Many of the above listed crimes can also be used when a tribal sexual assault code has been enacted, but tribal prosecutors cannot meet their burden of proof in proving every element of that crime.
It is important to note that Indian perpetrators can be convicted in tribal court of both sexual assault and of any other crimes committed during the course of the sexual assault. The maximum sentence an Indian defendant can receive in tribal court for any single crime committed in Indian Country is up to one year of imprisonment and a $5,000 fine unless the requirements of the Tribal Law and Order Act have been met. Under TLOA, tribes may impose sentences of up to 3 years and a $15,000 fine. Tribal prosecutors may be able to utilize the above listed crimes to “max and stack” criminal charges and sentences against Indian defendants in tribal courts. In other words, tribal judges can force defendants to serve their tribal sentences consecutively instead of concurrently. This can result in significantly more jail time for Indian perpetrators than in cases where the perpetrator was only charged with sexual assault.
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*NICCSA is a project of the Southwest Center for Law and Policy (www.swclap.org) This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.