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General Memorandum 13-054

General Memorandum 13-054
DOJ Releases Plan for Pilot Project for Tribes Seeking to Certify Justice Systems and Exercise Early Domestic Violence Jurisdiction under the VAWA Reauthorization

On June 14, 2013, the Office of Tribal Justice (OTJ) announced in the attached FEDERAL REGISTER notice that it is seeking tribes interested in exercising supplemental domestic violence criminal jurisdiction (SDVCJ) under the recently reauthorized Violence Against Women Act (VAWA). While tribes are not generally eligible to opt-in to SDVCJ until March 7, 2015, the new law authorizes a pilot project for tribes which have adequate justice systems to exercise SDVCJ prior to that date (with the Attorney General's approval). The OTJ is seeking tribes to submit their preliminary expressions of interest in participating in the Pilot Project by July 15, 2013 (though tribes will not be barred from participating if they do not express interest). Comments on the proposed criteria for evaluating tribes' eligibility for the Pilot Project are due September 12, 2013.

The law requires that tribes provide various constitutional protections for non-Indian defendants charged with domestic violence, and places restrictions on when tribes can use this jurisdiction to charge these defendants (i.e., only certain domestic-violence related crimes committed in Indian Country, by a defendant with sufficient connections to the tribe). The law also requires tribes comply with various administrative requirements, such as community-representative jury pools, access to tribal codes, and notifying defendants of habeas corpus rights. The FEDERAL REGISTER notice provides a very clear summary of these restrictions and requirements, but the purpose of this memorandum is to highlight the Pilot Project and expected criteria the Department of Justice (DOJ) will use to evaluate participants for eligibility.

Participation in the Pilot Project (and in exercising SDVCJ at any point) is entirely voluntary. The OTJ hopes to use the Pilot Project to highlight and test tribal best practices in organizing their justice systems and exercising the SDVCJ authority.

The Pilot Project will proceed in two phases. The first phase will extend through autumn of this year. The purpose of this phase is to identify the means to strengthen or change tribal practices, institutions, and laws to comply with the requirements to use SDVCJ. During phase one, tribes may submit preliminary expressions of interest to participate via tribal leader or council letters (by July 15, 2013). Tribes will not be barred from participating in the pilot project later if they do not submit a preliminary expression of interest; however OTJ highly encourages this step as it will facilitate the DOJ's efforts to work with the tribe (through providing technical assistance and ongoing consultation, for example) to meet the eligibility criteria. A tribe that submits a preliminary expression of interest is not bound to participate, and may decide later not to begin exercising SDVCJ as part of the Pilot Project.

As part of phase one, tribes expressing interest in participating will also be encouraged to join the "Intertribal Technical Assistance Working Group" (ITAW) of tribal designates (such as court judges, police chiefs, tribal attorneys, or victim service providers). The purpose of the ITAW will be to share information, advice, and best practices of how tribes can best exercise SDVCJ. The DOJ hopes that the ITAW will facilitate the development of multiple "best practices" that "can be tailored to each tribe's particular needs, preferences, and traditions." The DOJ will also continue tribal consultation throughout this phase.

During the second phase tribes can request to exercise "early" SDVCJ under the Pilot Project. Since the law only allows tribes to do so with the Attorney General's approval during the Pilot Project period, DOJ is working to establish what it terms an "Application Questionnaire" for tribes to submit that will expedite the approval process. This "self-certification" was a specific request of tribes during early consultation for this project. The questionnaire will ask detailed questions about the tribe's criminal justice system, its ongoing efforts to combat domestic violence and provide victim services and support, its historic compliance with the Indian Civil Rights Act, and other safeguards the tribe has in place to protect defendants' rights. Following completion of this questionnaire, DOJ will review the application and approve or deny the request. The DOJ expects to provide technical assistance to tribes whose requests are denied.

The FEDERAL REGISTER notice contains an appendix of proposed questions for this application questionnaire on which tribes are urged to provide comment. These proposed questions fall into several categories covering such areas as tribal justice institutions; protections under the Tribal Law and Order and Indian Civil Rights Acts; the qualifications of tribal judges and attorneys; and, tribal practices and experience with domestic violence and victims' rights. Full details are available in the attached notice.

Tribes interested in participating in the Pilot Project, or being part of the ITAW to identify best practices with regard to SDVCJ, should contact the Office of Tribal Justice as soon as possible. The Pilot Project will likely begin towards the end of this year, and will necessarily end on March 7, 2015, when the VAWA reauthorization permits all tribes with eligible systems to begin exercising SDVCJ without DOJ approval.

Please let us know if we may be of assistance regarding the SDVCJ pilot project.

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Inquiries may be directed to:
Adam Bailey (abailey@hobbsstraus.com)
Caroline Mayhew (cmayhew@hobbsstraus.com)

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