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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 13-109

General Memorandum 13-109
DOJ Solicits Applications from Tribes to Participate in VAWA Special Domestic Violence Criminal Jurisdiction Pilot Project

On November 29, 2013, the Department of Justice (DOJ) published, in the FEDERAL REGISTER a final notice and solicitation of applications for a voluntary Pilot Project established under the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) for Indian tribes who wish to commence exercising "special domestic violence criminal jurisdiction" (SDVCJ) on an accelerated basis. See http://www.gpo.gov/fdsys/pkg/FR-2013-11-29/pdf/2013-28653.pdf This notice establishes the procedures for a tribe to request designation as a participating tribe and for the Attorney General to act on such requests.

Section 904 of VAWA 2013 (25 U.S.C. § 1304) amended the Indian Civil Rights Act to recognize and affirm the inherent power of "participating tribes" to exercise SDVCJ over certain defendants, regardless of their Indian or non-Indian status, who commit acts of domestic violence or dating violence, or violate certain protection orders in Indian Country. Although section 908 of the Act provides that tribes generally cannot exercise SDVCJ until at least two years after the enactment of VAWA 2013, it also establishes a Pilot Project that authorizes the Attorney General to grant a tribe's request to be designated as a participating tribe on an accelerated basis.

The DOJ notice provides a lengthy statutory background statement that helps illustrate the underlying constitutional and legal issues, and provides historical context for section 904. DOJ notes that the term SDVCJ is defined to mean "the criminal jurisdiction that a participating tribe may exercise under [25 U.S.C. 1304] but could not otherwise exercise" and that for most tribes SDVCJ is effectively confined to criminal jurisdiction over non-Indians. There is, however, no SDVCJ over an alleged offense if neither the defendant nor the alleged victim is an Indian, and the defendant must have "significant ties" to the prosecuting tribe. To establish significant ties a defendant must:

1) reside in the participating tribe's Indian Country
2) be employed in the tribe's Indian Country; or
3) be a spouse, intimate partner, or dating partner either of an Indian who is a member of the tribe or who resides in the tribe's Indian Country

The notice also clarifies that the SDVCJ does not apply to conduct that occurs outside of Indian Country and does not generally cover crimes of child abuse or elder abuse and crimes between two strangers (including sexual assaults) unless a violation of a protection order is involved. Section 904 also specifies the rights that a participating tribe must provide to a criminal defendant when exercising SDVCJ, and the notice provides DOJ's interpretation of those rights.

In order to request designation as a participating tribe that may commence exercising SDVCJ on an accelerated basis, a tribe must fill out an Application Questionnaire that asks the tribe to identify provisions of the tribe's criminal code, rules of procedure, and written policies, as well as actual practices that qualify the tribe to exercise SDVCJ on an accelerated basis. For a copy of the Application Questionnaire see http://www.justice.gov/tribal /docs/appl-questionnaire-vawa-pilot.pdf. The Attorney General may only grant a request after concluding that the requesting tribe's criminal justice system "has adequate safeguards in place to protect defendants' rights consistent with [25 U.S.C. § 1304]." DOJ developed the Application Questionnaire to accommodate a self-certification process advocated by tribes during the planning phase of the project. Each requesting tribe must provide certified answers to a list of detailed questions about the various safeguards that the tribe has put in place to protect defendants' rights, but the questions are designed to be answered with a single sentence or a simple "yes" or "no" (a copy of the Application Questionnaire is appended to the final notice). The Application Questionnaire must be completed and certified as accurate by the tribe's chief executive, judicial, and legal officers. Each requesting tribe is also asked to attach the relevant portions of its laws, rules, and policies to its completed Questionnaire and these materials will be made publicly available.

The final notice sets out eight steps DOJ will take after receiving a tribe's complete, certified Application Questionnaire process:

1) the application will be shared with relevant components of DOJ and the Department of the Interior (DOI)
2) notice will be posted on a DOJ website and DOJ will consult with the elected and appointed officials of the affected tribes
3) DOJ may make follow-up inquiries about the tribe's criminal justice system
4) DOJ and DOI will coordinate in reviewing the application
5) if funding is available, DOJ may provide training or technical assistance to a tribe
6) DOJ personnel will recommend to the Associate Attorney General whether a tribe should be designated as a participating tribe on an accelerated basis
7) if the recommendation is positive, DOJ will consult with the requesting tribe to establish a date for commencement of SDVCJ; and
8) if a commencement date and any conditions are agreed upon, the Associate Attorney General may make the designation

At a tribe's request, DOJ will also engage in one-on-one, government-to-government consultation with a tribe before the tribe submits its application. If an application receives a negative response, DOJ may, if funding is available, provide training and technical assistance that may enable the tribe to submit a revised request.
DOJ will give the same priority consideration to any tribal request received within 30 days of the publication of the final notice, and on January 6 and 7, 2013, DOJ will conduct telephonic consultation with affected tribes on all of the applications received on or before December 29, 2013 See attached Dear Tribal Leader Letter. DOJ will also consider any tribal request received before March 7, 2015, when the Pilot Project expires. After the expiration of the Pilot Project, any tribe who determines it meets the statutory requirements for exercising SDVCJ may do so without the approval from DOJ. A primary goal of the Pilot Project is therefore the development of best practices that other tribes can use to implement SDVCJ in 2015 and beyond. To that end, the DOJ has assembled an Intertribal Technical-Assistance Working Group on Special Domestic Violence Criminal Jurisdiction (ITWG), which has already begun work developing best practices and advice, including a tribal code checklist, which may serve as a useful resource for tribes wishing to participate in the Pilot Project or to exercise SDVCJ after March 7, 2015.

If we may be of further assistance regarding the voluntary Pilot Project, please contact us at the information below.

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Inquiries may be directed to:
Tim Seward (steward@hobbsstraus.com)
Caroline Mayhew (cmayhew@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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