Tribal Legal Code Resource: Tribal Laws Implementing TLOA Enhanced Sentencing and VAWA Enhanced Jurisdiction

Enhanced Sentencing and the Violence Against Women Act Reauthorization of 2013 (VAWA 2013) Special Domestic Violence Criminal Jurisdiction

A product of the Tribal Law and Policy Institute

Developed February 2015

(Download Guide)

This project was supported by Grant No. 2012-IC-BX-K001 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile and Delinquency Prevention, the Office for Victims of Crime, and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. Points of view or opinions in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.

Primary Authors

• Maureen L. White Eagle, Métis, Tribal Advocacy Legal Specialist, Tribal Law and Policy Institute
• Melissa L. Tatum, Director, Indigenous Peoples Law and Policy Program, the University of Arizona James E. Rogers College of Law
• Chia Halpern Beetso, Spirit Lake Dakota, Tribal Court Specialist, Tribal Law and Policy Institute

• Jerry Gardner, Cherokee, Executive Director, Tribal Law and Policy Institute
• Heather Valdez Singleton, Deputy Director, Tribal Law and Policy Institute
• M. Brent Leonhard, Attorney, Confederated Tribes of the Umatilla Indian Reservation
• Virginia Davis, Senior Policy Advisor, National Congress of American Indians
• Alfred Urbina, Pascua Yaqui, Attorney General, Pascua Yaqui Tribe
• Michelle Demmert, Tlingit, Reservation Attorney, Tulalip Tribe

• Terrilena Dodson, Navajo, Graphics Specialist, Tribal Law and Policy Institute

Tribal Legal Code/Policy Development Series

The Tribal Law and Policy Institute (TLPI) has developed many resources to assist tribal governments in creating a comprehensive, community-based, victim-centered response to crime. This series is developed with a philosophy that tribal laws and policy should reflect tribal values. In addition, writing a tribal law usually requires careful consideration of how federal and state laws apply. Each resource is designed to help tribal governments customize laws and policies that fit community values, principles, and capacities. These resources are all freely available for downloading on the Tribal Court Clearinghouse.

Tribal Legal Code Resources

Tribal Legal Code Resource: Tribal Laws Implementing TLOA and VAWA 2013 is designed to be a resource for tribes interested in implementing the Tribal Law and Order Act sentencing enhancement provisions or VAWA 2013’s Special Criminal Domestic Violence Jurisdiction. The resource focuses on the tribal code and rule changes that may be needed should a tribe elect to implement the increased tribal authority in either or both statutes. It discusses the concerns and issues that need resolution in implementation and provides examples from tribal codes and tribal court rules. (February 2105)

Tribal Legal Code Resource: Juvenile Justice - Guide for Drafting or Revising Tribal Juvenile Delinquency and Status Offense Laws provides guidance for tribes interested in drafting and/or revising their juvenile laws. It includes both juvenile delinquency laws and status offense laws (that is, laws – such as truancy or runaway - which only apply to juveniles due to their status as juveniles). This resource is designed to assist tribes in ensuring that their juvenile justice system reflects the vision and values of the tribal community to be served. Part I provides guidance concerning how to address juvenile code development, preliminary considerations, and assessing resources. Part II provides extensive examples, critical commentary, discussion questions, and exercises designed to help tribes customize their laws to meet the needs of the individual community This resource covers the full range of juvenile delinquency laws and status offense laws and processes. It also provides guidance for tribes interested in developing specialized court dockets such as juvenile wellness courts, peacemaking courts, and teen courts. (March 2015)

Tribal Legal Code Resource: Domestic Violence Laws was developed by TLPI in cooperation with OVW and BJA. This victim-entered approach to domestic violence against Native women resource guide includes exercises, examples, and discussion questions to help tribes customize their laws to meet the needs of their community. This resource was revised and updated in 2012 and in 2015, to include the Tribal Law and Order Act (TLOA) (2010) and the Violence Against Women Act Reauthorization of 2013 (VAWA 2013). (Revised February 2105)

Sexual Violence and Stalking Laws: Guide for Drafting or Revising Victim-Centered Tribal Laws Against Sexual Assault and Stalking was developed by the TLPI in conjunction with the Southwest Center for Law and Policy and is intended to be a guide for drafting or revising victim-centered tribal criminal laws on sexual assault and stalking. This resource guide includes sample language and discussion questions which are designed to help tribal community members decide on the best laws for their community. This resource was revised and updated July 2012, including changes addressing the 2010 enactment of the Tribal Law and Order Act.

Tribal Legal Code Resource: Crimes Against Children has been developed by the TLPI under a Children’s Justice Act Partnerships for Indian Communities training and technical assistance grant. Specifically, it has been developed to provide assistance to tribes and tribal organizations that have received Children’s Justice Act Partnerships for Indian Communities grants. Tribes frequently request assistance in developing and/or updating their laws to address victimization of tribal children. TLPI developed this resource guide and workbook to meet the identified need. This project was conceived in 2001 under the guidance of an advisory committee of experts in the tribal justice field, those working with Native child abuse and child victimization issues, and those working with tribal child and family services providers. The resource provides illustrative examples, narrative, and discussion questions. The discussion questions direct users through a tailoring process that will assure that the resulting draft statutory provisions reflect the needs and values of the tribal community that the targeted law serves. (August 2008).

Violence Against Native Women Resources

Tribal Judge’s Sexual Assault Bench Book and Bench Card was developed by TLPI in cooperation with the Office on Violence Against Women as a resource for tribal judges who hear sexual assault cases in tribal courts. It provides background information on important sexual assault and tribal jurisdictional issues, as well as providing guidance in handling key issues at various stages of a sexual assault criminal trial. (June 2011)

Tribal Domestic Violence Case Law: Annotations for Selected Cases was developed by the TLPI in cooperation with the Office on Violence Against Women as a resource for tribal judicial officers in understanding how some tribal governments have handled certain legal issues within the context of domestic violence cases. While a great deal of research has been done on case law in the state systems, little to no analysis has been done on the tribal judicial approach to domestic violence. This compendium, developed as part of an overall code-writing workshop curriculum for tribal governments, will assist tribal legislators as well. Understanding how laws are interpreted by the court systems may impact the development of laws that provide safety to tribal citizens. (June 2011)

Law Enforcement Protocol Guide: Sexual Assault was developed by the TLPI in conjunction with Southwest Center for Law and Policy as a tool for improving the investigation of sexual assault crimes. Effective investigations increase the likelihood of victim participation and increase the probability of convictions in tribal, state, and/or federal courts. This guide focuses on the development of an internal protocol for law enforcement. A law enforcement protocol can enhance the efforts of all community agencies in addressing sexual violence. Once a tribal government has strong laws in place, this publication will help create policies and protocols for a law enforcement agency to enforce laws. (July 2008)

Prosecutor Protocol Guide: Sexual Assault was developed by the TLPI in conjunction with Southwest Center for Law and Policy as a tool for improving the prosecution of sexual assault crimes. Holding offenders accountable for their actions is a key part of making a community safe. This publication is designed to help a prosecutor’s office ensure consistency and compassion for all survivors. This guide focuses on the development of an internal protocol for tribal prosecution. A prosecutor protocol can enhance the efforts of all community agencies in addressing sexual violence. (July 2008)

Sexual Assault Response Team (SART) Resource was developed by the TLPI in conjunction with Southwest Center for Law and Policy as a guide to creating cohesive policies between tribal agencies. Victims of sexual assault deserve a coordinated, comprehensive response from a variety of community agencies. This SART resource provides a starting point for developing victim-centered SART teams in your community. (September 2008)

Listen to the Grandmothers Video Discussion Guidebook is designed to assist tribal programs with incorporating cultural traditions into contemporary responses to violence against Native women. The Listen to the Grandmothers video features Native elders speaking to the problem of violence against Native women. The video provides a historical overview of violence against Native women, traditional responses, and an analysis concerning the incorporation of cultural traditions into contemporary responses to violence against women. (2008)

Sharing Our Stories of Survival: Native Women Surviving Violence is a general introduction to the social and legal issues involved in acts of violence against Native women; this book’s contributors are lawyers, advocates, social workers, social scientists, writers, poets, and victims. In the United States, Native women are more likely than women from any other group to suffer violence, from rape and battery to more subtle forms of abuse, and Sharing Our Stories of Survival explores the causes and consequences of such behavior. The stories and case studies presented here are often painful and raw, and the statistics are overwhelmingly grim. But a countervailing theme also runs through this extremely informative volume: many of the women who appear in these pages are survivors, often strengthened by their travails, and the violence examined here is human violence, meaning that it can be changed, if only with much effort and education. The first step is to lay out the truth for all to see, and that is the purpose accomplished by this textbook. (2008)

Sharing our Stories of Survival Trainer’s Manual for Training on Sexual Assault and Domestic Violence Involving Native Women is specifically designed to give guidance to advocates in presenting workshops, conference plenary sessions, and staff and community training. It provides the directions and materials for eight interactive workshops/training sessions based on chapters of the text book, Sharing Our Stories of Survival. (June 2013)

Tribal Protection Order Resources is a website designed to provide tribal and nontribal entities with a clearinghouse of information and resources pertaining to the issuance and enforcement of tribal protection orders.

Table of Contents

Part I. Background Information

TLOA and VAWA 2013 are very broad statutes covering numerous topics. This resource focuses solely on the sentencing enhancement provisions of TLOA and the special domestic violence jurisdictions sections of VAWA 2013. This resource provides an overview of the enhanced powers recognized by each statute and explores ways that tribes can comply with the requirements of the federal statutes.

Part I: Background Information is divided into five chapters. Chapter 1 provides an introduction to this resource guide, discussing its purpose and its limitations. Chapter 2 explores in more detail the way the resource is structured and how it can be used. Chapter 3 then turns to the TLOA and VAWA 2013, briefly discussing the history and requirements of each statute. Because tribes are not required to exercise any of the powers recognized by either statute, Chapter 4 provides some guidance for tribes to consider in deciding whether they want to make use of the recognized authority of one or both of the statutes. For tribes that wish to exercise those powers, Chapter 5 includes some suggestions about ways to approach drafting the required laws and regulations.

Chapter 1. Introduction

This resource guide addresses both the sentencing enhancement provisions of TLOA and special domestic violence jurisdiction provisions of VAWA 2013 because many of the requirements of the two statutes overlap. It is important to keep in mind, however, that a tribe may choose to exercise the authority recognized in one statute but not the other.

The passage of the TLOA increased some of the sentencing authority that had been taken away by the Indian Civil Rights Act (ICRA). TLOA does, however, impose some requirements on tribes who wish to exercise those recognized powers. It is important to note that TLOA gives tribes a choice about whether the tribe wants to use the enhanced sentencing authority recognized by TLOA. If a tribe does not want to use the enhanced sentencing authority, tribes do not have to comply with the requirements set out in the statute.

VAWA 2013 recognizes certain Special Domestic Violence Criminal Jurisdiction (SDVCJ). As with TLOA, VAWA 2013 places requirements on tribes that wish to exercise the recognized powers. VAWA 2013 became effective March 7, 2015, although three tribes have participated in a pilot project exercising special domestic violence jurisdiction.

What This Resource Guide Can Do

This book is designed to be a resource for tribes interested in implementing TLOA or VAWA 2013. The book focuses on the changes that may be needed should a tribe elect to implement either statute. It raises the concerns and issues that will need resolution in implementation and provides examples from tribal codes and tribal court rules.

We start by providing a general overview of the TLOA and VAWA statutes and the requirements, and then turn to a more detailed examination of each requirement. Each chapter provides a variety of questions that a tribe should attempt to answer in analyzing whether the implementation of these statutes and the expansion of jurisdiction and sentencing power are right for your nation. Additional resources are referenced and provided, particularly information drafted by the three pilot tribes and the National Congress of American Indians (NCAI).

A Tribal Domestic Violence Special Jurisdiction Model Code is provided in the appendix of this resource. This model code was developed by the pilot tribes. The model code should be helpful in providing you a full picture of how the law might look and how sections of the law work together. It also includes sections that were not discussed in this resource, but are important to include. The tribal codes of the three tribes participating in the pilot project might also serve as model codes. Links to their tribal codes are included in the Helpful Resources Chapter of this guide. We do not recommend that you adopt any model code, but rather that you review each of the chapters that provide important information on discussions that should take place before deciding on any changes in your code. Then, if you have decided to implement TLOA or VAWA 2013, select sections that fit your particular legal structure, historical background, cultural values, and resources, using the examples in the chapters and the model code as aids.

In addition the appendix provides a copy of the Tulalip Tribal Court Rules, including rules specific to the Tulalip Domestic Violence Court. Many of the requirements of TLOA and VAWA 2013 can be met by court rule, rather than code revision. We provide short examples throughout the resource, but it may be helpful to see a comprehensive example of Court Rules. Tulalip Request for Application of Indigent Criminal Conflict Attorney and their contract is also provided in the appendix.

What This Resource Guide Cannot Do

Because each tribe currently has unique codes, it is anticipated that each tribe that desires to implement one or both statutes will need to carefully review their current code and then modify their code in such a way that the requirements of TLOA or VAWA 2013 are met. In some cases the constitution of the tribe may need to be amended to ensure that criminal jurisdiction over non-Indians is permitted in the tribal constitution. We do not provide constitutional recommendations, but have chosen instead to focus on the tribal code provisions that are most likely to need amendment. We do pose questions in later chapters regarding your tribal constitution as it may contain restrictions on jurisdiction or rights granted through ICRA.

TLOA and VAWA 2013 are expansive statutes; we do not attempt to address all sections of those laws, but rather focus specifically on sentencing enhancement and special domestic violence jurisdiction.

A Few Words of Caution

Protocol development or development of administrative rules is not covered in this resource and is a necessary part of implementation of TLOA +or VAWA 2013. This resource guide is not a replacement for training. Even the best law in the world is not effective if people do not understand it and support it. Involvement of people in the lawmaking process is helpful in gathering support and providing training helps in promoting understanding.

This resource guide also does not discuss the protection of victim’s rights and support needed for victims. Community support and programming for domestic violence victims is important. Protocols and procedures to ensure victims are safe and other public safety concerns should also be reviewed when considering the topics relevant to the TLOA and VAWA 2013. Several of TLPI resources contain information on victims’ rights. The Guide for Drafting and Revising Victim-Center Tribal Laws Against Domestic Violence has a chapter that may be helpful. Other TLPI guides on codes and protocols are described in the beginning of this guide.

This resource guide is not a model code. Your tribal community is the best judge of what language will work best for your people and is consistent with TLOA or VAWA 2013. There are advantages and disadvantages to certain kinds of legal language, and not every tribal government has the same needs or resources. Most importantly, the sample language in this guide is not necessarily consistent with every tribe’s culture, traditional practices, or current criminal code design. The discussion questions are provided to help you design a code that fits your community.

How Should We Proceed?

You should consider different ideas before making a final decision about how to use this resource guide. Some tribes may spend several days in a row working through the questions and issues. Others may hire a facilitator to help organize meetings and community forums. You may want to consider creating a community team to tackle the issue over a longer period of time. There are many ways to develop a code that meets the needs and customs of your tribe. You should develop a plan that is consistent with your needs, goals, and resources.

Keep in mind that this resource guide provides a very broad overview of important points of law. It does not include every detailed legal issue, so you will probably need to do additional research in order to develop more detailed laws.

Writing a tribal code can sometimes be a very long process. Be realistic about the time needed to complete this process. Take the time to do the job right, keeping in mind that you will need to listen to many different opinions.

Point of Discussion: How do we create a realistic timeline?

Consider the resources in your community, including:

• How large is our tribal nation?
• How many people will be involved in writing the code?
• Do we have a budget for training and/or facilitators?

A Note on Terminology

Tribal governments use a variety of terms to describe their laws, including statutes, ordinances, and codes. Generally, the term code refers to an organized listing of all laws for a given subject matter, while a specific subsection may be entitled a statute or ordinance. In this resource guide, the terms will be used interchangeably in order to be relevant to a wide variety of audiences. A glossary is included at the end of this resource.

Chapter 2. How to Use This Resource Guide

1. Background information;
2. Requirements relating to codes and laws;
3. Requirements relating to the competency and licensing of judges and defense counsel;
4. Requirements relating to the court proceeding; and
5. Resources.

Part I provides necessary background and context, including a brief history of TLOA and VAWA 2013, as well as exploring preliminary matters for a tribe to consider. It also explains how best to use this resource guide.

Parts II, III, and IV examine in more detail the requirements tribes must meet in order to exercise the powers recognized by TLOA and VAWA 2013. Each chapter in Parts II, III, and IV contain four main parts:

1. Overview,
2. Tribal Code Examples,
3. Tribal Code Commentary, and
4. Discussion Questions.

The Overview will introduce you to the section and to the statutory requirements. Reading the overview will give you basic background on the issue addressed in the chapter.

The Tribal Code Examples provide language from existing tribal codes and court rules. Whenever possible, we have included laws that other tribes have written to address the TLOA and VAWA 2013 requirements, including the three tribes that piloted VAWA 2013.

After each section of tribal code examples, Tribal Code Commentary is provided. This commentary is designed to help you consider the strengths and weaknesses of the tribal code examples.

The Discussion Questions are an important part of this resource guide. They are designed to help you think about the important issues and to better select words, process, and procedures that fit your community.

Part V provides a brief description of available online resources that may be helpful in further understanding the requirements and purposes of TLOA and VAWA 2013.

The glossary provides definitions of words and acronyms that may be helpful. The appendix provides a Tribal Domestic Violence Special Jurisdiction Model Code for implementation of VAWA 2013 and ICRA with TLOA and VAWA 2013 amendments highlighted.

Chapter 3. A Brief History of TLOA and VAWA 2013

Since 1968, a combination of federal statutes and federal court decisions have created a complex maze of laws and regulations that make it difficult to address crime committed in Indian country and to enforce protection orders. The primary obstacles created by this complex maze include the way in which criminal jurisdiction in Indian country is fractured across federal, tribal, and state governments; the sentencing limitations imposed by the Indian Civil Rights Act (ICRA); and the funding available to support tribal government infrastructure. Many of the limitations imposed by the U.S. Supreme Court have been heavily influenced by the provisions of ICRA that relate to the right to counsel. This chapter briefly reviews each one of these issues and then turns to an overview of the relevant provisions of TLOA and VAWA 2013.

Criminal Jurisdiction in Indian Country

Jurisdiction refers to the authority of a government to regulate conduct and to enforce those regulations through a court system. Generally speaking, jurisdiction is usually tied to territory and the power of a government over its territory. This is particularly true in criminal jurisdiction, at least for the federal and state governments. The federal and state governments possess the ability to prosecute an offender if any significant element of a crime occurred within the territory of that government. This territorial principle is further illustrated by the fact that criminal cases are entitled something along the lines of “the People versus the Defendant” or “the State versus the Defendant”; the government brings the prosecution because the defendant’s conduct is said to violate community norms.

Thus:

1. Tribal governments possess inherent criminal jurisdiction over all Indians in Indian country.
2. The state government has exclusive jurisdiction over all non-Indian only crimes (non-Indian against another non-Indian or non-Indian victimless), and may have concurrent jurisdiction with the tribe or the federal government over other crimes if a statute (such as PL 280 ) or a settlement act has granted the state special jurisdiction.
3. The federal government possesses criminal jurisdiction over all interracial crimes in Indian country (except in an Indian vs. non-Indian crime not included in the Major Crimes Act and the tribe punishes Indian first) and may have concurrent jurisdiction with the tribe over Indians who commit certain crimes in Indian country.[3] The federal government also possesses the authority to prosecute anyone who violates one of the general federal crimes anywhere in the country, including in Indian country.[4]

This fractured jurisdiction creates a great deal of confusion and requires extensive coordination between police departments, prosecutors’ offices, court systems, probation/parole offices, and victim service providers. The complex bureaucracy often has a detrimental impact on the ability of all governments to adequately address crime in Indian country. Because tribal governments are not able to prosecute all persons who commit crimes in their territory, tribes must rely on the federal and state governments to do so, and those governments are not always focused on prosecuting crime that occurs in Indian country.

Sentencing Limitations Imposed by ICRA

Even when a tribe does possess the ability to prosecute a particular defendant, the federal government, through ICRA, has restricted the penalties the tribe can impose. As is discussed more fully in Chapter 13, ICRA limits both the amount of jail time a tribe can impose and the maximum fine, placing a maximum of one year imprisonment and a fine of $5,000. It is important to note that ICRA does not limit other penalties, such as community service, restitution or exclusion. Nevertheless, ICRA’s limitations often made it difficult for tribes to deal with serious offenders, particularly those who commit repeated offenses.

Funding for Government Infrastructure

Underlying both of the previous problems is the issue of funding for government infrastructure. Operating a police department, a prosecutor’s office, and a court system is not cheap and requires a consistent flow of revenue. The federal and state governments rely on taxes to raise the necessary revenue. As a result of federal Indian policy, many tribes lack the necessary tax base and taxation authority to do the same. The result is that the majority of tribal governments are dependent on economic development and on federal funding to finance their criminal justice system. These revenues have not always been consistent or reliable.

Right to Counsel Provisions Contained in ICRA

The U.S. Supreme Court has issued a series of court decisions limiting tribal criminal jurisdiction. Oliphant v. Suquamish Indian Tribe, [5] restricted tribes inherent criminal jurisdiction over non-Indians, indicating that until Congress acts, tribes had been implicitly divested of their inherent power to try non-Indians. The Supreme Court extended that reasoning beyond non-Indians to prohibit tribal criminal jurisdiction over Indian who are not members of the prosecuting tribe in Duro v. Reina.[6] Congress quickly acted to overturn Duro’s holding, in what is commonly called the “Duro fix.” The Court in U.S. v. Lara[7] found the “Duro fix,” which “recognized and affirmed” the inherent power of Indian tribes to exercise criminal jurisdiction over all Indians, was a “legitimate exercise of Congress’s power to remove restriction on inherent tribal authority.”[8]

The decisions restricting tribal jurisdiction include some expression of concern regarding the fact that the U.S. Constitution does not apply to tribes. This concern usually centers on the fact that ICRA does not contain a provision analogous to the Sixth Amendment’s right to counsel, which requires states to provide indigent defendants with a court-appointed attorney in certain cases. Instead, ICRA provided only that tribes cannot “deny to any person in a criminal proceeding the right . . . at his own expense to have the assistance of counsel for his defense. . . .”[9]

In making these pronouncements, the U.S. Supreme Court rarely looks beyond the superficial statement that ICRA does not require tribes to provide indigent defendants with an attorney in a criminal case. The reality is much more complex. First, some tribes do provide indigent defense counsel as a matter of tribal law. It should not matter whether an indigent defendant receives an attorney as a result of tribal or federal law. The result is the same: the defendant was represented by an attorney at trial.

Second, the Sixth Amendment does not require states or the federal government to provide every indigent defendant with an attorney in every criminal case. Instead indigent defense is required only if the case would result in a sentence of actual imprisonment. This includes suspended sentences if jail time is ever imposed.[10]

Both TLOA and VAWA 2013 attempt to remedy some of these problems, and we now turn to a brief examination of the provisions of each of those statutes.

Tribal Law and Law and Order Act History and Provisions

Congress passed the TLOA in July 2010 and the president signed it into law on July 29, 2010. TLOA is a comprehensive statute focused on all aspects of investigating and prosecuting crime in Indian country with a primary purpose of reducing crime in Indian country and increasing public safety. Reports such as Amnesty International’s Maze of Injustice, the Failure to Protect Indigenous Women from Sexual Violence in the USA,[11] which focuses on the systemic problems that left Indian women vulnerable, ignited public interest in the high rates of violence in Indian country, and motivated systemic changes. TLOA increases federal accountability, increases tribal authority, authorizes (not appropriates) additional funding, and establishes the Indian Law and Order Commission (ILOC).[12] The statute attempts to systematically address a wide variety of problems from data collection to housing prisoners. A complete discussion of the entire TLOA is beyond the scope of this resource, and we have chosen to focus on the enhanced sentencing authority and what tribes must do to implement that enhanced authority.

Prior to passage of the TLOA, federal law did not permit tribes to impose more than one year of imprisonment or more than a $5,000 fine. These restrictions were part of ICRA. In setting out these limitations, ICRA did not address the issue of “stacking,” that is, whether a defendant convicted of multiple offenses could be sentenced to consecutive terms. For example, suppose a defendant who robbed a convenience store and beat up the clerk was convicted of robbery and of assault and battery. If the court sentenced the defendant to one year in jail for each offense, could the court order the defendant to serve those sentences consecutively, for a total of two years of imprisonment? Federal courts have been divided about whether tribal courts can “stack” sentences, and if so, under what circumstances.

TLOA provides that if a tribe complies with the prerequisites listed in that statute, the tribe’s court system is able to exercise enhanced sentencing authority and can sentence a defendant to three years and a $15,000 fine for a single offense and can stack those sentences up to a cumulative total of nine years. Even if a tribe satisfies the prerequisites, however, this authority does not apply to every defendant convicted in tribal court. Rather, it applies only to defendants who (1) have previously been convicted of the same or a comparable offense by any jurisdiction in the United States, or (2) are being prosecuted for an offense comparable to a felony. (See Chapter 6 for more details.)

A tribe wishing to exercise this enhanced sentencing authority must also comply with the following requirements:

1. It must provide the defendant with an attorney and:
   1. that attorney must be licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys; and
   2. that attorney must provide the defendant with effective assistance of counsel at least equal to that guaranteed by the U.S. Constitution.
2. The judge presiding over the case must have sufficient legal training to preside over a criminal trial and be licensed to practice law by any jurisdiction in the U.S.
3. It must make publicly available the tribe’s:
   1. criminal laws,
   2. rules of evidence, and
   3. rules of criminal procedure.
4. The tribal court must also maintain a record of the criminal proceeding, including audio or other recording.

The types of offenses and defendants are explored in Chapter 6. Types of Offenses and Defendants. The standards for defense counsel are discussed in Chapters 8. Defense Counsel and 10 Establishing a Tribal Bar Association, and the standards for judges in Chapters 9. Judges and 10 Establishing a Tribal Bar Association. The requirements for publication of laws and rules are explored in Chapter 7. Publication of Laws and Rules, and Chapter 11. Conduct of Proceedings discusses the rules for maintaining a record of the proceedings.

Chapters 13 Sentencing Options and 14 Stay of Detention Pending Habeas Review examine the remaining aspects of TLOA’s requirements. Chapter 12. Jury Trials relates only to VAWA 2013 and does not apply to TLOA’s enhanced sentencing provisions.

VAWA 2013 History and Provisions

VAWA was first passed in 1994. It provided funding for the investigation and prosecution of violent crimes against women and established the Office on Violence Against Women (OVW) in the Department of Justice (DOJ). The act included automatic expiration dates. It has been reauthorized in 2000, 2005, and 2013. In 2005 the authorizations included a specific tribal title, Title IX. The Title IX section of VAWA 2013 deals with a number of topics, such as grants, coalitions, Alaska-specific issues, tribal protection orders, and tribal jurisdiction. This resource focuses on Section 904, Tribal Jurisdiction over Crimes of Domestic Violence.

The statute required a pilot project that allowed earlier exercising of the jurisdiction by special permission of the attorney general. Three tribes became a part of that pilot project in February 2014: Confederated Tribes of the Umatilla Indian Reservation, Pascua Yaqui Tribe, and the Tulalip Tribes. The three tribes submitted an application to the DOJ, which provided answers to questions and copies of laws and regulations that demonstrated compliance with VAWA 2013 requirements. The applications are helpful to tribes contemplating implementation, so pertinent parts are included in Part V. Helpful Resources.

In addition to the pilot project, tribes interested in implementing VAWA 2013 should join the Intertribal Technical-Assistance Working Group on Special Domestic Violence Jurisdiction (ITWG). Forty-one tribes shared advice and information on how to best implement VAWA 2013, including the three tribes piloting the jurisdiction. Resources were generated by this working group and the pilot tribes, and are available through the Intertribal Technical-Assistance Working Group on Special Domestic Violence Jurisdiction (ITWG) site.

The fractured nature of criminal jurisdiction in Indian country makes it particularly difficult to effectively address domestic violence committed against Native women. A significant portion of that violence is committed by non-Native men.[13] The federal prohibition restricting tribes from prosecuting non-Indians meant that tribes were unable to prosecute non-Indians for domestic violence, even when it occurred on the reservation. States were unable to prosecute (except in PL 280 and similar situated states) because the victim was an Indian, and federal prosecutors were generally uninterested in such cases unless serious injury or death occurred. Even then, federal reports showed that federal prosecutors declined more than half the cases referred to them.[14]

These restrictions also impacted the tribe’s ability to enforce protection orders and prosecute violations of those orders. Most protection orders are issued by civil courts, but are enforced (at least in the states) through the criminal justice process. Again, the federal prohibition restricting tribes from prosecuting non-Indians meant that tribes were limited to imposing civil sanctions on non-Indians who violate protection orders.

Congress enacted VAWA 2013 in part to address this problem. VAWA 2013 recognizes the ability of tribes to prosecute non-Indians who commit domestic violence in Indian country. VAWA 2013 refers to this as “Special Domestic Violence Criminal Jurisdiction,” and sets out a series of requirements tribes must satisfy if they want to exercise this recognized authority. VAWA 2013 establishes a two-year time frame for a pilot project and provides that its provisions take effect two years after the date of enactment. Since VAWA 2013 was signed into law in March 2013, it became fully effective in March 2015. It should be noted that VAWA 2013’s SDVCJ did not apply in Alaska except for Metlakatla, because of an exception provided for in §910 of VAWA 2013. Tribes in Alaska strongly opposed the “Alaska exception,” and it was repealed in 2014.[15]

VAWA 2013 allows tribes to prosecute non-Indians for three categories of crimes—domestic violence, dating violence, and violations of protection orders—provided the tribe satisfies the prerequisites. The statute also requires that at least one of the parties in the case must be Indian and that the defendant must have some connection to the tribe, such as living or working in the tribe’s Indian country, or being involved in a relationship with a member of the tribe or with an Indian who resides in the tribe’s Indian country.

VAWA 2013 requires that tribes wishing to use the extra authority must provide the defendant with all the rights guaranteed by the statute, including (if the defendant may be sentenced to jail time) an attorney under the same conditions as in TLOA (see Chapters 8 and Chapter 10). The tribe must also provide the defendant with the right to a trial by an impartial jury that is drawn from sources that—

• reflect a fair cross-section of the community; and
• do not systematically exclude any distinctive group in the community, including non-Indians.

Finally, the tribe must also provide to defendants “all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise special domestic violence criminal jurisdiction over the defendant.”[16] (See Chapter 12).

The chart provides a comparison between the due process protections required by the TLOA and VAWA 2013.

Chapter 4. Does Your Tribe Want to Exercise Enhanced Powers?

We have put this chapter and these questions in Part I because asking and answering them is part of the process a tribe may want to follow in deciding whether, and if so how, to comply with the requirements of TLOA and VAWA 2013. You may, however, want to skim these questions, read the rest of this resource guide, and then come back to the questions to start answering them. Many of the questions will make more sense after reading the rest of the chapters in this book, and you may be able to give more complete answers.

• Does your tribe use incarceration and/or high fines as criminal sanctions?
• Does your tribe use the criminal justice system to handle these matters or does it use civil sanctions?
• Are the additional procedural rules consistent with the way your court operates?

It is important to note that neither TLOA nor VAWA 2013 requires that tribes opt in within a certain time period. There is no rush for a tribe to make the decision that it wishes to implement the required changes. It is also possible for a tribe to initially decide it does not want to use the powers and then to later change its mind and change its laws to comply with the federal laws.

In making these decisions, a tribe should consider whether the recognized powers are consistent with its culture and traditions and the way it approaches its criminal justice system. TLOA and VAWA 2013 increase the amount of prison time and fines the tribal courts can impose as part of a sentence for a criminal conviction, and VAWA 2013 recognizes criminal jurisdiction over certain non-Indians who commit dating or domestic violence in the tribe’s Indian country. But they also require increased procedural complexity and apply only to the criminal justice system.

If no cultural reason exists for declining to make the changes required by TLOA and VAWA 2013, the tribe may also want to consider the following questions. Please note that this is not an exhaustive list; instead, we have tried to provide questions that will get the conversations started and direct attention to what are likely to be the major issues.

Does Your Tribe Need These Powers?

• Would your prosecutors and judges use the enhanced sentencing authority? Are they currently frustrated with the sentencing limitations? Do you have non-Indians who live and work in your Indian country?
• Are serious crimes going unpunished? What is the declination rate for crimes on your reservation?
• How many defendants are charged with crimes in your courts? How many of those are charged with crimes carrying a sentence of a year? How many defendants are repeat offenders, with prior conviction(s) in federal, tribal, or state court?
• How many are likely to be charged if you start exercising the enhanced powers? Will your prosecutor start charging more defendants in tribal court now that increased sentences are available? Would you would need more judges? More court staff? More prosecutors?

What Changes Would Be Required in Your Criminal Code?

• What changes would you need to make to your criminal laws? To your rules of procedure? To your rules of evidence? Do you currently make all these documents publicly available? Does your court issue written opinions? Are these publicly available?
• How many tribal crimes carry a potential sentence of one year of imprisonment? How many of those would you want to carry a higher sentence?
• Do you have a constitution? Would it need to be amended? What would be the process for doing so?

Defense Counsel

• Do you have an indigent defender system? If so, would it need to be expanded? If you do not have one, and you want to use the enhanced powers, you will have to create one. How many defendants would qualify for a court-appointed lawyer?
• What are the current requirements for attorneys who wish to practice law in your jurisdiction and appear in your tribal courts? Would those need to be changed? Do you require a licensing system that ensures the competence of attorneys? What ethical standards do you require attorneys to follow? How do you discipline attorneys that do not follow those standards?
• What standards do you currently require of indigent defense counsel? Is that requirement equal to or more protective of defendants’ rights than the effective assistance of counsel standards used in the U.S. Constitution?

Judges and Courts

• What are the current qualifications required to serve as a judge in your court system? Would those constitute “sufficient legal training” to preside over criminal cases? If not, what changes would you need to make? Do you currently require your judges to be licensed?
• Is your court a court of record? If not, what changes would you need to make?

Sentencing and Incarceration

• If you sentence defendants to more than one year of imprisonment, you will need a place to incarcerate them. How many defendants are there likely to be? What facilities are available? What (if any) additional capacity would you need?

Funding the Changes

Complying with all of these requirements will be expensive, both in time and in money. Who will review and propose changes to your laws and procedures? Who will train prosecutors, judges, and defense counsel on the new laws and procedures and how they work? What funding will be required to make these changes? To pay for any additional prosecutors, judges, defense counsel, and court staff? To pay to publish the laws and regulations? To process the licensing and educational requirements? To implement the jury selection process? To pay for incarceration? To pay for medical costs of the incarcerated? Where will these funds come from? Is that source of funding stable and reliable?

Additional VAWA 2013 Requirements

For the most part, all of the preceding questions apply to both TLOA and VAWA 2013. A tribe considering whether it wishes to opt in to VAWA 2013 may also want to ask the following questions:

• How many non-Indians commit domestic or dating violence in your territory? Do any of your laws (constitution, statutes, regulations, court decisions) limit jurisdiction over non-Indians?
• What do your current laws say about dating violence, domestic violence, and enforcing protection orders? Would they need to be amended to apply to non-Indians? To impose criminal sanctions?
• What do your current laws, regulations, and court rules say about the jury selection process? How does the process work in your tribe? Does that process comply with VAWA 2013’s fair cross-section requirement? If not, what changes would be required?

Possible Alternatives

In considering these questions, a tribe may also want to consider possible alternatives, which may include:

Making No Changes. ICRA’s restrictions on sentencing and federal limitations on criminal jurisdiction may not be a problem for your tribe. You may have other effective ways of dealing with these problems or you may not be experiencing the type of behavior they are designed to address. In that case, it is probably not worth your time and effort to make the changes. Even if you are experiencing some of these problems, it may not be sufficiently widespread or serious as to be worth the time and money to comply with the federal prerequisites.

Using Civil Infractions and Alternative Sentencing. If your tribe does not already make use of alternative sentencing (such as community service) or approach certain matters as civil, rather than criminal, infractions, you may want to consider whether those approaches would be more effective or at least effective enough that it is not worth your time to comply with the federal requirements.

Can Other Parts of TLOA Address the Problem? TLOA is a very broad and comprehensive statute, and it addresses a wide variety of obstacles to effective crime control on reservations. Will or could some of these other provisions provide sufficient tools so that it is no longer worth the time and money to comply with the prerequisites to enhanced sentencing and prosecuting non-Indians? For example, would the Special Assistant United States Attorney (SAUSA)[18] provisions be a workable compromise?

Tulalip Tribes found that the use of SAUSA’s was an important tool in implementing VAWA 2013, as it provided more options along with the ability to negotiate or chose a forum. It continues to be an important tool after implementation, allowing complex cases to be prosecuted in both/either forums. It also provides a mechanism to provide the victim with a more comprehensive treatment of crimes.

Chapter 5. Drafting Required Codes and Regulations

Who Should Write the Laws?

We encourage you to think broadly about the community members who may have information that will help draft good laws. The following is a checklist of people and agencies that may be useful in drafting codes—but each community is different.

• Survivors of domestic violence and their advocates
• Tribal prosecutors
• Tribal attorneys
• Tribal court personnel
• Tribal law enforcement/tribal probation/parole
• Elders
• Family services/social services
• Medical personnel
• Corrections
• Defense attorneys
• Traditional healers/spiritual leaders
• Child protective services/Indian Child Welfare Act (ICWA) workers
• Housing authority
• School system
• Youth council
• Legal aid
• Casino/tribal businesses
• Others

Point of Discussion: What are the benefits of using a team approach?

Understanding various perspectives in writing a law is not the only benefit of working with a multidisciplinary team. Other possibilities include:

• Educating more community members,
• Sharing ownership of the problem and responsibility to solve it, and
• Communicating about tribal values.

Ten Tips for Working as a Team

Writing or revising a tribal law usually does not happen quickly or easily. Code writing involves a great deal of time, effort, and cooperation. There is not one “right” way to research and draft laws. The following tips come from successful efforts of other tribal nations.

1. The primary work should be done by a group of “problem solvers.”

The effort will not succeed if it simply becomes a process of finger pointing and blaming others for weaknesses in the current law. The best laws are developed one step at a time by a group that is committed to brainstorming and reviewing possible solutions to problems.

2. There should be equal representation from various tribal agencies and advocacy programs.

Equal representation is important. The code development process is not the “property” of any one agency or group.

3. The work should be completed in a setting of mutual respect.

The setting should be a safe environment in which the group can share, learn, and explore. It is okay to acknowledge differences of opinion, but not in a stereotypical or judgmental manner. The safety of women must be respected.

4. The agenda should be focused upon areas of mutual concern or shared interest.

Try to focus on areas of common interest instead of differences. A shared vision (such as “a safe community”) can create confidence and trust.

5. The participants should be willing to examine not just the way things are but also be willing to explore ways to improve the laws.

All participants must be willing to explore new ways to help make sure that women are safe. However, different people may have different ideas. Listen to and learn from each other.

6. The participants should be willing to be creative and persistent.

To be successful, you must be willing to be creative and persistent. The process will undoubtedly have frustrations and difficult times. Think “outside the box..”

7. The participants should be willing to share the burden.

The participants must also be willing to share in the burden of the process by sharing resources, training, technical assistance, and limited available funding, and to alternate locations of meetings and focus groups.

8. All agencies should be allowed input into draft statutes prior to finalization.

All tribal agencies involved should have a chance to review the draft laws before they are completed. Because each agency will have to follow the law, they need to know what is going to be proposed.

9. Consider traditional/culturally appropriate strategies.

In some cultures, it is important to share and provide food for participants. You will be spending a great deal of time together, so make sure everyone is comfortable. (Please note that there are substantial restrictions on the use of federal grant funds for food. The safest practice is to use nongrant funds for food. If you are considering using federal grant funds, be sure to check with your grant manager.)

10. Expect to spend a great deal of time working together.

It cannot be stressed enough that this is a lengthy project, but one that is well worth the effort. Your cooperation in creating these new laws will help protect the women and families in your community.

Before You Begin . . .

As you sit down together to begin the process of implementing TLOA and VAWA 2013 for your tribe, keep your main goal in mind.

Point of Discussion: What is our goal?

Consider writing down your ultimate goal and reviewing it at the beginning of each meeting.

Example: Provide greater safety to our community while expanding our jurisdiction.

You should review your constitution and bylaws or other foundational legal documents. Keep track of your legislative history and consider incorporating it into the law. Reviewing and clarifying the roles of law enforcement, the tribal court, and the prosecutor may also be helpful. Additionally, it is important to understand the federal and/or state laws that impact your tribe. Review all the amendments made to ICRA by TLOA and VAWA 2013. Amended ICRA is in Part V. Helpful Resources of this guide with notations of the amendments made by TLOA or VAWA 2013.

It is also important to evaluate the laws that are already in place in your community. Be sure to analyze the strengths and weaknesses in any current laws. Inserting a Savings Clause in your amended code to ensure that during the time of adoption or following adoption, there is no question as to what happens to the old code cases. An example of a Saving Clause appears in the Tribal Domestic Violence Special Jurisdiction Model Code at the back of this guide.

If appropriate, you should review your traditions and stories, as well as your customs, regarding healing and justice. This research may be done by interviewing elders within your community. In addition, you can also consult anthropological documentation about your tribe, historical records, or other tribes that share similar cultural or linguistic ties.

Point of Discussion: What documents should we review?

Consider creating a binder for all team members that includes:

• Tribal constitution and/or bylaws;
• Current tribal laws that may be impacted;
• Traditions, customs, and stories (if appropriate);
• Copies of any tribal court opinions your tribe has issued on domestic violence;
• Current law enforcement protocols related to domestic violence; and
• ICRA with amendments highlighted.

Many times, existing tribal laws may have originated in the laws from another tribe or from a city, state, or county. Take the time to go through and review your current laws to:

• Evaluate them for relevance to your particular community and situation,
• Analyze how they have been working,
• Discuss the weaknesses, and
• Determine if they represent how your tribe wants to respond.

Part II. Codes, Laws, and Rules

In Part II of the resource we begin to review the specific requirements of the TLOA and VAWA 2013 that could require changes in your tribal code.

We begin with the basics in Chapter 6 by discussing who could be criminally prosecuted by implementing the enhanced sentencing provisions of the acts and for what crimes they could be prosecuted. TLOA and VAWA 2013 will impact only specific sections of your code. Implementation of the enhancement provision will require examination of specific sections of your code. Possible options for amendments to tribal codes are discussed and examples of tribes who have decided to opt in to one or both laws are provided. Because VAWA 2013 was not fully implemented until March 2015, example codes from the tribes that participated in the pilot project are used. A Tribal Domestic Violence Special Jurisdiction model code is also included in the appendix.

Chapter 7 discusses the requirements of the acts to publish tribal laws, procedures, and rules. It also provides examples of rules and code on recusal of a judge, as recusal is specifically referenced in TLOA.

Chapter 6. Types of Offenses and Defendants

TLOA Overview

Discussion on TLOA

• How will your nation categorize those crimes that can be enhanced under the TLOA?
• Does your nation want more than one category of crimes with enhanced penalties, like the Hopi code example?
• Do you have a section of your code that allows the tribal prosecutor to bring civil actions against non-Indians who violate the criminal code? If so, do you want to increase the civil penalty?
• Do you want to increase sentencing for repeat offenders? For which crimes?
• Will you recognize convictions of comparable statutes from other jurisdictions?

The TLOA amended ICRA to permit enhanced sentencing when a defendant is a repetitive offender who has previously been convicted of the same or a “comparable offense” in any jurisdiction.[19] “Comparable offense” is not defined in the statute, but its ordinary meaning is having enough like characteristics or qualities to make comparison appropriate.[20] Evidence needs to be submitted to the court supporting the previous convictions and the court needs to review the statute of the other jurisdiction, to determine that the statute is comparable to the offense that the defendant is currently charged with.

The information on criminal offenses from other jurisdiction may be available through the National Crime Information Center (NCIC). According to TLOA, a tribal justice officer, serving a tribe with criminal jurisdiction over Indian country, shall be considered an authorized law enforcement official with access to NCIC. Some tribes have been able to access NCIC, freely entering and accessing information, while other tribes are only able to enter their information. Still others are unable to gain access to the NCIC portals. This is because states provide the NCIC portal to tribes. Some states are cooperative and others are not. Tribes should also check states or tribal jurisdictions they know the defendant to have previously resided.

Additionally, TLOA amended ICRA to allow enhanced sentencing by the tribal court, if the defendant is prosecuted for an offense in tribal court that would be comparable to an offense punishable by more than one year of imprisonment if prosecuted in federal or state court. Generally, in state or federal courts a crime punishable by imprisonment of more than one year is considered a felony and a crime punishable by less than one year is considered a misdemeanor. Felonies such as murder, sexual assault, and so forth, may carry enhanced sentencing. In addition some states may consider some domestic violence and stalking crimes felonies, so if they are comparable to the offenses in your nation, these crimes could also carry up to three years and/or a $15,000 fine.

Description of Offenses Covered by TLOA and 2013
 

Discussion VAWA 2013

• Who are the non-Indians that live or work in your nation that commit domestic violence against Native women or violate protection orders? Will VAWA 2013 cover them, if you implement it?
• Does your court have the capacity to handle anticipated increases in cases due to implementing this statute?
• Do you have a statute that recognizes and allows enforcement of other jurisdictions’ protection orders?
• Does your law enforcement agency have a clear understanding of what your nation’s Indian country is? Does the community have a clear understanding of your nation’s Indian country?
• Does your constitution or code need to be amended to allow criminal jurisdiction over non-Indians?
• What kind of training will law enforcement agencies, the court, and the community need to implement? Will victims be protected?
• Who will review all domestic violence statues to ensure the new statue fits into your scheme?
• What support do you have for victims?

VAWA 2013 Overview

VAWA 2013 recognizes tribes’ inherent ability to hold non-Indian offenders of Natives accountable and removes some restrictions imposed by Oliphant. Statistics have indicated that non-Indians are the primary perpetrators of crimes against Native women in both domestic violence and sexual assault.

VAWA 2013 also amended ICRA allowing certain domestic violence crimes committed by non-Indians against Natives within Indian country to be prosecuted in tribal court should the tribe decide to exercise the “special domestic violence jurisdiction” over non-Indians. Because perpetrators in domestic violence and sexual assault cases are often non-Native, this “special domestic violence criminal jurisdiction” is a significant tool to help tribes protect Native women and a significant step forward in reestablishing full tribal jurisdiction.

In order for the tribe to exercise the special jurisdiction, the non-Indian must have sufficient connections to the tribe, by either

1. Residing in Indian country of the participating tribe, or
2. Being employed in Indian country of the participating tribe, or
3. Being the spouse, intimate partner, or dating partner of a tribal member, or
4. Being the spouse, intimate partner, or dating partner of an Indian who resides in Indian country of the participating tribe.

Description of Defendants Covered by TLOA and VAWA 2013
 

The definition of Indian country in 18 U.S.C. § 1151 is:

1. all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,
2. all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and
3. all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

In applying and interpreting this statute, the U.S. Supreme Court has declared that Indian country is land set aside for the use of Indians under the superintendence of the federal government. The Court has also declared that the statutory definition applies in both civil and criminal cases.

The domestic violence offenses designated by VAWA special domestic violence jurisdiction are defined in the ICRA as follows:

DATING VIOLENCE—The term dating violence means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim, as determined by the length of the relationship, the type of relationship, and the frequency of the interaction between the persons involved in the relationship.[21]

VIOLATION OF A PROTECTION ORDER—The term protection order means any temporary or permanent, civil or criminal order issued to prevent violent or threatening acts or to prohibit contact, communication, or physical proximity to the interaction between the persons involved in the relationship.[22]

DOMESTIC VIOLENCE—The term domestic violence means violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, or by a person similarly situated to a spouse of the victim under the domestic- or family-violence laws of an Indian tribe that has jurisdiction over the Indian country where the violence occurs.[23] The violation must occur in Indian country of the participating nation.[24]

The definition of dating violence seems to eliminate hookups or casual sexual relationships. Sexual assault and stalking are covered if the activity meets the definition of domestic violence or dating violence. The tribal statute regarding domestic violence may include familial relationships that do not meet the federal definition of domestic violence in VAWA 2013 and tribes may need to create one that meets the federal definition.

Tribal Code Examples

Examples of TLOA’s Enhanced Sentencing
 

Examples of Implementation of VAWA 2013 Special Domestic Violence Jurisdiction
 

Tribal Code Commentary

The first several examples are designed to meet TLOA’s requirements. The last example from Tulalip is an example from a tribe that implemented VAWA 2013 in the pilot project.

TLOA Examples

The Hopi Nation has implemented TLOA by categorizing their criminal offenses into five categories:

1. Dangerous Offense
2. Serious Offense
3. Offense
4. Minor Offense
5. Petty Offense

The Dangerous Offense and the Serious Offense are the two categories that have the possibility of enhanced sentencing under TLOA. The Dangerous Offense has the potential maximum incarceration of three years and a potential fine of up to $15,000. A Serious Offense carries a maximum incarceration of two years and a potential fine of up to $10,000. Each offense in the Hopi Criminal Code is categorized in one of the five categories. Examples of the crime of domestic violence and stalking are included to show how the crimes are categorized as Serious Offenses or Dangerous Offenses. Presumably the offenses designated as Serious Offenses or Dangerous Offenses are those that are comparable to felonies in states or federal courts, and subject to incarceration in excess of a year in those jurisdictions.

Section 3.4.2, Repetitive Offenders, allows enhancement of the crime to the next higher category if there is a previous conviction of the same crime in the tribal jurisdiction or of a comparable crime in any other jurisdiction in the United States. It does clarify that the other conviction must be for a different act. Because we have different sovereigns, it is possible that an offender could be charged in federal court or state court for the same activity and the tribal code makes it clear that the previous conviction must be for a different offense.

The Hopi Code also requires that Hopi customs and traditions be considered in sentencing. Additionally the court may look beyond fines and imprisonment. It can order restitution, diversion from criminal prosecution, community service, treatment, probation, parole, or suspension of sentence, unless a provision of the code has mandatory sentencing. The Court may substitute community service for a fine, upon a showing that the defendant is indigent.

Hopi also has a section that allows the tribal prosecutor to bring a civil action against non-Indians who are not subject to tribal criminal jurisdiction, but who violate the criminal laws in Hopi’s territory. These individuals would be required to pay fines. The amount of the fines has increased due to the TLOA to a possible high of $15,000.

The Hopi Domestic Violence definition is much more expansive than the definition implemented by VAWA 2013. Hopi may choose to make a specific domestic violence offense regarding non-Indians rather than modifying their domestic violence statute. There may be one domestic violence law for Indians and another for non-Indians. They would want to ensure that the penalties are the same for both Indian and non-Indians so they may categorize the Special Domestic Violence law as a serious offense or, if a repetitive offender is involved, a dangerous offense subject to the maximum three years of imprisonment and a $15,000 penalty.

The Umatilla Nation incorporates the TLOA through categorization of their criminal offenses into felonies and misdemeanors. Those crimes that are categorized as felonies are subject to imprisonment of up to three years and a fine of up to $15,000. The total imprisonment for any proceeding should not exceed nine years. Considered here is the possibility of stacking offenses dealt with in one proceeding, resulting in multiple convictions. The total incarceration is limited to nine years—the limitation in the TLOA.

Examples of the type of offenses that are considered felonies include stalking and assault under specific circumstances. Here the tribe has reviewed comparable offenses in states or federal court where these offenses are considered felonies, subject to incarceration in excess of a year. The Umatilla Code uses the language from the TLOA, stating that a defendant is not subject to a felony prosecution unless previously convicted of the same or comparable offence by any jurisdiction in the United States or is being prosecuted for an offense comparable to an offense punishable by more than one year of imprisonment if prosecuted by the federal or state courts. All defendants in Umatilla have the same rights and are subject to the same potential sentences regardless of citizenship status. In their code the Jurisdiction Section and the Charging Section make distinctions based on citizenship status to meet requirements to participate in SDVCJ.

The Salt River Pima-Maricopa Indian Community has put offenses into five categories. Class A offenses are those offenses that are subject to up to three years of incarceration and/or a $15,000 fine. The Class A offenses also have a minimum mandatory sentence of one year of imprisonment and a $1,000 fine. Salt River reviewed all of its offenses to determine the appropriate classification, considering how the offenses were categorized in state and federal courts. There does not appear to be any general section that allows enhancement of punishment for repeat offenders.

The Eastern Cherokee Nation reviewed their criminal code sections and amended those sections that met TLOA criteria and those sections that the Cherokee Nation believed should carry the harsher punishment. The example is the punishment section of their sexual assault offense. The nation has a minimum mandatory sentence of three years for aggravated sexual assault, which cannot be stayed, reduced, or suspended. It also has a mandatory sentence of three years for sexual abuse and sexual abuse of a minor or ward, but allows a judge to suspend all or part of this sentence. Conviction of the remaining sexual assaults could result in incarceration for up to three years, but there is no mandatory sentence. There doesn’t appear to be any requirements to enhance sentencing for repeat offenders.

The Tulalip statute is specifically designed to implement VAWA 2013. It was one of the pilot tribes. The statute closely follows the requirements laid out in VAWA 2013.

Chapter 7. Publication of Laws and Rules

Overview

TLOA requires that, prior to charging a defendant, a tribe wishing to use the enhanced sentencing authority must make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government.

VAWA 2013 incorporates these same requirements.

Discussion

• Does your tribe publish its laws, court rules, and court opinions? If so, where?
• Do you have any provisions for judges to recuse themselves or for the parties to ask the judges to recuse himself or herself? Are those publicly available?
• Is your nation in a state that through its Supreme Court website links all tribal courts and tribal codes in the state for accessibility purposes?

Given the consequences of a criminal conviction, the U.S. Supreme Court has ruled that it is not fair to hold a defendant responsible for obeying the law if there was no way the defendant could know what the law required. One of the criticisms that has long been leveled against tribal governments and tribal courts is that it is difficult to know what the tribe’s laws are and to whom they apply. To some extent, this is an educational gap. The laws of the federal and state governments are available in both law libraries and in online legal databases, and law schools train their students in how to locate those laws. Most law students do not receive equivalent training in how to research tribal law. It is true, however, that (at least until recent years) some tribes did not make their laws available in law libraries and online how cases move through the court system.

Tribes will thus want to ensure that all its laws, rules, regulations, and court opinions that relate to criminal justice and criminal procedure are publicly available. “Interpretive documents” also likely include any commentary or other legislative history. The statute does not define “publicly available.”

As a general rule, it is likely sufficient if the tribe’s documents are as readily available as comparable state documents. This can mean being published in books available through law libraries, in legal databases, or on the Internet. Most tribes use the Internet to make their criminal laws, rules of evidence, and rules of criminal procedure publicly available.

Some tribes have also placed hard copies in publicly accessible places, such as tribal buildings, tribal agencies, tribal jails, and tribal libraries. Other tribes are providing hard copies to those who request it. You may also want to place written notices around the courthouse, police, station, and so forth that explain where you can find the documents—online and/or hard copies.

Your tribe has unique financial circumstance that may or may not permit giving out hard copies, or placing hard copies in the community. You will want to take into account your budget when making these decisions. Tribes do not have to make these documents available for free, but they cannot charge a disproportionately large fee for them.

Tribal Code Examples

Examples on Provisions for Recusing Judges

Few tribes have specific laws or rules relating to how they will make their laws and codes publicly available. Those are generally administrative matters. Accordingly, this portion of the chapter focuses on provisions for recusing judges. The commentary section includes information about how tribes are satisfying the “publicly available” requirement.

Tribal Code Commentary

“Publicly Available” Requirement

The Eastern Band of Cherokee has listed its code (including criminal laws, rules of evidence, and rules of criminal procedure) online through the website Municode. Municode allows the user to view, print, and e-mail the code for free. The user can also purchase a copy of the code on the website. The tribe also keeps copies of their tribal code (including the criminal laws, rules of evidence, and rules of criminal procedure) at the tribal building in the Cherokee Nation. Copies of the code are also distributed to all of the tribal programs. The code is available to the public in all of these locations.

The Gila River Indian Community Code (including the criminal laws, rules of evidence, and rules of criminal procedure) is available on their community website. The community also plans to have hard copies of the code available at the tribal library, jail, and the seven district service centers throughout the reservation. The district service centers are where tribal members hold district meetings, play basketball, and so forth. GRIC has included the legislative history of the criminal code within its criminal code.

The Hopi Tribe’s code (including the criminal laws, rules of evidence, and rules of criminal procedure) is available on the tribe’s website. The code is also available in hard copy for inmates in jail. On the tribal website the Hopi Tribal Council Resolution regarding TLOA is also posted.

The Salt River Pima-Maricopa Indian Community code (including the criminal laws, rules of evidence, and rules of criminal procedure) is available on the community’s website. The community also provides hard copies of the code upon request.

The Confederated Tribes of the Umatilla Indian Reservation (Umatilla) code (including the criminal laws, Court Code, rules of evidence, and rules of criminal procedure) is available on the tribe’s website. The legislative history is included within the codes. Umatilla’s recusal provisions are covered in Section 4.03(c) of the Court Code.

Recusal Provisions

A tribe may articulate in either its code or its court rules the circumstances in which a judge should recuse himself or herself from presiding over a case. These will generally involve circumstances in which the judge has a personal or financial stake in the outcome of the case or for other reasons cannot be fair or impartial. The details of the procedures for recusal are not usually contained in the statute but rather are usually found in the court rules or judicial standards of conduct.

The example from Eastern Band of Cherokee illustrates a typical code provision regarding judicial recusal.

The excerpt from the Salt River Pima-Maricopa rules illustrates a typical procedure for handling recusal situations.

The Tulalip Code goes into more detail, providing parties with a right of one automatic change of judge if the party files an affidavit within the specified time stating that the judge assigned to the case is prejudiced. The party may be entitled to a second reassignment of the case if the party is able to demonstrate prejudice. A judge may also choose to recuse “himself or herself upon grounds that he or she deems sufficient.”

The excerpt from the Gila River code and rules illustrates more fully the relationship between statutory provisions regarding recusal and rules of procedure implementing those provisions. Note that the rules of procedure provide more detail about the process, including the paperwork that must be filed, the time for filing it, and the hearing on the matter.

Part III. Competency and Licensing Standards

Chapter 8 explores the standards for defense counsel. Chapter 9 explores the standards for judges. One way to satisfy the licensing portion of the requirements is to establish a tribal bar association, and Chapter 10 explores what would be required of a tribal bar association.

Chapter 8. Defense Counsel

Overview

Discussion

• Does your tribe provide a right to a defense attorney? Does the tribe pay for that attorney when the defendant is indigent?
• If your tribe provides attorneys to people accused of crimes, is that through a public defender office? A contract system? Pro bono service requirements?
• What are the current requirements to practice law in the tribal court? What is the process for admission?
• What are the minimum qualifications to be a defense attorney in your nation? How are standards or qualification enforced?
• How does/will the tribe define indigent?

Those attorneys must:

1. be licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys; and
2. provide defendants with the right to effective assistance of counsel at least equal to that guaranteed by the U.S. Constitution.

A tribe may already have a system for providing representation to defendants. If so, the tribe should review that system to make sure it fits the standards required by TLOA and VAWA 2013. Tribes should also be aware that these standards are the minimum requirements; tribes are free to provide an attorney to every defendant, if they wish to. The main reason to limit who gets a court-appointed attorney is the expense of paying for an attorney.

Complying with the TLOA and VAWA 2013 requirements regarding defense counsel can become very complicated very quickly. This is due in large part to the complicated legal standards developed by federal courts for ensuring that a court-appointed lawyer does what the lawyer is supposed to do.

Tribes do not need to adopt the same complex standards, but they do need to understand those standards. TLOA and VAWA 2013 require a tribe to provide at least the same level of effective assistance of counsel required by the U.S. Constitution. A tribe can impose higher standards on it defense attorneys.

The three key parts of TLOA and VAWA 2013 to remember with respect to defense counsel are that:

1. The tribe must provide at tribal expense, an attorney to every indigent person charged with a crime;
2. The attorney must be licensed to practice law by a licensing board that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys; and
3. The court must ensure that the attorney provides, at a minimum, effective assistance of counsel equal to that of the U.S. Constitution.

The first question for a tribe, then, is to determine how it will define “indigent.” That is, when will a defendant be considered too poor to hire his or her own attorney?

Once a tribe has decided who will qualify for a court-appointed defense attorney, the tribe must decide what system it will use for appointing an attorney. Several types of systems exist. The three most common systems are a public defender office, a contract system, and a pro bono or required service system.

If the tribe has a public defender office, the court will appoint that office to represent the defendant. A public defender system is one in which the tribe establishes a special office and hires attorneys to work as attorneys for defendants who cannot afford their own lawyers. The benefit of a public defender system is that the attorneys are specialized in criminal defense work and the cost of running the office is fairly predictable. There are two disadvantages to a public defender system. First, a tribe needs to be able to accurately predict how many defendants will require a court-appointed lawyer, and that number must be sufficient to require full-time defense attorneys. It must also be a fairly consistent number of defendants. Second, there must be a way to handle what are called “conflicts.” There are times when an attorney will not be able to represent a particular client because to do so would be an ethical conflict. If the attorneys in the public defender office cannot represent a defendant, the tribe must have an alternate means of appointing an attorney.

The usual way to handle conflicts is to have a contract system. A contract system can also be an alternative to having a public defender office at all. A contract system means the tribe has entered into an agreement with an attorney (or attorneys). The agreement provides that the attorney will accept court appointments to serve as defense counsel and sets the fees that the attorney will receive in return for that work. The main advantage to a contract system is that the tribe only has to pay the attorney when the attorney is needed. If a tribe does not require a full-time defense attorney, this can be a more cost-effective alternative. The disadvantages are that contract attorneys may not be as skilled at criminal defense work and that the costs are not as predictable.

A third type of system is one in which attorneys who are members of the tribal bar association are required to take turns accepting court appointments to serve as defense counsel. This service is usually “pro bono,” which means the attorney donates his or her time. These pro bono or required service systems do not usually work very well because it is difficult to ensure the attorney has the skills required to do criminal defense work and that the attorney has sufficient time to spend on the case.

No matter what system the tribe chooses to use, it must ensure that the attorneys who serve as defense counsel meet the minimum standards required by both TLOA and VAWA 2013. Those standards have two parts: a basic competency standard and a licensing requirement.

Both TLOA and VAWA 2013 require that a tribe provide the defendant with a right to effective assistance of counsel at least equal to that required by the U.S. Constitution. The federal and state courts have developed a large body of law defining what “effective assistance of counsel” means, or as it is more commonly phrased, when a defendant received ineffective assistance of counsel in violation of the constitution. To prove ineffective assistance of counsel, a defendant must show not only that the attorney was deficient, but that those deficiencies prejudiced the defendant.[25]

The first part of the test is to evaluate any alleged deficiencies in counsel’s conduct. As a practical matter, the defendant must point to particular, specific things the attorney did wrong. The defendant must also prove that the errors were so serious that counsel was not functioning as the “counsel” guaranteed by the U.S. Constitution. This is a very difficult standard to meet, particularly as the U.S. Supreme Court directed judges to indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The second part of the test requires the defendant to prove that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

This complicated test has been applied in a very technical way that has produced much debate. For example, in one case, the record showed that the defense attorney fell asleep in court. The appellate court reviewed the transcript and decided the part of the trial the attorney slept through was not sufficiently important that it would have affected the outcome of the case.[26]

A tribe may choose to adopt the standard used by the federal and state courts or to create its own standard. A tribe may choose to adopt the same test, but apply it differently, but at a minimum it must meet the Strickland test and any changes to that test the Supreme Court make in the future. The two key requirements of TLOA and VAWA 2013 are that the tribe must guarantee a minimum standard of competency for court-appointed defense counsel and that the standard chosen cannot be lower than the standard used by the federal courts when interpreting the U.S. Constitution. The details for this standard and how it is interpreted are often supplied in court decisions and court rules.

Both TLOA and VAWA 2013 mandate that a tribe require that its court-appointed attorneys be licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys. Tribes have a number of options for satisfying these requirements, including:

1. Creating its own tribal licensing procedure (see Chapter 10 for more details),
2. Requiring membership in a state bar association, and
3. Requiring membership in the bar association of another tribe (provided that tribal bar satisfies the requirements).

Tribal Code Examples
 

Tribal Code Commentary

The Hopi Tribal Code established an Office of Public Defender and sets out a list of the duties of that office and the attorneys’ qualifications. The tribe uses a contract system to provide public defenders for indigent defendants.

The Confederated Salish and Kootenai Tribes maintain a Tribal Defenders Office, and an indigent defendant accused of a criminal offense punishable by imprisonment has a right to representation by that office. The Confederated Salish and Kootenai Tribal Code defines three categories of income level for appointment of counsel: a level at which the defendant is entitled to representation by the Tribal Defenders Office at no charge, a level at which the defendant is entitled to representation for a fee, and a level at which the defendant is not entitled to representation by the Tribal Defenders Office (although the defendant can hire and pay for his or her own attorney).

The Umatilla Code articulates the standards required by TLOA and VAWA 2013, and then provides more detail in the court rules. This approach provides flexibility, as court rules are often easier to update and change than are statutes. Note that the regulation is focused on the licensing requirement and does not directly address the effective assistance of counsel requirement. That is a fairly typical approach, as the effective assistance of counsel standards will often be addressed more fully by the courts in opinions. In practice Umatilla contracts out cases to local state bar licensed attorneys who practice criminal defense in surrounding communities.

The Gila River Indian Community also addresses the matter of indigent defense counsel in both the tribal code and in court rules. The code indicates that an indigent defendant is eligible for a court-appointed attorney when the defendant may be subject to incarceration of more than a year, not when subject to incarceration for less than a year. The court rules contain a detailed process for determining whether a defendant is indigent. Note that the tribe provides a more extensive right to counsel for tribal members, and that the tribe also provides a right to appellate counsel in certain cases.

Chapter 9. Judges

Overview

Discussion

• How many judges does your tribal court have? What are the required qualifications to be a judge? Do all judges have to satisfy the same standards?
• Do you currently have any licensing requirements for your judges? If so, what are those requirements?
• Do you have ethical standards for judges? Who enforces those standards?
• Who handles disciplinary actions and removal of judges? A bar association? Some other committee?

VAWA 2013 echoes these requirements, declaring that before a term of imprisonment of any length may be imposed, the tribe must provide a defendant with all rights described in section 1302(c), which includes TLOA’s standards for judges.

This chapter will focus on the “sufficient legal training” portion of the requirements first, and then turn to the licensing requirements.

Most tribes already set standards for judicial qualifications. To satisfy TLOA, however, those standards must include requirements designed to insure that a judge has sufficient legal training to preside over criminal proceedings. Note, however, that these standards do not necessarily apply to all members of the tribal judiciary. They do not even necessarily apply to all judges hearing criminal cases. Rather, they apply only to judges who preside over criminal cases in which the enhanced sentencing authority will be used or which involve SDVCJ. A tribe may, however, decide to apply these training requirements more broadly.

TLOA does not require that the judge hold a law degree. Rather, it requires only that the judge have “sufficient” legal training to preside over criminal proceedings. That training may be acquired through law school, through judicial training certification programs, or other workshops. The tribe also retains the authority (at least initially) to determine what constitutes sufficient training.

As for the licensing requirements, tribes have a number of options for satisfying those, including:

1. Creating its own tribal licensing procedure,
2. Requiring membership in a state bar association, and
3. Requiring membership in the bar association of another tribe.

This division is not just driven by the language of TLOA. Most states have a different set of standards for qualification of judges and qualification of attorneys. Judges may be members of the bar association, but judicial standards of conduct are usually set by court rule or statute. Allegations that a judge has violated those standards are usually heard by a different organization than the one that hears allegations against attorneys. There will often be a statutory committee to review judicial conduct, and sometimes that authority is placed in the tribal council (although the latter is potentially fraught with separation of powers issues).

Tribal Code Examples
 

Tribal Code Commentary

The Eastern Band of Cherokee requires that its judges be licensed by the North Carolina State Bar and members in good standing of the practicing bar of the Eastern Band of Cherokee Indians. The statute gives the Ethics Committee the power to remove judges. The law does not, however, contain an explicit requirement that the judge have sufficient training to preside over criminal trials. It is likely that the North Carolina bar requires that attorneys possess a JD, which should be sufficient to meet the training requirement.

The Umatilla Code explicitly requires that its judges be graduates of an accredited law school. The Umatilla code also requires membership in good standing of a state bar, but it accepts membership in any state bar, unlike the Eastern Cherokee who limited licensure to the bar of the state where they are located.

Gila River does not require its judges to have a law degree, but it has established a very detailed set of rules regarding judicial education. Those standards require a minimum amount of educational instruction prior to being assigned a case as well as a continuing education requirement. It has imposed even higher standards for the initial education requirements for judges presiding over cases involving defendants subject to enhanced sentencing. Gila River has also defined what topics are acceptable to fulfill the educational requirement and which programs are deemed to be accredited. The code also establishes a procedure for judges to certify they have satisfied the requirement.

The Tulalip code establishes several alternative requirements for serving as a judge. Possessing a Juris Doctorate from a law school is only one option.

Chapter 10. Establishing a Tribal Bar Association

Overview

Discussion

• What are the current requirements to practice in your tribal court?
• How many attorneys practice in your courts? Is it enough to make it worthwhile having your own bar association?
• If you have a tribal bar, does it have an exam? How does it ensure attorneys have sufficient training? How does it handle disciplinary matters?
• How many judges do you have? What licensing requirements do you have for judges?
• If you consider having your own bar association, how would you structure the continuing education and professional responsibility requirements?

Bar associations can be organized in many different ways and can serve a variety of functions. They run the spectrum from being a social networking organization for lawyers and judges to being the organization that sets and enforces the minimum standards of training, education, and knowledge a person must possess in order to practice law in that jurisdiction. Under the latter function, the bar association usually also sets and enforces standards of professionalism and ethical conduct, and imposes requirements for continuing education.

A bar association can also set and enforce Continuing Legal Education (CLE) requirements, including minimum quantities of annual training and defining standards for who can teach CLE courses.

TLOA and VAWA 2013 both distinguish the licensing requirements for judges and for defense attorneys. With respect to judges, the two statutes require only that the judge be licensed to practice law in any jurisdiction in the United States. With respect to defense counsel, the requirements are more stringent. Defense attorneys must not only be licensed, but also their licensing body must apply appropriate standards and ensure both the competence and the ethical (professional responsibility) duties of its attorneys. As discussed more fully in Chapter 9, this difference is likely a result of the fact that judicial standards of conduct are usually set by court rule or statute.

If a tribe wishes to satisfy TLOA’s and VAWA 2013’s requirements by using its existing tribal bar association or by establishing a tribal bar association, it must ensure that the tribal bar applies “appropriate standards” to ensure “both the competence and professional responsibility of its licensed attorneys.”[27]

It is not entirely clear what will satisfy this requirement. Many tribes have tribal bar associations that require only that the attorney be licensed in another jurisdiction and pay the membership fee. The tribal bar association does not do any screening, but rather relies on the other bar association to serve that function. It is possible that a tribal bar association that requires an attorney be a member in good standing of another bar association is sufficient, so long as the other bar association applies the necessary standards. In essence, this would be no different than using the other bar association as the licensing agent. A tribe choosing this option would need to make sure that the attorney continues to be licensed by and in good standing with the other bar association.

It is also possible to interpret TLOA and VAWA 2013 to require that if a tribe is relying on a tribal bar association to fulfill the licensing requirement for defense attorneys, the tribal bar association must be the one who sets and enforces the standards. There are advantages and disadvantages to this approach.

The primary advantages are that the tribe controls the standards for who is allowed to practice law in its jurisdiction and who is allowed to appear in tribal court. These standards can include requiring knowledge not only of Indian law in general, but of tribal law specifically. An attorney applying for membership can be required to take a bar examination to demonstrate the attorney possesses the required knowledge. The tribe can also establish its own standards of professional conduct, pro bono requirements (a bar association may require a certain amount of public service annually from its members), and CLE requirements.

The disadvantages relate to the time and resources required. Setting up and administering a bar exam is time consuming and can be expensive, as can screening applicants for character and fitness issues. A tribal bar association that sets its own standards must also have a way to enforce those standards, which requires some sort of disciplinary procedures. Establishing a tribal bar association that serves these functions requires making decisions about who will run the association (staff? volunteers? some combination?) and where funding will come from.

It is also possible to set up a hybrid system. A tribe may, for example, require membership in a state bar and passage of a tribal bar exam. That way the tribe can leave the expensive screening and disciplinary processes to the state bar. The tribal courts can handle the key professional conduct standards through court rules and contempt of court citations.

Another possibility might be for tribes, particularly those in one geographic area or that are culturally related, to develop an intertribal bar association to share the work and expense and to assist in building a critical mass of attorneys.

Tribal Code Examples
 

Tribal Code Commentary

The statutes and rules excepted in the preceding text illustrate the wide variety of possible approaches to setting standards for attorneys.

Hopi allows “qualified” attorneys to appear in tribal court, and to be qualified an attorney must satisfy three requirements: (1) be a member in good standing of a state bar association or the bar association of one of the federal courts; (2) obtain a certificate and pay the required fee; and (3) agree to follow the ethical standards established by the Professionalism Committee. Because most federal courts require membership in a state bar association, Hopi has taken an approach that relies on the extensive state bar association infrastructure to handle the testing and screening of attorneys. Hopi has, however, created its own standards of professional conduct.

The Umatilla code requires applicants to be a member in good standing of any state or tribal bar, but also requires a more extensive application process including setting forth education and experience possessed by the attorney and providing a reference.

The Oglala Sioux have established a more extensive tribal bar association. Its tribal bar has the power to enact bylaws, rules of practice, and rules of professional conduct. It also has the authority to discipline members who violate those rules.

Navajo and Tulalip have established more extensive and explicit standards. Navajo has several categories of membership, including one for judges, and has detailed application requirements. Navajo also has its own bar exam (with specified subjects) and disciplinary procedures. Tulalip also has its own bar examination and has established extensive disciplinary procedures.

Part IV. Conduct of Proceedings

A tribe planning to exercise the enhanced sentencing authority under TLOA and the special domestic violence jurisdiction under VAWA 2013 must ensure that certain court procedures and processes are used in cases impacted by these two statutes. This section of the resource focuses on those requirements.

Chapter 11 discusses the requirement to be a court of record. Chapter 12 deals with the standards required in jury trial under VAWA 2013. Chapter 13 explores sentencing options under TLOA and VAWA 2013. Staying detention during a Habeas Review is discussed in Chapter 14.

Chapter 11. Court of Record

Discussion

• What are the current requirements for keeping a court record in your tribal court criminal proceedings? What does your statute say? What do your court rules say?
• What procedures are currently followed for preserving the trial record? For what period of time? Who is responsible for monitoring these?
• What equipment is being used by your court to record the proceedings? Do you have a court reporter?
• What changes may be needed to ensure an accurate record for appeal?

A defendant being prosecuted for a crime with enhanced sentencing under TLOA is guaranteed that the tribal court maintains a record of the criminal proceeding, including an audio or other recording of the trial proceeding.[28] VAWA 2013 incorporates this requirement through its amendments to ICRA, if imprisonment of any length may be imposed.[29] This does not mean that the tribal court must maintain a record of all of its proceedings, but only those with enhanced sentencing under TLOA and those with “special domestic violence” jurisdiction under VAWA 2013. Many tribes maintain a record of all proceedings.

The primary function of a court record is to provide a record of proceedings for possible review by an appellate court. The record generally includes evidence introduced by the parties, copies of all papers filed by the parties, and an audio or video recording of the proceedings (appearances, hearings, trial), which is generally reduced to a transcript on appeal. This record must be kept for a period of time—clearly for as long as any appeal or habeas corpus action is possible. After that time frame the evidence may be returned to the parties or destroyed.

Many tribal courts are courts of record in criminal cases and no change in their statutes are required, but every tribe should look closely at the process and equipment being used in preserving evidence and recording the proceedings. No doubt there will be more appeals and possibly habeas corpus actions due to the increased sentencing power and the inclusions of non-Indians.

Many courts have specific court rules dealing with the quality and type of equipment that must be used to record proceedings and have other requirements to ensure an accurate record is preserved for the requisite period of time. These rules would generally not be in a statute, but would be in court rules that are developed by the chief judge. Authorization for the judge to develop court rules could appear in the statute.

Court rules can be easily changed and updated to consider technology and process. Review of court rules in your federal district or state courts could be helpful in your development of rules.

Tribal Code Examples
 

Tribal Code Commentary

The statute or rule relative to recording criminal proceedings appears in different places in tribal codes. Sometimes it appears in the section establishing and empowering the court and other times it appears in the Rules of Criminal Procedure of a tribe.

The Hopi statute is the most comprehensive of the tribal examples. There is a whole section on court of record. It declares that all tribal and appellate courts are courts of record and that the clerk of court has the responsibility to ensure accuracy and validity of files and records. The Chief Judge is responsible for determining what type of device is trustworthy to create a permanent verbatim record of all proceedings. It is anticipated that the Chief Judge would develop rules or policy and procedures relating to the recording and preservation of the court record. It is a criminal offense for the clerk of court to knowingly make or keep a false record or destroy, alter, or amend any file, record, or transcript.

The Confederated Tribe of the Umatilla Reservation inserted the provision requiring that all trials be recorded by a court reporter. A court reporter is an individual trained to provide a verbatim transcript of proceedings. A person with court reporter credentials is not required by ICRA, but use of a court reporter does provide assurance of authenticity and accuracy due to their training and certification.

The Eastern Band of Cherokee place a simple statement in their Rules of Criminal Procedure indicating that all proceedings are recorded. It would be left to the judge or court administration to determine the equipment and procedure to ensure accuracy and authenticity of the recording. The clerk of court is responsible for maintenance of all court records.

Chapter 12. Jury Trials

Prior to 2013, ICRA declared that no tribe shall “deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.”[30] TLOA made no changes to the jury requirement, but VAWA 2013 did make changes.

This resource guide has combined discussions of TLOA and VAWA 2013 because, for the most part, the two statutes impose the same requirements on tribes that wish to exercise the powers in each statute. Although TLOA does not explicitly impose any new standards for juries other than those already contained in ICRA, federal case law is pretty clear either there must be a unanimous verdict in felony cases, or if guilty by a majority of the jury, it must be a twelve person jury and probably at least a nine to three verdict.[31]

Tribes who wish to exercise the SDVCJ by VAWA 2013 must comply with the standards for juries set forth in that statute. VAWA 2013 requires that trials held pursuant to the special domestic violence jurisdiction must include: “an impartial jury that is drawn from sources that—

1. reflect a fair cross-section of the community; and
2. do not systematically exclude any distinctive group in the community, including non-Indians”[32]

Thus, tribes opting to hold non-Indians accountable for “special domestic violence crimes” in Indian country need to review their laws related to juries and their processes to ensure that the jury pool for the “special domestic violence crimes” includes a fair cross-section of the community, including non-Indians. The fair cross-section of the community including non-Indians may not need to apply to all criminal cases, nor to all TLOA cases, but only to those cases involving the special domestic violence jurisdiction over non-Indians. However, some experts believe that the fair cross-section of the community requirement applies to all defendants not just SDVCJ cases.

Because the requirements for juries can be fairly technical, some background information about the U.S. Constitution and how its jury requirements have been interpreted may provide helpful context. The right to trial by jury contained in the U.S. Constitution has been interpreted to have two aspects: when that right applies and how the jury is formed.

The right to trial by jury in criminal cases is found in the Sixth Amendment. The Sixth Amendment applies to the federal government, but the right to trial by jury has been extended through the Fourteenth Amendment to apply to the states.[33] The U.S. Supreme Court has interpreted the clause differently for federal and state courts.[34] States are not required to provide juries in cases in which the potential penalty includes a jail sentence of less than six months.[35]

ICRA, however, requires that tribes provide juries in all criminal cases in which imprisonment is a possibility.[36] Thus, tribes whose laws include imprisonment as a possible sentence must have a procedure for selecting a jury. Because the primary purpose of a jury is to provide a fair and impartial body to decide the facts of a case, the U.S. Supreme Court requires that a jury be drawn from a fair cross-section of the community.

The process by which a jury is selected is evaluated at two stages: determining who is eligible to be summoned to serve on a jury (often referred to as the jury pool) and determining who will actually serve on a particular jury.

A court will keep a list of who is eligible to serve on a jury and will summon a number of people from that list to come to court on the day a jury trial is scheduled. The judge and the attorneys will then question the potential jurors to select ones that can decide the case at hand fairly and impartially.

Discussion on Juries

• Do you have a civil process that is used for enforcement of the jury obligation? Any reason it is not enforceable against non-Indian residents or non-Indian employees called for jury duty?
• In reviewing your jury process, is there any procedure that systematically excludes non-Indians from serving on a jury?
• Is there a random process that selects potential jurors from the jury pool for the jury panel?

Many tribes have statutes that allow only their tribal members to serve on juries. These laws need to be changed if tribes intend to expand jurisdiction to non-Indians under VAWA 2013. Some tribes before VAWA 2013 included non-Indians and nontribal members in their jury pools, even though the federal government had taken away their authority to criminally prosecute non-Indians. They include not only residents of Indian country, but people who work in Indian country. Review of their statutes may be helpful and are included in the Tribal Code Example section.

What is a “fair cross-section of the community”? According to the U.S. Constitution the “fair cross-section of the community” means that juries must be drawn from a source fairly representative of the community. It does not guarantee that the jury selected actually represents the community.[37]

States commonly use lists of people registered to vote or actual voters for jury pools. Driver license lists and other lists such as tax rolls, welfare lists, city directories, and utility lists have been used as well. Some type of random selection process is used to select the jury panel from the designated source lists, often a computerized selection process.

Determining what lists could be used in your community and whether those lists or combination of lists “fairly represent your community” is important. The jury pool should be roughly proportional to the distinctive groups that are residents in your jurisdiction. It is critical that the process not exclude any distinctive group, including non-Indians.

Courts have developed a three-prong test to determine whether a particular group of people is a distinctive group for cross-section analysis:

1. The group must be defined and limited by some clearly identifiable factor (such as race or sex),
2. There must be a common thread or basic similarity in attitude, ideas, or experience that runs through members of the group, and
3. There must be a community of interest among the members of the group to the extent that the group’s interest cannot be adequately represented if the group is excluded from the jury selection process.[38]

Just as they cannot be excluded from the jury pool, members of distinctive groups also cannot be systematically excluded from sitting on the jury. This means that the process by which a jury is selected (including both peremptory challenges and challenges for cause) must be examined. Included under additional resources is the link to the ABA Principles for Juries and Jury Trials, which may be helpful in developing rules and process that meet fairness standards, although many of the suggestions may not fit small community standards in much of Indian country. Review of court rules and procedure on jury selection in adjoining counties or the federal district may also be helpful, but not controlling. It is important you carefully consider a process that is workable for your nation, considering its size, population, and resources.

Although this guide is focused on the tribal statutes, it is important to review both court rules and rules of procedure to understand the entire process used by a particular tribe and ensure it complies with the VAWA 2013 requirements.

Tribal Code Examples
 

Tribal Code Commentary

The Umatilla Tribal Code provides that any resident of the Umatilla Nation is eligible for jury service. A list of eligible individuals is maintained by the clerk of court. The statute does not indicate where the clerk gets the names of individuals who are residents that become a part of the jury pool. However, the pool is drawn from the voting records of the district that is a rough overlay of the reservation. Selection is manual and random. In January of each year a pool of fifty potential jurors are selected by the judge from that list. These fifty residents serve as the jury pool for that year. They are notified of their selection to the trial jury list for the year from which jury panels of not less than eighteen names are selected for a trial.

The remainder of the Umatilla statute relating to juries describes how a jury is selected at trial. The statute allows for the questioning of prospective jurors by the attorney for each the prosecution and the defense and exclusion of jurors for cause when there is some evident bias. Four peremptory challenges that required no reason for exclusion are allowed for each the prosecution and the defense. Six members and one alternate are seated for a trial.

The Tulalip Tribal Code instructs the court to prepare and update a list of eligible jurors (the jury pool). The list would include the following classes of people: tribal members living on or near the reservation; residents of the Tulalip Reservation; and employees of the Tulalip tribes or any of its enterprises, agencies, subdivisions, or instrumentalities who have been employed by the tribes for at least one year continuously prior to being called as a juror. From this jury pool the clerk of court randomly selects twenty-five names for a potential jury panel. The persons selected are summoned by mail or personal service to appear at a designated time. If the fail to appear that are subject to contempt of court action.

The Tulalip Code instructs the judge to first question potential jurors, screening for bias or impartiality. Specific questions appear in the code. The code is also specific about eliminating relatives from the jury panel, at least those that are of the first or second degree by marriage or blood to any party. We can probably assume that this probably also includes the relatives of the victim in a criminal case, as well as any person who might have a direct interest in the case.

The Tulalip Code provides for a motion to discharge, which is the method that a party would question the manner in which a jury venire (pool) was selected. If a motion is raised, the judge would be required to conduct a hearing and if the judge finds that the jury was improperly selected, a new one would be impaneled.

Challenges for cause and peremptory challenges are described in the statute. In the event the court finds it is short of jurors, the statute allows the court to call anyone eligible to serve without any advance notice so that the case can move forward. Fees for jurors are also provided, although the amount of the fee is probably established by court rule.

Chapter 13. Sentencing Options

Overview

One of the core provisions of the TLOA, and the primary reason this resource guide exists, is the enhanced sentencing powers to tribes. As was discussed in Chapter 3, ICRA places limitations on the amount of jail time and the size of the fines that a tribal court can impose upon a defendant. Before TLOA, ICRA prohibited tribes from imposing more than one year of imprisonment and a $5,000 fine. After TLOA, a tribe that complies with the prerequisites may sentence a defendant to three years for any one offense and up to nine years total for one criminal proceeding. TLOA also contains provisions regarding where a tribe can order a defendant to serve his or her term of incarceration. This chapter addresses both parts of the sentencing options.

Discussion

• Which crimes should have longer sentences?
• How should the court determine what sentence to impose on a particular defendant?
• Where will defendants serve their sentence?

Enhanced Sentencing

A tribe that chooses to comply with TLOA’s prerequisites regains the ability to sentence certain defendants (see Chapter 6) to three years of imprisonment and/or a fine of $15,000 for any one offense, and up to a total of nine years for any one criminal proceeding. An example will help illustrate the difference between a single offense and a criminal proceeding. Suppose a defendant breaks into a house, beats up the owner, and steals a television set. These are all part of one continuous event and generally will be prosecuted in one criminal proceeding. Each one, however, is a separate offense. Thus, the three offenses (breaking and entering, assault and battery, and stealing the television) make up one criminal proceeding. Under TLOA, the tribal court can sentence the defendant to a maximum of three years (plus a fine) on each of the offenses, provided the combined total for the entire criminal prosecution is no more than nine years.

Although federal law places a limit on the amount of imprisonment and fines that can be imposed, the actual sentencing range is a matter of tribal law. Thus, if a tribal government wants its courts to be able to use the enhanced sentencing power, the tribe must review its code and make any necessary amendments to increase the amount of imprisonment and fines permitted for each offense. Amending tribal law is also important to ensure that potential defendants have appropriate notice of the penalties for violating tribal law.

A tribe may also want to provide guidance to its judges, either through its code or its court rules, for how to determine whether sentences should be served concurrently or consecutively. For example, in the situation discussed in the preceding paragraph, suppose the judge sentences the defendant to two years for breaking into the house, two years for beating up the owner, and two years for stealing the television. If these are served concurrently, the defendant will serve a total of two years in prison. If they are served consecutively, the defendant will serve a total of six years in prison.

Serving the Sentence

Each tribe must also decide where defendants will serve their sentences. TLOA declares that the tribal judge may require the defendant

1. to serve the sentence—
   1. in a tribal correctional center that has been approved by the Bureau of Indian Affairs for long-term incarceration, in accordance with guidelines to be developed by the Bureau of Indian Affairs (in consultation with Indian tribes) not later than 180 days after July 29, 2010;
   2. in the nearest appropriate federal facility, at the expense of the United States pursuant to the Bureau of Prisons tribal prisoner pilot program described in section 304(c)[1] of the Tribal Law and Order Act of 2010;
   3. in a State or local government-approved detention or correctional center pursuant to an agreement between the Indian tribe and the state or local government; or
   4. in an alternative rehabilitation center of an Indian tribe; or
2. to serve another alternative form of punishment, as determined by the tribal court judge pursuant to tribal law.

A complete examination of each of these options is beyond the scope of this resource guide, as this resource guide concentrates on the code and rule changes tribes need to make to comply with the prerequisites of TLOA and VAWA 2013. The details regarding where a defendant will serve his or her sentence is not usually a matter to be resolved in the tribal code or the tribal court rules. Instead, the issue of where a defendant will serve his or her sentence is both an administrative matter and the subject of negotiated agreements between the tribal and other governments. We will, however, take a brief look at the key issues involved in the first two of the listed options, as those options contain some potentially hidden issues.

Tribal Correctional Center. TLOA requires that a tribal correctional center must be approved by the BIA in order to house inmates under the enhanced sentencing provisions. The BIA issued a draft of these guidelines in December 2010, and at the time this resource guide was written, the guidelines are still in draft form (2010) and have not yet been finalized. The draft guidelines contain several provisions that may be of concern to tribes, including requiring compliance with American Correctional Association Core Jail Standards and the Prison Rape Elimination Act, and requiring that personnel policies conform to both the Equal Employment Opportunity and Americans with Disabilities Acts. The current draft also does not permit tribes to house non-Indian inmates who may be sentenced under VAWA in BIA facilities. The Department of Interior (DOI) has, however, announced plans to change this latter provision and allow tribes to house non-Indians in BIA-approved facilities.

Federal Facility. TLOA created a Bureau of Prisons (BOP) Pilot Project that allowed tribes to house prisoners in federal prison at federal expense. The initial pilot project (through November 26, 2014), but it may still be extended. Moreover, it is possible that the Bureau of Prisons may be able to continue the project under its existing authority.

The project was structured to accept a maximum of one hundred prisoners at any one time. The resource has only been used by a few tribes. First, complying with the federal prerequisites to exercising enhanced sentencing authority is time consuming and expensive. Some tribes cannot afford to satisfy the requirements, other tribes have decided the extra authority is not worth the expense, and other tribes are still working through the process. Second, the regulations established by the BOP limit which prisoners it will accept. To be eligible, the offender must (among other requirements) be at least eighteen years old at the time of the offense, be convicted of a violent crime, and be sentenced to a term of two or more years of imprisonment. Third, the forms to apply to transfer a prisoner into the BOP are complicated and time consuming to complete.

Sentencing Alternatives

Many of the defendants convicted will be on probation at some time during their sentence. Many may reside off tribal land in an adjacent community. Your tribe needs a plan from the outset on the use of available resources. In some cases state resources may be tapped to deliver offender classes or provide other resources for those on probation. What resource will the tribe provide? Extradition issues may also prove important. Developing a plan on service delivery and supervision with the necessary Memorandum of Understandings (MOUs) or other agreements will be needed.

Tribal Code Examples
 

Tribal Code Commentary

Two basic approaches exist to establishing what penalties may be imposed for violating a particular criminal statute. The first, which is illustrated by the example from the code of the Eastern Band of Cherokees, is to list the potential penalty in each separate criminal statute. One benefit to this approach is that the potential penalties are immediately clear upon reading the statute; there is no need to follow a cross-reference to another portion of the code.

The second, which is illustrated by the examples from Hopi and Salt River, is to “classify” criminal offenses into categories and have one code provision that sets out the possible penalties for each of the crimes. One benefit to this approach is that, so long as the classification system does not change, a tribe can amend the potential sentence for every criminal offense simply by amending one section of its code; there is no need to amend every individual code section that defines a criminal offense.

The Hopi sentencing provisions also give some guidance as to other penalties the judge can impose, as well as some guidance as to whether sentences should run consecutively or concurrently.

The Salt River examples illustrate a detailed set of rules governing the process by which a court collects and reviews the information it will consider when imposing a sentence.

Chapter 14. Stay of Detention Pending Habeas Review

Overview

Discussion

• Do you have a law or code provision regarding the ability of your tribal court to stay an order of detention while a habeas petition is pending in federal court? If so, do its provisions match those required by VAWA 2013?
• If you do not have any such law or regulation, do you need one? Or is this something inherently with the authority of your tribal court?
• Do you have a tribal statute regarding habeas corpus?

VAWA 2013 requires that tribes wishing to exercise special domestic violence criminal jurisdiction delay a defendant’s sentence under certain circumstances. Before discussing the details of VAWA 2013’s requirement, some general background regarding habeas corpus is provided.

A defendant accused of a crime in tribal court has rights guaranteed by tribal law and by federal law. Defendants who are convicted and sentenced, and who believe that their rights were violated, can appeal their conviction according to whatever procedures are established by the tribal government and the tribal court. This is sometimes called the “direct” appeals process.

Because the federal government wants to make sure tribal courts properly interpret and apply the rights guaranteed to defendants by federal law, the federal government has also established a process for defendants to ask a federal court to review what happened in tribal court. This is known as “habeas corpus” or the “indirect” appeals process. Since ICRA was first passed in 1968, it has contained a section declaring that “the privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.”[39]

The writ of habeas corpus pre-dates establishment of the U.S., and began in the U.S. as a way to make sure that states did not violate a defendant’s federal rights during state criminal trials. Because federal courts want to avoid interfering with state trials unless it was absolutely necessary, federal courts developed a complicated set of procedures and rules about when and how a defendant accused of a crime in state court can ask a federal court to review the actions of the state court. For example, with very few exceptions, the federal courts will not hear a habeas petition unless the defendant is in custody, is alleging a violation of his federal rights, and has first given the state courts a chance to fix the problem.

It is not clear to what extent the rules developed in the state context apply to review of tribal courts. That question does not, however, need to be resolved here. Instead, VAWA 2013’s requirements relate to what tribal courts must do if a defendant asks the federal court to review his conviction (to use the technical legal terms, a defendant asks for review by “filing a petition for a writ of habeas corpus”).

VAWA 2013 amended ICRA to provide procedures relative to notice of habeas corpus and a stay (suspension) of detention for tribes participating in special domestic violence jurisdiction.

25 U.S.C. §1304(e) Petitions to Stay Detention

1. IN GENERAL.—A person who has filed a petition for a writ of habeas corpus in a court of the United States under section 1303 may petition that court to stay further detention of that person by the participating tribe.
2. GRANT OF STAY.—A court shall grant a stay described in paragraph (1) if the court—
   1. finds that there is a substantial likelihood that the habeas corpus petition will be granted; and
   2. after giving each alleged victim in the matter an opportunity to be heard, finds by clear and convincing evidence that under conditions imposed by the court, the petitioner is not likely to flee or pose a danger to any person or the community if released.
3. NOTICE.—An Indian tribe that has ordered the detention of any person has a duty to timely notify such person of his rights and privileges under this subsection and under section 1303.

It is important to note that this section applies to defendants who:

• Are held in or sentenced to detention by the tribal court; and
• Have filed a petition for a writ of habeas corpus in federal court, asking the federal court to review the trial court’s actions.

A defendant who satisfies these requirements may file a petition in federal court asking the court to stay further detention by the tribe until the federal court has a chance to hear the case. It can take months and sometimes a year or more for a federal court to make a decision regarding a petition for a writ of habeas corpus. It is thus possible that a defendant may serve his or her entire sentence before the court can review whether the defendant’s conviction and sentence violated federal law, if the detention is not suspended.

A tribal court must notify defendants subject to a tribal order for detention, of their rights to petition the federal court for a writ of habeas corpus and a stay of detention pending the federal court’s decision.

VAWA 2013 also establishes standards and procedures for the federal court to follow in deciding whether to grant the defendant’s petition for a stay of detention. The court is required to grant the stay of detention if two conditions are met:

1. The federal court must find there is a substantial likelihood the court will grant the defendant’s petition for habeas corpus. In other words, it finds that it is likely that the tribal court violated the defendant’s federal rights, and
2. The federal court must find that clear and convincing evidence exists to believe that if the defendant is released, the defendant is not likely to flee or pose a danger to any person or to the community. The court may also impose whatever conditions on release from detention that the court deems appropriate.

Some tribes have their own tribal habeas corpus proceedings. A review of the tribal habeas corpus statute is wise. The reason for tribal habeas proceedings in this situation is so the tribe can argue to the federal court that the defendant has not exhausted the tribal remedies if they haven’t first filed a habeas action in tribal court and therefore, the defendant cannot establish “a substantial likelihood that the habeas corpus action will be granted”.

Tribal Code Examples
 

Tribal Code Commentary

This section of VAWA 2013 is clear and leaves little room for interpretation or for debates about how to satisfy the requirements. One option, then, for tribes is to not include these provisions in any tribal law, but to simply ensure that tribal judges understand that the requirement exists and what standards it imposes. However, there should be a standard method to provide notice to the defendants’ rights to petition a federal court for a writ of habeas corpus and a stay of detention.

Another possible approach, illustrated by the excerpts from the code of the Eastern Band of Cherokee, is to adopt a basic catchall provision declaring that the tribe adopts the protections established in ICRA. This is not necessarily recommended as it may lead to confusion as to the exact rights.

The Umatilla and Tulalip tribes, both participating in the pilot project exercising special domestic violence criminal jurisdiction, went one step further and enacted a provision that echoed the language of VAWA 2013. Note that the Umatilla code does expressly require that defendants exhaust their tribal court remedies prior to filing a petition with the federal court. Umatilla has an extensive habeas process in Section 3.47 of their Criminal Code. The code also explicitly requires that every defendant who is detained in jail shall be notified of all relevant rights.

Part V. Helpful Resources

This section provides a description of and links to online resources to help in developing tribal codes and further understanding TLOA and VAWA 2013. Some of the resources help in understand key issues that may need to be addressed during implementation.

VAWA 2013 Resources

• Intertribal Technical-Assistance Working Group on Special Domestic Violence Criminal Jurisdiction (ITWG) is a website that provides information on ITWG. The pilot project for VAWA included three tribes that implemented tribal statutes that satisfied federal requirements of VAWA 2013. Review of their codes may be instructive: Umatilla Criminal Code, Pascua Yaqui Tribal Code, and the Tulalip Tribal Code. The three tribes’ applications to participate in the pilot project permitting early use of jurisdiction over non-Indians may also be helpful, as the applications look for compliance with the VAWA 2013 requirements and provide the tribes examples of their compliance. The applications are publically available: Umatilla application, Pascua Yaqui application, and Tulalip application.
• Resource Center for Implementing Tribal Provisions of VAWA 2013 was developed and is maintained by NCAI to provide information, news, resources, notice of events, and funding opportunities on the implementation of tribal provisions of VAWA 2013. It also contains information on the ITWG, a group of tribal representatives that met to discuss issues and best practices relative to tribal VAWA 2013 implementation.
• Code Development Checklist for implementing VAWA 2013. This checklist is designed as a tool to assist tribal governments seeking to develop tribal codes that implement SDVCJ over all persons within their jurisdiction.
• Ten Principles of a Public Defense Delivery System, American Bar Association, Standing Committee on Legal Aid and Indigent Defense (2002). Principles and considerations in maintaining a public defense system.
• Lessons from Gideon, Erwin Chemerinsky, 122 Yale Law Journal 2676 (2013). Gideon v. Wainwright, 372 U.S. 336 (1963) holds that the Sixth Amendment right to counsel requires that state governments provide an attorney to all indigent defendants facing a possible prison sentence. The article explores the shortcomings of this unfunded mandate.
• State Court Organization 2004, Bureau of Justice Statistics, D. Rottman and S. Strickland, pp. 218–27 (August 2006). The comparison charts starting on page 218 provide comparison information on juries and on various topics including jury pools, qualifications, selection process, jury pay, peremptory challenges, and so forth.
• Principles for Juries and Jury Trials provides nineteen American Bar Association approved principles that define fundamental aspirations for management of a jury system.
• Harvard Law Review, Recent Legislation Note provides a profile of VAWA 2013, Special Domestic Violence Jurisdiction, Vol. 127, No. 5 (March 2014). Discusses the history of the federal and tribal governments and provides the legal history relative to tribal criminal jurisdiction.
• UCLA Law Review, Two-Tiered Program of the Tribal Law and Order Act, Seth Fortin, 61 UCLA L. Rev. Disc. 88 (2013). Provides an overview of the reasons and need for TLOA with references to VAWA 2013.
• Tribal Protection Order website is a clearinghouse of information and resources on tribal protection orders and tribal enforcement.

Tribal Law and Order Act Resources

• Tribal Law and Order Act Resource Center is a website specifically developed by NCAI to share information and resources relative to TLOA. It contains many of the resources described in this resource sections and many more, as well as news, events, webinars, and other helpful information.
• Enhanced Sentencing in Tribal Courts: Lessons Learned from Tribes, by Christine Folsom-Smith, Director, The National Tribal Judicial Center, is a publication of the BJA. The publication provides an overview of the TLOA, examples of issues faced by tribes in the implementation, a checklist to help guide discussion on implementation of sentencing enhancement and correction issues, and information on financial resources.
• Tribal Law and Order Act: Long Term Plan to Build and Enhance Tribal Justice Systems, by the DOJ and DOI in collaboration with the work group on corrections. TLOA mandates that DOJ and DOI develop, in consultation with tribal leaders and tribal justice professionals, a long-term plan to address incarceration and the alternatives to it in Indian country. This plan was published in August 2011.
• BIA Adult Detention Facility Guidelines (Draft) BIA, Office of Justice Services (December 2010). Guidelines for BIA adult facilities.
• Indian Law and Order Commission (ILOC) Report, A Road Map for Making Native America Safer, Troy Eid et al. (November 2013). TLOA required the ILOC to study the reasons behind the high rates of cr ime in Indian nations and make recommendations to make Native American and Alaska Native nations safer and reduce the high rates of violent crime. Their final report is one of the most comprehensive assessments ever undertaken of criminal justice systems servicing Native American and Alaska Native communities.
• Indian Law and Order Commission website contains a substantial amount of background material related to ILOC work, as well as summaries of testimony before the commission.

Appendix

The Indian Civil Rights Act, as amended by TLOA and VAWA 2013

• TLOA amendments in bold.
• VAWA 2013 amendments underlined.

 The Indian Civil Rights Act, as Codified

25 U.S.C. §§ 1301-1304

§ 1301. Definitions

For purposes of this subchapter, the term—

1. “Indian tribe” means any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government;
2. “powers of self-government” means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians;
3. “Indian court” means any Indian tribal court or court of Indian offense; and
4. “Indian” means any person who would be subject to the jurisdiction of the United States as an Indian under section 1153, title 18, if that person were to commit an offense listed in that section in Indian country to which that section applies.

§ 1302. Constitutional rights

1. In general — No Indian tribe in exercising powers of self-government shall—
   1.  make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;
   2.  violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;
   3.  subject any person for the same offense to be twice put in jeopardy;
   4.  compel any person in any criminal case to be a witness against himself;
   5.  take any private property for a public use without just compensation;
   6.  deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense (except as provided in subsection (b));
   7. 1. require excessive bail, impose excessive fines, or inflict cruel and unusual punishments;
      2. except as provided in subparagraph (C), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 1 year or a fine of $5,000, or both;
      3. subject to subsection (b), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 3 years or a fine of $15,000, or both; or
      4. impose on a person in a criminal proceeding a total penalty or punishment greater than imprisonment for a term of 9 years;
   8. deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
   9. pass any bill of attainder or ex post facto law; or
   10. deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.
2. Offenses subject to greater than 1-year imprisonment or a fine greater than $5,000 — A tribal court may subject a defendant to a term of imprisonment greater than 1 year but not to exceed 3 years for any 1 offense, or a fine greater than $5,000 but not to exceed $15,000, or both, if the defendant is a person accused of a criminal offense who—
   1. has been previously convicted of the same or a comparable offense by any jurisdiction in the United States; or
   2. is being prosecuted for an offense comparable to an offense that would be punishable by more than 1 year of imprisonment if prosecuted by the United States or any of the States.
3. Rights of defendants — In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall
   1. provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and
   2. at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
   3. require that the judge presiding over the criminal proceeding—
      1. has sufficient legal training to preside over criminal proceedings; and
      2. is licensed to practice law by any jurisdiction in the United States;
   4. prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and
   5. maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.
4. Sentences — In the case of a defendant sentenced in accordance with subsections (b) and (c), a tribal court may require the defendant—
   1. to serve the sentence—
      1. in a tribal correctional center that has been approved by the Bureau of Indian Affairs for long-term incarceration, in accordance with guidelines to be developed by the Bureau of Indian Affairs (in consultation with Indian tribes) not later than 180 days after July 29, 2010;
      2. in the nearest appropriate Federal facility, at the expense of the United States pursuant to the Bureau of Prisons tribal prisoner pilot program described in section 304(c) of the Tribal Law and Order Act of 2010;
      3. in a State or local government-approved detention or correctional center pursuant to an agreement between the Indian tribe and the State or local government; or
      4. in an alternative rehabilitation center of an Indian tribe; or
   2. to serve another alternative form of punishment, as determined by the tribal court judge pursuant to tribal law.
5. Definition of offense — In this section, the term “offense” means a violation of a criminal law.
6. Effect of section — Nothing in this section affects the obligation of the United States, or any State government that has been delegated authority by the United States, to investigate and prosecute any criminal violation in Indian country.

§ 1303. Habeas corpus

The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.

§ 1304. Tribal Jurisdiction Over Crimes of Domestic Violence

1. Definitions — In this section:
   1. DATING VIOLENCE.—The term “dating violence” means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship
   2. DOMESTIC VIOLENCE.—The term “domestic violence” means violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, or by a person similarly situated to a spouse of the victim under the domestic- or family-violence laws of an Indian tribe that has jurisdiction over the Indian country where the violence occurs
   3. INDIAN COUNTRY.—The term “Indian country” has the meaning given the term in section 1151 of title 18, United States Code
   4. PARTICIPATING TRIBE.—The term “participating tribe” means an Indian tribe that elects to exercise special domestic violence criminal jurisdiction over the Indian country of that Indian tribe
   5. PROTECTION ORDER.—The term “protection order”—
      1. means any injunction, restraining order, or other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence against, contact or communication with, or physical proximity to, another person; and
      2. includes any temporary or final order issued by a civil or criminal court, whether obtained by filing an independent action or as a pendent lite order in another proceeding, if the civil or criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection.
   6. SPECIAL DOMESTIC VIOLENCE CRIMINAL JURISDICTION.—The term “special domestic violence criminal jurisdiction” means the criminal jurisdiction that a participating tribe may exercise under this section but could not otherwise exercise.
   7. SPOUSE OR INTIMATE PARTNER.—The term “spouse or intimate partner” has the meaning given the term in section 2266 of title 18, United States Code.
2. Nature of the Criminal Jurisdiction —
   1. IN GENERAL.—Notwithstanding any other provision of law, in addition to all powers of self-government recognized and affirmed by sections 1301 and 1303, the powers of self-government of a participating tribe include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons.
   2. CONCURRENT JURISDICTION.—The exercise of special domestic violence criminal jurisdiction by a participating tribe shall be concurrent with the jurisdiction of the United States, of a State, or of both.
   3. APPLICABILITY.—Nothing in this section—
      1. creates or eliminates any Federal or State criminal jurisdiction over Indian country; or
      2. affects the authority of the United States or any State government that has been delegated authority by the United States to investigate and prosecute a criminal violation in Indian country.
   4. EXCEPTIONS.—
      1. VICTIM AND DEFENDANT ARE BOTH NON-INDIANS.—
         1. IN GENERAL.—A participating tribe may not exercise special domestic violence criminal jurisdiction over an alleged offense if neither the defendant nor the alleged victim is an Indian.
         2. DEFINITION OF VICTIM.—In this subparagraph and with respect to a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction based on a violation of a protection order, the term “victim” means a person specifically protected by a protection order that the defendant allegedly violated.
      2. DEFENDANT LACKS TIES TO THE INDIAN TRIBE.—A participating tribe may exercise special domestic violence criminal jurisdiction over a defendant only if the defendant—
         1. resides in the Indian country of the participating tribe;
         2. is employed in the Indian country of the participating tribe; or
         3. is a spouse, intimate partner or dating partner of
            1. a member of the participating tribe; or
            2. (an Indian who resides in the Indian country of the participating tribe.
3. Criminal Conduct — A participating tribe may exercise special domestic violence criminal jurisdiction over a defendant for criminal conduct that falls into one or more of the following categories:
   1. DOMESTIC VIOLENCE AND DATING VIOLENCE.—An act of domestic violence or dating violence that occurs in the Indian country of the participating tribe.
   2. VIOLATIONS OF PROTECTION ORDERS.—An act that—
      1. occurs in the Indian country of the participating tribe; and
      2. violates the portion of a protection order that—
         1. prohibits or provides protection against violent or threatening acts or harassment against, sexual violence against, contact or communication with, or physical proximity to, another person;
         2. was issued against the defendant;
         3. is enforceable by the participating tribe; and
         4. is consistent with section 2265(b) of title 18, United States Code.
4. Rights of Defendants — In a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction, the participating tribe shall provide to the defendant—
   1. all applicable rights under this Act;
   2. if a term of imprisonment of any length may be imposed, all rights described in section 1302(c);
   3. the right to a trial by an impartial jury that is drawn from sources that—
      1. reflect a fair cross-section of the community; and
      2. do not systematically exclude any distinctive group in the community, including non-Indians; and
   4. all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise special domestic violence criminal jurisdiction over the defendant.
5. Petitions to Stay Detention
   1. IN GENERAL.—A person who has filed a petition for a writ of habeas corpus in a court of the United States under section 1303 may petition that court to stay further detention of that person by the participating tribe.
   2. GRANT OF STAY.—A court shall grant a stay described in paragraph (1) if the court—
      1. finds that there is a substantial likelihood that the habeas corpus petition will be granted; and
      2. after giving each alleged victim in the matter an opportunity to be heard, finds by clear and convincing evidence that under conditions imposed by the court, the petitioner is not likely to flee or pose a danger to any person or the community if released.
   3. NOTICE.—An Indian tribe that has ordered the detention of any person has a duty to timely notify such person of his rights and privileges under this subsection and under section 1303.
6. Grants to Tribal Governments — The Attorney General may award grants to the governments of Indian tribes (or to authorized designees of those governments)
   1. to strengthen tribal criminal justice systems to assist Indian tribes in exercising special domestic violence criminal jurisdiction, including—
      1. law enforcement (including the capacity of law enforcement or court personnel to enter information into and obtain information from national crime information databases);
      2. prosecution;
      3. trial and appellate courts;
      4. probation systems
      5. detention and correctional facilities;
      6. alternative rehabilitation centers;
      7. culturally appropriate services and assistance for victims and their families; and
      8. criminal codes and rules of criminal procedure, appellate procedure, and evidence;
   2. to provide indigent criminal defendants with the effective assistance of licensed defense counsel, at no cost to the defendant, in criminal proceedings in which a participating tribe prosecutes a crime of domestic violence or dating violence or a criminal violation of a protection order;
   3. to ensure that, in criminal proceedings in which a participating tribe exercises special domestic violence criminal jurisdiction, jurors are summoned, selected, and instructed in a manner consistent with all applicable requirements; and
   4. to accord victims of domestic violence, dating violence, and violations of protection orders rights that are similar to the rights of a crime victim described in section 3771(a) of title 18, United States Code, consistent with tribal law and custom.
7. Supplement, Not Supplant — Amounts made available under this section shall supplement and not supplant any other Federal, State, tribal, or local government amounts made available to carry out activities described in this section.
8. Authorization of Appropriations — There are authorized to be appropriated $5,000,000 for each of fiscal years 2014 through 2018 to carry out subsection (f) and to provide training, technical assistance, data collection, and evaluation of the criminal justice systems of participating tribes,

Tribal Domestic Violence Special Jurisdiction Code

.010 Purpose.

Domestic violence and family violence are serious crimes against society, the (Tribe: substitute the name of the Indian Nation for Tribe where appropriate), and the family. The victim of domestic violence or family violence deserves the maximum protection from further violence that the law, and those who enforce the law, can provide. Furthermore, the strength of the (Tribe/s) is founded on healthy families, and the safety of victims of domestic and family violence, especially children, must be ensured by immediate intervention of law enforcement, prosecution, education, treatment, and other appropriate services.

It is the intent of the (Tribe/s) that the official response to domestic violence and family violence shall stress the enforcement of the laws to protect victims and to hold perpetrators accountable, which will, in turn, communicate the (Tribe’s) values that violent behavior against intimate partners or family members is criminal behavior and will not be excused or tolerated. This in turn will promote healing of families and the (Tribe) where possible, and promote cultural teachings and traditional (Tribal) values so as to nurture nonviolence and respect within families. This chapter shall be interpreted and applied to give it the broadest possible scope to carry out these purposes.

.020 Special Domestic Violence Court created.

There is hereby created a Special Domestic Violence Jurisdiction Court, which shall be subject to all criminal procedures of the (Tribe) to the extent they do not conflict with the provisions contained within this chapter/title/code. All proceedings under this chapter/title/code shall be recorded. All tribal laws related to these proceedings shall be published by posting on the tribal court website and available at the tribal court to all those subject to this chapter/title/code.

.030 Special Domestic Violence Criminal Jurisdiction.

1. The (Tribe) hereby exercises “Special Domestic Violence Criminal jurisdiction” as a “participating tribe,” as defined within 25 U.S.C. 1304 (2013), subject to applicable exceptions defined therein, in the (Tribe)’s Special Domestic Violence Jurisdiction Court.
2. In all proceedings in which the Tribal Court is exercising Special Domestic Violence Criminal Jurisdiction as a participating tribe, the rights in section .040 shall be provided in addition to all rights enumerated in the Indian Civil Rights Act, 25 U.S.C. 1302 to all defendants. Should there be any conflict between the rights herein and 25 U.S.C. 1302, those of 25 U.S.C. 1302 shall apply.
3. The (Tribe) hereby declares its special domestic violence criminal jurisdiction over any person only if he or she:
   1. Resides within the (Tribe)’s Indian country; or
   2. Is employed in the (Tribe)’s Indian country; or
   3. Is a spouse, intimate partner, or dating partner of:
      1. A member of the (Tribe)s; or
      2. An Indian who resides within the (Tribe)’s jurisdiction.

.040 Rights Applicable.

It is the policy of Special Domestic Violence Jurisdiction Court to provide all defendants the full protection of the laws. Therefore, in all proceedings in which the Special Domestic Violence Jurisdiction Court is exercising this jurisdiction, all defendant rights afforded herein shall apply. These rights include the following:

1. Rights of the Defendant. In all criminal proceedings, the defendant shall have the following rights:
   1. To be free from excessive bail and cruel punishment;
   2. To defend in person or by counsel;
   3. To be informed of the nature of the charges pending against him or her and to have a copy of those charges;
   4. To confront and cross-examine all prosecution or hostile witnesses;
   5. To compel by subpoena:
      1. The attendance of any witnesses necessary to defend against the charges; and
      2. The production of any books, records, documents, or other things necessary to defend against the charges;
   6. To have a speedy and public trial by Judge or a jury, unless the right to a speedy trial is waived or the right to a jury trial is waived in writing by the defendant;
   7. To appeal any final decision of the Tribal Court to the Tribal Court of Appeals;
   8. To not be twice put in jeopardy for the same offense;
   9. Not to be required to testify, and no inference may be drawn from a defendant’s exercise of the right not to testify; and
   10. To petition for a writ of habeas corpus as set forth in 25 U.S.C. 1304(e) and 25 U.S.C. 1303. The (Tribe) shall ensure notice required by 25 U.S.C. 1304(e) is timely provided to the defendant.
2. Right to Counsel
   1. All defendants, regardless of the length of the potential sentence for the crime being charged, have the right to effective assistance of counsel meeting the requirements of 25 U.S.C. 1302 while the Special Domestic Violence Jurisdiction Court is exercising its Jurisdiction. An indigent defendant shall be provided the assistance of a defense attorney meeting the requirements of 25 USC 1302 at the expense of the tribal government.
   2. Any person appearing as a party in Tribal Court shall have the right to counsel at his or her own expense. “Counsel” includes attorneys and spokespersons. Such counsel shall be of the parties’ own choosing and need not be an attorney or admitted to practice before the bar of any state, but must be members of the Tribal Bar.
3. Right to Jury Trial
   A defendant charged under Special Domestic Violence Jurisdiction has a right to a trial by jury of six fair and impartial jurors drawn from the community. A defendant may waive the right to a jury trial in a written, voluntary statement to the Court. All jury verdicts must be unanimous.
   1. Jury Pool. A list of eligible jurors shall be prepared by the Court. The eligible juror list shall be updated from time to time, but no less than once in each year. It shall reflect a fair cross-section of the community, and not systematically exclude any distinctive group in the community, including non-Indians. The Court shall provide for the selection of names of persons eligible for service as jurors. Jurors shall be 18 years of age or older and, notwithstanding any other law of the (Tribe)s or any of its agencies, shall be chosen from the following classes of persons:
      1. Tribal members living on or near the Indian Reservation;
      2. Residents of the Indian Reservation; and
      3. Employees of the (Tribe)s or any of its enterprises, agencies, subdivisions, or instrumentalities who have been employed by the (Tribe)s for at least one continuous year prior to being called as a juror.
4. Presiding Judges.
   1. To have a judge presiding over the criminal proceeding:
      1. Who has sufficient legal training to preside over criminal proceedings; and
      2. Who is licensed to practice law in any jurisdiction in the United States;
   2. Judge(s) meeting the qualifications in (4)(a) can be designated to preside in the Special Domestic Violence Court. The Chief Judge shall designate and assign Judges to the Special Domestic Violence Court every January by standing order and the standing order and qualifications of the Judge will become part of the trial record.
   3. To appeal any final decision to the Tribal Court of Appeals
5. Writ of Habeas Corpus.
   1. Availability of Writ
      1. Except as provided in subsection (5)(a)(ii) of this section, every person within the jurisdiction of the (Tribe)s imprisoned or otherwise restrained of liberty may prosecute a writ of habeas corpus to inquire into the cause of imprisonment or restraint and, if illegal, to be delivered from imprisonment or restraint.
      2. The writ of habeas corpus is not available to attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense by a court of competent jurisdiction and has exhausted the remedy of appeal, nor is it available to attack the legality of an order revoking a suspended or deferred sentence. Moreover, a person may not be released on a writ of habeas corpus due to any technical defect in commitment not affecting the person’s substantial rights.
      3. When a person is imprisoned or detained in custody by the (Tribe)s on any criminal charge for want of bail, such person is entitled to a writ of habeas corpus for the purpose of giving bail upon averring that fact in his petition, without alleging that he is illegally confined.
   2. Issuance of Writ.
      1. Application for a writ of habeas corpus is made by petition signed either by the party for whose relief it is intended or by some person on the petitioner’s behalf, and must be filed with the Clerk of the Court. It must specify:
         1. That the petitioner is unlawfully imprisoned or restrained of liberty;
         2. Why the imprisonment or restraint is unlawful; and
         3. Where or by whom the petitioner is confined or restrained.
      2. The parties to a writ, namely the Prosecutor, Chief Judge of the Tribal Court, and the Chief of Police, must be named. All parties must be named if they are known or otherwise described so that they may be identified.
      3. The petition must be verified by the oath or affirmation or declaration under penalty of perjury that the contents of the declaration are true to the best of the declarant’s belief of the party making the application.
   3. Granting of the Writ. Any Justice of the Court of Appeals may grant a writ of habeas corpus upon petition by or on behalf of any person restrained of liberty within the Justice’s jurisdiction. If it appears to such Justice that a writ ought to issue, it shall be granted without delay, and may be made returnable to the Court of Appeals.
   4. Time of Issuance and Requirements for Service.
      1. A writ of habeas corpus or any associated process may be issued and served on any day at any time. The writ should be served on the Tribal Prosecutor and Chief Judge of the Trial Court.
      2. The writ must be served upon the person to whom it is directed. If the writ is directed to a Tribal agency or employee, a copy of the writ must be served upon the Tribal Prosecutor.
      3. The writ must be served by a Tribal Police Officer, or any other person directed to do so by the Justice or the Court, in the same manner as a civil summons, except where otherwise expressly directed by the Justice, the Court, or the employee of any correctional facility in which the petitioner is held.
   5. Return of the Writ. The Prosecutor or his or her designee shall make a return and state in that return:
      1. Whether the person is in custody or under that person’s power of restraint; and
      2. If the person is in custody or otherwise restrained, the authority for and cause of the custody or restraint; or
      3. If the person has been transferred to the custody of or otherwise restrained by another to whom the party was transferred, the time and place of the transfer, the reason for the transfer, and the authority under which the transfer took place.
         
         The return must be signed and verified by affirmation.
          
   6. Hearing. The prosecutor/police/jailer (Chief Judge) commanded by the writ shall cause the petitioner to be brought before the Court as commanded by the writ unless the petitioner cannot be brought before the Court without danger to the petitioner’s health. Sickness or infirmity must be confirmed. If the Court is satisfied with the truth of the writing, the Court may proceed and dispose of the case as if the petitioner were present or the hearing may be postponed until the petitioner is present. Any law enforcement officer may bring the person as directed. Unless the Court postpones the hearing for reasons of the petitioner’s health, the Court shall immediately proceed to hear and examine the return. The hearing may be summary in nature. Evidence may be produced and compelled as provided by the laws governing criminal procedures and evidence.
   7. Refusal to Obey Writ Is Contempt. If the person commanded by the writ refuses to obey, that person must be adjudged to be in contempt.
   8. Disposition of Petitioner. If the Court finds in favor of the petitioner, an appropriate order must be entered with respect to the judgment or sentence in the former proceeding and any supplementary orders as to reassignment, retrial, custody, bail, or discharge as may be necessary and proper. If the Court finds for the prosecution, the petitioner must be returned to the custody of the person to whom the writ was directed.
6. Right to a Speedy and Public Trial. A defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of arraignment. A defendant released from jail, whether or not subjected to conditions of release pending trial, shall be brought to trial not later than 90 days after the date of arraignment.

.050 Special jurisdiction—Criminal conduct applicable.

The (Tribe)s exercise the special domestic violence criminal jurisdiction of a defendant for criminal conduct that falls into one or more of the following categories:

1. Domestic Violence and Dating Violence. An act of domestic violence or dating violence as defined in 25 U.S.C. 1304(a) that occurs within the jurisdiction of the (Tribe).
2. Violations of Protection Orders. An act that occurs in the (Tribe)’s Indian country, and:
   1. Violates the portion of a protection order that:
      1. Prohibits or provides protection against violent or threatening acts of harassment against, sexual violence against, contact or communication with, or physical proximity to the person protected by the order;
      2. Was issued against the defendant;
      3. Is consistent with 18 U.S.C. 2265(b).

.060 Statute of limitations. (use if your tribe has such a statute, if not eliminate)

For purposes of this chapter, the statute of limitations shall be consistent with the statute applicable to other crimes committed under the (Tribe)’s or any successor code.

.070 Nonwaiver of sovereign immunity.

Nothing in this chapter shall be deemed to constitute a waiver by the (Tribe)s of its sovereign immunity for any reason whatsoever.

.080 Severability.

If any part, or parts, or the application of any part of this chapter is held invalid, such holding shall not affect the validity of the remaining parts of this chapter. The Tribal Council hereby declares that it would have passed the remaining parts of this chapter even if it had known that such part or parts or application of any part thereof would be declared invalid.

.090 Savings.

This chapter takes effect on the date approved by the Tribal Council and does not extinguish or modify any civil or criminal liability or enforcement of such penalty or forfeiture that existed on or prior to the effective date of this chapter and such code shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such civil or criminal action, enforcement of any penalty, forfeiture or liability.

Tulalip Tribal Court Rules
 

Section 6 Tulalip Tribes Domestic Violence Court Rules

6.1 PURPOSE

Domestic violence offends the traditional Tulalip tribal values of honoring the family and respecting all members of the community, and it is contrary to the best interests of the family, the Tribes and the community. The purpose of the Tulalip Tribes Domestic Violence Court is to promote important traditional Tulalip tribal values by protecting victims of domestic violence and holding perpetrators accountable while ensuring that all persons accused of domestic violence crimes are provided equal protection and due process of law.

6.2 CREATION

The Tulalip Tribal Court shall exercise the jurisdiction conferred by Chapter 4.25 of the Tulalip Tribal Code and while sitting in the exercise of such jurisdiction shall be known and referred to as the "Tulalip Domestic Violence Court."

6.3 DOCKET

6.3.1 Separate Docket

A separate docket shall be maintained for the Tulalip Domestic Violence Court. Cases assigned to the Tulalip Domestic Violence Court will be heard on Mondays, or as otherwise designated by the Tulalip Tribal Court calendar.

6.3.2 Types of Cases Assigned

All criminal domestic violence cases (all criminal cases with the designation "DV") shall be assigned to the Tulalip Domestic Violence Court docket. Additionally, any civil protection order case involving the issuance, modification or enforcement of a permanent or temporary protection order (any civil case with the designation "RO") may be assigned to the Tulalip Domestic Violence docket at the judge's sole discretion.

6.4 RIGHTS OF DEFENDANT

6.4.1 Defendant Rights

It is the policy of Tulalip Domestic Violence Court to provide all defendants the full protection of the laws. Therefore, in all proceedings in which the Tulalip Domestic Violence Court is exercising its Special Domestic Violence Criminal Jurisdiction pursuant to TTC Chapter 4.25, all defendant rights afforded by TTC §4.25.040(2) shall apply. These rights include the following:

1. To be free from excessive bail, excessive fines and cruel and unusual punishment;
2. To defend in person or by counsel;
3. To be informed of the nature of the charges pending against him or her and to have a copy of those charges;
4. To have publicly available, the criminal laws, rules of evidence, and rules of criminal procedure of the Tribes, prior to being charged;
5. To confront and cross-examine all prosecution or hostile witnesses;
6. To compel by subpoena:
   1. The attendance of any witness necessary to defend against the charges; and
   2. The production of any books, records, documents, or other things necessary to defend against the charges;
7. To have a speedy and public trial by Judge or a jury, unless the right to a speedy trial is waived or the right to a jury trial is waived by the defendant;
8. To have a judge presiding over the criminal proceeding:
   1. Who has sufficient legal training to preside over criminal proceedings; and
   2. Who is licensed to practice law in any jurisdiction in the United States;
   3. Judge(s) meeting these qualifications can be designated to preside in the Special Domestic Violence Court. The Chief Judge shall designate and assign Judges to the Special Domestic Violence Court every January by standing order and the standing order and qualifications of the Judge will become part of the trial record.
9. To appeal any final decision of the Tulalip Domestic Violence Court to the Tribal Court of Appeals;
10. To be tried only once by the Tulalip Domestic Violence Court for the same offense;
11. Not to be required to testify, and no inference may be drawn from a defendant's exercise of the right not to testify;
12. To have a record of the criminal proceeding, including an audio or other recording, created and maintained;
13. To petition for a writ of habeas corpus under Tulalip Tribal law and federal law; and
14. All other rights whose protection is necessary under the Constitution of the United States including the right to be secure in their persons, houses, papers and effects against unreasonable search and seizures and not to be subjected to a warrant unless it was issued upon probable cause under oath or affirmation and particularly describing the place to be searched and the person or thing to be seized, the right to due process and equal protection of the law and rights in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise Special Domestic Violence Criminal Jurisdiction over the defendant.

6.4.2 Right to Counsel

All defendants, regardless of the length of the potential sentence for the crime being charged, have the right to effective assistance of counsel meeting the requirements of TTC §2.25.070(3)(a) while the Tulalip Domestic Violence Court is exercising its Special Domestic Violence Criminal Jurisdiction conferred by Chapter 4.25 of the Tulalip Tribal Code. An indigent defendant shall be provided the assistance of a defense attorney meeting the requirements of TTC §2.25.070(3)(a) at the expense of the tribal government. Defense attorneys assigned to an indigent defendant will submit their credentials to the court demonstrating they meet the requirements of federal law and such credentials and bar licensing will become part of the trial record.

6.4.3 Right to Jury Trial

A defendant charged under TTC Chapter 4.25 has a right to a trial by jury of six fair and impartial jurors drawn from the community according to TTC §2.05.110. A defendant may waive the right to a jury trial in a written, voluntary statement to the Court. All jury verdicts must be unanimous.

6.5 SUPPLEMENTAL PROCEDURE

6.5.1 Pre-Trial/Trial Procedure—Additional Requirement

1. The initial appearance and/or arraignment will occur as currently outlined in the Tulalip Tribes criminal procedure rules. A Defendant charged with a domestic violence crime shall also be informed of his/her right to a federal writ of habeas corpus and or a stay under the federal Violence Against Women Act (VAWA). This notification will be contained in the Advisement of Rights Form signed by the Defendant. After the initial appearance and/or arraignment cases will be assigned to the Tulalip Domestic Violence Court calendar.
2. All other generally applicable Civil and Criminal Rules of Procedure apply to these proceedings.

6.5.2 Post-Trial Procedure

Post-trial procedure is meant to describe the general operation of the Domestic Violence Court and does not include procedures relating to appeals to the Tulalip Tribes Court of Appeals. All appeals will be handled as provided by the rules of appellate procedure.

6.5.3 Sentencing and Probation

1. The Tulalip Tribes Domestic Violence Court finds that each person who pleads guilty or is found guilty of a crime of domestic violence should be on monitored probation which includes participation in a certified Domestic Violence Batterer’s Re-education program.
2. The Domestic Violence Court will hold a weekly Monday calendar to monitor a participant’s progress in their treatment program. This monitoring includes receiving input from treatment providers and probation on the successful participation with the treatment program requirements.
3. The Judge shall review the client’s progress at each review hearing and will impose short term or long term sanctions for noncompliance to encourage participation and completion of appropriate treatment modalities.

TULALIP FOUNDATION REQUEST FOR APPLICATIONS FOR INDIGENT CRIMINAL CONFLICT ATTORNEY SERVICES

REQUEST FOR APPLICATIONS: Three to four Grant Funded Indigent Conflict Criminal Defense Contracts will be awarded.

APPLICATION DUE DATE:       December 2, 2010

BACKGROUND INFORMATION:

The Tulalip Tribes Foundation, a Tribal Non-profit agency, requests proposals for the provision of criminal conflict counsel services.

The Tulalip Tribes has a nationally recognized and award winning Tribal court system that is known for its competence and its innovative approach to the legal needs of its community. As the court has grown, so too has the need for conflict criminal defense counsel for indigent clients. Currently, the University of Washington, Tribal Defense Clinic is the primary provider of legal defense. Due to conflict issues, the Clinic cannot represent all eligible defendants. Therefore conflict counsel is regularly appointed.

Period of Performance: January 3, 2011 to December 31, 2011.

QUALIFICATIONS AND WORK PERFORMANCE EXPECTATIONS:

Those who are qualified to submit proposals are:

1. Members in good standing of the Tulalip Tribal Bar, or
2. Members in good standing of the Washington State Bar Association
3. Those who demonstrate a willingness to take the Tulalip Bar within one month of receiving notice of intent to contract with the attorney pursuant to this request (passage of the Tulalip Bar test will be required before the contract will be awarded), and
4. Five years experience in criminal law and trial practice is preferred; however, a minimum of two years is expected.

Individuals providing criminal defense work will be responsible for providing competent representation. Such will include:

1. A comprehensive understanding of the Tulalip Code and case law, and other applicable federal and state law as it relates to criminal practice in the Tulalip Tribal Court.
2. Appropriate initial client contact.
3. Timely and ongoing factual and legal analysis of the case, development of case strategy, and review of the case prior to the scheduled court date.
4. Effective ongoing contact and communication with the client.
5. Appropriate contact with other parties in the Tulalip criminal justice system, to include the prosecution, probation, treatment providers, etc.
6. Conducting plea negotiation on behalf of the client.
7. Representation of the client at a variety of hearings, which could include first appearance, arraignment, bail hearings, pre-trial, trial readiness and motion hearings, bench and jury trials, and sentencing.
8. Arrival at court 15 minutes prior to the start of all scheduled calendars.
9. Representation of the client through case disposition, except as otherwise determined by the court.
10. Submission of timely invoices to the Court Director, Wendy Church.
11. Ensuring that clients complete a survey at the end of representation.
12. Provision of case statistics and other data necessary for grant reporting on a quarterly basis in an approved format. Such will not include confidential information or information covered by the attorney client privilege.
13. Provision of any other appropriate service necessary for competent criminal defense representation.

Successful applicants will be required to enter into a contract with the Tulalip Foundation and will be independent contractors, not employees of the Tribes.  As such, they will be required to maintain their own malpractice insurance.  In addition, successful bidders will be required to adhere to the Washington Rules of Professional Responsibility, any Tulalip Court Code of Ethics; Ordinance 49, Section1.8 and other applicable laws governing representation.

SUBMISSION OF APPLICATIONS:

Please submit six (6) copies of the proposal. One (1) copy must have original signatures. The application, whether hand or mail delivered, must be received by Wendy Church, Court Director, no later than 4:00 p.m. on December 3, 2010.

NO OBLIGATION TO CONTRACT

The Request for Applications does not obligate Tulalip Foundation to contract for services specified herein. The Tulalip Foundation also reserves the right to cancel or reissue the Request for Applications in whole or in part prior to execution of a contract.

APPLICATION CONTENTS: Interested individuals should provide a resume, references, and a detailed written description of work experience. In light of the qualifications described above. Such should include:

1.  written description of the applicant’s experience and knowledge in the following areas:
   1. Tribal courts
   2. Tribal communities
   3. Criminal law,
   4. Tribal and related federal law
   5. Criminal defense.
2. Specify the organization structure of the law firm or solo practitioner’s law office, including staff and resources.
3. Provide a detailed resume for the attorney addressing experience and qualifications related to this proposal.
4. Provide three references. Inclusion of the reference in your proposal is also an agreement that the Tulalip Foundation may contact the named reference. The Foundation may contact any companies or individuals, whether offered as references or otherwise, to obtain information that will assist the Foundation in evaluating the Application. The Foundation retains the right to use such information to make selection decisions. Submittal of a proposal is agreement that the Foundation may contact and utilize such information.

EVALUATION AND AWARD

The Foundation reserves the right to award the contracts to the applications that best meet the needs and interest of the Foundation. Evaluation of responsive proposals will be in accordance with the requirements stated herein and any addenda issued. Selection will be based upon the qualifications of the proposer and the proposal(s) that will suit the needs and interests of the Foundation. Indian Preference applies to the award of this contract in accordance with applicable regulations and policies.

COMPENSATION

Required Information – Your proposal must provide the following:

• Agreement to the hourly rate of $75 per hour with a maximum of $1,000 per case.
• Request for Application Schedule:
• Issue Request: November 2, 2010
• Deadline for Submittal of Proposals: Thursday, December 2, 2010
• Interview for Qualifying Candidate if necessary: Friday, December 10, 2010, between 1 and 5 pm.
• Contract Start Date: Monday, January 3, 2011

All successful applicants will be required to attend an all day training on January 21, 2011. CLE credits will be sought for such training and the training will include one hour of Ethics.

These contracts will replace the existing process for the appointment of conflict counsel services at the Tulalip Tribes. However, it is anticipated that on occasion additional appointment of conflict counsel will be necessary, which will follow the existing rotation assignment procedures.

Tulalip Consultant Contract

6406 Marine Drive. - Tulalip, WA 98271
Phone: 360 / 716-4000

FOR INDIGENT CONFLICT DEFENSE LEGAL SERVICES

The Tulalip Foundation (hereafter "Foundation" desires to contract with independent attorneys to provide conflict criminal defense counsel services in the Tulalip Tribal Court; and ________________, an attorney licensed to practice law in the State of Washington and a member of the Tulalip Bar, and as an independent contractor, is interested in contracting with the Foundation for the provision of conflict criminal defense services (hereafter "Attorney"). In consideration for the mutual benefits to be derived and the promises and conditions contained herein the above parties CONTRACT AND AGREE as follows:

I. PURPOSE OF AGREEMENT

The purpose of the Contract is to provide criminal defense services to indigent defendants charged with offenses or at risk of a loss of liberty or liberty interest in the courts of the Tulalip Tribes. The Foundation has received a Grant from the Bureau of Justice Assistance for Tribal Civil and Criminal Legal Assistance Grant pursuant to BJA-2010-2676 and 78. THIS IS A GRANT FUNDED CONTRACT AND CONTINUED FUNDING IS DEPENDANT ON CONTINUED RECEIPT OF GRANT FUNDING.

II.  TERM

The term of this Contract shall be 12 months from January 3, 2011 and this Contract shall terminate by its own terms on December 31, 2011. Payments made or work completed after the termination of the term of this Contract shall not cause this Contract to be renewed. Renewal shall be at the absolute discretion of each of the parties.

III. INDEPENDENT CONTRACTOR STATUS

The express intention of the parties is that the Attorney is an Independent Contractor and not an employee, agent, joint venture or partner of the Foundation. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employee and employer between the Attorney and the Foundation. The Attorney is not precluded by this contract from engaging in the practice of law beyond the scope of this Contract.

IV. PERSONAL SERVICES OF ATTORNEY CONTRACTED

This Contract is for the personal professional services of the Attorney. The Attorney shall not assign or subcontract this Contract in whole or in part to any other attorney without first obtaining written consent of the Court Director. In no event may a case be transferred, assigned, or subcontracted to other legal counsel for a fee or other compensation except as provided under this Contract.

V. CASES ASSIGNED AND CASELOAD

Cases will be assigned by a court defined process. The court will determine the number and type of cases assigned.

VI. SPECIAL CONDITIONS

The following special conditions apply to this agreement and, unless otherwise indicated, supersede any conflicting provision of this Contract.

1. PHYSICAL OFFICE REQUIRED/COMMUNICATION: The Attorney presently and regularly maintains an office for the practice of law at _____________________________ the Attorney’s current local office telephone and fax numbers are ___________________ and________________________, respectively. The Attorney’s current office/work e-mail address is _________________________. Throughout the entire term of the Contract, the Attorney will continue to maintain an office, telephone, fax, and e-mail address.
2. PROFESSIONAL LIABILITY INSURANCE: The Attorney agrees to maintain professional liability insurance for the Attorney and all employees for any and all acts which occur during the course of his or her representation of clients pursuant to this Contract. The Attorney will provide proof of insurance to the Court Director by January 31, 2011.
3. CLE AND OTHER TRAINING: Attorney agrees to participate in any court required training and maintain his or her continuing legal education credits at Attorney’s own expense.
4. WSBA DISCIPLINARY PROCEEDINGS: The Attorney will immediately report any formal disciplinary proceedings and/or any admonishment, censure, or any other formal discipline by the Washington State Bar Association or by another state or tribal jurisdiction or court to the Court Director. If the circumstances underlying such matters negatively reflect on the Attorney’s duty and ability to effectively and competently render legal services under this Contract, it is grounds for termination of this Contract. Suspension or disbarment is grounds for immediate suspension and/or termination of this Contract.
5. CLIENT FILES: The Attorney will establish and maintain organized, orderly, and complete files for each case. Such files shall contain copies of all correspondence, orders, plea offers, discovery, memos and briefs, and other documents, and pleadings related to the case. Such files shall be promptly updated. They shall be immediately transferred to new counsel whenever the case(s) is transferred for any reason. Files will be kept for a period of seven (7) years after closing.
6. CLIENT COMMUNICATION/INTIAL MEETINGS: The Attorney will establish and maintain client contact, keep the client informed of the progress of the case, provide the client with copies of court orders, and be accessible to the client for legal advice and consultation throughout judgment, disposition, acquittal or otherwise as determined by the court. The Attorney acknowledges that it is the Attorney’s duty to initially meet and confer with a client as soon as reasonably possible following appointment. Without limiting that duty, if earlier contact is required under the circumstances, the Attorney shall meet in person with an in-custody client as soon as possible after appointment and must meet with client prior to the pre-trial hearing.
7. DUTY TO PROVIDE COMPETENT REPRESENTATION: Attorney is responsible for providing competent representation. Such representation shall include, but not be limited to, a comprehensive understanding of Tulalip Criminal law; maintaining appropriate client communication, as outlined in the preceding paragraph; establishing and maintaining contact with the client’s treatment providers (if any); establishing and maintaining contact with persons who are serving in the capacity as a Guardian Angel; developing and implementing a defense strategy that is consistent with the facts, the law, and the attorney’s ethical obligations; negotiating resolutions to cases, where appropriate; representing the client at a variety of hearings, including bench and jury trials; reviewing the assigned case prior to each scheduled hearing after the first appearance; arriving at least fifteen minutes before each court hearing; maintaining appropriate contact with other parties in the Tulalip criminal justice system, to include the prosecution, probation, etc., and completing any case pending as of the date of contract termination.
8. CASELOAD REPORTS: The Attorney will provide to the Court Director:
   1. Within ten (10) days following each calendar month a list of cases assigned during the preceding month, including the client name, cause number, nature of the charge, date assigned, and offense class (if any) will be provided on the invoice;
   2. The Court Director may request and the Attorney will thereafter provide a case closing report within five (5) days of the transfer, withdrawal, judgment or other completion of a case assigned under this Contract. The report will be on a form provided by the Court Director.
   3. On request of the Court Director, the Attorney shall provide a list of open cases assigned under this Contract, including client, court cause numbers, case type, date assigned, duration or ‘age’ of the case, and next court date.
9. CLIENT SURVEYS: At the conclusion of each case, the Attorney shall request each client represented to fill out a survey about the client’s satisfaction with the representation received. Such should be done on a form provided to the Attorney by the Court Director. These surveys are part of the Grant reporting requirements and are material to the contract.

In addition to any other remedy, failure to provide such reports mentioned herein may result in suspension by the Court Director of all or part of any payment due Attorney.

VII. COMPENSATION

In consideration of the professional services made available and provided under the Contract, The Foundation will pay the Attorney as follows:

1. BASIC CASELOAD: The hourly rate used is $75 per hour, not to exceed $1,000 per case. Any payment beyond these limits per case requires the written prior approval of the Court Director, which would require a specific request for the number of hours and reasons for exceeding the case limit.
2. TRAVEL REIMBURSEMENT: Travel time shall not be billed under this contract.
3. PROCEDURES FOR PAYMENT: The Attorney shall submit monthly invoices on a form provided by the Court Director, which will include the information required in VI H by the 10^th of each month. The Attorney will be paid within 30 days of a submitted invoice.

VIII. OTHER DEFENSE SERVICES AND EXPENSES

1. COSTS: All normal office expenses including local and long distance telephone cost, copier, fax, postage, consumable supplies, travel within the Tulalip Tribes, general clerical support, and general overhead expenses are included in the Attorney’s basic fee provided under this Contract. The Court Director may allow reasonable and necessary out of pocket expenses in extraordinary circumstances upon proof of the cost accrued or expended. All significant or extraordinary expenses must be requested in writing and approved in advance.

IX. TERMINATION OF CONTRACT

1. TERMINATION FOR CAUSE: The Foundation may terminate this contract immediately for cause, if in the sole determination of the Court Director, the Attorney is not providing adequate legal services or is in material non-compliance with the terms of this Contract. In termination for cause, the Court Director may direct that some or all pending cases be assigned to other counsel. In such circumstances, the Attorney shall promptly but in no event later that three (3) days after notice of termination for cause, identify to the Administrator any pending cases in which special circumstances exist, such as imminent trial schedule, lengthy or complex course of litigation, special client circumstances. In the event the Court Director and Attorney cannot agree on reassignment or retention of particular cases, the matter shall be referred to the presiding judge for determination of the issue of assignment of counsel. The Attorney will be responsible for the completion of all cases not reassigned. Monies billed and owing to the Attorney shall be paid within 15 days after submission of the final bill.
2. OTHER TERMINATION: Either party may terminate this Contract upon ten day (10) days advance written notice for any reason. The Attorney shall be responsible for completion of all cases assigned before that time and shall not withdraw or transfer such cases to other counsel unless otherwise directed by the Court Director.

X. TAX RESPONSIBILITIES

Both parties acknowledge that the contract prosecutor is not an employee for federal or state tax purposes. Both parties acknowledge that the Tribes shall not assist with any federal or state income tax withholdings or make any tax contributions on behalf of the contract prosecutor.

XI. OTHER PROVISIONS

1. The Attorney shall keep confidential all information regarding the Foundation received as a result of his or her performance of his or her duties under this Contract.
2. This Contract is subject to the provisions of Ordinance 60, the Tribal Employment Rights Ordinance. Consultant, in subcontracting and employment, shall conform to the provisions of Ordinance 60.
3. Contractor shall be admitted to practice in Tulalip Tribal court.
4. Contractor shall adhere to the Washington Rules of Professional Responsibility, any Tulalip Court Code of Ethics, the Tulalip Rules of Professional Responsibility for non-lawyer spokespersons; Ordinance 49, Section1.8 and other applicable laws governing representation

XII. GOVERNING LAW

This contract and all disputes arising hereunder shall be governed by and construed in accordance with the laws of the Tulalip Tribes and enforceable only in the Tulalip Tribal Courts. This provision does not waive any immunity the Foundation may have.

XIII. INTEGRATED AGREEMENT

This Contract embodies the entire agreement between the Foundation and The Attorney. No verbal agreements, conversations, or understandings with any officer, agent or employee of the Foundation prior to the execution of this contract shall affect or modify any of the terms, conditions or obligations contained in any documents comprising this Contract.

XIV. MODIFICATION

After signature by the parties, this Contract may be modified, amended, or extended only upon written agreement of the parties.

 

Glossary

Action: Term that in usual legal sense means lawsuit.

Civil Jurisdiction: The power of the court to hear and decide civil actions.

Civil Law: Laws relating to private rights and remedies as opposed to criminal law.

Common Law: A system of law that is derived from judges’ decisions rather than legislation.

Competent: Properly qualified; adequate.

Concurrent: Together, at the same time. In legal parlance: having the same authority.

Contempt: An act that obstructs a court’s work or lessens the dignity of the court.

Conviction: In a criminal action, the finding that the defendant is guilty of the crime.

Criminal Justice System: The network of courts and tribunals that deal with criminal law and its enforcement.

Custom: Regular behavior (of persons in a geographical area or type of business) that gradually takes on legal importance so that it will strongly influence a court’s decision.

Declination: A formal refusal.

Disposition: A final settlement or result.

Elements: The basic parts of a crime or civil action that must be proven.

Enhanced Penalties: Greater or increased penalties as a result of aggravating factors.

Exclusive Jurisdiction: The power that a court or other tribunal exercises over an action or over a person to the exclusion of all other courts; that forum in which an action must be commenced because no other forum has the jurisdiction to hear and determine the action.

Exemption: Freedom from a general duty; a privilege allowed by law; immunity from certain legal obligations.

Exhaustion Doctrine: When a non-Indian company or individual is seeking to challenge the civil jurisdiction of a tribal court, it must first raise those challenges in tribal court, not federal court. Even if the tribal court first rejects these challenges, the person making these claims must first exhaust all chances to appeal that rejection in the tribal legal system before coming to the federal court.

Explicit: Fully developed or described.

Felony: A crime of a more serious nature than a misdemeanor. Under many state statutes it is punishable by more than a year in prison or even death.

Habeas Corpus: (Latin for “You shall have the body.”) A legal action filed to protect a person from unlawful detention.

Indigency: A level of poverty with real hardship and deprivation.

Inherent: Used in resource as inherent jurisdiction or inherent power; natural authority not derived from another; powers originating from the nature of government or sovereignty that are not dependent on being granted by another government.

Injunction: A judge’s order to a person to do or refrain from doing a particular thing. An injunction may be preliminary or temporary (until the issue can be fully tried in court), or it may be final or permanent.

Judiciary: The branch of government that interprets the law; the branch that judges.

Jurisdiction: Legal authority. A government’s power to exercise authority over persons and things within its territory.

Misdemeanors: Any offense lower than a felony and generally punishable by fine, penalty, forfeiture, or imprisonment. Oftentimes misdemeanors are punishable by less than one year of imprisonment.

Per Capita: (Latin for “by head.”) By the number of individual persons, each equally.

Perpetrator: One who commits an offense or crime.

Petition: A written request or application to a court that it takes a particular action, for example, a petition for protection order.

Prejudice: Bias or preconceived opinion.

Probation: A sentence of a convicted offender, released into the community under supervision of a probation officer.

Pro Bono: Work that is performed for the public good without charge, especially legal work for a client with low income.

Prosecutor: The public official who presents the government’s case in criminal law.

Protocol: The rules of correct or appropriate behavior for a particular group of people in a particular situation. For example, the police protocol for handling domestic violence.

Recusal: Disqualification or removal of a judge from hearing a case due to actual or potential bias or conflict of interest.

Respondent: The person against whom an appeal is taken or against whom a motion is filed.

Restitution: Giving something back; making good for something.

Revoking: Reversing a legal decision.

Sanctioned: Admonished, cautioned, or reprimanded. A sanction is a penalty or punishment attached to a law so that it is obeyed.

Sentencing: The phase of a criminal proceeding after the offender is found guilty, when the punishment is imposed.

Sovereign Immunity: A government’s freedom from being sued.

Unanimity: The condition of being unanimous; complete agreement within a group.

Waive: To voluntarily give up a right.

Ward: A person, especially a child, placed by the court under the care of a guardian.

 

Acronyms

BIA: Bureau of Indian Affairs

BOP: Bureau of Prisons

BJA: Bureau of Justice Assistance

CLE: Continuing Legal Education

DOI: Department of Interior

DOJ: Department of Justice

ICRA: Indian Civil Rights Act

ICWA: Indian Child Welfare Act

ILOC: Indian Law and Order Commission

ITWG: Intertribal Technical-Assistance Working Group on Special Domestic Violence Jurisdiction

NCAI: National Congress of American Indians

NCIC: National Crime Information Center

OVW: Office on Violence Against Women

SART: Sexual Assault Response Team

SAUSA: Special Assistant United States Attorney

SDVCJ: Special Domestic Violence Criminal Jurisdiction

TLOA: Tribal Law and Order Act

TLPI: Tribal Law and Policy Institute

VAWA: Violence Against Women Act

Footnotes

[1] Congress and the Supreme Court recognize and affirm the inherent power of tribes. They have restricted and relaxed restrictions on that power. See Indian Civil Rights Act, 25 U.S.C. § 1301(2), §1304(b.1); Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978), U.S. v. Lara, 541 U.S. 193 (2004).


[2] See General Guide to Criminal Jurisdiction in Indian Country (including chart) at http://www.tribal-institute.org/lists/jurisdiction.htm (accessed January 27, 2015).


[3] See Major Crimes Act, 18. U.S.C. § 1153 and General Crimes Act, 18 U.S.C. § 1152.


[4] A number of federal laws of general applicability directly impact domestic violence in Indian country, i.e., Interstate Domestic Violence, 18 U.S.C. § 2261, Interstate Stalking and Cyber Stalking, 18 U.S.C. §2261(A), Interstate Violation of a Protection Order, 18 U.S.C. § 2262, Domestic Assault by a Habitual Offender, 18 U.S.C. § 117, Firearms Offenses, 18 U.S.C. § 922.


[5] 435 U.S. 191, 210 (1978.)


[6] 495 U.S. 676, 684 (1990).


[7] 541 U.S. 193 (2004).


[8] U.S. v. Lara, 541 U.S. 193, 207 (2004).


[9] 25 U.S.C. § 1302


[10] Argersinger v. Hamlin, 407 U.S. 25 (2002), Alabama v. Shelton, 535 U.S. 654 (2002).


[11] Maze of Injustice: Failure to Protect Indigenous Women from Sexual Violence in the USA, Amnesty International USA, New York (2007). Available at http://www.amnestyusa.org/pdfs/MazeOfInjustice.pdf (accessed January 28, 2015).


[12] The ILOC investigated issues related to crime in Indian country, and provided a report to the president and Congress, A Roadmap for Making Native America Safer, November 2013. Available at http://www.aisc.ucla.edu/iloc/report/ (accessed January 28, 2015).


[13] According to the Bureau of Justice Statistics, U.S. Department of Justice, Office of Justice Programs at least 70 percent of the violent victimizations experienced by American Indians are committed by persons not of the same race—a substantially higher rate of interracial violence than experienced by white or black victims. Greenfeld, Lawrence, and Steven Smith. American Indians and Crime. Bureau of Justice Statistics, U.S. Department of Justice, Office of Justice Programs, February 1999. NCJ 173386. Available at http://www.bjs.gov/content/pub/pdf/aic.pdf (accessed January 28, 2015).


[14] In fiscal years 2005 through 2009, U.S. Attorney’s Office (USAOs) resolved about 9,000 of the approximately 10,000 Indian country matters referred to their offices by filing for prosecution, declining to prosecute, or administratively closing the matter. USAOs declined to prosecute 50 percent of the 9,000 matters. In addition: (1) About 77 percent of the matters received were categorized as violent crimes, and 24 percent as nonviolent crimes. (2) Declination rates tended to be higher for violent crimes, which were declined 52 percent of the time, than for nonviolent crimes, which were declined 40 percent of the time. U.S. Department of Justice Declinations of Indian Country Criminal Matters, GAO-11-167R: Published: December 13, 2010. Publicly Released: December 13, 2010. Available at http://www.gao.gov/products/GAO-11-167R (accessed January 28, 2015).


[15] The repeal did nothing to change the fact that the jurisdiction is limited to Indian country and the only Indian country in Alaska at present is Metlakatla.


[16] 25 U.S.C. § 1304(d)(4).


[17] Implicit in 25 U.S.C § 1302(10).


[18] The Indian country SAUSA program makes it possible for U.S. Attorneys to appoint appropriately qualified prosecutors to work in the capacity of an Assistant U.S. Attorney for the prosecution of certain Indian country cases. SAUSA’s could be appointed before TLOA, but TLOA encouraged the appointments and the number of SAUSA’s in Indian country has increased dramatically.


[19] 25 U.S.C. § 1302(b)(1).


[20] Webster’s New Third Int’l Dictionary 461 (unabridged ed. 2002).


[21] 25 U.S.C. §1304(a)(1).


[22] 25 U.S.C. §1304(a)(5).


[23] 25 U.S.C. § 1304(a)(2)


[24] 25 U.S.C. § 1304(c)(2)(A).


[25] Strickland v. Washington, 466 U.S. 668 (1984).


[26] Muniz v. Smith, 647 F.3d 619 (6th Cir. 2011).


[27] 25 U.S.C. § 1302(c)(2).


[28] 25 U.S.C. § 1302(b)(5).


[29] 25 U.S.C. § 1304(d)(2)


[30] 25 U.S.C. § 1302(a)(10).


[31] See Apodaca v. Oregon, 406 U.S. 404 (1972), Johnson v. Louisiana, 406 U.S. 356 (1972, and Burch v. Louisiana, 441 U.S. 130 (1979).


[32] 25 U.S.C. § 1304(d)(3)


[33] Duncan v. Louisiana, 391 U.S. 145 (1968).


[34] E.g., federal juries must consist of twelve persons, but state juries can consist of six jurors. Williams v. Florida, 399 U.S. 78 (1970); federal juries must reach a unanimous verdict, but unanimity is not required of state juries unless they contain only six jurors. Apodaca v. Oregon, 406 U.S. 404 (1972).


[35] Baldwin v. New York, 399 U.S. 66 (1970).


[36] 25 U.S.C. § 1302(a)(10).


[37] See Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).


[38] State v. Pelican, 154 Vt. 496, 580 A.2d 942 (1990) (collecting cases).


[39] 25 U.S.C. § 1303.

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