Legal

Tribal Court Prosecution

A sexual assault committed in Indian Country by an Indian perpetrator may be prosecuted in both tribal and federal courts without the threat of double jeopardy.  It is possible to prosecute and convict a perpetrator of sexual assault in two, separate jurisdictions and to impose two, separate criminal penalties for the crime. Coordination of tribal sexual assault investigations and prosecutions with federal authorities is important to ensure successful dual prosecution of a perpetrator in both tribal and federal courts. 

Communication, collaboration, cooperation, and mutual respect are the hallmarks of a productive, successful working relationship between tribal and federal criminal justice professionals. There is a greater likelihood of securing sexual assault convictions when tribal and federal agencies have established solid, collaborative working relationships.

Tribal criminal justice professionals should meet regularly with their federal counterparts to clarify each jurisdiction’s roles and responsibilities in the investigation and prosecution of sexual assault crimes. Formal protocols or clearly defined informal agreements can reduce the confusion and overlap that sometimes occur when multiple jurisdictions are investigating and prosecuting the same criminal acts. These protocols or informal agreements can address such important issues as:

  • Which jurisdiction will issue a search and/or arrest warrant?

  • Which agency will coordinate victim interviews to reduce the number of times and persons interviewing a victim?

  • Which agency will maintain evidence and the chain of custody over evidence

Although the federal definition of sexual assault may differ from the definition of sexual assault contained in a tribal code, federal and tribal prosecutors will often utilize the same evidence, witnesses, and arguments at trial. It is important to coordinate access to evidence and witnesses so that they will be available for trial in each and every jurisdiction where the perpetrator can be prosecuted.

Tribal Court Prosecution

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*National Tribal Trial College 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.