Violence Against Women ActTribal Law and Order Act

A Practical Guide for Implementation

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Ben CaseyAdministrative AttorneyPascua Yaqui Tribal Court

Melissa TatumUniversity of Arizona James E. Rogers College of Law

Indian Country Justice Partners

Alfred UrbinaAttorney GeneralPascua Yaqui Tribe

Significant changes have occurred in the ability of tribal governments and tribal courts to address crime occurring in Indian country Tribal Law and Order Act of 2010 Violence Against Women Act of 2013

we will explore these changes with a particular eye toward the issues that may arise during the implementation process

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Relationship of TLOA and VAWA

Before diving into the details of the two statutes, we should first clarify how they relate to each other

VAWA 2013 expands who can be prosecuted

TLOA expands the sentence that can be imposed when a defendant is convicted

They can be used independently or together

Tribes are not required to use either statute, but if a tribe does choose to exercise the restored powers, the tribe must comply with a complex set of procedural prerequisites.

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VAWA 2013’s SDVCJ

Tribes that opt in and comply with prerequisites can prosecute non-Indians who have a connection with the tribe or its members and who commit one of the following in the tribe’s Indian country

Domestic Violence

Dating Violence

Violation of Protection Order

NOTE: Does not apply in Alaska except for Metlakatla

Does not apply to sexual assault by stranger

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TLOA Basics

TLOA provides that if a tribe meets certain prerequisites Making laws publicly available Providing indigent defense counsel Ensuring presiding judge is law trained Recording proceeding

Then the Tribe regains expanded sentencing authority

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Basic Sentencing Limitations

Indian Civil Rights Act 25 USC 1302(7) addresses sentencing limitations

Unless a tribe complies with prerequisites for enhanced sentencing, the tribe may not impose for the conviction of any one offense any penalty or punishment greater than

imprisonment for a term of 1 year or a fine of $5,000, or both

ICRA did not originally address “stacking” but TLOA amended ICRA to state that tribes may not “impose on a person in a criminal proceeding a total penalty or punishment greater than imprisonment for a term of 9 years.”

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Enhanced Sentencing Limitations

If tribes comply with prerequisites, they gain enhanced sentencing authority

This enhanced authority allows tribes to impose for conviction of any one offense No more than 3 years imprisonment; or

$15,000 fine; or

Both

Same “stacking” limitations apply – no more than 9 years imprisonment

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Should your tribe exercise these restored powers?

Consider whether they are consistent with culture and tradition

Consider whether they will address problems your tribe is experiencing

Assess the conditions of your Indian country

Assess the problems at each stage of your criminal justice process

Consider whether they are worth the expense

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Explore strategies toaddress each problem

What methods are being employed by your tribe?

What methods are other tribes using?

Does another part of TLOA address the problem?

Would enhanced sentencing address it?

Would alternative approaches work?

Such as civil infractions or alternative sentencing

see also report on reducing crime in Indian country

Details of theStatutory RequirementsA Closer Look

Preliminary issues Did Congress possess requisite authority to enact the

statute:?

U.S. v. Lara reserved the issue of whether same reasoning would apply if Congress were to expand authority over non-Indians as opposed to non-member Indians (but was focused on right to counsel issue)

One overarching question, however, involves how to interpret both these provisions and how the tribe implements them.

Are the statutory provisions going to be interpreted in accordance with parallel state or federal laws?

What role will tribal law play in the interpretation?

Don’t be trapped by federal definitions and interpretations

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Issues to ConsiderSpecial Domestic Violence Criminal Jurisdiction

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Over who?

Statute

A participating tribe may not exercise special domestic violence criminal jurisdiction over an alleged offense if neither the defendant nor the alleged victim is an Indian.

Challenges

Check the identity of the parties

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Does Defendant have sufficient connections?

Statute

A tribe may exercise SDVCJ only if the defendant—

(i) resides in the tribe’s Indian country;

(ii) is employed in the tribe’s Indian country; or

(iii) is a spouse, intimate partner, or dating partner of—

(I) a member of the participating tribe; or

(II) an Indian who resides in the tribe’s the Indian country

Challenges

Does defendant possess required connections to the tribe?

Note that if victim is a tribal member, that is sufficient

If victim is a non-member Indian, the victim must reside in the tribe’s Indian country

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Did defendant commit one of the three categories offenses?

Domestic Violence Dating Violence Violation of a Protection Order

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Dating Violence

Statute means violence committed

by a person who is or has been in a social relationship of a romantic or intimate nature with the victim, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship

Must occur in tribe’s Indian country

Challenge

Most of both the VAWA and TLOA provisions require changes to tribal law

Has the Tribe made the necessary changes to its constitution? Codes? Rules of Procedure?

Where those changes made in accordance with tribal law?

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Domestic Violence

Statute

means violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, or by a person similarly situated to a spouse of the victim under the domestic- or family- violence laws of an Indian tribe that has jurisdiction over the Indian country where the violence occurs.

Must occur in tribe’s Indian country

Challenge

Has tribe changed its definition of DV to match VAWA? (many tribes have broader definition)

Is the US v. Castleman standard satisfied? (crime of violence)

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Violation of a Protection Order

Statute

An act that—

(A) occurs in the Indian country of the participating tribe; and

(B) violates the portion of a protection order that—

(i) prohibits or provides protection against violent or threatening acts or harassment against, sexual violence against, contact or communication with, or physical proximity to, another person;

(ii) was issued against the defendant;

(iii) is enforceable by the participating tribe; and

(iv) is consistent with section 2265(b) of title 18, United States Code.

Challenges

Must be consistent with 18 USC 2265(b)

Court possessed jurisdiction

Restrained party received notice and opportunity to be heard (provisions are made for ex parte orders)

Violation must be of provisions relating to harassment (and not things like visitation or child custody)

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Back to Basics It is also important to note that neither the Tribal

Law and Order Act nor the Violence Against Women Act changes the basic contours of the work done by prosecutors, defense counsel, and the courts

They add elements to the list of things to consider, but they do not remove anything from that list

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Validity of arrest

Evidentiary matters

Prima facie case (the statutory elements)

Rules of Procedure

Individual rights

Tribal law

Indian Civil Rights Act

Jury Issues

Statute

participating tribe shall provide to the defendant—

(3) the right to a trial by an impartial jury that is drawn from sources that—

(A) reflect a fair cross section of the community; and

(B) do not systematically exclude any distinctive group in the community, including non-Indians

Challenges

What steps is tribe using to ensure fair cross section?

What are the source lists for potential jurors?

How are jury summons and questionnaire distributed?

What kind of enforcement mechanisms are available when potential jurors are non-Indian?

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Detention issues

Non-Indians will now be housed in tribal detention facilities, in both pretrial detention and serving sentences

Issues that may arise include:

Are defendants being housed separate from tribal members?

Are the receiving adequate medical care?

Are they receiving sufficient counseling services?

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Issues to ConsiderEnhanced Sentencing

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The Crime

Statute

The Defendant must have

have been previously convicted of the same or a comparable offense by any jurisdiction in the United States; or

is being prosecuted for an offense comparable to an offense that would be punishable by more than 1 year of imprisonment if prosecuted by the United States or any of the States.

Challenges

Has tribal code been properly amended?

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Right to Counsel

Statute

provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution;

Challenges

Does tribe want to set higher standards under tribal law?

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Right to Counsel

Statute

at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys

Challenges

What does this mean?

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The Laws

Statute

prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government

Challenges

How are the laws made publicly available?

Are the laws available to incarcerated individuals?

Larger issue here is Notice (also applies to TLOA) – what has tribe done to provide notice of intent to exercise restored powers?

Signs at boundaries?

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The Proceedings

Statute maintain a record of

the criminal proceeding, including an audio or other recording of the trial proceeding.

Challenges Does tribe have

required procedures and technology in place?

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Serving an Enhanced Sentence

Statute

Tribe can require defendant to serve the sentence:

(1) in a tribal correctional center that has been approved by the BIA for long-term incarceration

Challenges

Draft guidelines from BIA require personnel policies to include

EEO

Compliance with ADA

Compliance with ACA standards

Compliance with Prison Rape Elimination Act (“PREA”)

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Other Issues

Double Jeopardy

If tribe is second prosecution, tribal law controls double jeopardy

Habeas

Tribe must notify those held in detention of habeas rights

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Thank You35