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JURISDICTION IN INDIAN COUNTRY

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Although tribes once exercised full inherent rights of self-governance, the impact of colonizing forces on the development and exercise of tribal laws has been significant. From the early 1800’s the body of federal Indian law has established a framework for determining jurisdictional authority over crimes in tribal communities. This federal framework is riddled with complexities and has impacted the exercise of tribal criminal and civil authority in substance and to some degree process. Despite jurisdictional complexities, however, tribal justice systems have continued to develop systemic responses to the many safety needs of their respective communities, including the safety of native women.

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When tribes desire to build their tribal justice system capacity to timely and effectively respond to incidents of domestic violence and sexual assault it is important to consider the legal rules, procedures and substantive laws that apply. Once there is an understanding of the current status of applicable laws, the tribe is then able to identify where the laws are effective in supporting a tribal justice system response to incidents of domestic violence and sexual assault, and where there is a need for legal amendment. A legal response begins with understanding jurisdiction. In most tribal communities there exists tribal, federal, and in some instances state jurisdictional authority to respond to incidents of Domestic Violence (DV) and Sexual Assault (SA). Determining to what extent tribal, federal, or state law may apply begins with understanding criminal and civil jurisdiction, how such jurisdiction differs, and what rules or laws govern or guide us through a jurisdictional analysis.

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KEY Steps to building legal capacity

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Self-Assessment: Understanding the current status of the law helps to identify whether new laws are required and where there is room to improve or amend existing laws to build legal capacity to respond to incidents of Domestic Violence (DV) and Sexual Assault (SA).

  • What is the jurisdictional authority of the tribe with respect to incidents of Domestic Violence (DV) and Sexual Assault (SA) and those who are committing such acts within the tribe's jurisdictional boundaries. Simply stated: this involves a review of the subject matter jurisdiction of the tribe as well as the personal jurisdiction of the tribe. Such authority may vary depending upon where acts are occurring, who is perpetrating these acts, and whether the tribal justice system exercises criminal jurisdiction, civil jurisdiction or both.

    • Is the tribe exercising criminal jurisdiction in Domestic Violence (DV) and Sexual Assault (SA) cases?

      • Are existing criminal laws and sentencing options meeting the needs of the tribal justice system?

      • If not what can or should be done to improve criminal laws?

    • Is the tribe exercising civil jurisdiction in Domestic Violence (DV) and Sexual Assault (SA) cases?

      • Are existing civil laws meeting the needs of the tribal justice system?

      • If not what can or should be done to improve civil laws?

 

Review and Amendment: Once the tribe has a good understanding of existing/applicable law and has identified ways to improve upon the same, laws can be amended to support improvements to the overall tribal justice system process and response. 

 

 

Criminal versus Civil Jurisdiction In Domestic Violence/Sexual Assault cases

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Criminal and civil jurisdiction have both become complex matters of tribal, federal and state law. Despite a number of statutes and common law that have impacted the inherent authority of tribes, it is important to remember that tribes retain all inherent rights of a sovereign not otherwise divested. In domestic violence and sexual assault cases, while some federal restrictions on the exercise of tribal jurisdiction exist, many of these restrictions have been relaxed to some degree so that tribes may better safeguard their communities.  Although federal laws such as PL 93-280 have also impacted certain tribes and the development of their respective tribal justice systems, there remains great opportunity to develop justice response to domestic violence and sexual assault.

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A tribal criminal justice system response to Domestic Violence/Sexual Assault (DV/SA) is predominantly aimed at holding an offender accountable for an act of domestic violence or sexual assault through arrest, prosecution and sentencing the in the Tribal Criminal Court. To seek accountability through a criminal process the tribe generally initiates the cause of action and the burden of proof is generally high, requiring proof beyond a reasonable doubt. Oftentimes criminal remedies involve jail time, fines and probation; although tribal courts might also consider other sentencing alternatives such as counseling, re-education or culturally based remedies, so long as tribal laws support the same. During the criminal justice system process it is also very important that the safety needs of the victim and the larger community are addressed by the tribal system. When exercising criminal jurisdiction, there are some limitations on who may be held criminally accountable in tribal court depending upon their status as an Indian or non-Indian. (See http://www.tribal-institute.org/lists/jurisdiction.htm for further information and resources relevant to criminal jurisdiction in Indian Country)

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Violence Against Women Re-authorization Act of 2013 - Special Domestic Violence Criminal Jurisdiction over Non-Indians (VAWA SDVCJ): 

On March 7, 2013, President Obama signed into law the Violence Against Women Re-authorization Act of 2013, or "VAWA 2013". "VAWA 2013" recognizes tribes' inherent power 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, dating violence, or violate certain protection orders in Indian country. This law took effect on March 7, 2015. In order to exercise Special Domestic Violence Criminal Jurisdiction (SDVCJ) the Nation must meet certain requirements. (see http://www.ncai.org/tribal-vawa/sdvcj-overview  for additional resources relevant to Special Domestic Violence Criminal Jurisdiction)

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A tribal civil justice system's response to Domestic Violence/Sexual Assault (DV/SA) is predominantly focused upon holding an offender accountable for an act of domestic violence or sexual assault while also meeting the safety needs of the victim. This is typically achieved through the filing of a petition or other formal request to the court for an order of protection. In a civil court proceeding the case is usually initiated by the victim and the burden of proof is typically lower, usually requiring a preponderance of the evidence. There may be some limitations on who may be held civilly liable in tribal court depending upon their status as a member, non-member or non-Indian. (see http://www.tribal-institute.org/lists/jurisdiction.htm for additional resources relevant to civil jurisdiction in Indian Country)

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*Note: these distinctions between criminal and civil actions have been developed from Anglo-American law and did not necessarily exist in traditional Native justice systems therefore within the exercise of the inherent sovereignty of the tribe, tribal law may deviate from such distinctions.

 

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Additional Resources

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Criminal Jurisdiction Resources

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Civil Jurisdiction Resources

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  • http://www.tribal-institute.org/download/Amended%2520Domestic_Violence_Code_Resource_2015.pdf, Tribal Legal Code Resource: Domestic Violence Laws, Tribal Law and Policy Institute, (2015), pages 42-25, (Provides basic rules relating to civil jurisdiction in Indian country and the sovereign response to issues of domestic violence in Indian country)

  • https://narf.org/nill/resources/jurisdiction.html, TRIBAL CIVIL JURISDICTION OVER NONMEMBERS:A PRACTICAL GUIDE FOR JUDGES, SARAH KRAKOFF (2010) (While this article is written specifically for judges, the article provides a summary of the law of tribal court civil jurisdiction over persons who are not members of the governing tribe  The article contains a concise, practical, yet in-depth treatment of tribal civil jurisdiction over nonmembers that will be useful to the judiciary as well as practitioners.)

 

Special Domestic Violence Criminal Jurisdiction Resources

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  • National Congress of American Indians Tribal VAWA webpage this website provides resources developed in conjunction with the Inter-Tribal Working Group on Special Domestic Violence Criminal Jurisdiction concerning due process, jury pools, code development, and other topics relevant to the exercise of this tribal authority to prosecute non-Indians for domestic violence, dating violence, and violations of protection orders.

  • This Implementing TLOA and VAWA resource provides guidance for Native nations interested in implementing enhanced sentencing under the Tribal Law and Order Act and/or the special domestic violence criminal jurisdiction under the 2013 Violence Against Women Act. (Updated 2016)

  • The VAWA 2013s Special Domestic Violence Criminal Jurisdiction Five-Year Report summarizes the results of the first five years of tribal government-expanded criminal jurisdiction over non-Indians under the tribal provisions of the 2013 reauthorization of the Violence Against Women Act (VAWA 2013). (2018)

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VAWA 5 year.JPG
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