The Violence Against Women Act – Title IX: Safety for Indian Women

DATES: Preliminary Expressions of Interest from tribes are due July 14, 2013 (30 days after publication in the Federal Register, June 14, 2013). Comments on the proposed procedures are due September 12, 2013 (90 days after date of publication in the Federal Register, June 14, 2013).
FOR FURTHER INFORMATION CONTACT: Mr. Tracy Toulou, Director, Office of Tribal Justice, Department of Justice, at (202) 514-8812 (not a toll-free number) or e-mail OTJ@usdoj.gov.
VAWA Tribal Pilot Project FAQ

The Violence Against Women Act (VAWA) was reauthorized for the third time on March 7, 2013. (Violence Against Women Reauthorization Act of 2013, S. 47, 113th Congress, 2013-2015.) VAWA of 2013 includes Title IX—Safety for Indian Women.

Among its provisions, Title IX of VAWA of 2013 authorized “special domestic violence criminal jurisdiction.”  This jurisdiction authorizes tribes to criminally prosecute non-Indians for the crimes of domestic violence, dating violence, and the violation of protection orders.  However, in order for tribes to utilize this criminal jurisdiction, tribes must provide certain enumerated due process protections, including most of the protections required in the Tribal Law and Order Act.

• Introduction to Violence Against Women Act Reauthorization – Title IX
• Special Domestic Violence Criminal Jurisdiction
• Law Takes Effect March 2015
• Due Process Protection Requirements
• Special Rule for Alaska
• Applicability of Other Federal Laws
• Constitutionality of Title IX
• Past VAWA Acts

Resources

Violence Against Women Act 2013 Signing Ceremony – March 7, 2013

Video of President Obama Addresses Tribal provisions in VAWA signing Ceremony – March 7, 2013

NCAI – Reflections on Passage of VAWA and Tribal Provisions, March 7, 2013

Video of President Obama and Vice President Biden Speech Prior to Signing VAWA 2013

The Language of the Violence Against Women Acts Themselves

Current VAWA 2013

• VAWA 2013 - The Violence Against Women Act (VAWA) was reauthorized in 2013 - 2013 - Violence Against Women Reauthorization Act of  2013, S. 47, 113th Congress, 2013-2015, including for the second time, an expanding Title IX, Safety for Indian Women - Title IX: Safety for Indian Women, of VAWA 2013.
  • Sections of Title IX include:
    • Sec. 901 – Grants to Indian Tribal Governments
    • Sec. 902 – Grants to Indian Tribal Coalitions
    • Sec. 903 – Consultation
    • Sec. 904 – Tribal Jurisdiction Over Crimes of Domestic Violence
    • Sec. 905 – Tribal protection Orders
    • Sec. 906 – Amendments to the Federal Assault Statute
    • Sec. 907 – Analysis and Research on Violence Against Indian Women
    • Sec. 908 – Effective Dates; Pilot Project
    • Sec. 909 – Indian Law and Order Commission; Report on the Alaska Rural Justice and Law Enforcement Commission
    • Sec. 910 – Special Rule for the State of Alaska
  • Legislative History to VAWA 2013 includes
    • S. Rep. No. 112-153, (March. 2012), concerning S. 1925 Violence Against Women Reauthorization Act
    • 159 Cong. Rec. H705, 737-39 (daily ed. Feb. 28, 2013)

Past VAWA Acts

• VAWA 2005 - The Violence Against Women Act (VAWA) was reauthorized in 2005 - VAWA 2005 Reauthorization Act, H.R. 3171, 109th Congress, 2005-2006, which was the first time that a separate title addressing Safety for Indian Women was included – Title IX: Safety for Indian Women, of VAWA 2005.
• VAWA 2000 - The first reauthorization of the Violence Against Women Act (VAWA) was enacted in 2000 - Victims of Trafficking and Violence Protection Act of 2000, VAWA 2000, H.R. 3244, Division B, 106th Congress, 1999-2000
• VAWA 1994 - The Violence Against Women Act (VAWA) was first enacted in 1994 - Title IV, sec. 40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994, H.R. 3355

Special Domestic Violence Criminal Jurisdiction Resources

• DOJ’s One-Page Factsheet: VAWA 2013 and Tribal Jurisdiction over Non-Indian Perpetrators of Domestic Violence
• DOJ “Framing Paper”: Implementation of Sections 904 and 908 of the Violence Against Women Act of 2013, April 16, 2013 (regarding the Pilot Project)
• TLPI PowerPoint presentation regarding the background and provisions of the special domestic violence criminal jurisdiction in the VAWA of 2013
• NCAI’s Hand-Out Indicating How the Indian Civil Rights Act is Amended by the VAWA 2013
• NCAI and TLPI PowerPoint: Implementing the Expanded Jurisdiction Provisions of VAWA in our Tribal Courts, April 5, 2013
• NCAI and TLPI Recording of Webinar: Implementing the Expanded Jurisdiction Provisions of VAWA in our Tribal Courts, April 5, 2013

Tribal Bar Association Resources

• “Judicial and Attorney Qualifications, Licensure, and Ethical Standards,” PowerPoint by Christine Folsom-Smith, the National Tribal Judicial Center, presented at the American Indian Justice Conference, May 10, 2013.

Publications, Reports, and Articles

• American Bar Association (ABA) Resolution Supporting the Reauthorization of VAWA that includes the Tribal Criminal Jurisdiction Provisions – August 6-7, 2012
  This report, co-authored by TLPI Executive Director Jerry Gardner and TLPI Tribal Law Specialist Lauren Frinkman, details the justification for why the ABA supports the tribal provisions of VAWA. This resolution was passed August 6-7, 2012, four months after S.1925 was passed by the Senate on April 26, 2012. Ultimately, the Title IX passed in VAWA 2013 was reintroduced in 2013 in S. 47, passed by the Senate on February 12, 2013, passed by the House on February 28, 2013, and signed into law by President Obama on March 7, 2013.
• Amnesty International, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, Amnesty International USA (2007)
  This groundbreaking report detailed for the first time the devastating degree of sexual violence faced by Native women in the United States. In addition, the report details the complex, and subsequently inadequate nature of criminal jurisdiction in Indian country and how that failing system compounds the danger. Statistics from this report were cited in the Congressional Findings of the Tribal Law and Order Act of 2010, and used to support the VAWA 2013 legislation.
• DOJ Proposed Procedures for Tribal VAWA Pilot Program (June 14, 2013) – The U.S. Department of Justice (DOJ) has published proposed procedures for an Indian tribe to request designation as a participating tribe under the voluntary pilot project described in section 908(b)(2) of the Violence Against Women Reauthorization Act of 2013 (“the Pilot Project”), and also proposes procedures for the Attorney General to act on such a request. This notice also invites public comment on the proposed procedures and solicits preliminary participate in the Pilot Program  and for the Attorney General to act on such a request. DATES: Preliminary Expressions of Interest from tribes are due July 14, 2013 (30 days after publication in the Federal Register, June 14, 2013). Comments on the proposed procedures are due September 12, 2013 (90 days after date of publication in the Federal Register, June 14, 2013). FOR FURTHER INFORMATION CONTACT: Mr. Tracy Toulou, Director, Office of Tribal Justice, Department of Justice, at (202) 514-8812 (not a toll-free number) or e-mail OTJ@usdoj.gov.
  VAWA Tribal Pilot Project FAQ
• DOJ Statement on Section 904’s Constitutionality, 159 Cong. Rec. H705, 737-39 (daily ed. Feb. 28, 2013)
  Thomas J. Perrelli, Associate Attorney General testified before the Senate Committee on Indian Affairs concerning the constitutionality of Sec. 904 under the U.S. Supreme Court precedent, United States v. Lara.  The statement was later inserted into the Congressional Record prior to the House floor vote on VAWA 2013, on February 28, 2013.
• M. Brent Leonhard, Closing a Gap in Indian Country Justice: Oliphant, Lara, and DOJ’s Proposed Fix, 28 Harvard Jrnl. On Racial & Ethnic Justice 117 (2012)
  This law review article analyzes whether DOJ’s proposed legislative fix to allow tribes to prosecute limited non-Indian domestic violence crimes is legally permissible by closely analyzing the decisions in Oliphant and Lara. Given the closely circumscribed requirements for the exercise of such power, and past decisions of various justices, this article concludes that it is within Congress’ power to recognize the inherent power of tribes to prosecute non-Indians for domestic violence crimes against Indians.
• National Indigenous Women’s Resource Center, Restoration of Native Sovereignty and Safety for Native Women, Volume XX, June 2012
  The Restoration of Sovereignty & Safety magazine is a publication dedicated to informing tribal leadership and communities of emerging issues impacting the safety of American Indian and Alaska Native women.  The June 2012 issue includes extensive legislative history of VAWA 2013, profiles of key advocates, as well as powerful stories regarding the survival of violence against Indigenous women and the impetus for VAWA 2013.
• Zachary S. Price, Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction, 113 Colum. L. Rev., 657 (2013)
  This law review article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in the areas federal Indian law concerning unregulated local governmental authority. Focusing on the criminal context, this Article considers three issues: (1) whether and under what circumstances Congress may confer criminal jurisdiction on tribal and territorial governments without requiring that those decisions be subject to federal executive supervision; (2) whether double jeopardy should bar successive prosecution by both the federal government and a tribal or territorial government; and (3) what, if any, constitutional procedural protections apply when a tribal or territorial government exercises criminal jurisdiction pursuant to such federal authorization.
• VAWA Letter from Law Professors – Tribal Provisions, April 12, 2012
  Then Dean of New Mexico Law School Kevin Washburn (now Assistance Secretary of Indian Affairs), along with Professors Stacy Leeds, Erwin Chemerinksy, Carole E. Goldberg, Robert N. Clinton, Gloria Valencia-Weber, Matthew L.M. Fletcher, along with forty-three other distinguished law professors, signed onto this letter addressed to Senators Patrick Leahy and Charles Grassley and Representatives Lamar Smith and John Conyers, Jr. The letter writes in support of the tribal provisions, as well as details the constitutionality of the those provisions.
• Written Comments regarding Government-to-Government Consultation with the Department of Justice on Implementation of the Violence Against Women Reauthorization Act of 2013
  On August 16, 2013, the U.S. Department of Justice (DOJ) invited tribal leaders to participate in a government-to-government consultation regarding how best to structure and implement the voluntary Pilot Project established under Sections 904 and 908 of VAWA 2013. DOJ hosted conference calls with tribal court judges on May 8, 2013, and with tribal leaders generally on May 14 and May 17, 2013.  DOJ also accepted written comments.  Below are written comments from the National Congress of American Indians, the National American Indian Court Judges Association, and the Tribal Law and Policy Institute.
  • National Congress of American Indians’ Comments – May 20, 2013
  • National American Indian Court Judges Association’s Comments – May 23, 2013
  • Tribal Law and Policy Institute’s Comments – May 20, 2013

Links

• American Bar Association (ABA) VAWA
• Department of Justice’s (DOJ) Office of Violence Against Women  (OVW) – Tribal Communities
• Department of Justice’s (DOJ)  Tribal Justice and Safety - Violence Against Women Act (VAWA) Reauthorization 2013
• National Congress of American Indian’s (NCAI) Violence Against Women Act
• National Indigenous Women’s Resource Center

Upcoming Events

• June 24, 2013 – National Congress of American Indian (NCAI) Inter-Tribal Working Group Meeting for the VAWA 2013 Implementation Pilot Project at the NCAI 2013 Mid-Year Conference, Reno, NV

Past Events

• June 10-12, 2013 - Women Are Sacred 2013 Conference: Native Women Reclaiming Our Space, Vision & Voices to Strengthen the Grassroots Advocacy Movement to End Violence Against Native Women – Albuquerque, NM
  • TLPI PowerPoint: Building Tribal Capacity to Exercise TLOA Enhanced Sentencing and/or VAWA “Special Domestic Violence Criminal Jurisdiction” over Non-Indians
• May 17, 2013 - Government-to-Government Consultation with the U.S. DOJ on implementation of the VAWA 2013
• May 14, 2013 – Government-to-Government Consultation with the U.S. DOJ on implementation of the VAWA 2013
• May 8, 2013 – DOJ Consultation with Tribal Court Judges on implementation of the VAWA 2013