Below is the abstract for “Taking Stock: Open Questions and Unfinished Business Under VAWA Amendments to the Indian Civil Rights Act,” available for download on SSRN.

The primary statutory tool for federal regulation of Tribal court criminal procedure is the Indian Civil Rights Act of 1968 (ICRA). ICRA replicated most of the procedural protections in the Bill of Rights applicable to the States, as then interpreted by the Supreme Court. ICRA also sets out procedures Tribes must extend to criminal defendants in their courts, caps their sentencing authority, and defines their criminal jurisdiction. Some parts of Indian country are the most dangerous places in the United States today, particularly for indigenous women and girls. They are exposed to a higher level of personal violence than any other women in the United States, mostly at the hands of non- Indians. This situation is due, in large measure, to jurisdictional voids in Indian country created by federal law.

Congress has amended ICRA four times since 1968. In 2010 it amended ICRA with the Tribal Law and Order Act (TLOA). TLOA authorized Tribes to exercise expanded sentencing authority if they adopt and implement additional criminal procedural protections beyond those required under the 1968 version of ICRA. Congress amended ICRA again in 2013 with the Violence Against Women Re-Authorization Act (VAWA 2013). These amendments provide Tribes a pathway for re-asserting criminal jurisdiction over non-Indians for the first time in generations. VAWA 2013 recognizes Tribes’ inherent authority to exercise jurisdiction over all persons who commit crimes in Indian country, but limits the reach of that jurisdiction to crimes involving dating or domestic violence or violations of protection orders. This is labeled “special domestic violence criminal jurisdiction” (SDVCJ). To exercise SDVCJ, a Tribe must adopt the procedural protections required by TLOA, and additional procedural protections required by VAWA 2013.

VAWA 2013 cabins SDVCJ in three ways, it: (1) creates an exception for crimes that only involve non-Indians as victims and perpetrators, (2) creates an exception for non- Indian defendants who lack ties to the Tribal community in which they commit their crimes, and (3) limits the offenses to which SDVCJ extends. These exceptions and limitations incorporate facts and circumstances that are often referred to as “jurisdictional.”

This Article analyzes whether SDVCJ facts and circumstances are truly jurisdictional requirements—that is, whether their presence or absence has any bearing on a Tribal court’s power to hear and resolve VAWA 2013 cases. A second, and closely related, issue this Article examines is whether the existence of these facts and circumstance, whether jurisdictional or not, can be resolved as a matter of law by a court, or whether they are elements that must be submitted to a jury.

These are important issues that impact Tribes’ ability to prosecute and convict non- Indian defendants, and their willingness to do so. If the facts and circumstances Congress appended to SDVCJ are “over” interpreted as adjudicative jurisdictional elements, this leads to a host of challenges and complications that can make Tribes’ exercise of SDVCJ over non-Indians more costly and more cumbersome. This Article offers a more compartmentalized analysis of SDVCJ facts and circumstances and argues that most are not true jurisdictional elements, but, rather, should be treated as merits elements, or possibly even affirmative defenses.

Jordan Gross

University of Montana Alexander Blewett III School of Law

Jordan Gross currently teaches Criminal Procedure–Adjudicative, Criminal Justice in Indian Country, Interdisciplinary Criminal Justice Reform, White Collar Crime, Federal Courts, and Professional Responsibility. She supervises the Law School’s external Criminal Defense Clinics, and the external Clinics at the Montana Innocence Project and the American Civil Liberties Union of Montana.

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