H. R. 780
IN THE HOUSE OF REPRESENTATIVES
February 15, 2013
Mr. Issa (for himself, Mr. Cole, Mr. Amodei, Mr. Schweikert, Mr. Kline, Mr. McHenry, Mr. Simpson, and Mr. Denham) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Natural Resources, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To authorize Indian tribes to exercise jurisdiction over crimes of domestic violence that occur in the Indian country of that tribe.
This Act may be cited as the
Violence Against Indian Women Act of
Tribal jurisdiction over crimes of domestic violence
Tribal jurisdiction over crimes of domestic violence
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 pendente 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.
Special domestic violence criminal jurisdiction
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.
Spouse or intimate partner
The term spouse or intimate partner has the meaning given the term in section 2266 of title 18, United States Code.
Nature of the criminal jurisdiction
Notwithstanding any other provision of law, in addition to all powers of self-government recognized and affirmed by sections 201, 202, 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; 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.
Victim and defendant are both non-Indians
A participating tribe may not exercise special domestic violence criminal jurisdiction over an alleged offense if neither the defendant nor the alleged victim is an Indian.
Definition of victim
In this subparagraph and with respect to a criminal proceeding in which a participating tribe exercises special domestic violence 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.
Defendant lacks ties to the Indian tribe
A participating tribe may exercise special domestic violence 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.
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:
Domestic violence and dating violence
An act of domestic violence or dating violence that occurs in the Indian country of the participating tribe.
Violations of protection orders
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.
Rights of defendants
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 may be imposed, all rights described in section 202(c);
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; 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.
Petitions To stay detention
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.
Grant of stay
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 timely notify such person of his rights and privileges under this subsection and under section 203.
Subject to Removal
A criminal prosecution commenced in a tribal court under this section may, pursuant to section 3245 of title 18, United States Code, be removed to the United States district court embracing the place where the criminal prosecution is pending, and the district court shall have full authority to hear and determine the cause.
Grants to tribal governments
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);
trial and appellate courts;
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.
Supplement, not supplant
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.
Authorization of Appropriations
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.
The table of sections for title II of the Indian Civil Rights Act of 1968 (25 U.S.C. 1301 et seq.) is amended by inserting after the item relating to section 203 the following:
Sec. 204. Tribal jurisdiction over crimes of domestic violence.
Removal of criminal prosecutions
Chapter 211 of title 18, United States Code, is amended by adding at the end the following:
Federal removal jurisdiction to protect the rights of defendants under section 204 of the Indian Civil Rights Act.
Notice of removal
A defendant desiring to remove a criminal prosecution from a tribal court pursuant to section 204(f) of the Indian Civil Rights Act of 1968 (25 U.S.C. 1304(f)) shall file in the district court of the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal under subsection (b), together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
Grounds for removal
No criminal prosecution under section 204 of the Indian Civil Rights Act of 1968 (25 U.S.C. 1304) shall be removed unless the defendant can prove by clear and convincing evidence that a right guaranteed them under section 204(d) of the Indian Civil Rights Act of 1968 (25 U.S.C. 1304(d)), has been violated, the tribal court has failed to adequately remedy the violation, and the violation is prejudicial to the defendant.
A notice of removal of a criminal prosecution under section 204(f) of the Indian Civil Rights Act of 1968 (25 U.S.C. 1304(f)) shall be filed not later than 30 days after the arraignment in the tribal court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the defendant or defendants leave to file the notice at a later time.
A notice of removal of a criminal prosecution under section 204(f) of the Indian Civil Rights Act of 1968 (25 U.S.C. 1304(f)) shall include all grounds for such removal. A failure to state grounds that exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice. For good cause shown, the United States district court may grant relief from the limitations of this paragraph.
The filing of a notice of removal of a criminal prosecution under section 204(f) of the Indian Civil Rights Act of 1968 (25 U.S.C. 1304(f)) shall not prevent the tribal court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.
The United States district court in which such notice is filed shall examine the notice promptly. If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand.
If the United States district court does not order the summary remand of such prosecution, it shall order an evidentiary hearing to be held promptly and, after such hearing, shall make such disposition of the prosecution as justice shall require. If the United States district court determines that removal shall be permitted, it shall so notify the tribal court in which prosecution is pending, which shall proceed no further.
Writ of habeas corpus
If the defendant or defendants are in actual custody on process issued by the tribal court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into the marshal’s custody and deliver a copy of the writ to the clerk of such tribal court.
Special Assistant United States Attorneys
To assist in implementing this section and section 204(f) of the Indian Civil Rights Act of 1968 (25 U.S.C. 1304(f)) and in prosecuting crimes of domestic violence and dating violence in Indian country, each United States Attorney serving a district that includes Indian country is authorized and encouraged to appoint qualified tribal prosecutors as Special Assistant United States Attorneys pursuant to section 13(d) of the Indian Law Enforcement Reform Act (25 U.S.C. 2810(d)) and section 543(a) of title 28, United States Code.
3245. Federal removal jurisdiction to protect the rights of defendants under section 204 of the Indian Civil Rights Act..