New federal laws: Tribes to exercise criminal jurisdiction

Two relatively new federal laws give tribes the opportunity to exercise criminal jurisdiction in ways they previously have not been able. The Violence Against Women Act (“VAWA”) allows tribes to exercise criminal jurisdiction over non-Native individuals in certain domestic violence-related crimes. The Tribal Law and Order Act (TLOA) allows tribes to greatly increase their sentencing authority in criminal cases. If a tribe wishes to take advantage of the opportunities offered by these laws, the tribe must amend its Codes to comport with the federal laws.

VAWA poses special considerations. Under current Southern Ute law, juries in Tribal Court criminal cases are composed only of Southern Ute Tribal Members. Limiting jury composition to tribal members only seems logical when, in a Tribal Court criminal case, the Southern Ute Tribal Court is applying Southern Ute law to an event that occurred on the Southern Ute Indian Reservation.

Implementing the provisions of VAWA would require that the Tribe drastically change its law regarding jury composition. Under VAWA, the Tribe would be required to include tribal members, other Native Americans, and non-Native persons in the jury selection process. Basically any adult living on the Reservation would be subject for jury duty in the Tribal Court.

Allowing a tribe to exercise criminal jurisdiction over non-Natives is a good thing – even if that exercise of jurisdiction is limited to particular types of cases. However, the VAWA’s requirement regarding jury composition poses practical and philosophical issues.

As a practical matter, it’s unclear whether the Tribal Court has any means of determining who lives within the exterior boundaries of the Reservation, and how it might go about summoning these persons for jury duty. It’s also unclear whether the VAWA’s jury composition requirement would apply only to cases the Tribe was prosecuting pursuant to VAWA, or other types of cases as well.

The philosophical issues are perhaps more profound issues – and more worthy of meaningful discussion. Does the Tribe want to include non-tribal members in its pool of prospective jurors? Does the Tribe want to have non-tribal members interpreting and applying Southern Ute law in the Southern Ute Tribal Court? Would Tribal identity be impacted by such a process?

Much work is currently being done to update the Tribe’s laws, including the Criminal Code and Criminal Procedure Code. Since the Tribe is already in the process of amending its laws, now would seem a logical time for the Tribe to decide whether it wants to take advantage of the opportunities offered by the VAWA and TOLA. Such decisions should not be taken lightly, and should not be made without meaningful consideration and discussion.


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