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

Administrative Attorney Pascua Yaqui Tribal Court 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 2

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 3

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. 4

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 5

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 6

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.” 7

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 8

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 9 8

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 17

Special Domestic Violence Criminal Jurisdiction Issues to Consider 26

Over who? Statute Challenges 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. Check the identity of the parties 18

Does Defendant have sufficient connections? Statute Challenges 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 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 19

Did defendant commit one of the three categories offenses? Domestic Violence Dating Violence Violation of a Protection Order 20

Dating Violence Statute Challenge 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 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? 21

Domestic Violence Statute Challenge 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 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) 22

Violation of a Protection Order Statute Challenges 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. 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) 23

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 7

Jury Issues Statute Challenges 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 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? 24

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? 25 25

Enhanced Sentencing Issues to Consider 26

The Crime Statute Challenges 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. Has tribal code been properly amended? 27

Right to Counsel Statute Challenges provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; Does tribe want to set higher standards under tribal law? 28

Right to Counsel Statute Challenges 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 What does this mean? 29

The Laws Statute Challenges 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 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? 31

The Proceedings Statute Challenges maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding. Does tribe have required procedures and technology in place? 32

Serving an Enhanced Sentence Statute Challenges 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 Draft guidelines from BIA require personnel policies to include EEO Compliance with ADA Compliance with ACA standards Compliance with Prison Rape Elimination Act (“PREA”) 33

Other Issues Double Jeopardy Habeas 34 If tribe is second prosecution, tribal law controls double jeopardy Habeas Tribe must notify those held in detention of habeas rights 34

Thank You 35