Transcript A Practical Guide for Implementation Violence Against Women Act Tribal Law and Order Act.

A Practical Guide for Implementation
Violence Against Women Act
Tribal Law and Order Act
Alfred Urbina
Attorney General
Pascua Yaqui Tribe
Ben Casey
Administrative Attorney
Pascua Yaqui Tribal Court
Melissa Tatum
University of Arizona James E. Rogers College of Law
Indian Country Justice Partners
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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 to
address 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 the
Statutory Requirements
A 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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Special Domestic Violence Criminal Jurisdiction
Issues to Consider
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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—
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
 (I) a member of the
participating tribe; or
 (II) an Indian who resides in
the tribe’s the 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
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?
 Must occur in tribe’s Indian
country
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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
 Validity of arrest
 Evidentiary matters
 Prima facie case (the statutory elements)
 Rules of Procedure
 Individual rights
 Tribal law
 Indian Civil Rights Act
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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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Enhanced Sentencing
Issues to Consider
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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
Challenges
 Has tribal code been
properly amended?
 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.
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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 You
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