Congress Renews Violence Against Women Act, Expands Tribal Court Jurisdiction
On February 28, the House of Representatives approved Senate
Bill 47, which reauthorizes and amends the Violence Against Women
Act of 1994 (VAWA). The Bill, already approved in the Senate, will
become law shortly when the President signs it.
The VAWA is a major legislative achievement for Indian country. The
Supreme Court held in 1978 that tribes lack inherent power to
exercise criminal jurisdiction over non-Indians. For the first time
since that decision, Congress has authorized tribes to exercise
such jurisdiction. Title IX of the VAWA amends the Indian Civil
Rights Act (ICRA) to permit tribes to exercise "special
domestic violence criminal jurisdiction" over non-Indians who
are charged with domestic violence, dating violence, and violations
of protective orders that occur on their lands. Features of special
domestic violence criminal jurisdiction include:
- either the offender or the perpetrator must be Indian
- the tribe must prove that the defendant has ties to the tribal community
- tribal jurisdiction is concurrent with state and federal jurisdiction
- the defendant has 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
- In the event that a sentence of imprisonment "may" be
imposed, the tribe must guarantee the defendant the enhanced
procedural rights added to the ICRA by the Tribal Law and Order Act
of 2010, including:
- effective assistance of counsel, paid for by the tribe if the defendant is indigent
- a legally trained judge licensed to practice law
- published laws and rules of criminal procedure
- recorded proceedings
Godfrey & Kahn has experience assisting tribes in drafting criminal codes and procedures that permit exercise of maximum jurisdiction and sentencing authority pursuant to the 2010 Tribal Law and Order Act and 2013 Amendments to VAWA. For more information, contact Brian Pierson at 414.287.9456 or bpierson@gklaw.com.
Supreme Court Arguments in ICWA Case Set for April
16
The Supreme Court has scheduled oral arguments for April 16 in the
case of Adoptive Couple v. Baby Girl. The case involves
important issues relating to the Indian Child Welfare Act (ICWA),
including whether an Indian parent could object to an adoption of
his child even though, under state law, he lacked parental standing
and whether the ICWA applies when a child is not in an Indian home
(see our
February Update). The April argument means that the Court will
almost certainly issue its decision before the end of its term in
June.
The Court is waiting to hear the views of the Solicitor General of
the United States before deciding whether to review two other
Indian law cases. Michigan v. Bay Mills Indian Community
presents the question whether tribal sovereign immunity bars the
state from enforcing alleged violations of the Indian Gaming
Regulatory Act (see our
September 2012 Update). The issue in Madison County v.
Oneida Indian Nation is the status of the New York Oneida
Tribe's reservation (see our
November 2011 Update).
National American Indian Housing Council Publishes 2013
Housing Development Handbook Authored By Brian
Pierson
The National American Indian Housing Council (NAIHC) has published
the 2013 edition of its Indian Housing Development
Handbook, authored by Godfrey & Kahn Indian Nations Law
team leader Brian Pierson. The Handbook, first issued in
2009 and twice updated and revised, is intended to serve as a
resource for tribes, tribal housing agencies, developers, lenders
and others in the Indian housing industry.
Godfrey & Kahn has extensive experience working with tribes to
take advantage of federal, state and private sources of financing
for Indian housing. For more information, contact Brian Pierson at
414.287.9456 or bpierson@gklaw.com. Digital copies of the
Handbook are available at the NAIHC
website.
NBI Teleconference "Tribal Land Use: Unique
Opportunities and Challenges" April 9, 2013
The National Business Institute (NBI) will sponsor a live
teleconference, "Tribal Land Use: Unique Opportunities and
Challenges," at 11:00 a.m. - 12:30 p.m. Eastern Standard Time,
presented by Godfrey & Kahn's Indian Nations Law team
leader Brian Pierson. The course will provide a general overview of
the unique legal principles that provide the framework for Indian
country economic development. One and a half hours of Continuing
Legal Education credit will be awarded. For registration
information, contact NBI at
800.931.3140 or www.nbi-sems.com.
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