The Nez Perce Tribe is the first tribe in Idaho to implement the Violence Against Women Act [i] and will begin enforcing Special Tribal Criminal Jurisdiction this month.[ii] This article piece seeks to introduce readers to VAWA, focusing particularly on Special Tribal Criminal Jurisdiction (“STCJ”) and delving into the potential benefits, foreseeable consequences, and promising partnership opportunities that STCJ presents.

What Is the Violence Against Women Act?

The Violence Against Women Act (“VAWA”), initially passed in 1994 and reauthorized several times since, is a significant Congressional response to crimes committed by non-Natives in Indian Country.[iii] The VAWA aims to address these crimes through a combination of enforcement, education, deterrence, and victim-centered advocacy, focusing on both prevention and support for victims.

The Violence Against Women Act includes various components implemented at the federal, state, and local levels.[iv] These components involve establishing legal protections, such as enhanced sentencing guidelines for federal sex offenses and domestic violence. VAWA also provides federally backed protection orders for victims and support services for victims, which include funding for rape crisis centers and shelters, as well as a national domestic violence hotline.[v] Additionally, VAWA addresses the specific needs of Native American women through Special Tribal Criminal Jurisdiction, which grants tribes the authority to prosecute non-Native offenders and integrate services for survivors of violence, ensuring accessibility and effectiveness.[vi]

The Violence Against Women Act is crucial as it provides essential funding for training law enforcement, prosecutors, and judges to effectively handle cases with sensitivity. It also supports education programs that promote respectful relationships and gender equity to prevent domestic violence. VAWA encourages collaboration among law enforcement, prosecution, courts, and victim services, facilitating a coordinated community response. Additionally, it provides grant support for community violence prevention programs.

VAWA also offers federal housing protections for victims, including restrictions on eviction based on crimes committed against them, and transitional housing, legal assistance, and supportive services for those victims.

Finally, VAWA mandates the ongoing collection and reporting of data related to the incidents of crimes covered by Special Tribal Criminal Jurisdiction for research purposes to help us better understand and address the root causes and dynamics of domestic and sexual violence in Indian Country. The Violence Against Women Act addresses violence against women broadly and contains beneficial provisions for all populations and communities, with its jurisdictional piece being particularly notable for the safety and justice of Native American women and their communities.

Special Tribal Criminal Jurisdiction Under VAWA

The enactment of the Special Tribal Criminal Jurisdiction (“STCJ”) under VAWA signifies a crucial recognition of the unique challenges encountered by Native American victims of serious crimes. This legislation respects the sovereignty of tribal nations and their inherent right to safeguard their members and uphold justice within their communities.

The STCJ empowers tribes to prosecute “covered crimes” within their jurisdictions, specifically when the accused is a non-Native and the victim is a member of a federally recognized Indian tribe. Such “covered crimes” include domestic violence, dating violence, violations of protection orders, assault of tribal justice personnel, child violence, obstruction of justice, sexual violence, sex trafficking, and stalking.

In order to exercise this jurisdiction, tribes are required to fulfill specific criteria crafted to safeguard the rights of defendants. This includes ensuring that juror pools are inclusive of non-Natives, providing transparent records of criminal proceedings, guaranteeing the access to effective counsel at no cost to the defendant if they are unable to afford it, and ensuring that defendants have the right to confront their accusers, present their own statements, and access other procedural safeguards in line with constitutional standards.

The Process for the Nez Perce Tribe

In Nevada v. Hicks, Justice David Souter repeated a grave mischaracterization of tribal law.[vii] He described tribal law as often unwritten and based on oral traditions and customs passed down through generations.[viii] However, in my experience practicing in tribal court, this perspective is more of an exception than a rule. While this may have been the case before the 1883 case Ex Parte Crow Dog, which considered the restorative tradition of restitution among the Lakota Sioux for even the most serious crimes against persons, including murder,[ix] most tribes today have adopted a formal Anglo-American approach to justice.[x] One significant difference between Native justice and Anglo-American justice is the core philosophy. Tribes commonly prioritize concepts like reciprocity, balance, and interdependent relationships over the punitive nature of Anglo-American justice.[xi]

While The Nez Perce Tribe firmly upholds the values of Native justice, its justice system has historically adhered to familiar rules and codes. The Tribe enforces criminal procedure and evidence rules that closely resemble those of Idaho and the Federal Rules and has also embraced Idaho Criminal Jury Instructions. In addition, the Nez Perce maintains its own Bar, mandating that advocates and judges must be members in good standing of any state Bar to practice law in the Nez Perce Tribal Court, without the necessity of a separate Bar exam. However, there were things we needed to add and amend.

The intricate journey toward establishing Special Tribal Criminal Jurisdiction races back to 2013, when the General Counsel of the Nez Perce Tribe asked the Office of Legal Counsel to implement the criteria necessary to exercise STCJ.

On the other hand, there were amendments to the Nez Perce Tribe criminal code and rules of procedure necessary to exercise Special Tribal Criminal Jurisdiction, which involve revisions for personal jurisdiction to include non-Natives, inclusive selection of jurors, and a complete review of the code and rules to ensure that the Tribal Code clearly defines the covered offenses.

The process of code review and revisions was quite challenging. Changes to the Violence Against Women Act from 1994 to 2022 and staffing changes within the Tribe created particularly challenging barriers. We needed to restart, revamp, and reaffirm our commitment to this time-intensive project. However, once we set a specific date for implementation, the core group met once a week for at least an hour over the past year to carefully analyze each word of every procedure, code, and rule related to the STCJ.

The process was a challenging yet rewarding journey. The dedicated team of attorneys from the Nez Perce Tribe Office of Legal Counsel, Prosecutor, Defense, and the Tribe’s Law and Order Executive Officer demonstrated unwavering commitment in systematically parsing through each word of every procedure, code, and rule related to STCJ. Through this collaborative effort, we gained a profound appreciation for the impact of our work on public safety and justice in the Nez Perce Tribal community.

Coordination and Collaboration

The Nez Perce Tribe is proud to stand with other tribes through the Intertribal Working Group (“ITWG”) in the shared goal of implementing STCJ to combat violent crimes, recognize victims’ rights, and safeguard defendants’ rights. This esteemed working group convenes twice a year in-person and holds monthly remote meetings, serving as an invaluable resource for all tribes interested in exercising STCJ, with over 50 tribes currently participating, and receiving significant support from the Department of Justice.

Furthermore, the Nez Perce Tribe actively seeks collaboration with state, county, and local law enforcement agencies to address the enforcement gap that exists for state peace officers. Our pursuit of this partnership is driven by the belief that the Tribe’s exercise of Special Tribal Criminal Jurisdiction complements and enhances existing enforcement efforts.

Specifically, the Nez Perce Tribe’s exercise of STCJ is not restricted by the Idaho Supreme Court’s decision in State v. Clarke, ensuring flexibility in addressing misdemeanor arrests.[xii] This provision allows the Nez Perce Tribal Police to take necessary action in situations involving non-Native offenders and Native American victims, thereby preserving the safety of the victim. As the prosecutor for the Tribe, it is my intention to ensure that the coordination of enforcement efforts for alleged offenses is consistent with the principles outlined in Oklahoma v. Castro-Huerta, which extends criminal jurisdiction for offenses involving Native victims to the states.[xiii]

Summary

The implementation of this jurisdiction nationwide has a profound impact on increasing safety and delivering justice within Native American communities. By empowering tribes to prosecute domestic violence offenses, the VAWA addresses the previously unchallenged cycle of violence. The Nez Perce Tribe is thus better equipped to create a safer environment and foster trust in their justice system, leading to increased reporting and intervention in domestic violence incidents.

Special Tribal Criminal Jurisdiction under VAWA marks a definitive stride towards fostering a more equitable and just society for Native American victims of violent crimes and their communities. The Nez Perce Tribe, as a member of the Intertribal Working Group, and an implementing Tribe, encourages representatives of other Idaho Tribes to reach out with any questions about STCJ, the implementation process, and any other questions or comments about the experience. We further encourage any attorneys who are interested in learning more about the VAWA, practicing in Tribal Court—specifically the Nez Perce Tribal Court—to reach out with any questions or comments.

Endnotes:

[i] S. Bill. No.3623, 117^th Cong. (2022).

[ii] 25 USC § 1304 (2024).

[iii] S. Bill. No.3623, 117^th Cong. (2022).

[iv] 28 CFR Part 90.

[v] RAINN, National Sexual Assault Hotline, https://rainn.org/resources (Sept 2024).

[vi] 25 USC § 1304 (2024).

[vii] A.P. Melton, Indigenous Justice Systems and Tribal Society, 79 Judicature 126, 130-131 (1995), as cited in “ Nevada v. Hicks, 533 U.S. 353, 384 (2001), (Souter, D., concurring).

[viii] Id.

[ix] Ex parte Crow Dog, 109 U.S. 556 (1883).

[x] Steven W. Perry, Michael B. Field, and Amy D. Lauger, Tribal Courts in the United July 2021, NCJ 301214 chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/tcus14st_0.pdf, (July 2021).

[xi] Kirsten Matoy Carlson, Access to Justice in the Shadow of Colonialism, 59 Harv. C.R.-C.L. L. Rev. Review. 70 (2024).

[xii] State v. Clarke, 165 Idaho 393 (2019).

[xiii] Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022).