 2022’s Alaska Pilot Program for Alaska Tribes seeking to exercise STCJ is provided below.
When does VAWA 2022 take effect?
VAWA 2022’s STCJ provisions take effect on October 1, 2022.
Is this voluntary?
Yes, Tribes are free to participate, or not. The authority of U.S. Attorneys (and state/local prosecutors, where they have jurisdiction) to prosecute crimes in Indian country remains unchanged.
What crimes are covered?
Tribes’ criminal jurisdiction over non-Indians will be limited to the following, as defined in VAWA 2022:
- Assault of Tribal justice personnel;
- Child violence;
- Dating violence;
- Domestic violence;
- Obstruction of justice;
- Sexual violence;
- Sex trafficking;
- Stalking; and
- Criminal violations of protection orders.
The elements of these covered offenses will be determined by Tribal law.
What crimes are not covered?
The following crimes will generally not be covered:
- Crimes committed outside of Indian country (with the exception of Alaska Native villages participating in the VAWA 2022 Alaska Pilot Program);
- Crimes between two non-Indians (with the exception of assault of Tribal justice personnel and obstruction of justice); and
- Drug offenses.
What is the Alaska Pilot Program?
VAWA 2022 requires the Attorney General, in consultation with the Secretary of the Interior and affected Tribes, to establish a process to designate up to five Tribes per calendar year to exercise STCJ over all persons present in the Tribe’s Village. The Department is currently soliciting Tribal input as it develops the process by which Tribes may request designation. VAWA 2022 caps the number of participating Tribes at 30, absent notice to Congress and the public, and allows two or more Tribes to participate jointly and be considered a single participating Tribe for purposes of the cap. More information on the Pilot Program, including consultation and a framing paper, is available at https://www.justice.gov/tribal.
VAWA 2013 also established a pilot project under which Tribes were able to exercise SDVCJ before March 7, 2015, the effective date of VAWA’s SDCVJ provisions. DOJ’s framing paper on the Alaska Pilot requested Tribal leaders’ views on lessons learned from the 2013 pilot. Information on the Tribes that participated in that pilot is available at https://www.justice.gov/tribal/vawa-2013-pilot-project.
What rights do defendants have under VAWA 2022?
A participating Tribe must:
- Protect the rights of defendants under the Indian Civil Rights Act of 1968, which largely tracks the U.S. Constitution's Bill of Rights, including the right to due process.
- Protect the rights of defendants described in the Tribal Law and Order Act of 2010, by providing:
- Effective assistance of counsel for defendants;
- Free, appointed, licensed attorneys for indigent defendants;
- Law-trained Tribal judges who are also licensed to practice law;
- Publicly available Tribal criminal laws and rules; and
- Recorded criminal proceedings.
- Include a fair cross-section of the community in jury pools and not systematically exclude non-Indians.
- Inform (in writing) defendants ordered detained by a Tribal court of their right to file federal habeas corpus petitions.
Is there new funding for the Tribes to support their exercise of STCJ?
In VAWA 2013, Congress authorized an annual appropriation of $5 million for grants to support Tribes’ exercise of SDVCJ. This grant program first received an appropriation of $2.5 million in fiscal year (FY) 2016 and most recently received an appropriation of $5.5 million in FY 2022. Funding is also available from DOJ’s Bureau of Justice Assistance, Office of Community Oriented Policing Services, and Office for Victims of Crime that Tribes can use for criminal justice system and victim services activities that support the exercise of STCJ.
VAWA 2022 reauthorized the grant program and authorized a new program to reimburse Tribal governments for expenses incurred in, relating to, or associated with exercising STCJ. The Act authorized an annual appropriation $25 million combined for both the grants and reimbursements, of which no more than 40 percent may be used for reimbursements. VAWA 2022 also made Alaska Tribes eligible for this funding. Current information on these programs, consultation with Tribes on their administration, and available funding is available at https://www.justice.gov/ovw/tribal-affairs and https://www.justice.gov/ovw/open-solicitations. Information on other related DOJ funding opportunities for Tribes is available at https://www.justice.gov/tribal/grants.
How can we learn more?
Please contact the Justice Department’s Office of Tribal Justice (OTJ) at 202-514-8812 or Office on Violence Against Women (OVW) at 202-307-6026 or OVW.TribalAffairs@usdoj.gov, or visit www.justice.gov/tribal.