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General Memorandum 16-028

General Memorandum 16-028
Bill Introduced in Senate to Affirm Tribal Criminal Jurisdiction over Child Violence and Drug-related Offenses by Non-Indian Offenders

On April 12, 2016, Senator Jon Tester (D-MT) introduced S 2785, the Tribal Youth and Community Protection Act of 2016, to expand tribal criminal jurisdiction over non-Indians for certain child abuse and drug-related offenses committed in Indian Country, as well as crimes committed against tribal police officers exercising tribal criminal jurisdiction. The bill, which is cosponsored by Senator Al Franken (D-MN), has been referred to the Senate Committee on Indian Affairs. This bill is intended to implement recommendations of the Indian Law and Order Commission, established under the Tribal Law and Order Act of 2010, to restore inherent authority of tribal courts and the inherent authority of tribes to protect Native children from violence and communities from illegal drugs.

S 2785 builds considerably on the expansion of tribal criminal jurisdiction under the Violence Against Women Reauthorization Act of 2013 (VAWA), which amended the Indian Civil Rights Act (ICRA) to affirm the inherent right of tribes to exercise limited “special domestic violence criminal jurisdiction” over non-Indian defendants in their territory for certain dating and domestic violence crimes, provided the tribes meet certain requirements to protect the due process rights of those criminal defendants. S 2785 would replace references to “special domestic violence criminal jurisdiction” in the ICRA (as amended by the VAWA) with “special tribal criminal jurisdiction,” and would define such jurisdiction to include child violence, drug-related felonies or misdemeanors, and other “related conduct” committed in connection with the tribe’s exercise of special tribal criminal jurisdiction over the defendant. As with special domestic violence criminal jurisdiction under the VAWA, the special tribal criminal jurisdiction under S 2785 would not extend to any criminal offense where both the victim and defendant are non-Indians, with the exception of drug offenses.

S 2785 defines “child violence” to include felony or misdemeanor violations of tribal criminal law that are committed against a child by a caregiver or by a person that would be subject to tribal criminal jurisdiction if the crime was committed against the parent, legal custodian, or guardian of the child under tribal law. This latter category appears to be intended to ensure that individuals who are already subject to tribal jurisdiction for dating and domestic violence offenses against a spouse or romantic partner under the VAWA are also subject to tribal jurisdiction for violence they commit against any child in the custody of that spouse or romantic partner. “Caregiver” is defined as a parent, guardian, or legal custodian of the child; any relative of the child; a person who resides or has resided regularly or intermittently in the same dwelling as the child; a person who provides or has provided care for the child; any person who exercises or has exercised temporary or permanent control over the child; or any person who temporarily or permanently supervises or has supervised the child.

Significantly, the bill would affirm tribal criminal jurisdiction to all persons who commit a drug offense, which is defined as a drug-related felony or misdemeanor of the tribe, if the offence occurs in the Indian Country of the participating tribe. For drug offenses the participating tribe would not have to show that the person maintained any connection to the tribe except to commit the offense in the tribe’s Indian Country. The bill would also affirm tribal criminal jurisdiction over defendants who engage in “related conduct,” which is defined as violations of tribal criminal laws or contempt authority that occur in the tribe’s Indian Country and in connection with a tribe’s exercise of special tribal criminal jurisdiction.

Like the VAWA, S 2785 would recognize and affirm inherent tribal authority to exercise criminal jurisdiction over non-Indians that tribes are currently precluded from exercising under the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe. The bill would not delegate federal criminal jurisdiction to tribes nor would it impact existing federal or state jurisdiction. During consideration of the VAWA, several members of Congress vigorously debated the constitutionality of affirming inherent tribal authority to exercise jurisdiction over non-Indians outside the protection of the United States Constitution and its Bill of Rights. The question has not yet been addressed by the federal courts, though a limited number of tribes began exercising expanded jurisdiction under the VAWA as early as 2014. Similar concerns and objections are likely to be voiced in connection with consideration of S 2785. However, Senator Tester stated in a press release, “Tribal communities must have every tool they need to protect themselves from folks who traffic illegal drugs and harm children in Indian Country.”

S 2785 would also extend the authorization of appropriations for certain grants under the Indian Alcohol and Substance Abuse Prevention and Treatment Act to support Tribal Action Plans and law enforcement training (25 U.S.C. §§ 2412 and 2451(b), respectively) through 2020, and would require the Assistant Secretary for Indian Affairs to submit a report to Congress within four years “describing the degree of effectiveness of Federal programs that are intended to build the capacity of criminal justice systems of Indian tribes to investigate and prosecute offenses relating to illegal drugs.”

Please let us know if we may provide additional information or assistance regarding
S 2785, the Tribal Youth and Community Protection Act of 2016.

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

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