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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 16-053

GENERAL MEMORANDUM 16-053
Victims of Crime Act Victims Assistance Program Final Rule; Appropriations Committees Recommend Crime Victims Fund Tribal Allocation

On July 8, 2016, the Department of Justice (DOJ) published in the FEDERAL REGISTER a Final Rule regarding the implementation of the formula grant program authorized by the Victims of Crime Act, known as the Crime Victims Fund (CVF). The Final Rule updates the previously issued Guidelines for the program. The CVF, which is funded via federal criminal fines, penalties and assessments, provides direct funding to states and to territories, but unfortunately not to tribes. Of significance is that the pending FY 2017 House and Senate Commerce-Justice-Science appropriations bills each include a 5 percent tribal allocation from the CVF, although that is not a guarantee that it will remain in a final bill. The National Congress of American Indians and others have worked for a number of years for direct tribal funding from the Crime Victims Fund.

The Appropriations Committees place a cap on how much of the accumulated CVF can be allocated annually. Congress has significantly increased the amount of funds available for distribution from the CVF in each of the past 3 fiscal years. In FY 2016 approximately $3 billion was allocated, with $2.6 billion of that available for the DOJ Office for Victims of Crime. DOJ has confirmed that very little of the funds are passed through from states to programs serving tribal victims.

The CVF provides resources for an array of services to help victims and victim service providers and it does contain one small tribal allocation. The first $20 million of the CVF is to be set-aside to address child abuse prevention and treatment. Fifteen percent of that amount ($3 million) is to be allocated for programs to address child abuse in Indian Country and these funds are distributed as part of the DOJ Coordinated Tribal Assistance Solicitation for competitive grants. (The earlier Guidance had specified an allocation of 15 percent of the first $10 million). The remaining portion is administered by the Department of Health and Human Services for distribution to states for child abuse prevention and treatment.

Match Waiver for Projects in Indian Country. The Final Rule contains a new waiver with regard to sub-recipients, waiving the 20 percent cash or in-kind required match for "federally-recognized American Indian or Alaska Native tribes, or projects that operate on tribal lands." DOJ states:

The elimination of match for American Indian and Alaskan Native tribes and projects on tribal lands will permit victim service organization in these communities, many of which do not have the resources to provide matching funds, the ability to more easily seek VOCA funding for victim services. This will benefit victims in these communities, many of whom are underserved. This change is unlikely to impose new costs on States, as there is no requirement that the administering agencies fund American Indian or Alaskan Native tribes or organizations at a particular level, and the amount of funding allocated to these organizations historically is a very small percentage of overall VOCA funding.

Appropriations. As noted above, the House and Senate Appropriations Committee-approved FY 2017 Commerce-Justice-Science Appropriations bills contain a 5 percent tribal allocation from the Crime Victims Fund. That would amount to approximately $130-$145 million for tribes. We expect that Congress will enact a Continuing Resolution (CR) to fund federal agencies for at least the first few months of FY 2017 which begins October 1, 2016. A CR generally funds programs at their prior year funding level and conditions. Should Congress see its way clear to pass individual FY 2017 appropriations bills or combine them into an omnibus bill, up for discussion would be the issue of a tribal CVF allocation. Of concern is that the Judiciary Committees, which have jurisdiction over the Victims of Crime Act, have expressed concern over the appropriations bills' proposals for a tribal allocation of CFV funds.

Please let us know if we may provide additional information or assistance regarding the Crime Victims Fund.

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

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