Sec. 804. Tribal jurisdiction over crimes committed in Indian country
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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 striking section 204 ( 25 U.S.C. 1304 ) and inserting the following: In this section: The term assault of a law enforcement or correctional officer means any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs where a person forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated as a tribal law enforcement or correctional officer engaged in or on account of the performance of their official duties.
The term covered conduct means an offense— described in paragraphs (1), (3), (4), (5), (6), (10), (13), and (14); and committed in Indian country. The term crimes against children means any violation of the criminal law of the Indian tribe that is a participating tribe if the violation occurs and is committed against an Indian child by a parent, legal custodian, or guardian of the Indian child, or a caregiver or person that would be subject to special tribal criminal jurisdiction.
The term dating violence means any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that was 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 any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that was 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 human trafficking means any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs by a person that commits an act or practice described in paragraph
(11)of section 103 of the Trafficking Victims Protection Act of 2000 ( 22 U.S.C. 7102 ). 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— meets the requirements to exercise special criminal jurisdiction described in subsection (b)(4); elects to exercise special criminal jurisdiction over the Indian country of that Indian tribe; and submits notice to the Attorney General of the intent of the Indian tribe to self-certify and begin exercising special criminal jurisdiction. 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 sexual assault means any nonconsensual sexual act or contact proscribed by the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs, including in any case in which the victim lacks capacity to consent. The term special 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. The term stalking means engaging in a course of conduct in violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that would cause a reasonable person to fear for the safety of the person or the safety of others. The term violation of a protection order means any act that— occurs in the Indian country of the participating tribe; and violates 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; is enforceable by the participating tribe; and is consistent with section 2265(b) 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, including any participating tribe in the State of Maine, include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special criminal jurisdiction over all persons. The exercise of special 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; or 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. No participating tribe may exercise special criminal jurisdiction or otherwise exercise jurisdiction over covered conduct committed in the jurisdiction of a participating tribe by a defendant unless— the proceeding is presided over by a judge of the participating tribe with a current, valid license, and in good standing, to practice law in any State, the District of Columbia, or territory of the United States; and each attorney prosecuting or defending the defendant has a current, valid license, and in good standing, to practice law in any State, the District of Columbia, or territory of the United States. In this subparagraph and with respect to a criminal proceeding in which a participating tribe exercises special 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. A participating tribe may not exercise special criminal jurisdiction over an alleged offense if neither the defendant nor the alleged victim is an Indian. A participating tribe may exercise special criminal jurisdiction over a defendant only if the defendant— resides in the Indian country of the participating tribe; is employed in the Indian country of the participating tribe; or is a spouse, intimate partner, or dating partner of— a member of the participating tribe; or an Indian who resides in the Indian country of the participating tribe. An Indian tribe shall submit to the Attorney General written notice of the intent of the Indian tribe to begin exercising special criminal jurisdiction. The Attorney General may conduct an audit or review of a participating tribe to determine if the participating tribe is in compliance with all requirements necessary to exercise special criminal jurisdiction. To the maximum extent practicable, the audits and reviews conducted under clause
(i)shall include onsite visits by the appropriate official of the Department of Justice. The Attorney General, in consultation with participating tribes, shall promulgate regulations to ensure that appropriate action is taken if a participating tribe is found under clause
(i)not to be in compliance with all requirements necessary to exercise special criminal jurisdiction. In a criminal proceeding in which a participating tribe exercises criminal jurisdiction over covered conduct by a defendant, including special criminal jurisdiction, the participating tribe shall provide to the defendant all rights under the Constitution of the United States afforded criminal defendants by the courts of the United States, as interpreted by the courts of the United States, including the right to an impartial jury, the right to counsel, and the right to due process. Except as provided in paragraph (2), on conviction of a non-Indian defendant by a participating tribe, the participating tribe may select, with the consent of the Attorney General, a Federal or Tribal detention facility. Nothing in this subsection shall prohibit a participating tribe from housing a non-Indian inmate in a tribal facility that was prosecuted under the special criminal jurisdiction of the Indian tribe. Immediately on the sentencing of a defendant to any form of custody following a trial or guilty plea, the tribal court of the participating tribe shall— notify the defendant of his or her right to file a habeas corpus petition in the Federal district court for the district in which the defendant will be held in custody; provide the defendant with a form habeas corpus petition for petitioners seeking relief and with adequate postage to enable the defendant to mail the form from the place of custody to the district court for filing; advise a defendant who is unable to pay applicable filing fees of the right to ask for permission to file a habeas corpus petition in forma pauperis; and advise the defendant of his or her appellate rights, which include— the right to stay proceedings; the right to an attorney; and the right both— to appeal to the appellate court of the participating tribe; and to file a petition for a writ of habeas corpus in a court of the United States. Not later than 14 days after the date on which a sentence has been imposed, the defendant may request an appeal of the decision to the appellate court of jurisdiction of the participating tribe, which shall hear the appeal and render a decision not later than 90 days after the date on which the request is received. Subsection (b)(4) shall apply to each attorney and each judge on an appellate court proceeding of the participating tribe reviewing a sentence under this subsection. Regardless of whether a defendant requests an appeal under subsection (f)(1), the defendant may file a petition for a writ of habeas corpus in a court of the United States under section 203 at any time after the conviction of the defendant becomes final. Tribal courts shall be bound by all orders issued by a court of the United States after review of a petition for a writ of habeas corpus under section 203. A court of the United States reviewing a petition for a writ of habeas corpus under this subsection shall have jurisdiction to review the conviction of the defendant, including any deprivation of the rights of the defendant under subsection (c). In reviewing a petition for a writ of habeas corpus under section 203 by a non-Indian petitioner, no court may apply any requirement described in section 2254 or 2255 of title 28, United States Code. 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, the appellate court of jurisdiction of the participating tribe, or both, 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. An Indian tribe that has ordered the detention of any person has a duty to immediately notify such person of his or her rights and privileges under this subsection and under section 203. Every person who, under color of any statute, ordinance, regulation, custom, or usage of any participating tribe, subjects, or causes to be subjected, any defendant in a criminal prosecution of the covered conduct, including the special criminal jurisdiction of the participating tribe, to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States and Federal laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. In any action described in paragraph (1), tribal officials shall be entitled to claim the same immunity accorded public officials in actions brought under section 1979 of the Revised Statutes of the United States ( 42 U.S.C. 1983 ). An action described in paragraph
(1)may be brought in any appropriate district court of the United States. An action described in paragraph
(1)shall commence not later than 4 years after the date on which the conduct giving rise to the action occurred. 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 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; pretrial services; probation systems; detention and correctional facilities; alternative rehabilitation centers; culturally appropriate services and assistance for victims and their families; criminal codes and rules of criminal procedure, appellate procedure, and evidence; and contracting for services directly relating to the prosecution or defense of a defendant; 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 violation of covered conduct committed in Indian country; to ensure that, in criminal proceedings in which a participating tribe exercises special criminal jurisdiction, jurors are summoned, selected, and instructed in a manner consistent with all applicable requirements; and to accord victims of covered conduct 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 $15,000,000 for each of fiscal years 2020 through 2029 to carry out subsection
(j)and to provide training, technical assistance, data collection, and evaluation of the criminal justice systems of participating tribes. .
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Sec. 804
Tribal jurisdiction over crimes committed in Indian country
Pub. L.Pub. L. 90-284
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