Sec. 5. Tribal jurisdiction over crimes of domestic violence
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Title II of Public Law 90–284 (25 U.S.C. 1301 et seq.) (commonly known as the Indian Civil Rights Act of 1968 ) is amended by adding at the end the following: In this section: 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.
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. The term Indian country has the meaning given the term in section 1151 of title 18, United States Code.
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. The term protection order — 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 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.
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. The term spouse or intimate partner has the meaning given the term in section 2266 of title 18, United States Code. Notwithstanding any other provision of law, in addition to all powers of self-government recognized and affirmed by sections 201 and 203, 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.
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. Nothing in this section— creates or eliminates any Federal or State criminal jurisdiction over Indian country; 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; shall apply to an Indian tribe in the State of Alaska, except with respect to the Metlakatla Indian Community, Annette Islands Reserve; or shall limit, alter, expand, or diminish the civil or criminal jurisdiction of the State of Alaska or any subdivision of the State of Alaska.
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: An act of domestic violence or dating violence that occurs in the Indian country of the participating tribe. An act that— occurs in the Indian country of the participating tribe; and violates the portion of a protection order that— 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; was issued against the defendant; is enforceable by the participating tribe; and is consistent with section 2265(b) of title 18, United States Code.
In this subsection and with respect to a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction based on a criminal violation of a protection order, the term victim means a person specifically protected by a protection order that the defendant allegedly violated. In a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction, the case shall be dismissed if— the defendant files a pretrial motion to dismiss on the grounds that the alleged offense did not involve an Indian; and the participating tribe fails to prove that the defendant or an alleged victim is an Indian.
In a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction, the case shall be dismissed if— the defendant files a pretrial motion to dismiss on the grounds that the defendant and the alleged victim lack sufficient ties to the Indian tribe; and the prosecuting tribe fails to prove that the defendant or an alleged victim— resides in the Indian country of the participating tribe; is employed in the Indian country of the participating tribe; or is a spouse or intimate partner of a member of the participating tribe.
A knowing and voluntary failure of a defendant to file a pretrial motion described in paragraph
(2)or
(3)shall be considered a waiver of the right to seek a dismissal under this subsection. In a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction, the participating tribe shall provide to the defendant— all applicable rights under this Act; if a term of imprisonment of any length is imposed, all rights described in section 202(c); and 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. A person who has filed a petition for a writ of habeas corpus in a court of the United States under section 203 may petition that court to stay further detention of that person by the participating tribe. A court shall grant a stay described in paragraph
(1)if the court— finds that there is a substantial likelihood that the habeas corpus petition will be granted; and 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. The Attorney General may award grants to the governments of Indian tribes (or to authorized designees of those governments)— to strengthen tribal criminal justice systems to assist Indian tribes in exercising special domestic violence criminal jurisdiction, including— law enforcement (including the capacity of law enforcement or court personnel to enter information into and obtain information from national crime information databases); prosecution; trial and appellate courts; probation systems; detention and correctional facilities; alternative rehabilitation centers; culturally appropriate services and assistance for victims and their families; and criminal codes and rules of criminal procedure, appellate procedure, and evidence; 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; 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 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. 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. There are authorized to be appropriated $5,000,000 for each of fiscal years 2014 through 2018 to carry out subsection
(g)and to provide training, technical assistance, data collection, and evaluation of the criminal justice systems of participating tribes. .
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- Pub. L. 90-284
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