[Federal Register Volume 78, Number 115 (Friday, June 14, 2013)]
[Notices]
[Pages 35961-35974]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-14158]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

[Docket No. OAG 144; AG Order No. 3391-2013]


Pilot Project for Tribal Jurisdiction Over Crimes of Domestic 
Violence

AGENCY: Office of the Attorney General, Justice.

ACTION: Notice; solicitation of comments and preliminary expressions of 
interest.

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SUMMARY: This notice proposes procedures for an Indian tribe to request 
designation as a participating tribe under section 204 of the Indian 
Civil Rights Act of 1968, as amended, on an accelerated basis, pursuant 
to the voluntary pilot project described in section 908(b)(2) of the 
Violence Against Women Reauthorization Act of 2013 (``the Pilot 
Project''), and also proposes procedures for the Attorney General to 
act on such a request. This notice also invites public comment on the 
proposed procedures and solicits preliminary expressions of interest 
from tribes that may wish to participate in the Pilot Project.

DATES: Preliminary expressions of interest from tribes are due on or 
before July 15, 2013. Comments on the proposed procedures are due on or 
before September 12, 2013.

ADDRESSES: Mr. Tracy Toulou, Director, Office of Tribal Justice, 
Department of Justice, 950 Pennsylvania Avenue NW., Room 2310, 
Washington, DC 20530, email OTJ@usdoj.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Tracy Toulou, Director, Office of 
Tribal Justice, Department of Justice, at (202) 514-8812 (not a toll-
free number) or OTJ@usdoj.gov.

SUPPLEMENTARY INFORMATION: In addition to mailing or emailing comments 
and preliminary expressions of interest to the Director, Office of 
Tribal Justice, you may submit comments and preliminary expressions of 
interest electronically or view an electronic version of this notice at 
http://www.regulations.gov. To ensure proper handling, please reference 
OAG Docket No. 144 on your correspondence. The Department of Justice 
strongly encourages electronic or email submissions, as hard copies 
sent by mail may be subject to significant delays.
    The electronic Federal Docket Management System will accept 
comments or preliminary expressions of interest until 11:59 p.m. 
Eastern Time on the last day of the relevant period. Late-filed 
comments and preliminary expressions of interest will be considered 
only to the extent practicable.
    Posting of Public Comments. Please note that all comments and 
preliminary expressions of interest received are considered part of the 
public record and may be made available for public inspection online at 
http://www.regulations.gov. Such information includes personal 
identifying information (such as your name, address, etc.) that you 
might voluntarily submit.
    You are not required to submit personal identifying information in 
order to comment or provide a preliminary expression of interest. If 
you want to submit personal identifying information (such as your name, 
address, etc.) but do not want it to be posted online, you must include 
the phrase ``Personal Identifying Information'' in the first paragraph 
of your submission. You also must locate all the personal identifying 
information you do not want posted online in the first paragraph of 
your submission and identify what information you want redacted.
    If you want to submit confidential business information but do not 
want it to be posted online, you must include the phrase ``Confidential 
Business Information'' in the first paragraph of your submission. You 
also must prominently identify confidential business information to be 
redacted within the submission. If a submission has so much 
confidential business information that it cannot be effectively 
redacted, all or part of that submission may not be posted on http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION CONTACT section.

Discussion

1. Statutory Background

Overview
    On March 7, 2013, President Obama signed into law the Violence 
Against Women Reauthorization Act of 2013 (VAWA 2013).\1\ Title IX of 
VAWA 2013, entitled ``Safety for Indian Women,'' contains section 904 
(Tribal Jurisdiction over Crimes of Domestic Violence) and

[[Page 35962]]

section 908 (Effective Dates; Pilot Project), both of which were 
initially drafted and proposed to Congress by the Department of Justice 
in 2011.\2\ The purposes of these sections are to decrease domestic 
violence in Indian country, to strengthen the capacity of Indian tribes 
to exercise their inherent sovereign power to administer justice and 
control crime, and to ensure that perpetrators of domestic violence are 
held accountable for their criminal behavior.\3\
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    \1\ Public Law 113-4, 127 Stat. 54 (2013); see Remarks on 
Signing the Violence Against Women Reauthorization Act of 2013, 2013 
Daily Comp. Pres. Docs. 139 (Mar. 7, 2013).
    \2\ See Letter from Ronald Weich, Assistant Attorney General, to 
the Hon. Joseph R. Biden, Jr., President, United States Senate, at 
1-2 & attachments (July 21, 2011).
    \3\ See S. Rep. No. 112-153, at 8-11, 32 (2012); see also S. 
1763, 112th Cong., at 1-2 (as reported by the S. Comm. on Indian 
Affairs, Dec. 27, 2012) (long title listing bill's purposes); H.R. 
757, 113th Cong., at 1 (2013) (same).
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    Section 904 recognizes the inherent power of ``participating 
tribes'' to exercise ``special domestic violence criminal 
jurisdiction'' (SDVCJ) over certain defendants, regardless of their 
Indian or non-Indian status, who commit acts of domestic violence or 
dating violence or violate certain protection orders in Indian country. 
Section 904 also specifies the rights that a participating tribe must 
provide to defendants in SDVCJ cases.
    Section 908(b)(1) provides that tribes generally cannot exercise 
SDVCJ until at least two years after the date of VAWA 2013's 
enactment--that is, on or after March 7, 2015. However, section 
908(b)(2) establishes a ``Pilot Project'' that authorizes the Attorney 
General, in the exercise of his discretion, to grant a tribe's request 
to be designated as a ``participating tribe'' on an accelerated basis 
and to commence exercising SDVCJ on a date (prior to March 7, 2015) set 
by the Attorney General, after coordinating with the Secretary of the 
Interior, consulting with affected tribes, and concluding that the 
tribe's criminal justice system has adequate safeguards in place to 
protect defendants' rights. This notice proposes procedures for tribes 
to make such requests and for the Department of Justice to grant or 
deny them, invites public comment on these proposed procedures, and 
also solicits preliminary expressions of interest from tribes that may 
wish to participate in the Pilot Project.
Domestic Violence in Indian Country
    Congress found that Native American women suffer domestic violence 
and dating violence at epidemic rates, and often at the hands of non-
Indian abusers.\4\ And Census data show that a large fraction of 
Indian-country residents are non-Indian and that tens of thousands of 
Native American married women have non-Indian husbands.\5\
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    \4\ See S. Rep. No. 112-153, at 3, 7-11, 32 (2012) (citing 
studies); see also Tribal Law and Order Act of 2010, Public Law 111-
211, tit. II, sec. 202(a)(5), 124 Stat. 2258, 2262.
    \5\ See S. Rep. No. 112-153, at 9 (2012); U.S. Census Bureau, 
2010 Census Briefs, The American Indian and Alaska Native 
Population: 2010, at 13-14 & tbl. 5 (2012) (showing that 1.1 million 
American Indians and 3.5 million non-Indians reside in American 
Indian areas); U.S. Census Bureau, Census 2010 Special Tabulation, 
Census 2010 PHC-T-19, Hispanic Origin and Race of Coupled 
Households: 2010, Table 1, Hispanic Origin and Race of Wife and 
Husband in Married-Couple Households for the United States: 2010 
(2012) (analyzing married-couple households nationwide, regardless 
of whether they reside within or outside Indian country, and showing 
that more than 54% of Indian wives have non-Indian husbands).
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    Domestic violence and dating violence committed in Indian country 
by Indian abusers against their Indian spouses, intimate partners, and 
dating partners generally fall within the criminal jurisdiction of the 
tribe. But prior to the effective date of the tribal provisions in VAWA 
2013, if the victim is Indian and the perpetrator is non-Indian, the 
tribe lacks criminal jurisdiction as a matter of federal law and the 
crime can be prosecuted only by the United States or, in some 
circumstances, by the state in which the tribe's Indian country is 
located. Even violent crimes committed by a non-Indian husband against 
his Indian wife, in the presence of their Indian children, in their 
home on the Indian reservation, cannot be prosecuted by the tribe.\6\ 
This jurisdictional scheme has proved ineffective in ensuring public 
safety. Too often, crimes go unprosecuted and unpunished, and the 
violence escalates.
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    \6\ The tribal provisions of VAWA 2013 are gender-neutral; but 
in the interests of brevity, this notice sometimes uses male 
pronouns or examples to describe perpetrators of domestic violence 
or dating violence and female pronouns or examples to describe their 
victims.
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The History of the Jurisdictional Gap
    This jurisdictional gap has not always existed. In the early days 
of the Republic, tribes routinely, and with the United States' assent, 
punished non-Indians who committed acts of violence on tribal lands. 
For example, the very first Indian treaty ratified by the United States 
Senate under the Federal Constitution--the 1789 Treaty with the 
Wyandot, Delaware, Ottawa, Chippewa, Potawatomi, and Sac Nations--
recognized that, ``[i]f any person or persons, citizens or subjects of 
the United States, or any other person not being an Indian, shall 
presume to settle upon the lands confirmed to the said [Indian tribal] 
nations, he and they shall be out of the protection of the United 
States; and the said nations may punish him or them in such manner as 
they see fit.'' \7\ Similar language appeared in the last Indian treaty 
ratified before the Constitutional Convention--the 1786 Treaty with the 
Shawnee Nation.\8\
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    \7\ Treaty with the Wyandot, Delaware, Ottawa, Chippewa, 
Potawatomi, and Sac Nations, art. IX, Jan. 9, 1789, 7 Stat. 28, 30.
    \8\ See Treaty with the Shawnee Nation, art. VII, Jan. 31, 1786, 
7 Stat. 26, 27.
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    As recently as the 1970s, dozens of Indian tribes exercised 
criminal jurisdiction over non-Indians. But in 1978, in Oliphant v. 
Suquamish Indian Tribe,\9\ the Supreme Court created federal common law 
preempting the exercise of the tribes' inherent sovereign power to 
prosecute non-Indians.\10\ The Oliphant Court noted, however, that 
Congress has the constitutional authority to override the Court's 
holding and restore Indian tribes' power to exercise criminal 
jurisdiction over non-Indians.\11\ Then-Justice Rehnquist, writing for 
the majority in Oliphant, expressly stated that the increasing 
sophistication of tribal court systems, the protection of defendants' 
procedural rights under the Indian Civil Rights Act of 1968,\12\ and 
the prevalence of non-Indian crime in Indian country were all 
``considerations for Congress to weigh'' in deciding whether to 
authorize Indian tribes to try non-Indians.\13\
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    \9\ 435 U.S. 191 (1978).
    \10\ See id. at 195-212.
    \11\ See id. at 195 & n.6, 206, 210-12.
    \12\ Public Law 90-284, tit. II, 82 Stat. 77 (1968).
    \13\ Oliphant, 435 U.S. at 212; see also United States v. Lara, 
541 U.S. 193, 206 (2004) (holding that the Constitution allows 
Congress to override ```judicially made Indian law''' (quoting 
Oliphant, 435 U.S. at 206) (emphasis added in Lara)).
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Congress's New Law Recognizing Special Domestic Violence Criminal 
Jurisdiction
    In enacting VAWA 2013, Congress expressly recognized tribes' 
inherent power to resume exercising criminal jurisdiction over non-
Indians. That recognition extended, however, only to crimes of domestic 
violence or dating violence and criminal violations of certain 
protection orders that occur in Indian country, in cases in which 
certain conditions are met. Specifically, the cases must have Indian 
victims, the defendants must reside in or have other specified 
significant ties to the prosecuting tribe, and the tribe's criminal 
justice system must have adequate safeguards in place to fully protect 
defendants' rights. Recognizing that many tribes may need time to 
implement those safeguards, Congress set an effective date two years 
after the enactment of VAWA 2013 (i.e., March 7, 2015), while giving 
tribes that are ready

[[Page 35963]]

sooner the opportunity to participate in a Pilot Project at the 
Attorney General's discretion.
    Section 904 of VAWA 2013 adds a new section 204 to the Indian Civil 
Rights Act of 1968 (ICRA).\14\ ICRA is codified at 25 U.S.C. 1301-1303. 
Section 204 of ICRA will be codified at 25 U.S.C. 1304, so this notice 
cites that United States Code section when referring to the new law.
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    \14\ Public Law 90-284, tit. II, 82 Stat. 77 (1968).
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    The Pilot Project established by VAWA 2013's section 908(b)(2) 
focuses specifically on the power of a ``participating tribe'' to 
exercise SDVCJ under subsections (b), (c), and (d) of 25 U.S.C. 1304. A 
``participating tribe'' is simply a federally recognized Indian tribe 
(as defined in 25 U.S.C. 1301(1)) that elects to exercise SDVCJ over 
the tribe's Indian country (as defined in 18 U.S.C. 1151).
    Becoming a ``participating tribe'' and exercising SDVCJ--whether as 
part of the Pilot Project between now and March 2015, or at any time 
after March 2015--are entirely voluntary. There is absolutely no 
requirement, and no expectation, that any particular tribe or any 
specific number of tribes will choose to become participating tribes 
and exercise SDVCJ. VAWA 2013 does not impose an unfunded mandate upon 
any tribe or diminish the criminal jurisdiction of the United States. 
Tribes that do not choose to participate in the Pilot Project may 
nonetheless become participating tribes later, so long as they satisfy 
the statutory requirements.
    SDVCJ, or special domestic violence criminal jurisdiction, is 
defined in section 1304(a)(6) to mean ``the criminal jurisdiction that 
a participating tribe may exercise under this section but could not 
otherwise exercise.'' Nearly all tribes that possess governmental 
powers over an area of Indian country can already exercise criminal 
jurisdiction over any Indian in that area (whether the defendant is a 
member of the prosecuting tribe or a ``nonmember Indian''). For these 
tribes, therefore, SDVCJ effectively is confined to criminal 
jurisdiction over non-Indians. Here, the term ``non-Indian'' means any 
person who is not an Indian as defined in 25 U.S.C. 1301(4) and thus 
could not be subject to federal criminal jurisdiction under the Major 
Crimes Act, 18 U.S.C. 1153.\15\
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    \15\ Due to a Senate amendment, VAWA 2013's section 910(a) 
provides that the amendments made by section 904, to be codified at 
25 U.S.C. 1304, apply in Alaska only to the Indian country of the 
Metlakatla Indian Community, Annette Island Reserve. In addition, 
the Supreme Court held in Alaska v. Native Village of Venetie Tribal 
Government, 522 U.S. 520, 526-34 (1998), that lands conveyed by the 
Alaska Native Claims Settlement Act of 1971, Public Law 92-203, 85 
Stat. 688 (codified, as amended, at 43 U.S.C. 1601-1629h), do not 
constitute ``Indian country.'' Therefore, section 1304 will have no 
effect on the criminal jurisdiction of most Indian tribes in Alaska.
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The Nature of Special Domestic Violence Criminal Jurisdiction
    Subsection (b) of section 1304 describes the nature of SDVCJ. 
Paragraph (1) of that subsection states that a participating tribe's 
governmental powers include ``the inherent power of that tribe, which 
is hereby recognized and affirmed, to exercise [SDVCJ] over all 
persons.'' Congress patterned that language after the 1991 federal 
statute that expressly recognized and affirmed tribes' inherent power 
to exercise criminal jurisdiction over all Indians, implicitly 
including nonmember Indians.\16\ The Supreme Court upheld the 1991 
statute as a constitutional exercise of Congress's authority in United 
States v. Lara.\17\
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    \16\ Public Law 102-137, sec. 1, 105 Stat. 646 (1991) (permanent 
legislation) (codified at 25 U.S.C. 1301(2)); see Public Law 101-
511, tit. VIII, sec. 8077(b), 104 Stat. 1892 (1990) (temporary 
legislation) (same).
    \17\ 541 U.S. 193 (2004).
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    Paragraphs (2) and (3) of subsection 1304(b) clarify that a 
participating tribe may exercise SDVCJ only concurrently, as the new 
law does not alter federal (or state) criminal jurisdiction. 
Importantly, the prohibition against double jeopardy does not prevent a 
defendant from being tried for the same conduct by more than one 
sovereign government. So, for example, a defendant who has been 
acquitted or convicted in a federal criminal proceeding can be tried 
for the same conduct in a subsequent tribal criminal proceeding. As is 
always the case when a case falls under concurrent criminal 
jurisdiction, coordination between jurisdictions will help ensure that 
investigative and prosecutorial resources are deployed efficiently and 
that the same defendant is not expected to appear at two different 
trials simultaneously.
    Paragraph (4) sets forth two important exceptions to participating 
tribes' exercise of SDVCJ. First, subparagraph (A) provides that there 
is no SDVCJ over an alleged offense if neither the defendant nor the 
alleged victim is an Indian. Cases involving only non-Indians typically 
fall within a state's exclusive criminal jurisdiction. SDVCJ will be 
exercised in cases with Indian victims and non-Indian defendants. 
Second, subparagraph (B) limits SDVCJ to cases in which the defendant 
has significant ties to the participating tribe that is seeking to 
prosecute him. Specifically, the defendant must (1) Reside in the 
tribe's Indian country; (2) be employed in the tribe's Indian country; 
or (3) be a spouse, intimate partner, or dating partner either of an 
Indian who resides in the tribe's Indian country or of a member of the 
tribe. Both of these two exceptions, as described in subparagraphs (A) 
and (B), are jurisdictional, so the prosecution will bear the burden of 
proving these jurisdictional facts beyond a reasonable doubt.
The Criminal Conduct Subject to Special Domestic Violence Criminal 
Jurisdiction
    Subsection (c) of 25 U.S.C. 1304, the second of the three key 
subsections for present purposes, describes the criminal conduct 
potentially encompassed by a participating tribe's SDVCJ. The only 
types of criminal conduct that are subject to a tribe's exercise of 
SDVCJ are (1) acts of domestic violence or dating violence that occur 
in the tribe's Indian country, and (2) violations of certain protection 
orders that occur in the tribe's Indian country. The terms ``domestic 
violence'' and ``dating violence'' are defined in 25 U.S.C. 1304(a)(2) 
and (1), respectively.
    Criminal conduct that occurs outside of Indian country is not 
covered. In addition, unless a violation of a protection order is 
involved, crimes of child abuse or elder abuse and crimes between two 
strangers (including sexual assaults) generally are not covered.
    Subsection (c) limits the categories of criminal conduct that are 
subject to SDVCJ. It does not define any criminal offense. The criminal 
offenses and their elements are a matter of tribal, not federal, law.
The Rights of Criminal Defendants in SDVCJ Cases
    Subsection (d) of 25 U.S.C. 1304, the third key subsection for 
present purposes, describes the federal statutory rights that 
participating tribes must provide to defendants when exercising SDVCJ. 
Although the United States Constitution, which constrains the federal 
and state governments, has never applied to Indian tribes (which were 
not invited to, and did not attend, the 1787 Constitutional 
Convention), that fact does not leave the rights of individual 
defendants in tribal courts unprotected. Both tribal law and federal 
statutory law provide important protections for criminal defendants' 
rights. The tribal courts' application of the federal statutory rights 
described in subsection 1304(d) should be comparable to state courts' 
application of the corresponding federal constitutional rights in 
similar cases.

[[Page 35964]]

    Subsection (d)(1)-(4) lists four sets of federal rights. The first 
set of defendants' rights, in paragraph (1), incorporates all rights 
under ICRA, 25 U.S.C. 1301-1304, that apply to a defendant in a 
criminal proceeding. This list of rights is substantively very similar 
(but not identical) to the set of criminal defendants' rights that are 
protected by the United States Constitution's Bill of Rights and have 
been incorporated into the Fourteenth Amendment's Due Process Clause 
and thus made fully applicable to the states. For example, ICRA 
prohibits tribes from compelling any person in any criminal case to be 
a witness against himself (akin to the United States Constitution's 
Fifth Amendment) \18\ and from denying to any person in a criminal 
proceeding the right to a speedy and public trial (akin to the Sixth 
Amendment).\19\ ICRA also prohibits a tribe from denying to any person 
within its jurisdiction the equal protection of its laws or depriving 
any person of liberty or property without due process of law.\20\ 
Because federal law has required all tribes to protect these rights 
since Congress enacted ICRA in 1968, this list of rights should be 
familiar to tribal officials.
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    \18\ 25 U.S.C. 1302(a)(4).
    \19\ Id. 1302(a)(6).
    \20\ Id. 1302(a)(8).
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    Furthermore, as amended by VAWA 2013, ICRA now requires a tribe 
that has ordered the detention of any person to timely notify him of 
his rights and privileges to petition a federal district court for a 
writ of habeas corpus and, where appropriate, to petition the federal 
court to stay further detention and release him from custody pending 
review of the habeas petition.\21\
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    \21\ Id. 1304(e).
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    Paragraph (2) of 25 U.S.C. 1304(d) requires a participating tribe 
exercising SDVCJ to provide defendants ``all rights described in [25 
U.S.C. 1302(c)]'' in any criminal proceeding in which ``a term of 
imprisonment of any length may be imposed.'' The Tribal Law and Order 
Act of 2010 (TLOA),\22\ amended ICRA to add the five rights described 
in section 1302(c): (1) The right to effective assistance of counsel at 
least equal to that guaranteed by the United States Constitution; (2) 
the right of an indigent defendant to the assistance of a licensed 
defense attorney, at the expense of the tribal government; (3) the 
right to a criminal proceeding presided over by a judge who is licensed 
to practice law and has sufficient legal training; (4) the right to 
have access, prior to being charged, to the tribe's criminal laws, 
rules of evidence, and rules of criminal procedure; and (5) the right 
to a record of the criminal proceeding, including an audio or other 
recording of the trial proceeding.
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    \22\ Public Law 111-211, tit. II, sec. 234(a)(3), 124 Stat. 
2258, 2280.
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    Under TLOA's amendments to ICRA, codified in section 1302(c), these 
five rights must be provided to a defendant in any criminal proceeding 
in which the tribe imposes on the defendant a total term of 
imprisonment of more than one year. Therefore, these five rights are 
sometimes known as the ``TLOA felony sentencing'' requirements. In 25 
U.S.C. 1304(d)(2), however, these same five rights must be provided to 
a defendant in any SDVCJ criminal proceeding in which the tribe 
imposes, or may impose, a term of imprisonment of any length. So 
indigent defense counsel, for example, is required in any SDVCJ 
misdemeanor case in which imprisonment may be imposed.
    Paragraph (3) of 25 U.S.C. 1304(d) guarantees 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. Tribes 
exercising SDVCJ therefore will have to determine who qualifies as part 
of the relevant community and how lists of those persons may be 
obtained and regularly updated. The law does not require that every 
jury in every case reflect a fair cross-section of the community. 
Rather, the jury pool, or venire, from which the jury is drawn must be 
representative of the community. Some communities in Indian country 
contain sizeable non-Indian populations. Other communities in Indian 
country have few, if any, non-Indian members, and therefore inevitably 
will have few, if any, non-Indians in their jury pools. Under existing 
tribal laws, some tribes' jury pools already include non-Indians, while 
others do not.
    Paragraph (4) of 25 U.S.C. 1304(d) is a ``constitutional catch-
all'' provision. Although it is likely of little or no direct relevance 
to the Pilot Project, it has the potential to cause confusion and 
therefore merits further discussion here. The three prior paragraphs of 
25 U.S.C. 1304(d) encompass all the rights that the 113th Congress 
concluded must be protected in order for Congress, acting within the 
constraints that the United States Constitution imposes on its 
authority, to recognize and affirm the participating tribes' inherent 
power to exercise SDVCJ over non-Indian defendants. The 113th Congress 
recognized, however, that the understanding of which rights are 
fundamental to our justice system can evolve over time. Therefore, 
Congress included paragraph (4), which requires a participating tribe 
to provide defendants in SDVCJ proceedings ``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 [SDVCJ] over the defendant.''
    This provision does not require tribal courts to protect all 
federal constitutional rights that federal courts are required to 
protect (for example, the Fifth Amendment's grand-jury indictment 
requirement, which state courts are also not required to protect). 
Rather, paragraph (4) gives courts the flexibility to expand the list 
of protected rights to include a currently unforeseen right whose 
protection the 113th Congress did not believe was essential to the 
exercise of SDVCJ. In the two-year period of the Pilot Project, 
however, it seems unlikely that courts will hold that any such 
unforeseen right falls within the scope of paragraph (4).
Section 908, Effective Dates, and the Pilot Project
    VAWA 2013's section 908 sets the effective dates for the three key 
subsections of 25 U.S.C. 1304--subsections (b), (c), and (d)--as well 
as establishing the Pilot Project. Section 908(b)(1) provides that 
those three subsections generally shall take effect on the date that is 
two years after the date of VAWA 2013's enactment, or March 7, 2015. So 
tribes generally cannot exercise SDVCJ until at least March 7, 2015. 
After March 7, 2015, any tribe that determines it meets the statutory 
requirements for exercising SDVCJ may do so. Approval from the 
Department of Justice will not be necessary.
    An exception to the 2015 starting date, however, is set forth in 
section 908(b)(2), which establishes a Pilot Project that authorizes 
the Attorney General, in the exercise of his discretion, to grant a 
tribe's request to be designated as a participating tribe on an 
accelerated basis and commence exercising SDVCJ earlier. Section 
908(b)(2) states in full:

    (2) Pilot project.--
    (A) In general.--At any time during the 2-year period beginning 
on the date of enactment of this Act [March 7, 2013], an Indian 
tribe may ask the Attorney General to designate the tribe as a 
participating tribe under section 204(a) of Public Law 90-284 [to be 
codified at 25 U.S.C. 1304(a)] on an accelerated basis.
    (B) Procedure.--The Attorney General may grant a request under 
subparagraph (A) after coordinating with the Secretary of the 
Interior, consulting with affected Indian

[[Page 35965]]

tribes, and concluding that the criminal justice system of the 
requesting tribe has adequate safeguards in place to protect 
defendants' rights, consistent with section 204 of Public Law 90-284 
[to be codified at 25 U.S.C. 1304].
    (C) Effective dates for pilot projects.--An Indian tribe 
designated as a participating tribe under this paragraph may 
commence exercising special domestic violence criminal jurisdiction 
pursuant to subsections (b) through (d) of section 204 of Public Law 
90-284 [to be codified at 25 U.S.C. 1304(b)-(d)] on a date 
established by the Attorney General, after consultation with that 
Indian tribe, but in no event later than the date that is 2 years 
after the date of enactment of this Act [March 7, 2015].

2. The Pilot Project

    Given that the Pilot Project will directly and substantially affect 
Indian tribes in the next two years, the Department of Justice has 
engaged in expedited but extensive consultation with tribal officials 
on how best to design the Pilot Project. The procedures proposed here 
reflect valuable input received from tribal officials during 
consultation.
The Pilot Project's Structure and Two Phases
    Congress provided a structure for the VAWA Pilot Project that is 
atypical. A conventional pilot or demonstration program lasts for 
several years and culminates with a report evaluating the program's 
success or failure and recommending that the program either be made 
nationwide and permanent or be discontinued. By contrast, here Congress 
has already determined that the key feature of the Pilot Project--
tribes exercising SDVCJ--will spread nationwide just two years after 
VAWA 2013's enactment. So the question raised by this Pilot Project is 
not whether to expand the exercise of SDVCJ, but rather how best to 
exercise SDVCJ. Thus, tribal leaders emphasized during consultation 
that one of the Pilot Project's most important functions will be to 
support tribes in their efforts to collaboratively develop ``best 
practices'' that other (non-Pilot Project) tribes can use to implement 
SDVCJ in 2015 and beyond.
    Tribal officials and employees repeatedly highlighted the 
usefulness of exchanging ideas with their counterparts in other tribes, 
peer to peer. They recognized that the Department of Justice, in 
coordination with the Department of the Interior, can play a key role 
in facilitating that intertribal collaboration and exchange of ideas. 
That may well turn out to be a singular lasting legacy of this Pilot 
Project. Indeed, tribal officials pointed to the example of the Tribal 
Self-Governance Demonstration Project, which began in the late 1980s 
with fewer than a dozen tribes but has now expanded to include hundreds 
of tribes that are actively managing their own programs.\23\
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    \23\ See Public Law 100-472, sec. 209, 102 Stat. 2285, 2296-98 
(1988).
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    Consistent with and informed by the views expressed by tribal 
leaders during consultation, the Department of Justice therefore is 
proposing a VAWA Pilot Project process with two phases: A planning and 
self-assessment phase that commences with the publication of this 
notice, and an implementation phase that will commence with the 
publication of a final notice, which the Department anticipates will 
occur later this year. In Phase One, in the summer and fall of 2013, 
tribes that preliminarily express interest in the Pilot Project may 
engage in ongoing consultation with the Departments of Justice and the 
Interior to address any questions or concerns. These tribes will also 
be strongly encouraged to join the Intertribal Technical-Assistance 
Working Group on Special Domestic Violence Criminal Jurisdiction 
(ITWG). Members of the ITWG will exchange views, information, and 
advice about how tribes can best exercise SDVCJ, combat domestic 
violence, recognize victims' rights and safety needs, and fully protect 
defendants' rights.
    This peer-to-peer technical assistance may cover a broad set of 
issues, from drafting stronger domestic violence codes and victim-
centered protocols and policies, to improving public defender systems, 
to analyzing detention and correctional options for non-Indians, to 
designing more broadly representative jury pools. The objective will be 
to develop not a single, one-size-fits-all ``best practice'' for each 
of these issues, but rather multiple ``best practices'' that can be 
tailored to each tribe's particular needs, preferences, and traditions.
    Tribes participating in the ITWG will also have an opportunity to 
engage with the Departments of Justice and the Interior, which will 
provide technical advice to the working group as a whole and work with 
individual tribes to address specific issues or concerns as needed. The 
Department of Justice will support the ITWG with training and technical 
assistance to the extent possible with available resources. Indeed, in 
section 1304(h), Congress expressly authorized funding ``to provide 
training [and] technical assistance'' to tribes' criminal justice 
systems.
    Phase Two of the Pilot Project process, the implementation phase, 
will commence with the Justice Department's publication in the Federal 
Register of a final notice specifying how tribes can certify that they 
meet the statutory requirements to exercise SDVCJ on an accelerated 
basis. Some tribes will then request designation as a participating 
tribe under 25 U.S.C. 1304 on an accelerated basis, and the Department 
will timely evaluate the requests based on the statutory criteria, 
after the required consultation with affected tribes and coordination 
with the Department of the Interior. The tribes whose requests are 
granted may commence prosecuting non-Indian perpetrators of domestic 
violence on a date established by the Department of Justice after 
further consultation with the tribe. The Department anticipates that 
Phase Two likely will commence in late 2013 and continue through March 
7, 2015, with some tribes potentially prosecuting SDVCJ cases by late 
2013 or early 2014.
    During consultation, tribal officials uniformly encouraged the 
Department to develop a mechanism for tribes to ``self-certify'' that 
they meet the statutory requirements to exercise SDVCJ. As a result, 
each requesting tribe will be expected to fill out an Application 
Questionnaire that will ask the tribe to identify provisions of the 
tribe's criminal code, rules of procedure, and written policies, as 
well as actual practices, that qualify the tribe to exercise SDVCJ on 
an accelerated basis. Each requesting tribe will be asked to attach the 
relevant portions of its laws, rules, and policies to the completed 
Application Questionnaire. These materials, collected from the various 
tribes applying to participate in Phase Two of the Pilot Project, will 
serve as a great resource for the much larger number of tribes that may 
elect to commence exercising SDVCJ in March 2015 or later.
    This two-phased Pilot Project will benefit tribes in several ways. 
First, the tribes that successfully apply in the Pilot Project's second 
phase will have the opportunity to commence exercising SDVCJ, and thus 
enhance public safety in their communities, sooner than would otherwise 
be possible. And these tribes will establish an early, strong track 
record for effectively and fairly prosecuting all offenders who 
perpetrate crimes of domestic violence in Indian country, regardless of 
their Indian or non-Indian status. Second, the other tribes that 
preliminarily express interest in the Pilot Project and opt to join the 
ITWG will have the opportunity to shape best practices that will 
strengthen criminal justice systems on many reservations, including 
their own, and

[[Page 35966]]

thus will be better prepared to exercise SDVCJ after March 2015. And 
third, the tribes that do not participate in either phase of the Pilot 
Project will have the opportunity to learn from the experiences of the 
first two sets of tribes and to benefit from the body of tribal laws 
and practices that those tribes will have developed and implemented.
Phase One: Ongoing Consultation, Preliminary Expressions of Interest, 
and the Intertribal Technical-Assistance Working Group
    If a tribe's elected leadership believes that the tribe might be a 
strong candidate for participation in both phases of the Pilot Project, 
and thus for exercising SDVCJ prior to 2015, the tribe may submit a 
``preliminary expression of interest.'' A preliminary expression of 
interest should take the form of a short letter from the tribe's leader 
or governing body to Mr. Tracy Toulou, Director, Office of Tribal 
Justice, Department of Justice, 950 Pennsylvania Avenue NW., Room 2310, 
Washington, DC 20530, email OTJ@usdoj.gov. The preliminary expression 
of interest should be submitted as soon as possible and in any event no 
later than July 15, 2013.
    A tribe that submits a preliminary expression of interest during 
Phase One will not be obligated during Phase Two to submit a request 
for designation as a participating tribe if the tribe decides to wait 
until after March 7, 2015, to commence exercising SDVCJ. Conversely, a 
tribe that wishes during Phase Two to submit a request for designation 
as a participating tribe (so that it can commence exercising SDVCJ 
before March 2015) need not have submitted a preliminary expression of 
interest during Phase One. However, submitting a preliminary expression 
of interest as early as possible will greatly facilitate the Justice 
Department's efforts to provide timely information to the tribe, to 
address issues of unique concern to the tribe, and to identify, in 
coordination with tribal officials, those areas where the tribe may 
benefit from technical assistance.
    The letter preliminarily expressing interest also should identify 
the name and title of any person the tribe authorizes as its 
representative to the ITWG, if the tribe chooses to participate in the 
ITWG. This person should be a tribal officer, employee, or contractor 
who has been designated by the tribe's elected officers to act on their 
behalf and serve on the ITWG. The authorized representative could be, 
for example, a tribal leader, trial judge, appellate judge, attorney, 
prosecutor, public defender, victim advocate, victim service provider, 
police chief, criminal justice consultant, or court administrator. The 
tribe's authorized representative should have the time, energy, and 
technical expertise to meaningfully participate in the ITWG. The 
Department of Justice anticipates that participation in the ITWG may 
demand a substantial time commitment, at least in 2013.
    A tribe may choose to authorize more than one person to participate 
in the ITWG. For example, a tribe may want both a judge and a victim 
advocate, or both a prosecutor and a public defender, to contribute to 
the ITWG's discussions. But each tribe should designate one authorized 
representative who can serve as the main point of contact for the 
Justice Department and for other tribes.
    The Department of Justice may ask particular federal employees 
(from the Departments of Justice and the Interior and perhaps other 
agencies) and non-federal experts (including persons affiliated with 
national or regional intertribal organizations) to provide support to 
the ITWG. And the Department will support the ITWG with training and 
technical assistance.
    It is anticipated that the ITWG members will meet in person or by 
telephone, video conference, or interactive Webinar technology at least 
twice a month for the duration of Phase One of the Pilot Project. If 
funding is available, the Department may support travel expenses for 
ITWG members to attend in-person meetings. Members also will meet, 
perhaps less frequently, during Phase Two, to continue identifying, 
documenting, and disseminating best practices that can be replicated by 
other tribes, and to help collect data and assess the Pilot Project 
tribes' efforts to exercise SDVCJ, combat domestic violence, recognize 
victims' rights and safety needs, and fully protect defendants' rights.
    After receiving timely preliminary expressions of interest from the 
tribes, the Department of Justice will help convene and facilitate the 
initial ITWG meeting. Although it is anticipated that federal employees 
ordinarily will be invited to participate in subsequent ITWG meetings 
as observers or subject-matter experts who can provide technical 
assistance, the tribal representatives may choose sometimes to meet 
without any federal employees present. In addition, tribal members of 
the ITWG may informally exchange written drafts of tribal criminal code 
provisions, tribal rules of procedure, tribal policies, and other 
tribal best practices, with or without sharing these drafts with the 
federal employees. Tribal members of the ITWG also may opt to meet in 
smaller groups, arranged either by region or by subject-matter 
expertise.
    The ITWG may choose to discuss anything that its members deem 
relevant to the proper implementation of sections 904 and 908 of VAWA 
2013. The Department of Justice has appended to this notice a list of 
substantive questions that may provide a useful starting point in 
identifying key issues and developing a checklist of best practices for 
exercising SDVCJ. Some of the questions focus on statutory 
requirements. Others touch on broader issues that are potentially 
relevant to tribal best practices but clearly are not required by VAWA 
2013 or any other federal law.
    The principal goal of the ITWG will be to provide a forum for peer-
to-peer learning as tribes assess their own criminal justice systems 
and prepare to exercise SDVCJ. Secondary goals of the ITWG will be to 
create a network of peer mentors, identify an array of different model 
codes and rules, and document best practices, all of which can assist 
other tribes as they prepare to exercise SDVCJ in the future.
    Consistent with the views expressed during consultation, the ITWG 
has been designed to maximize the collaborative sharing of information 
among tribal governments. At the same time, the Department of Justice 
recognizes the importance of the government-to-government relationship 
that exists between the United States and each individual Indian tribe. 
During (or after) Phase One, any tribe may also engage in one-on-one 
discussions with the Department of Justice or the Department of the 
Interior on any issue that may arise that is unique to that tribal 
government. Such discussions may involve specific requests for 
additional training or technical assistance if funding is available.
Phase Two: Tribal Requests and the Application Questionnaire
    In Phase Two of the Pilot Project, tribes may request designation 
as participating tribes that may commence exercising SDVCJ on an 
accelerated basis. It is important to note that the statute does not 
set the number of tribes that can participate in the Pilot Project and 
exercise SDVCJ on an accelerated basis, though it does limit the Pilot 
Project to just two years, effectively ending in March 2015. After that 
time, any tribe that determines it meets the statutory requirements and 
wishes to exercise SDVCJ may do so without the involvement of the 
Department of Justice.
    During the course of the Pilot Project, however, section 
908(b)(2)(B) of the

[[Page 35967]]

statute authorizes the Department of Justice to grant a request only 
after concluding that the requesting tribe's criminal justice system 
``has adequate safeguards in place to protect defendants' rights, 
consistent with [25 U.S.C. 1304].'' Tellingly, Congress did not 
restrict the Department's purview to the rights of defendants specified 
in subsection 1304(d), but rather demanded consistency with all 
subsections of section 1304. The statute thus requires the Department 
to consider how the tribe plans to comply with the entirety of section 
1304, focusing (though not exclusively) on the specific defendants' 
rights enumerated in subsection 1304(d).
    The Attorney General is required to exercise his discretion in the 
Pilot Project process, as the statute states that he ``may'' (not 
``shall'') grant a qualifying tribe's request. In exercising his 
discretion, the Attorney General will be bound by the text of section 
1304 and guided by the section's broader purposes: to decrease domestic 
violence in Indian country, to strengthen the capacity of Indian tribes 
to exercise their inherent sovereign power to administer justice and 
control crime, and to ensure that perpetrators of domestic violence are 
held accountable for their criminal behavior.
    To address the overwhelming preference for a self-certification 
process that tribal leaders and experts expressed during consultation, 
and to facilitate moving quickly during the Pilot Project's two-year 
window while fulfilling the Attorney General's statutory duty, the 
Department will ask each requesting tribe to provide certified answers 
to a list of detailed questions. These questions may touch on matters 
such as the tribe's criminal justice system, its ongoing efforts to 
combat domestic violence and provide victim services and support, its 
history of ICRA compliance, and the various safeguards that the tribe 
has put in place to protect defendants' rights. The precise substance 
and form of the Application Questionnaire have not yet been determined. 
It will be appended to the final notice that the Department of Justice 
publishes in the Federal Register several months from now, and it will 
be informed by comments that the public submits in response to this 
notice and by lessons learned through the ITWG process.
    However, some broad outlines are clear. The Application 
Questionnaire will need to be completed and certified as accurate by 
the tribe's chief executive, judicial, and legal officers. To provide 
an adequate basis for the Justice Department to make the determination 
demanded by the statute, the questions will need to be comprehensive 
and detailed. The bulk of the questions likely could be answered with a 
single sentence or a simple ``yes'' or ``no,'' supplemented with 
applicable excerpts from the tribe's laws, rules, or policies. This 
way, the questionnaire will put as little burden as possible on tribal 
officials and employees, while addressing the Department's need for 
sufficiently detailed information to perform its statutory 
responsibility. The Application Questionnaire also may help a tribe 
assess its own criminal justice system's readiness for the exercise of 
SDVCJ.
    The completed, certified Application Questionnaire will serve as 
the tribe's formal request to be designated as a participating tribe 
that can exercise SDVCJ on an accelerated basis under the Pilot 
Project. The Department will give priority consideration to requests 
that it receives during the first 30 days after publication in the 
Federal Register of the final notice (not this notice). But the 
Department will consider all requests received before March 7, 2015. 
And although the Department strongly encourages tribes that may submit 
a formal request in Phase Two to join the ITWG during Phase One, the 
Department will consider Phase Two requests from both ITWG members and 
nonmembers.
Phase Two: The Federal Response to Tribal Requests
    Once the Department of Justice has received a requesting tribe's 
completed, certified Application Questionnaire, including attached 
excerpts of tribal laws, rules, and policies, the Department proposes 
to take the following steps.
    First, the requesting tribe's entire application will be shared 
with relevant components of the Department of Justice, including any 
U.S. Attorney's Office with jurisdiction over the tribe's Indian 
country, and relevant components of the Department of the Interior, 
including the Office of the Assistant Secretary of the Interior-Indian 
Affairs; the Office of the Solicitor of the Interior; and the Bureau of 
Indian Affairs' Office of Justice Services (BIA-OJS).
    Second, the Justice Department will post a notice on its Tribal 
Justice and Safety Web site indicating that the tribe has submitted a 
request in Phase Two of the Pilot Project. This notice will announce a 
telephonic consultation for officials of federally recognized Indian 
tribes who wish to comment on the request, as well as a deadline for 
submitting written comments. As required by VAWA 2013's section 
908(b)(2)(B), the Justice Department will consult with elected and duly 
appointed officials of affected tribes, consistent with applicable 
Executive Orders and Presidential Memoranda on tribal consultation.
    Third, generally working through the requesting tribe's authorized 
point of contact (POC), as identified in the tribe's Application 
Questionnaire, the Justice Department may make follow-up inquiries 
about the tribe's criminal justice system. But the specificity of the 
questions in the Application Questionnaire should minimize the need for 
extensive follow-up inquiries.
    Fourth, personnel from the Departments of Justice and the Interior 
will coordinate in reviewing the requesting tribe's application. They 
also may consider information obtained in other contexts, including 
grant applications, such as the tribe's prior Coordinated Tribal 
Assistance Solicitation (CTAS) applications, and any tribal-court 
review that BIA-OJS has conducted under 25 U.S.C. 3612.
    Fifth, Justice Department personnel will make a recommendation to 
the Associate Attorney General about whether the requesting tribe 
should be designated as a participating tribe under 25 U.S.C. 1304 on 
an accelerated basis. This recommendation will turn on whether the 
requesting tribe's criminal justice system has adequate safeguards in 
place to protect defendants' rights, consistent with all subsections of 
25 U.S.C. 1304.
    Sixth, if the recommendation is negative, the Justice Department's 
Office of Tribal Justice (OTJ) will so inform the tribe's POC. If 
funding is available, the Department may provide appropriate technical 
assistance to a tribe that wishes to prepare and submit a revised 
request. The Department may also offer specific training and technical 
assistance to address particular needs through its grant-making 
components, the Office of Justice Programs (OJP), the Office on 
Violence Against Women (OVW), and the Office of Community-Oriented 
Policing Services (COPS), and may work with the ITWG to identify other 
tribal or intertribal resources that may assist the tribe.
    Seventh, if the recommendation is positive, the Department of 
Justice will consult with the requesting tribe to establish a date on 
which the tribe may commence exercising SDVCJ. The commencement date 
may be conditioned on the tribe receiving certain additional training 
or technical assistance or taking certain steps, such as notifying the 
public when the tribe will start exercising SDVCJ.

[[Page 35968]]

    Eighth, if the Department of Justice and the tribe can reach 
agreement on a starting date and conditions (if any), the Associate 
Attorney General, exercising discretion delegated by the Attorney 
General, may designate the tribe as a participating tribe under 25 
U.S.C. 1304 on an accelerated basis. The Department will publish notice 
of the designation on the Department's Tribal Justice and Safety Web 
site and in the Federal Register.

3. Statutory and Executive Order Reviews

General Disclaimers
    This notice is not intended to, and does not, create any right or 
benefit, substantive or procedural, enforceable at law or in equity by 
any party in any matter, civil or criminal, against the United States, 
its departments, agencies, or entities, its officers, employees, or 
agents, or any other person, nor does this notice place any limitations 
on otherwise lawful litigative prerogatives of the U.S. Department of 
Justice.
    Furthermore, nothing in this notice shall be construed to (1) 
Encroach upon or diminish in any way the inherent sovereign authority 
of each tribe over its own government, legal system, law enforcement, 
and personnel matters; (2) imply that any tribal justice system is an 
instrumentality of the United States; or (3) alter the trust 
responsibility of the United States to Indian tribes.
Administrative Procedure Act
    This notice concerns interpretive rules, general statements of 
policy, or rules of agency organization, procedure, or practice for 
purposes of the Administrative Procedure Act, and therefore notice and 
comment are not required under 5 U.S.C. 553(b)(A). Nonetheless, the 
Department of Justice is publishing this notice in the Federal Register 
and on the Department's Tribal Justice and Safety Web site for public 
comment, as well as to solicit preliminary expressions of interest in 
the Pilot Project.
Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments
    This notice fully comports with Executive Order 13175 of November 
6, 2000. Although it creates no new substantive rights and imposes no 
binding legal requirements, the notice has tribal implications because 
it will have substantial direct effects on Indian tribes and their 
relationships with the Federal Government. The Department therefore has 
engaged in meaningful, though speedy, consultation and collaboration 
with elected and duly appointed tribal officials in developing this 
notice.
    More specifically, the Department of Justice organized and led two 
telephonic consultations with tribal leaders on how best to structure 
and implement the voluntary Pilot Project established under sections 
904 and 908 of VAWA 2013. To facilitate the consultation and frame the 
discussion with tribal governments, in mid-April the Department 
circulated a six-page framing paper that presented background on the 
new law and raised a series of questions on specific issues relating to 
the Pilot Project.\24\ The first consultation was held on May 14, 2013, 
and the second on May 17, 2013. The Department also consulted members 
and representatives of the Attorney General's Tribal Nations Leadership 
Council on April 30, 2013.
---------------------------------------------------------------------------

    \24\ U.S. Department of Justice, Implementation of Sections 904 
and 908 of the Violence Against Women Reauthorization Act of 2013 
(Apr. 16, 2013).
---------------------------------------------------------------------------

    On April 12, 2013, the Department participated in a hearing of the 
Indian Law and Order Commission on implementation of VAWA 2013 and the 
Pilot Project, held in conjunction with the Federal Bar Association's 
38th Annual Indian Law Conference in New Mexico. In addition, the 
Department held a series of informal consultations with tribal 
stakeholders, including calls with tribal judges and court personnel 
(on May 8, 2013); tribal prosecutors (May 13); tribal public defenders 
(May 2); federal public defenders (May 6); tribal in-house counsel (May 
9); tribal victim advocates and victim service providers (May 1); and 
professors of Indian law (May 10). Finally, the Department received 
written comments from more than a dozen American Indian and Alaska 
Native tribes, members of the public, and intertribal organizations, 
including the National Congress of American Indians (NCAI), the 
National American Indian Court Judges Association (NAICJA), the 
National Association of Indian Legal Services (NAILS), and the Tribal 
Law and Policy Institute (TLPI).
    During these consultations, some tribal officials expressed a 
desire to expedite the Pilot Project process, while other tribal 
officials asked the Department of Justice to engage in further tribal 
consultation before proceeding. Generally, there was a consensus that 
the main value of the Pilot Project will lie in (1) Collaboration and 
information-sharing among the Pilot Project tribes; (2) flexible 
interaction between tribes and criminal justice experts at the 
Department of Justice and elsewhere; and (3) collecting the various 
tribal laws and procedures developed by the Pilot Project tribes that 
exercise SDVCJ on an accelerated basis and ``sharing that information 
forward'' with tribes that may implement VAWA 2013 and exercise SDVCJ 
after the Pilot Project is completed.
    There also was a strong consensus in favor of tribal ``self-
certification''--that is, a process in which the requesting tribe 
provides brief written answers to detailed questions about its criminal 
justice system; the tribe's leader, attorney, and chief judge each 
certify the completeness and accuracy of the answers; and Justice 
Department personnel then rely principally on those answers and thus 
need to engage in only limited follow-up inquiries, rather than 
undertake extensive investigation and site visits. At the same time, 
tribal officials recognized that the Department of Justice has a 
responsibility to exercise due diligence in assessing tribes' 
capacities and therefore must at times review extrinsic evidence of 
tribes' compliance with the new federal law's requirements, including 
tribal constitutional provisions, tribal code provisions, tribal court 
rules, tribal administrative orders, tribal written policies, and 
tribal written procedures, as well as summaries of the qualifications 
of certain tribal staff.
    The Department of Justice believes that the key concerns that 
tribal officials highlighted at the tribal consultations in April and 
May 2013 have been addressed in this notice. The two-phased structure 
is designed to move forward quickly with implementation, yet allow 
adequate time for deliberation and consultation. The proposed Phase One 
of the Pilot Project addresses the consensus about intertribal 
collaboration and information-sharing. Proposed Phase Two addresses the 
consensus about tribal self-certification, while also providing for 
necessary, targeted follow-up inquiries by the Department of Justice.
Executive Orders 12866 and 13563--Regulatory Planning and Review
    Because this notice is not a ``significant regulatory action'' 
under Executive Order 12866 of September 30, 1993 (``Regulatory 
Planning and Review''), as amended, it is not subject to review under 
Executive Order 12866 or 13563.
Executive Order 13132--Federalism
    This notice will not have substantial direct effects on the states, 
on the relationship between the national government and the states, or 
on the

[[Page 35969]]

distribution of power and responsibilities among the various levels of 
government. Under 25 U.S.C. 1304(b)(2)-(3), a participating tribe may 
exercise SDVCJ only concurrently with the jurisdiction of the United 
States, of a state, or of both. The new law does not alter federal or 
state criminal jurisdiction. Therefore, in accordance with Executive 
Order 13132 of August 4, 1999, this notice does not have sufficient 
federalism implications to warrant the preparation of a federalism 
assessment.
Executive Order 12988--Civil Justice Reform
    This notice meets the applicable standards set forth in section 
3(a) and (b)(2) of Executive Order 12988 of February 5, 1996.
Regulatory Flexibility Act
    Because this notice is not required to be published as a proposed 
rule under 5 U.S.C. 553, it need not be reviewed under the Regulatory 
Flexibility Act, 5 U.S.C. 603(a). In any event, this notice will not 
have a significant economic impact on a substantial number of small 
entities; thus, no regulatory flexibility analysis is required for that 
reason as well. Id. 605(b).
Unfunded Mandates Reform Act of 1995
    This notice will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Moreover, becoming a participating 
tribe and exercising SDVCJ--whether as part of the Pilot Project 
between now and March 2015, or at any time after March 2015--are 
entirely voluntary. Therefore, no actions were deemed necessary under 
the provisions of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4.
Small Business Regulatory Enforcement Fairness Act of 1996
    Because this notice does not include a rule, it need not be 
reviewed under section 251 of the Small Business Regulatory Enforcement 
Fairness Act of 1996, 5 U.S.C. 804. In any event, this notice will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets. See id.

     Dated: June 10, 2013.
Eric H. Holder, Jr.,
Attorney General.

Appendix

Substantive Questions for Consideration by Interested Tribes and by the 
Intertribal Technical-Assistance Working Group on Special Domestic 
Violence Criminal Jurisdiction

    The following is a preliminary list of questions that tribes 
interested in the Pilot Project might find useful as a starting 
point in identifying key issues and developing a checklist of best 
practices for exercising special domestic violence criminal 
jurisdiction (SDVCJ) on an accelerated basis.
    Some of the questions on this list focus on statutory 
requirements that Congress included in the Violence Against Women 
Reauthorization Act of 2013 (VAWA 2013). Other questions touch on 
broader topics, such as those covered in the authorized grants to 
tribal governments in 25 U.S.C. 1304(f), that are potentially 
relevant to tribal ``best practices'' but clearly are not required 
by VAWA 2013 or any other federal law.
    Many of these questions were raised during tribal consultation. 
The Department of Justice anticipates that they may be further 
discussed by members of the Intertribal Technical-Assistance Working 
Group on Special Domestic Violence Criminal Jurisdiction (ITWG) in 
collaboratively developing tribal best practices.
    Some--but certainly not all--of these questions touch on issues 
that the Department of Justice anticipates addressing in the 
Application Questionnaire, which will serve as a tribe's formal 
request to commence exercising SDVCJ on an accelerated basis during 
Phase Two of the Pilot Project. The Application Questionnaire will 
be appended to the final notice that the Department of Justice 
expects to publish in the Federal Register, probably in late 2013.
    Some of the questions in this Appendix may be answered by 
reference to unwritten tribal practices. But most of these questions 
deal with features of a tribal criminal justice system that would 
likely be memorialized in the tribe's constitution, criminal code, 
rules of evidence, rules of criminal procedure, rules of appellate 
procedure, or written policies. Therefore, for each of these 
questions, interested tribes might consider whether amendments to 
their laws, rules, or policies are needed.

The Right to Trial by an Impartial Jury

    Statutory Background: Section 1304(d)(3) provides that, ``[i]n a 
criminal proceeding in which a participating tribe exercises 
[SDVCJ], the participating tribe shall provide to the defendant . . 
. the right to a trial by an impartial jury that is drawn from 
sources that--(A) reflect a fair cross section of the community; and 
(B) do not systematically exclude any distinctive group in the 
community, including non-Indians.''
    Section 1304(f)(3) authorizes grants to tribal governments ``to 
ensure that, in criminal proceedings in which a participating tribe 
exercises [SDVCJ], jurors are summoned, selected, and instructed in 
a manner consistent with all applicable requirements.'' Congress has 
not yet appropriated funds for any grant authorized by section 1304.
    Geographic Scope of the Community: For purposes of determining 
the composition of the jury pool for SDVCJ cases, how will the tribe 
define the geographic scope of the ``community''? Is the 
``community'' coextensive with the tribe's Indian country? Is the 
existence or geographic scope of the tribe's Indian country in 
dispute?
    Membership in the Community: To be deemed a member of the 
relevant ``community,'' must a person reside within the community's 
geographic scope? Does the community include persons who reside 
outside, but are employed within, the community's geographic scope? 
Does the community include all employees of the tribe, its agencies, 
and its business entities?
    Lists of Prospective Jurors: How will the tribe obtain and 
maintain an accurate, updated list of adult community members, 
including nonmember Indians and non-Indians, who are potentially 
eligible to be jurors in SDVCJ cases? In compiling the tribe's 
official list of prospective jurors, what lists will the tribe use 
(e.g., state or local lists of registered voters or actual voters, 
tribal lists of registered voters or actual voters, state or tribal 
lists of licensed drivers, lists provided by various tribal agencies 
such as the tribal housing or taxing authority)? How often will 
those lists be updated and merged, to form the tribe's official list 
of prospective jurors? Will the tribe maintain one official list of 
prospective jurors for SDVCJ cases and a separate official list of 
prospective jurors for cases with Indian defendants, or will the 
tribe maintain one official list of prospective jurors for all 
cases? Are non-Indians (and nonmember Indians) already included in 
the tribe's jury pools?
    Inclusiveness of the List: Approximately how many adults are 
members of the community? Approximately how many persons are on the 
tribe's official list of prospective jurors for SDVCJ cases?
    Representativeness of the List: Approximately what percentage of 
adult community members (the population eligible to serve as jurors 
in SDVCJ cases) do tribal members, nonmember Indians, and non-
Indians represent? For comparison, approximately what percentage of 
the tribe's official list of prospective jurors for SDVCJ cases do 
tribal members, nonmember Indians, and non-Indians represent? Will 
the tribe collect demographic data by questionnaire from all persons 
reporting for jury duty in SDVCJ cases (whether they are selected as 
a trial juror or not)? Is there a significant disparity between the 
percentage of the venire (i.e., the persons reporting for jury duty) 
that is non-Indian and the percentage of adult community members 
that is non-Indian?
    Failure of Prospective Jurors to Appear: Given that the tribe 
lacks general criminal jurisdiction over non-Indians in the 
community, how will the tribe encourage non-Indians to fulfill their 
obligation to serve as jurors when summoned for SDVCJ cases?
    Randomness of Jury Selection: What are the qualifications for 
eligibility for jury

[[Page 35970]]

service (e.g., minimum age, maximum age, length of residence/
membership in the community, lack of a felony conviction or pending 
felony charges, U.S. citizenship, ability to communicate in English 
or another language, etc.)? When, if ever, can prospective jurors be 
removed based on challenges for cause or peremptory challenges? Are 
there any other respects in which the selection of jurors is non-
random?
    Jury Verdicts: Will the tribe require unanimous guilty verdicts 
in SDVCJ cases?
    Waiver: Under tribal law, what are the standards and procedures 
for determining whether a defendant is competent and has, by guilty 
plea or otherwise, knowingly and intelligently waived his right to 
have the case tried by a jury?
    ICRA's Jury Right and VAWA's Impartial-Jury Right: Under section 
1304(d)(3), as enacted in VAWA 2013, a participating tribe must 
provide the defendant in an SDVCJ case an absolute right to a jury 
trial, regardless of whether the offense is punishable by 
imprisonment, and regardless of whether the person accused requests 
a jury trial. Under section 1302(a)(10), as enacted in the Indian 
Civil Rights Act of 1968 (ICRA), tribes cannot ``deny to any person 
accused of an offense punishable by imprisonment the right, upon 
request, to a trial by jury of not less than six persons.'' Because 
section 1304(d)(3) does not so qualify the right to a trial by an 
impartial jury, the right to a trial by an impartial jury in an 
SDVCJ case applies even if the defendant does not expressly request 
a jury trial and even if the offense is not punishable by 
imprisonment. Are the tribe's laws consistent with these federal 
statutory rights?

The Rights Described in the Tribal Law and Order Act of 2010

    Statutory Background: Section 1304(d)(2) provides that, ``[i]n a 
criminal proceeding in which a participating tribe exercises 
[SDVCJ], the participating tribe shall provide to the defendant . . 
. [,] if a term of imprisonment of any length may be imposed, all 
rights described in section 202(c) [of ICRA].''
    As amended by the Tribal Law and Order Act of 2010 (TLOA), 
ICRA's section 202(c), codified at 25 U.S.C. 1302(c), describes five 
rights, all of which will apply in SDVCJ cases in which imprisonment 
may be imposed:
    In a criminal proceeding . . ., the Indian tribe shall--
    (1) provide to the defendant the right to effective assistance 
of counsel at least equal to that guaranteed by the United States 
Constitution; and
    (2) at the expense of the tribal government, provide an indigent 
defendant the assistance of a defense attorney licensed to practice 
law by any jurisdiction in the United States that applies 
appropriate professional licensing standards and effectively ensures 
the competence and professional responsibility of its licensed 
attorneys;
    (3) require that the judge presiding over the criminal 
proceeding--
    (A) has sufficient legal training to preside over criminal 
proceedings; and
    (B) is licensed to practice law by any jurisdiction in the 
United States;
    (4) prior to charging the defendant, make publicly available the 
criminal laws (including regulations and interpretative documents), 
rules of evidence, and rules of criminal procedure (including rules 
governing the recusal of judges in appropriate circumstances) of the 
tribal government; and
    (5) maintain a record of the criminal proceeding, including an 
audio or other recording of the trial proceeding.

25 U.S.C. 1302(c).
    Section 1304(f)(2) authorizes grants to tribal governments ``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.'' This provision expressly refers 
to all such criminal proceedings and is not limited to SDVCJ cases 
with non-Indian defendants.
    Section 1304(f)(1) authorizes grants to tribal governments, 
among other things, ``to strengthen tribal criminal justice systems 
to assist Indian tribes in exercising [SDVCJ], including . . . 
prosecution; . . . trial and appellate courts; . . . [and] criminal 
codes and rules of criminal procedure, appellate procedure, and 
evidence.''

General Questions on the TLOA Rights

    Felony Sentencing Under TLOA: With TLOA's enactment, the rights 
described in 25 U.S.C. 1302(c) must be protected in all criminal 
cases in which a tribe ``imposes a total term of imprisonment of 
more than 1 year on a defendant.'' Since TLOA was enacted on July 
29, 2010, have the tribe's courts sentenced any criminal defendant 
to a total term of imprisonment of more than one year? If not, does 
the tribe have plans to commence exercising this enhanced sentencing 
authority under TLOA?
    Cases in Which Imprisonment ``May Be Imposed'': Under tribal 
law, in what circumstances, if any, may a criminal defendant who was 
sentenced only to pay a criminal fine and not to serve a term of 
imprisonment be imprisoned for failure to pay the fine?

Defense Attorneys

    Effective Assistance of Licensed Defense Attorneys: In criminal 
proceedings in which the tribe will exercise SDVCJ and terms of 
imprisonment of any length are or may be imposed, how will the tribe 
protect defendants' right to effective assistance of counsel at 
least equal to that guaranteed by the United States Constitution? In 
such criminal proceedings, how will the tribe provide to indigent 
defendants, at the expense of the tribal government, the assistance 
of defense attorneys licensed to practice law by any jurisdiction in 
the United States that applies appropriate professional licensing 
standards and effectively ensures the competence and professional 
responsibility of its licensed attorneys? Will indigent Indian 
defendants be afforded the same rights as indigent non-Indian 
defendants, at least in cases involving crimes of domestic violence 
or dating violence or criminal violations of protection orders?
    Qualifications of Licensed Defense Attorneys: In answering the 
following questions, it may be helpful to focus on each individual 
attorney who the tribal government pays to assist indigent 
defendants in criminal proceedings in the tribe's courts. Where is 
the attorney licensed to practice law (including state and tribal 
jurisdictions)? Would the attorney be qualified to continue 
representing an indigent defendant in federal district court by 
filing a petition for a writ of habeas corpus under 25 U.S.C. 1303? 
Are the tribe's appointed defense attorneys provided with and 
required to attend continuing legal education? Overall, how do the 
appointed defense attorneys' licenses to practice law and 
qualifications to represent clients in tribal and federal courts 
compare to those of the tribe's prosecutors?
    Tribal Licenses to Practice Law: If the tribe licenses attorneys 
to practice law, what professional licensing standards (including 
educational requirements) does the tribe apply? How does the tribe 
effectively ensure the competence and professional responsibility of 
its licensed attorneys?
    Independence of Defense Attorneys: What measures does the tribe 
take to ensure that appointed defense attorneys are free from 
political and financial influence and can exercise independent 
professional judgment?
    Caseload: If the tribe hires full-time public defenders, how 
many cases do they carry per year, on average?
    Criminal Defense Support: Do the tribe's appointed defense 
attorneys have meaningful access to investigative and expert 
services?
    Indigency: In cases in which indigent defendants have a right to 
appointed counsel, does the tribe provide free criminal defense 
services to all defendants, to all defendants who request counsel, 
or to all defendants who request counsel and demonstrate that they 
are financially unable to obtain adequate representation without 
substantial hardship? If a defendant must demonstrate eligibility, 
what are the tribe's standards for making this determination?
    When the Right Attaches: In cases in which the tribe provides 
appointed counsel, how soon after arrest, detention, or request for 
counsel are defense attorneys assigned and made available to the 
defendant? Under tribal law, does a defendant's right to appointed 
counsel extend to cases in the tribe's appellate courts?
    Waiver: Under tribal law, what are the standards and procedures 
for determining whether a defendant is competent and has knowingly 
and intelligently waived his right to counsel?

Tribal Judges

    Licensed, Legally Trained Judges: In criminal proceedings in 
which the tribe will exercise SDVCJ and terms of imprisonment of any 
length are or may be imposed, how will the tribe ensure that the 
judges presiding over the criminal proceedings (pretrial, at trial, 
and on appeal) have sufficient legal training to preside over 
criminal proceedings and are licensed to practice law by any 
jurisdiction in the United States?
    Qualifications of Licensed Judges: In answering the following 
questions, it may be helpful to focus on each individual judge who 
presides over criminal proceedings in

[[Page 35971]]

the tribe's courts. Where is the judge licensed to practice law 
(including state and tribal jurisdictions)? What legal training to 
preside over criminal proceedings has the judge received? How many 
years of experience does the judge have in practicing law and in 
serving on the bench? How do the judges' licenses, legal training, 
and experience compare to those of the state or local judges who 
preside over similar criminal proceedings in cases arising in or 
near the tribe's Indian country?
    Legal Training for Judges: Does the tribe have any law, rule, or 
policy defining what constitutes sufficient legal training to 
preside over criminal proceedings? Are the judges who preside over 
the tribe's criminal proceedings provided with and required to 
attend continuing legal education?

Tribal Laws and Rules

    Public Access to Tribal Laws and Rules: How will the tribe 
provide to the defendants and their licensed defense attorneys, 
prior to charging the defendant, the right to review, along with 
other members of the public, the criminal laws (including 
regulations and interpretative documents), rules of evidence, and 
rules of criminal procedure (including rules governing the recusal 
of judges in appropriate circumstances) of the tribal government? 
How and where can a member of the public access these laws and 
rules? Is there any fee or charge for reviewing these laws or rules? 
Are they freely available on the Internet?
    Scope of the Publicly Available Laws and Rules: What types of 
regulations, if any, constitute part of the tribe's criminal laws? 
What types of interpretative documents, if any, constitute part of 
the tribe's criminal laws? Do these documents include judicial 
opinions? Are the tribe's rules of appellate procedure accessible in 
the same manner as the rules of evidence and criminal procedure?
    Judicial Standards: Does the tribe have written rules or codes 
for judicial performance and conduct, including rules governing the 
recusal of tribal judges in appropriate circumstances?

Tribal Court Records

    Records of Criminal Proceedings: How will the tribe maintain and 
provide to defendants in SDVCJ cases a record of criminal 
proceedings, including an audio or other recording of the trial 
proceedings? What form do these records or recordings take (e.g., a 
court reporter's transcript, an audio recording, a video recording, 
etc.)? Does the tribe waive any fee for obtaining these records or 
recordings if the defendant is indigent?

Habeas Corpus Rights

    Statutory Background: Section 1304(d)(1) provides that, ``[i]n a 
criminal proceeding in which a participating tribe exercises 
[SDVCJ], the participating tribe shall provide to the defendant . . 
. all applicable rights under this Act.'' The term ``this Act'' 
refers to ICRA, 25 U.S.C. 1301-1304, as amended, including by TLOA 
in 2010 and by VAWA 2013.
    Section 1304(e)(3) provides that ``[a]n Indian tribe that has 
ordered the detention of any person has a duty to timely notify such 
person of his rights and privileges under [subsection 1304(e)] and 
under section [1303].'' Section 1303 provides that ``[t]he privilege 
of the writ of habeas corpus shall be available to any person, in a 
court of the United States, to test the legality of his detention by 
order of an Indian tribe.'' Section 1304(e)(1) provides that ``[a] 
person who has filed a petition for a writ of habeas corpus in a 
court of the United States under section [1303] may petition that 
court to stay further detention of that person by the participating 
tribe''--that is, to be released from the tribe's custody. Section 
1304(e)(2) provides the criteria for granting such a stay.
    The Tribe's ICRA Compliance: If in recent years (for example, in 
the last decade) any person detained by order of the tribe has 
prevailed in a federal habeas case against the tribe under 25 U.S.C. 
1303, or any federal or tribal court has found that the tribe 
violated a criminal defendant's rights, has the tribe adopted (or is 
it planning to implement) changes or new procedures to avoid such 
issues in the future? More generally, if challenged by a habeas 
petitioner, how can the tribe document a track record of complying 
with the rights described in ICRA's section 1302?
    Timely Notice of Habeas Rights: When and how does the tribe 
timely notify each person whose detention it has ordered of his 
rights and privileges under both 25 U.S.C. 1303 and 25 U.S.C. 
1304(e)?

Other Rights Protected by the Indian Civil Rights Act of 1968

    Statutory Background: Section 1304(d)(1) provides that, ``[i]n a 
criminal proceeding in which a participating tribe exercises 
[SDVCJ], the participating tribe shall provide to the defendant . . 
. all applicable rights under this Act [25 U.S.C. 1301-1304].''
    Section 1302(a) provides the following rights, some of which may 
have few, if any, applications in SDVCJ cases:
    No Indian tribe in exercising powers of self-government shall--
    (1) make or enforce any law prohibiting the free exercise of 
religion, or abridging the freedom of speech, or of the press, or 
the right of the people peaceably to assemble and to petition for a 
redress of grievances;
    (2) violate the right of the people to be secure in their 
persons, houses, papers, and effects against unreasonable search and 
seizures, nor issue warrants, but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to be 
searched and the person or thing to be seized;
    (3) subject any person for the same offense to be twice put in 
jeopardy;
    (4) compel any person in any criminal case to be a witness 
against himself;
    (5) take any private property for a public use without just 
compensation;
    (6) deny to any person in a criminal proceeding the right to a 
speedy and public trial, to be informed of the nature and cause of 
the accusation, to be confronted with the witnesses against him, to 
have compulsory process for obtaining witnesses in his favor, and at 
his own expense to have the assistance of counsel for his defense . 
. . ;
    (7)(A) require excessive bail, impose excessive fines, or 
inflict cruel and unusual punishments;
* * * * *
    (8) deny to any person within its jurisdiction the equal 
protection of its laws or deprive any person of liberty or property 
without due process of law;
    (9) pass any bill of attainder or ex post facto law; or
    (10) deny to any person accused of an offense punishable by 
imprisonment the right, upon request, to a trial by jury of not less 
than six persons.

25 U.S.C. 1302(a).
    Tribal Self-Assessment for Each Applicable Right: For each of 
the individual rights described in paragraphs (1) through (10) of 
section 1302(a) that might apply in an SDVCJ case, how do the 
tribe's laws, rules, policies, and practices protect a criminal 
defendant's rights? The answers may reflect not only the tribe's 
written laws, rules, and policies, but also the actual, on-the-
ground practices in the tribe's criminal justice system. This self-
assessment includes section 1302(a)(8), which prohibits a tribe from 
denying to any person ``the equal protection of its laws'' or 
depriving any person of ``liberty or property without due process of 
law.''
    Custodial Interrogation: Prior to custodial interrogation, does 
the tribe advise the suspect that he has the right to remain silent, 
that any statement he makes may be used against him in court, and 
that he has the right to obtain counsel and, if indigent, to have 
counsel appointed for him?
    Criminal Discovery: Does the tribe allow criminal defendants to 
discover the evidence against them? Does the tribe require 
prosecutors to disclose exculpatory evidence to criminal defendants?
    Language Access: Does the tribe protect the defendant's right to 
have the free assistance of an interpreter if he cannot understand 
or speak the language used in court?
    Juvenile Defendants: Will the tribe exercise SDVCJ over any 
person who was less than 18 years of age at the time of the offense? 
If so, in what respects, if any, will the tribe treat the juvenile 
defendant differently from an adult defendant?
    Appeals: Does the tribe provide every person convicted of a 
tribal crime the right to appeal the conviction, the sentence, or 
both to a tribal or intertribal appellate court composed of judges 
who have sufficient legal training, were not involved in the trial 
proceedings, and do not serve as legislative or executive officers 
of the tribe? Under tribal law, can the prosecution appeal a jury's 
not-guilty verdict?
    Equal Protection of the Tribe's Laws: How will the tribe 
guarantee the equal protection of its laws to Indian defendants who 
are not subject to SDVCJ? Will Indian defendants have the same 
rights as similarly situated non-Indian defendants, and vice versa?
    Tribal Remedies for Violations of Defendants' Rights: Under 
tribal law, if a tribal court finds that the rights of a criminal 
defendant were violated, what remedies are available to the court?

[[Page 35972]]

Tribal Criminal Code Provisions Specifically for SDVCJ Cases

    Statutory Background: Section 1304(b)(4)(A)(i) provides that 
``[a] participating tribe may not exercise [SDVCJ] over an alleged 
offense if neither the defendant nor the alleged victim is an 
Indian.'' That is simply a restatement of the long-standing case law 
providing exclusive state (rather than tribal) jurisdiction over 
most Indian-country crimes involving only non-Indians. ICRA's 
section 1301(4) defines an Indian as ``any person who would be 
subject to the jurisdiction of the United States as an Indian under 
[18 U.S.C. 1153] if that person were to commit an offense listed in 
that section in Indian country to which that section applies.''
    Section 1304(b)(4)(B) provides that ``[a] participating tribe 
may exercise [SDVCJ] 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.'' This provision ensures 
that a non-Indian defendant has sufficient ties to the prosecuting 
tribe.
    Victim and Defendant Are Both Non-Indian: Will the tribe's 
criminal code require prosecutors in cases with non-Indian 
defendants to allege and then prove beyond a reasonable doubt that 
the victim is Indian? Are special jury instructions needed?
    Defendant's Ties to the Indian Tribe: Will the tribe's criminal 
code require prosecutors in SDVCJ cases to allege and then prove 
beyond a reasonable doubt that the defendant resides in the tribe's 
Indian country; is employed in the tribe's Indian country; or is a 
spouse, intimate partner, or dating partner either of an Indian who 
resides in the tribe's Indian country or of a member of the tribe? 
Are special jury instructions needed?

Concurrent Criminal Jurisdiction

    Statutory Background: Section 1304(b)(2) provides that ``[t]he 
exercise of [SDVCJ] by a participating tribe shall be concurrent 
with the jurisdiction of the United States, of a State, or of 
both.'' And section 1304(b)(3) provides that ``[n]othing in . . . 
section [1304] . . . 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.''
    Tribal Coordination with Federal (or State) Prosecutors: Has the 
tribe developed formal or informal policies with the relevant U.S. 
Attorney's Office or Offices (or, where the state has concurrent 
jurisdiction, the relevant state or local prosecutor) for 
coordination, abstention, or deferral in cases in which more than 
one government seeks to investigate or prosecute the same defendant 
for substantially the same act or acts? Are any prosecutors for the 
tribe currently serving as Special Assistant United States Attorneys 
(SAUSAs) under 25 U.S.C. 2810(d) or 28 U.S.C. 543(a)?

The Tribe's Laws on Domestic Violence and Dating Violence

    Statutory Background: Section 1304(c) provides that ``[a] 
participating tribe may exercise [SDVCJ] over a defendant for 
criminal conduct that falls into one or more of the following 
categories. . . .'' The first category, described in section 
1304(c)(1), is ``[a]n act of domestic violence or dating violence 
that occurs in the Indian country of the participating tribe.''
    Section 1304(a)(2) defines the term ``domestic violence'' as 
``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 cohabiting with or has cohabited 
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.'' Under section 
1304(a)(7), which in turn incorporates 18 U.S.C. 2266(7), the term 
``spouse or intimate partner'' includes ``a spouse or former spouse 
of the abuser, a person who shares a child in common with the 
abuser, and a person who cohabits or has cohabited as a spouse with 
the abuser; or . . . a person who is or has been in a social 
relationship of a romantic or intimate nature with the abuser, as 
determined by the length of the relationship, the type of 
relationship, and the frequency of interaction between the persons 
involved in the relationship; and . . . any other person similarly 
situated to a spouse who is protected by the domestic or family 
violence laws of the State or tribal jurisdiction in which the 
injury occurred or where the victim resides.''
    Section 1304(a)(1) defines the term ``dating violence'' as 
``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.''
    Specialized Court or Docket: Does the tribe have a specialized 
domestic violence and dating violence court, or a specialized 
domestic violence and dating violence docket?
    The Tribe's Criminal Code and SDVCJ Cases: Does the tribe's 
criminal code establish offenses for acts of domestic violence and 
dating violence that fall squarely within the category of criminal 
conduct covered by section 1304(c)(1)? Or will these acts be 
prosecuted under a general assault statute in which the relationship 
between the defendant and the victim is not an element of the 
offense?
    Arresting Perpetrators: Do the tribe's laws or policies 
encourage or mandate arrests of domestic violence and dating 
violence offenders based on probable cause that an offense has been 
committed? Do the tribe's laws or policies authorize warrantless 
arrests of domestic violence and dating violence offenders based on 
probable cause that a misdemeanor has been committed? Do the tribe's 
laws, policies, or practices discourage dual arrests of offender and 
victim?

The Tribe's Laws on Protection Orders

    Statutory Background: Section 1304(c) provides that ``[a] 
participating tribe may exercise [SDVCJ] over a defendant for 
criminal conduct that falls into one or more of the following 
categories. . .'' The second category, described in section 
1304(c)(2), is ``[a]n act that--(A) occurs in the Indian country of 
the participating tribe; and (B) 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 
[18 U.S.C. 2265(b)].''
    Section 1304(a)(5) defines a ``protection order'' to mean ``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,'' 
including ``any temporary or final order issued by a civil or 
criminal court, whether obtained by filing an independent action or 
as a pendent[e] 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.''
    A protection order issued by a state, tribal, or territorial 
court is consistent with 18 U.S.C. 2265(b) if ``such court has 
jurisdiction over the parties and matter under the law of such 
State, Indian tribe, or territory; and . . . reasonable notice and 
opportunity to be heard is given to the person against whom the 
order is sought sufficient to protect that person's right to due 
process. In the case of ex parte orders, notice and opportunity to 
be heard must be provided within the time required by State, tribal, 
or territorial law, and in any event within a reasonable time after 
the order is issued, sufficient to protect the respondent's due 
process rights.''
    As amended by VAWA 2013's section 905, 18 U.S.C. 2265(e) now 
provides that a tribal court ``shall have full civil jurisdiction to 
issue and enforce protection orders involving any person, including 
the authority to enforce any orders through civil contempt 
proceedings, to exclude violators from Indian land, and to use other 
appropriate mechanisms, in matters arising anywhere in the Indian 
country of the Indian tribe (as defined in [18 U.S.C.] 1151) or 
otherwise within the authority of the Indian tribe.''
    The Tribe's Criminal Code and SDVCJ Cases: Does the tribe's 
criminal code establish offenses for protection-order violations 
that fall squarely within the category of criminal conduct covered 
by section 1304(c)(2)?
    Tribal-Court Issuance of Protection Orders: Do the tribe's laws 
or rules authorize the tribe's courts to issue protection orders, as 
defined in section 1304(a)(5), involving any person, Indian or non-
Indian, in matters arising anywhere in the tribe's Indian country or 
otherwise within the tribe's authority?
    Mutual Restraining Orders: Do the tribe's laws, policies, or 
practices prohibit issuance

[[Page 35973]]

of mutual restraining orders of protection except in cases in which 
both parties file a claim and the court makes detailed findings of 
fact indicating that both parties acted primarily as aggressors and 
that neither party acted primarily in self-defense?
    Tribal Registry: Do the tribe's courts maintain a registry of 
the protection orders they issue?
    Tribal-Court Enforcement of Protection Orders: Do the tribe's 
courts enforce protection orders, as defined in section 1304(a)(5), 
involving any person, Indian or non-Indian, in matters arising 
anywhere in the tribe's Indian country or otherwise within the 
tribe's authority? What mechanisms do the tribe's courts use to 
enforce protection orders? Do the tribe's laws or policies encourage 
or mandate arrest of domestic violence offenders who violate the 
terms of a valid and outstanding protection order?
    Cross-Jurisdiction Recognition of Protection Orders: Do the 
tribe's courts recognize and enforce protection orders issued by the 
courts of the state or states in which the tribe's Indian country is 
located, and vice versa?
    Internet Publication: Do the tribe's laws or policies prevent 
publication on the Internet of the registration or filing of a 
protection order if such publication would reveal the identity of 
the party protected by the order?

Tribal Protection of Victims' Rights

    Statutory Background: Section 1304(f)(1)(G) authorizes grants to 
tribal governments, among other things, ``to strengthen tribal 
criminal justice systems to assist Indian tribes in exercising 
[SDVCJ], including . . . culturally appropriate services and 
assistance for victims and their families.'' Section 1304(f)(4) 
authorizes grants to tribal governments ``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 [18 U.S.C. 3771(a)], consistent with tribal law and 
custom.''
    Eight rights of crime victims are described in 18 U.S.C. 
3771(a), a federal statute that does not directly apply to or impose 
obligations on tribes or tribal courts:
    (1) The right to be reasonably protected from the accused.
    (2) The right to reasonable, accurate, and timely notice of any 
public court proceeding, or any parole proceeding, involving the 
crime or of any release or escape of the accused.
    (3) The right not to be excluded from any such public court 
proceeding, unless the court, after receiving clear and convincing 
evidence, determines that testimony by the victim would be 
materially altered if the victim heard other testimony at that 
proceeding.
    (4) The right to be reasonably heard at any public proceeding in 
the district court involving release, plea, sentencing, or any 
parole proceeding.
    (5) The reasonable right to confer with the attorney for the 
Government in the case.
    (6) The right to full and timely restitution as provided in law.
    (7) The right to proceedings free from unreasonable delay.
    (8) The right to be treated with fairness and with respect for 
the victim's dignity and privacy.

18 U.S.C. 3771(a).
    Crime Victims' Rights Under Tribal Law: How do the tribe's laws, 
rules, policies, and practices protect the rights of victims of 
domestic violence and dating violence, consistent with tribal law 
and custom, while providing victim services and assistance in a 
manner appropriate to the tribe's culture?
    Availability of Victim Services and Assistance: Do the tribe's 
laws or policies make services and assistance available to victims 
of domestic violence or dating violence, regardless of the victim's 
decision to report the crime to law enforcement or cooperate in any 
law enforcement investigation and regardless of the victim's 
relationship to the alleged perpetrator?
    Safety Planning: Do the tribe's laws or policies encourage 
safety planning with victims of domestic violence or dating violence 
who report crimes or seek services?
    Victim Notification: Does the tribe operate its own victim 
notification system? Does the tribe participate in the victim 
notification system of each state in which the tribe's Indian 
country is located?
    Confidential Victim Information: Do the tribe's laws or policies 
prevent domestic violence service provider programs from sharing 
confidential victim information with outside organizations or 
individuals without the victim's documented consent?
    Juvenile Victims: Are there any special provisions in the 
tribe's laws, rules, or policies that would apply in an SDVCJ case 
because the victim is less than 18 years of age?

Detention, Corrections, Probation, and Parole

    Statutory Background: Section 1304(f)(1)(D)-(F) authorizes 
grants to tribal governments, among other things, ``to strengthen 
tribal criminal justice systems to assist Indian tribes in 
exercising [SDVCJ], including . . . probation systems; . . . 
detention and correctional facilities; . . . [and] alternative 
rehabilitation centers.''
    Non-Indian Inmates: Does any federal, state, local, or tribal 
statutory, regulatory, or contractual provision prohibit the tribe 
from housing non-Indians accused or convicted of tribal criminal 
offenses in the same jails and prisons in which the tribe houses 
Indians accused or convicted of tribal criminal offenses?
    Where Tribal Sentences Are Served: Does the tribe have a tribal 
correctional center appropriate for both short- and long-term 
incarceration? Does the tribe have an alternative rehabilitation 
center? Does the tribe have an agreement with a state or local 
government to house prisoners in a state or local government-
approved detention or correctional center that is appropriate for 
both short- and long-term incarceration?
    Alternative Punishments: Does the tribe sentence defendants in 
domestic violence or dating violence cases to serve alternative 
forms of punishment, as determined by a tribal judge under tribal 
law, or consistent with tribal custom or traditional tribal dispute 
resolution?
    Batterer-Intervention Programs: Does the tribe have a court-
ordered and court-monitored batterer intervention program (BIP) to 
hold batterers accountable for their behavior without incarcerating 
them? Do the tribe's courts hold accountable the batterers who fail 
to complete such court-ordered BIPs?
    Probation or Parole and Reentry: Does the tribe have or provide 
access to a reentry program for defendants who have been 
incarcerated?

Crime Information Databases

    Statutory Background: Section 1304(f)(1)(A) authorizes grants to 
tribal governments, among other things, ``to strengthen tribal 
criminal justice systems to assist Indian tribes in exercising 
[SDVCJ], including . . . law enforcement (including the capacity of 
law enforcement or court personnel to enter information into and 
obtain information from national crime information databases).''
    Tribal Databases: Do the tribe's law enforcement or court 
personnel maintain a criminal justice information repository, such 
as a database of convicted persons?
    State Databases: Do the tribe's court personnel enter protection 
orders into the state protection-order database for the state or 
states in which the tribe's Indian country is located?
    CJIS Databases: Do the tribe's court personnel (1) enter 
protection orders into the FBI Criminal Justice Information Services 
(CJIS) National Crime Information Center (NCIC) Protection Order 
File; and (2) enter data (e.g., orders committing a person to a 
mental institution) into CJIS's National Instant Criminal Background 
Check System (NICS) Index? Do the tribe's law enforcement personnel, 
court personnel, or both (1) obtain criminal history information 
from CJIS databases; (2) enter court disposition data into CJIS 
databases; (3) enter arrest warrants into CJIS's NCIC Wanted Person 
File; (4) enter information about sex offenders into the CJIS's 
NCIC/National Sex Offender Registry (NSOR); and (5) take 
fingerprints from arrestees and submit fingerprint data to CJIS's 
Integrated Automated Fingerprint Identification System (IAFIS)?
    UCR Data: Do the tribe's law enforcement personnel submit 
Uniform Crime Reporting (UCR) data? If so, is the UCR data submitted 
directly to FBI CJIS, through the Bureau of Indian Affairs' Office 
of Justice Services (BIA-OJS), through the state, or through some 
other route?

Commencing to Exercise SDVCJ

    Statutory Background: In authorizing funding for these purposes, 
section 1304(h) recognizes the potential need ``to provide training, 
technical assistance, data collection, and evaluation of the 
criminal justice systems of participating tribes.'' VAWA 2013's 
section 908(b)(2)(C) provides that the date on which a participating 
tribe may commence exercising SDVCJ under the Pilot Project must be 
``established by the Attorney General, after consultation with that 
Indian tribe.''
    Training and Technical Assistance: What additional training or 
technical assistance, if

[[Page 35974]]

any, is needed by the tribe's officers, employees, or contractors 
before commencing the exercise of SDVCJ?
    Data Collection and Assessment: For the duration of the Pilot 
Project period (i.e., until March 7, 2015), would the tribe be 
willing to actively participate in the ITWG and collect and analyze 
data on the tribe's SDVCJ cases (and any resulting federal habeas 
cases)?

[FR Doc. 2013-14158 Filed 6-13-13; 8:45 am]
BILLING CODE 4410-A5-P