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Hobbs Straus successfully defended a former casino workers’ suit against a Tribe in a Tenth Circuit case finding absence of federal jurisdiction over non-Indian contract and tort disputes arising in Indian country. (2009)

General Memorandum 13-023

General Memorandum 13-023
VAWA Bill with Tribal Jurisdiction Provisions to be Signed into Law

With the approval by the House of Representatives on February 28, 2013, of S 47, the Violence Against Women Act (VAWA) reauthorization, the bill is headed to the White House for the President's signature. The House vote was 286-138. 199 Democrats voted in favor of the bill; 87 Republicans voted in favor while 138 voted against the bill. In an historic victory for Indian Country, S 47 includes the full tribal special domestic violence criminal jurisdiction provisions, strongly supported by tribal advocates, that were first included in VAWA legislation approved by the Senate (but not the House) in the last Congress.

As approved by the House and the Senate, S 47 affirms the inherent power of participating tribes to exercise "special domestic violence jurisdiction" over non-Indians with certain ties to the tribe who are accused of committing an act of domestic violence or dating violence, or of violating a protection order, within the Indian Country of the participating tribe. As a corollary to that expanded jurisdiction, S 47 guarantees certain rights to defendants in tribal court, including all of the rights under the Indian Civil Rights Act and the right to a trial by an impartial jury that "reflect[s] a fair cross section of the community" and does not "systematically exclude any distinctive group in the community, including non-Indians." Domestic violence defendants will also have the right to file a petition for a writ of habeas corpus in federal court. S 47 further amends the federal domestic violence and stalking statute to provide that for the purposes of full faith and credit (the recognition and enforcement by one court of an order made by a different court), tribes shall be considered to have full civil jurisdiction to issue and enforce protection orders over anyone within Indian Country. A separate section of S 47 with special rules for Alaska provides that the expanded jurisdiction shall only apply to the Indian Country of the Metlakatla Indian Community, Annette Islands Reserve, but that jurisdiction currently exercised by Alaska tribes will not be limited or diminished.

The legislation also authorizes a new grant program of $5 million to assist tribes in implementing the new authority and to provide indigent defendants with assistance of counsel. In addition, the bill reauthorizes a number of grant programs to combat domestic violence and provide victim services; increases the funding allocation for tribal domestic violence coalitions; provides for research on violence against Native women; extends the life of the Indian Law and Order Commission by an additional year; and amends the federal assault statutes to bring them in line with similar state statues with regard to punishment.

The bill passed by a surprisingly wide margin given the controversy that has surrounded it. Though several provisions of the bill were controversial, including added protections for immigrants and gay and lesbian individuals, many Republicans in the House objected to the tribal jurisdiction provisions in particular, characterizing them as "unconstitutional." S 47 was only brought to a vote, however, following the defeat of the House Republican Leadership substitute by a vote of 166-257. The House Republican Leadership substitute version, which was not supported by tribal advocates, also included a tribal jurisdiction provision which was considerably more limited than the Senate version and it raised some concerns among tribal advocates that its passage would result in more restricted tribal authority in some areas as compared with current law. Importantly, the Republican Leadership version would not have specifically acknowledged inherent tribal authority to exercise the expanded jurisdiction, leaving open the possibility that the authority could have been interpreted as delegated federal authority.

Representative Gwen Moore (D-WI) led efforts in the House to support the bipartisan Senate bill. Also, there was heroically strong support among some Republican House members for the stronger Senate tribal jurisdiction provisions, notably Representative Cole (R-OK and co-chair of the Native American Caucus) and Representative Issa (R-CA) who introduced a tribal-specific domestic violence bill (HR 780). That bill would have recognized inherent authority for participating tribes to exercise special domestic violence jurisdiction over non-Indians in Indian Country, but also would have allowed for removal to federal court under certain circumstances. In addition, Representative Cole wrote the Members of the House explaining why the Republican Leadership substitute measure was lacking with regard to tribal needs. Representative McCollum (D-MN and co-chair of the Native American Caucus) also introduced a tribal-specific domestic violence bill (HR 757).

Please let us know if we may provide additional information or assistance regarding the newly reauthorized Violence Against Women Act.

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Inquiries may be directed to:
Caroline Mayhew (cmayhew@hobbsstraus.com)
Karen Funk (kfunk@hobbsstraus.com)

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