Fort Peck Tribes Expand Criminal Jurisdiction

The Fort Peck Tribal Executive Board expanded its special jurisdiction over non-Indians under the Violence Against Women Reauthorization Act of 2022 on Aug. 17, 2023.

What is VAWA?

Originally passed in 1994, VAWA is the first federal legislation acknowledging domestic violence as crime and provides resources to encourage community coordinated responses to prevent violence against women. Subject for renewal every five years, VAWA has been reauthorized in 2000, 2005, 2013 and in 2022. Each reauthorization builds upon existing protections for victims of domestic violence and will be subject to another reauthorization in 2027.

Special Jurisdiction?

In 1978, the U.S. Supreme Court ruled in Oliphant v. Suquamish that Indian tribes had no jurisdiction over non-Indians. A non-Indian could commit a sexual or violent offense against an Indian on tribal land and the tribes could legally do nothing. Oliphant created a jurisdictional maze where state and federal authorities had the responsibility to investigate and prosecute non-Indian vs. Indian crimes of violence that often went unaddressed unless the crime resulted in death or serious injury to the victim.

According to a 2016 report by the National Institute of Justice:

•84.3 percent of Indian women (more than four in five) have experienced intimate partner violence, sexual violence or stalking in their lifetimes.

•56.1 percent of Indian women have experienced sexual violence in their lifetimes.

•96 percent of female Indian sexual violence victims experience violence at the hands of a non-Indian perpetrator.

•48.8 percent of Indian women will be stalked in their lifetimes.

•89 percent of Indian stalking victims experience stalking at the hands of a non-Indian perpetrator.

To effectively address these problems in Indian Country, Congress enacted VAWA 2013 which included a provision that recognized and affirmed the inherent sovereign authority of tribes to exercise criminal jurisdiction over non-Indians who violated qualifying protection orders or commit domestic/ dating violence against Indian victims. This provision was known as Special Domestic Violence Criminal Jurisdiction and amended the Indian Civil Rights Act. VAWA 2013 created a framework for tribal courts to prosecute non-Indians again, something that had not happened in 35 years.

Fort Peck Tribes’ SDVCJ Pilot Program In 2013, the Fort Peck Tribes were one of five pilot tribes to fully implement and exercise SDVCJ. With the help of various grants awarded to the Fort Peck Tribes, some of the successes of the pilot program included hiring additional law trained court staff required by VAWA 2013 to prosecute VAWA cases, providing special counsel to non-Indian defendants and establishing a culturally specific curriculum to help keep families together.

Since 2015, there has been over 50+ cases in the Fort Peck Tribal Court concerning violence against Indian women by non-Indian men. However, there were many lessons learned concerning the exercise of SDVCJ, such as the “sufficient ties” requirement which stated a non-Indian had to meet certain ties to the community in order to be prosecuted under the tribes’ special criminal jurisdiction.

VAWA 2022 STCJ Reauthorization VAWA 2022 was signed into federal law March 15, 2022, and went into effect Oct. 1, 2022. Amendments included changing Special Domestic Violence Criminal Jurisdiction to Special Tribal Criminal Jurisdiction, eliminating the “sufficient ties” requirement and expands tribes’ jurisdiction over the following covered crimes involving:

•Domestic violence (VAWA 2013 Current Covered Crime)

•Dating violence (VAWA 2013 Current Covered Crime)

•Protection order violations (VAWA 2013 Current Covered Crime)

•Sexual violence (VAWA 2022 STCJ Covered Crime)

•Stalking (VAWA 2022 STCJ Covered Crime)

•Sex trafficking (VAWA 2022 STCJ Covered Crime)

•Child violence (VAWA 2022 STCJ Covered Crime)

•Obstruction of justice (VAWA 2022 STCJ Covered Crime)

•Assaults against justice personnel (VAWA 2022 STCJ Covered Crime) Rights Of Defendants

VAWA 2022 also requires tribes to:

•Protect the rights of defendants under the Indian Civil Rights Act of 1968, including the right to due process.

•Protect the rights of defendants described in the Tribal Law and Order Act of 2010, by providing: (1) Effective assistance of counsel for defendants; (2) Free, appointed, licensed attorneys for indigent defendants; (3) Law-trained Tribal judges who are also licensed to practice law;

•Publicly available Tribal criminal laws and rules;

•Recorded criminal proceedings.

•Include a fair cross-section of the community in jury pools and not systematically exclude non-Indians.

•Inform (in writing) defendants ordered detained by a Tribal court of their right to file federal habeas corpus petitions.

In 2023, Fort Peck Tribal Court Staff and the tribes inhouse attorney began the legislative process of amending several codes in the tribes’ Comprehensive Code of Justice that were associated with special jurisdiction. Title 7. Sec 249. Special Tribal Criminal Offense will go into effect January 2024.

Because VAWA raises many questions, the Fort Peck Tribes are planning to host a conference later in the year to educate the public on the new laws.