25 U.S.C. § 1304

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 1304 - Tribal jurisdiction over covered crimes

(a) Definitions

In this section:

(1) Assault of Tribal justice personnel

The term "assault of Tribal justice personnel" means any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that involves the use, attempted use, or threatened use of physical force against an individual authorized to act for, or on behalf of, that Indian tribe or serving that Indian tribe during, or because of, the performance or duties of that individual in-

(A) preventing, detecting, investigating, making arrests relating to, making apprehensions for, or prosecuting a covered crime;

(B) adjudicating, participating in the adjudication of, or supporting the adjudication of a covered crime;

(C) detaining, providing supervision for, or providing services for persons charged with a covered crime; or

(D) incarcerating, supervising, providing treatment for, providing rehabilitation services for, or providing reentry services for persons convicted of a covered crime.

(2) Child

The term "child" means a person who has not attained the lesser of-

(A) the age of 18; and

(B) except in the case of sexual abuse, the age specified by the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs.

(3) Child violence

The term "child violence" means the use, threatened use, or attempted use of violence against a child proscribed by the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs.

(4) Coercion; commercial sex act

The terms "coercion" and "commercial sex act" have the meanings given the terms in section 1591(e) of title 18.

(5) Covered crime

The term "covered crime" means-

(A) assault of Tribal justice personnel;

(B) child violence;

(C) dating violence;

(D) domestic violence;

(E) obstruction of justice;

(F) sexual violence;

(G) sex trafficking;

(H) stalking; and

(I) a violation of a protection order.

(6) Dating violence

The term "dating violence" means any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that is 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.

(7) Domestic violence

The term "domestic violence" means any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that is committed by-

(A) a current or former spouse or intimate partner of the victim;

(B) a person with whom the victim shares a child in common;

(C) a person who is cohabitating with or who has cohabitated with the victim as a spouse or intimate partner; or

(D) a person similarly situated to a spouse of the victim under the domestic- or family-violence laws of the Indian tribe that has jurisdiction over the Indian country where the violation occurs.

(8) Indian country

The term "Indian country" has the meaning given the term in section 1151 of title 18.

(9) Obstruction of justice

The term "obstruction of justice" means any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that involves interfering with the administration or due process of the laws of the Indian tribe, including any Tribal criminal proceeding or investigation of a crime.

(10) Participating tribe

The term "participating tribe" means an Indian tribe that elects to exercise special Tribal criminal jurisdiction over the Indian country of that Indian tribe.

(11) Protection order

The term "protection order"-

(A) means any injunction, restraining order, or other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence against, contact or communication with, or physical proximity to, another person; and

(B) includes any temporary or final order issued by a civil or criminal court, whether obtained by filing an independent action or as a pendent lite order in another proceeding, if the civil or criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection.

(12) Sex trafficking

The term "sex trafficking" means conduct within the meaning of section 1591(a) of title 18.

(13) Sexual violence

The term "sexual violence" means any nonconsensual sexual act or contact proscribed by the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs, including in any case in which the victim lacks the capacity to consent to the act.

(14) Special Tribal criminal jurisdiction

The term "special Tribal criminal jurisdiction" means the criminal jurisdiction that a participating tribe may exercise under this section but could not otherwise exercise.

(15) Spouse or intimate partner

The term "spouse or intimate partner" has the meaning given the term in section 2266 of title 18.

(16) Stalking

The term "stalking" means engaging in a course of conduct directed at a specific person proscribed by the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that would cause a reasonable person-

(A) to fear for the person's safety or the safety of others; or

(B) to suffer substantial emotional distress.

(17) Violation of a protection order

The term "violation of a protection order" means an act that-

(A) occurs in the Indian country of a participating tribe; and

(B) violates a provision of a protection order that-

(i) 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;

(ii) was issued against the defendant;

(iii) is enforceable by the participating tribe; and

(iv) is consistent with section 2265(b) of title 18.

(b) Nature of the criminal jurisdiction

(1) In general

Notwithstanding any other provision of law, in addition to all powers of self-government recognized and affirmed by sections 1301 and 1303 of this title, the powers of self-government of a participating tribe, including any participating tribes in the State of Maine, include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special Tribal criminal jurisdiction over all persons.

(2) Concurrent jurisdiction

The exercise of special Tribal criminal jurisdiction by a participating tribe shall be concurrent with the jurisdiction of the United States, of a State, or of both.

(3) Applicability

Nothing in this section-

(A) creates or eliminates any Federal or State criminal jurisdiction over Indian country; or

(B) 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.

(4) Exception if victim and defendant are both non-Indians

(A) In general

A participating tribe may not exercise special Tribal criminal jurisdiction over an alleged offense, other than obstruction of justice or assault of Tribal justice personnel, if neither the defendant nor the alleged victim is an Indian.

(B) Definition of victim

In this paragraph and with respect to a criminal proceeding in which a participating tribe exercises special Tribal criminal jurisdiction based on a violation of a protection order, the term "victim" means a person specifically protected by a protection order that the defendant allegedly violated.

(c) Criminal conduct

A participating tribe may exercise special Tribal criminal jurisdiction over a defendant for a covered crime that occurs in the Indian country of the participating tribe.

(d) Rights of defendants

In a criminal proceeding in which a participating tribe exercises special Tribal criminal jurisdiction, the participating tribe shall provide to the defendant-

(1) all applicable rights under this Act;

(2) if a term of imprisonment of any length may be imposed, all rights described in section 1302(c) of this title;

(3) 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; and

(4) all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise special Tribal criminal jurisdiction over the defendant.

(e) Petitions to stay detention

(1) In general

A person who has filed a petition for a writ of habeas corpus in a court of the United States under section 1303 of this title may petition that court to stay further detention of that person by the participating tribe.

(2) Grant of stay

A court shall grant a stay described in paragraph (1) if the court-

(A) finds that there is a substantial likelihood that the habeas corpus petition will be granted; and

(B) after giving each alleged victim in the matter an opportunity to be heard, finds by clear and convincing evidence that under conditions imposed by the court, the petitioner is not likely to flee or pose a danger to any person or the community if released.

(f) Petitions for writs of habeas corpus

(1) In general

After a defendant has been sentenced by a participating tribe, the defendant may file a petition for a writ of habeas corpus in a court of the United States under section 1303 of this title.

(2) Requirement

An application for a writ of habeas corpus on behalf of a person in custody pursuant to an order of a Tribal court shall not be granted unless -

(A) the applicant has exhausted the remedies available in the Tribal court system;

(B) there is an absence of an available Tribal corrective process; or

(C) circumstances exist that render the Tribal corrective process ineffective to protect the rights of the applicant.

(g) Notice; habeas corpus petitions

A participating tribe that has ordered the detention of any person has a duty to timely notify in writing such person of their rights and privileges under this section and under section 1303 of this title.

(h) Reimbursement and grants to Tribal governments

(1) Reimbursement

(A) In general

The Attorney General may reimburse Tribal government authorities (or an authorized designee of a Tribal government) for expenses incurred in exercising special Tribal criminal jurisdiction.

(B) Eligible expenses

Eligible expenses for reimbursement under subparagraph (A) shall include expenses and costs incurred in, relating to, or associated with-

(i) investigating, making arrests relating to, making apprehensions for, or prosecuting covered crimes (including costs involving the purchasing, collecting, and processing of sexual assault forensic materials);

(ii) detaining, providing supervision of, or providing services for persons charged with covered crimes (including costs associated with providing health care);

(iii) providing indigent defense services for 1 or more persons charged with 1 or more covered crimes; and

(iv) incarcerating, supervising, or providing treatment, rehabilitation, or reentry services for 1 or more persons charged with 1 or more covered crimes.

(C) Procedure

(i) In general

Reimbursements authorized under subparagraph (A) shall be in accordance with rules promulgated by the Attorney General, after consultation with Indian tribes, and within 1 year after March 15, 2022.

(ii) Maximum reimbursement

The rules promulgated by the Attorney General under clause (i)-

(I) shall set a maximum allowable reimbursement to any Tribal government (or an authorized designee of any Tribal government) in a 1-year period; and

(II) may allow the Attorney General-

(aa) to establish conditions under which a Tribal government (or an authorized designee of a Tribal government) may seek a waiver to the maximum allowable reimbursement requirement established under subclause (I); and

(bb) to waive the maximum allowable reimbursement requirements established under subclause (I) for a Tribal government (or an authorized designee of a Tribal government) if the conditions established by the Attorney General under item (aa) are met by that Tribal government (or authorized designee).

(iii) Timeliness of reimbursements

To the maximum extent practicable, the Attorney General shall-

(I) not later than 90 days after the date on which the Attorney General receives a qualifying reimbursement request from a Tribal government (or an authorized designee of a Tribal government)-

(aa) reimburse the Tribal government (or authorized designee); or

(bb) notify the Tribal government (or authorized designee) of the reason by which the Attorney General was unable to issue the reimbursement; and

(II) not later than 30 days after the date on which a Tribal government (or an authorized designee of a Tribal government) reaches the annual maximum allowable reimbursement for the Tribal government (or an authorized designee) established by the Attorney General under clause (ii)(I), notify the Tribal government (or authorized designee) that the Tribal government has reached its annual maximum allowable reimbursement.

(D) Eligibility for participating tribes in Alaska

A Tribal government (or an authorized designee of a Tribal Government) of an Indian tribe designated as a participating Tribe under subtitle B of title VIII of the Violence Against Women Act Reauthorization Act of 2022 shall be eligible for reimbursement, in accordance with this paragraph, of expenses incurred in exercising special Tribal criminal jurisdiction under that subtitle.

(2) Grants

The Attorney General may award grants to Tribal governments (or authorized designees of Tribal governments), including a Tribal government (or an authorized designee of a Tribal government) of an Indian tribe designated as a participating Tribe under subtitle B of title VIII of the Violence Against Women Act Reauthorization Act of 2022-

(A) to strengthen Tribal criminal justice systems to assist Indian tribes in exercising special Tribal criminal jurisdiction, including for-

(i) law enforcement (including the capacity of law enforcement, court personnel, or other non-law enforcement entities that have no Federal or State arrest authority agencies but have been designated by an Indian tribe as responsible for maintaining public safety within the territorial jurisdiction of the Indian tribe, to enter information into and obtain information from national crime information databases);

(ii) prosecution;

(iii) trial and appellate courts (including facilities maintenance, renovation, and rehabilitation);

(iv) supervision systems;

(v) detention and corrections (including facilities maintenance, renovation, and rehabilitation);

(vi) treatment, rehabilitation, and reentry programs and services;

(vii) culturally appropriate services and assistance for victims and their families; and

(viii) criminal codes and rules of criminal procedure, appellate procedure, and evidence;

(B) to provide indigent criminal defendants with licensed defense counsel, at no cost to the defendant, in criminal proceedings in which a participating tribe prosecutes covered crimes;

(C) to ensure that, in criminal proceedings in which a participating tribe exercises special Tribal criminal jurisdiction, jurors are summoned, selected, and instructed in a manner consistent with all applicable requirements; and

(D) to accord victims of covered crimes rights that are similar to the rights of a crime victim described in section 3771(a) of title 18 consistent with Tribal law and custom.

(i) Supplement, not supplant

Amounts made available under this section shall supplement and not supplant any other Federal, State, or local government amounts made available to carry out activities described in this section.

(j) Authorization of appropriations

(1) In general

There is authorized to be appropriated $25,000,000 for each of fiscal years 2023 through 2027-

(A) to carry out subsection (h); and

(B) to provide training, technical assistance, data collection, and evaluation of the criminal justice systems of participating tribes.

(2) Limitations

Of the total amount made available under paragraph (1) for each fiscal year, not more than 40 percent shall be used for reimbursements under subsection (h)(1).

25 U.S.C. § 1304

Pub. L. 90-284, title II, §204, as added Pub. L. 113-4, title IX, §904, Mar. 7, 2013, 127 Stat. 120; amended Pub. L. 117-103, div. W, title VIII, §804, Mar. 15, 2022, 136 Stat. 898.

EDITORIAL NOTES

REFERENCES IN TEXTThis Act, referred to in subsec. (d)(1), probably means title II of Pub. L. 90-284, Apr. 11, 1968, 82 Stat. 77, popularly known as the Indian Civil Rights Act of 1968, which is classified generally to this subchapter.Subtitle B of title VIII of the Violence Against Women Act Reauthorization Act of 2022, referred to in subsec. (h)(1)(D), (2), is subtitle B (§§811-813) of title VIII of div. W of Pub. L. 117-103, 136 Stat. 904, which enacted section 1305 of this title and provisions set out as notes under section 1305 of this title. For complete classification of subtitle B to the Code, see Tables.

AMENDMENTS2022- Pub. L. 117-103, §804(1), (2), substituted "covered crimes" for "crimes of domestic violence" in section catchline and, in text, substituted "special Tribal criminal jurisdiction" for "special domestic violence criminal jurisdiction" wherever appearing.Subsec. (a)(1) to (5). Pub. L. 117-103, §804(3)(B), added pars. (1) to (5). Former pars. (1) to (5) redesignated (6) to (8), (10), and (11), respectively.Subsec. (a)(6). Pub. L. 117-103, §804(3)(A), (C), redesignated par. (1) as (6) and substituted "any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that is committed" for "violence committed". Former par. (6) redesignated (14).Subsec. (a)(7). Pub. L. 117-103, §804(3)(D), added par. (7) and struck out former par. (7). Prior to amendment, text defined the term "domestic violence". Pub. L. 117-103, §804(3)(A), redesignated par. (2) as (7). Former par. (7) redesignated (15).Subsec. (a)(8). Pub. L. 117-103, §804(3)(A), redesignated par. (3) as (8).Subsec. (a)(9). Pub. L. 117-103, §804(3)(E), added par. (9).Subsec. (a)(10), (11). Pub. L. 117-103, §804(3)(A), redesignated pars. (4) and (5) as (10) and (11), respectively.Subsec. (a)(12), (13). Pub. L. 117-103, §804(3)(F), added pars. (12) and (13).Subsec. (a)(14). Pub. L. 117-103, §804(3)(A), (G), redesignated par. (6) as (14) and substituted "Special tribal criminal jurisdiction" for "Special domestic violence criminal jurisdiction" in heading.Subsec. (a)(15). Pub. L. 117-103, §804(3)(A), redesignated par. (7) as (15).Subsec. (a)(16), (17). Pub. L. 117-103, §804(3)(H), added pars. (16) and (17).Subsec. (b)(1). Pub. L. 117-103, §804(4), inserted ", including any participating tribes in the State of Maine," after "the powers of self-government of a participating tribe".Subsec. (b)(4). Pub. L. 117-103, §804(5), substituted "Exception if victim and defendant are both non-Indians" for "Exceptions" in par. heading and "In general" for "Victim and defendant are both non-Indians" in subpar. (A) heading, struck out cl. (i) designation and heading before "A participating", inserted ", other than obstruction of justice or assault of Tribal justice personnel," after "over an alleged offense", redesignated cl. (ii) of subpar. (A) as subpar. (B), substituted "paragraph" for "subparagraph", and struck out former subpar. (B) which related to defendant lacking ties to the Indian tribe.Subsec. (c). Pub. L. 117-103, §804(6), added subsec. (c) and struck out former subsec. (c) which related to categories of criminal conduct in which a participating tribe may exercise special domestic violence criminal jurisdiction over a defendant.Subsec. (e)(3). Pub. L. 117-103, §804(7), struck out par. (3). Prior to amendment, text read as follows: "An Indian tribe that has ordered the detention of any person has a duty to timely notify such person of his rights and privileges under this subsection and under section 1303 of this title."Subsecs. (f) to (j). Pub. L. 117-103, §804(8), added subsecs. (f) to (j) and struck out former pars. (f) to (h), which related to grants to tribal governments, requirement that amounts made available supplement not supplant other funding, and authorization of appropriations for fiscal years 2014 through 2018, respectively.

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2022 AMENDMENTAmendment by Pub. L. 117-103 not effective until Oct. 1 of the first fiscal year beginning after Mar. 15, 2022, see section 4(a) of div. W of Pub. L. 117-103 set out as an Effective Date note under section 6851 of Title 15, Commerce and Trade.

EFFECTIVE DATES; PILOT PROJECT Pub. L. 113-4, title IX, §908, Mar. 7, 2013, 127 Stat. 125, provided that:"(a) GENERAL EFFECTIVE DATE.-Except as provided in section 4 [18 U.S.C. 2261 note] and subsection (b) of this section, the amendments made by this title [see Tables for classification] shall take effect on the date of enactment of this Act [Mar. 7, 2013]."(b) EFFECTIVE DATE FOR SPECIAL DOMESTIC-VIOLENCE CRIMINAL JURISDICTION.-"(1) IN GENERAL.-Except as provided in paragraph (2), subsections (b) through (d) of section 204 of Public Law 90-284 [25 U.S.C. 1304(b)-(d)] (as added by section 904) shall take effect on the date that is 2 years after the date of enactment of this Act [Mar. 7, 2013]."(2) PILOT PROJECT.-"(A) IN GENERAL.-At any time during the 2-year period beginning on the date of enactment of this Act, 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 [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 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 [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 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."

FINDINGS AND PURPOSES Pub. L. 117-103, div. W, title VIII, §801, Mar. 15, 2022, 136 Stat. 895, provided that:"(a) FINDINGS.-Congress finds that-"(1) American Indians and Alaska Natives are-"(A) 2.5 times as likely to experience violent crimes; and"(B) at least 2 times more likely to experience rape or sexual assault crimes;"(2) more than 4 in 5 American Indian and Alaska Native women have experienced violence in their lifetime;"(3) the vast majority of American Indian and Alaska Native victims of violence-96 percent of women victims and 89 percent of male victims-have experienced sexual violence by a non-Indian perpetrator at least once in their lifetime;"(4) Indian Tribes exercising special domestic violence criminal jurisdiction over non-Indians pursuant to section 204 of Public Law 90-284 (25 U.S.C. 1304) (commonly known as the 'Indian Civil Rights Act of 1968'), restored by section 904 of the Violence Against Women Reauthorization Act of 2013 (Public Law 113-4; 127 Stat. 120), have reported significant success holding violent offenders accountable for crimes of domestic violence, dating violence, and civil protection order violations;"(5) Tribal prosecutors for Indian Tribes exercising special domestic violence criminal jurisdiction report that the majority of domestic violence cases involve children either as witnesses or victims, and the Department of Justice reports that American Indian and Alaska Native children suffer exposure to violence at one of the highest rates in the United States;"(6) childhood exposure to violence can have immediate and long-term effects, including increased rates of altered neurological development, poor physical and mental health, poor school performance, substance abuse, and overrepresentation in the juvenile justice system;"(7) according to the Centers for Disease Control and Prevention, homicide is-"(A) the third leading cause of death among American Indian and Alaska Native women between 10 and 24 years of age; and"(B) the fifth leading cause of death for American Indian and Alaska Native women between 25 and 34 years of age;"(8) in some areas of the United States, Native American women are murdered at rates more than 10 times the national average;"(9) according to a 2017 report by the Department of Justice, 66 percent of criminal prosecutions for crimes in Indian country that United States Attorneys declined to prosecute involved assault, murder, or sexual assault;"(10) investigation into cases of missing or murdered Indigenous women is made difficult for Tribal law enforcement agencies due to a lack of resources, including a lack of-"(A) necessary personnel, training, equipment, or funding;"(B) interagency cooperation;"(C) appropriate laws in place; and"(D) access to Federal law enforcement databases;"(11) domestic violence calls are among the most dangerous calls that law enforcement receives;"(12) the complicated jurisdictional scheme that exists in Indian country-"(A) has a significant impact on public safety in Indian communities;"(B) according to Tribal justice officials, has been increasingly exploited by criminals; and"(C) requires a high degree of commitment and cooperation among Tribal, Federal, and State law enforcement officials;"(13) restoring and enhancing Tribal capacity to address violence against women provides for greater local control, safety, accountability, and transparency;"(14) Indian Tribes with restrictive settlement Acts, such as Indian Tribes in the State of Maine, and Indian Tribes located in States with concurrent authority to prosecute crimes in Indian country under the amendments made by the Act of August 15, 1953 (67 Stat. 590, chapter 506), face unique public safety challenges; and"(15) Native Hawaiians experience a disproportionately high rate of human trafficking, with 64 percent of human trafficking victims in the State of Hawai'i identifying as at least part Native Hawaiian."(b) PURPOSES.-The purposes of this subtitle [subtitle A (§§801-804) of title VIII of div. W of Pub. L. 117-103 see Tables for classification] are-"(1) to clarify the responsibilities of Federal, State, Tribal, and local law enforcement agencies with respect to responding to cases of domestic violence, dating violence, stalking, sex trafficking, sexual violence, crimes against children, and assault against Tribal law enforcement officers;"(2) to increase coordination and communication among Federal, State, Tribal, and local law enforcement agencies;"(3) to empower Tribal governments and Native American communities, including urban Indian communities and Native Hawaiian communities, with the resources and information necessary to effectively respond to cases of domestic violence, dating violence, stalking, sex trafficking, sexual violence, and missing or murdered Native Americans; and"(4) to increase the collection of data related to missing or murdered Native Americans and the sharing of information among Federal, State, Tribal, and local officials responsible for responding to and investigating crimes impacting Indian Tribes and Native American communities, including urban Indian communities and Native Hawaiian communities, especially crimes relating to cases of missing or murdered Native Americans."[For definitions of terms used in section 801 of div. W of Pub. L. 117-103 set out above, see section 12291 of Title 34, Crime Control and Law Enforcement, as made applicable by section 2(b) of div. W of Pub. L. 117-103 which is set out as a note under section 12291 of Title 34].