With only a few weeks left for the 112th Congress, there is a renewed effort underway on Capitol Hill to pass the Violence Against Women Act (VAWA) reauthorization. The result of this effort could have important implications for tribal criminal jurisdiction over domestic violence offenses.
Background. The Senate passed its version of the VAWA reauthorization,
S 1925, on April 26, 2012. The Senate bill includes a tribal criminal jurisdiction provision that would authorize tribes to exercise “special domestic violence criminal jurisdiction” over certain domestic violence crimes, including over non-Indian defendants charged with those crimes. The Senate bill also includes some restrictions on the exercise of that jurisdiction related to the protection of defendant’s rights in tribal court. (See our General Memorandum 12-057 of April 27, 2012). The House passed its own VAWA reauthorization bill, HR 4970, on May 16, 2012. The House version does not include the tribal criminal jurisdiction provision, due to the assertions made by a number of House Republicans that it is unconstitutional. Instead, the House version includes a provision granting federal court authority to issue protection orders against perpetrators of domestic violence in Indian Country. (See our General Memorandum 12-067 of
May 18, 2012).
The Senate and the House of Representatives did not resolve the differences between their two bills prior to the elections. Now, supporters of the Senate bill are pushing for Congress to pass in the lame duck session a final VAWA bill that includes the tribal criminal jurisdiction provision. In fact, here has been movement in that direction. On December 3, 2012, Representative Darrell Issa (R-CA) introduced
HR 6625, a bill specific to and similar to the tribal criminal jurisdiction provision included in S 1925, albeit with some important differences. Representatives Tom Cole (R-OK), Patrick McHenry (R-NC), and Mike Simpson (R-ID) are original cosponsors of HR 6625. This bill is intended to offer a compromise to the Senate bill’s tribal criminal jurisdiction provision and would extend tribal jurisdiction over certain crimes of domestic violence in the same manner as the Senate bill, but with additional due process safeguards for criminal defendants and with provisions for federal court oversight. These additions are meant to alleviate concerns voiced by some members of Congress that the Senate bill’s provision is unconstitutional because tribal courts are not subject to the Bill of Rights.
Tribal Jurisdiction Compromise Legislation. HR 6625 adds a provision, not included in the Senate VAWA bill that would allow a defendant charged with a crime under a tribe’s special domestic violence criminal jurisdiction to petition the United States federal district court for removal of his or her case to the district court. Removal could only be granted if the defendant could prove that the tribal court had violated a right guaranteed to the defendant by the Indian Civil Rights Act (ICRA) (including amendments to the ICRA in HR 6625 granting additional due process rights). Furthermore, the defendant would also have to prove that the tribal court failed to adequately remedy the violation, and that the violation is prejudicial to the defendant. The defendant would be required to file the notice for removal within 30 days after arraignment. In addition to the possibility of removal to federal court, HR 6625 would require that tribal courts, when exercising special domestic violence jurisdiction, provide “the right to a trial by an impartial jury” that both “reflect[s] a fair cross section of the community” and “do[es] not systematically exclude any distinctive group in the community, including non-Indians[.]”
Representatives Cole and Issa, joined by the co-sponsors of HR 6625 and Representatives John Kline (R-MN); Jeff Denham (R-CA); Ken Calvert (R-CA); and Mary Bono Mack (R-CA), sent a letter (attached) to House Speaker John Boehner on December 4, urging the inclusion of the modified tribal criminal jurisdiction provisions in HR 6625 in a final VAWA bill. It is not yet clear whether these compromise provisions will gain enough support in the House and the Senate to result in a final VAWA bill before the end of the year. Furthermore, HR 6625 is part of ongoing VAWA discussions. As a result, there may be further changes to the compromise tribal criminal jurisdiction provision, or alternative compromise concepts could be introduced in the coming days or weeks. There are also other, non-tribal provisions that are the subject of negotiation as well.
We will continue to monitor the VAWA reauthorization effort and report on its progress. Please let us know if we may provide further information or assistance regarding the efforts to pass the Violence Against Women Act reauthorization with tribal jurisdiction provisions.
