Tribes Must Implement Changes To Take Advantage Of The Violence Against Women Act's Tribal Provisions

In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), the Supreme Court held that tribes do not have inherent authority to prosecute crimes committed by non-Indians in Indian Country. Oliphant is a judge-made, non-constitutional law and generally remains the current law.

The Violence Against Women Act (VAWA) partially reverses the Oliphant rule by recognizing the inherent authority of federally recognized tribes to prosecute non-Indians in tribal court for domestic violence crimes against tribal members or Indians residing in Indian Country.

In VAWA's tribal provisions, Congress requires tribes to have certain processes and protection to qualify for the recognition of jurisdiction. VAWA also provides procedural safeguards to domestic violence criminal defendants that must be observed by implementing tribes.

VAWA allows tribes to elect whether to take advantage of these tribal provisions permitting the assertion of tribal jurisdiction over domestic violence crimes committed by non-Indians. Tribes who do not wish to take advantage of VAWA's tribal provisions do not have to implement any changes. Also, regardless of whether a tribe decides to take advantage of VAWA, federal and state authorities, where applicable, can still prosecute the same non-Indian defendant for the same crime.

I.VAWA's Jurisdiction Limiting Definitions

1. Types of Crimes

   To satisfy the requirements of VAWA, tribes may have to amend their tribal codes to recognize special domestic violence crimes as different from assault between two strangers. VAWA requires a "dating or domestic relationship" between the perpetrator and victim for VAWA's special criminal jurisdiction provisions to apply.

   Tribes that implement VAWA also can prosecute non-Indians in tribal courts for violation of a protective order, but the violation must occur in Indian Country. Additionally, the protective order on which criminal jurisdiction is based must be issued: (1) to prevent violent or threatening acts; or (2) contact, communication, or physical proximity with or to the victim. Given this definition, VAWA likely does not permit prosecution of a non-Indian spouse for violating a domestic violence protective order outside of the tribe's Indian Country lands. Such crimes remain under the state or county's exclusive criminal jurisdiction.

2. Types of Defendants

   A non-Indian can be subject to VAWA's special tribal domestic violence jurisdiction only if he or she: (1) resides in Indian Country; (2) is employed in Indian Country; (3) is the spouse, intimate partner, or...