LEGAL

Tribal Law and Policy

Tribes play a significant role in the lives of its members. They provide a foundational governmental and cultural connection for its people. Correspondingly, Tribes have a vital role in the judicial affairs of their citizens. Thus, under the Tribal Law and Policy section of the National Indian Country Clearinghouse on Sexual Assault, the reader will find numerous resources about Tribes’ roles in combatting sexual violence in Indian Country.

Before engaging in a discussion about the Tribes’ criminal codes, it is essential to understand the fundamentals of Tribal jurisdiction. Tribal courts have civil jurisdiction over all member Indians.

Tribal courts can also exercise civil jurisdiction over all non-Indians and non-member Indians that have the following: 

  1. Either the necessary “minimum contacts” with the Tribe or who have consented to the
    exercise of jurisdiction and
  2. Who have either:

(a) Entered into a consensual relationship with the Tribe or its members through commercial dealing, contracts, leases or “other arrangements” (e.g., is married to a tribal member, has a child in common with a tribal member, is employed by the Tribe, etc.) or, 
(b) Committed conduct (such as sexual or domestic violence) that threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the Tribe.

Tribes have criminal jurisdiction over crimes committed by Indians in Indian Country. Tribes that are compliant with the Violence Against Women Act of 2013 may exercise criminal jurisdiction over non-Indians who have committed domestic-violence-related crimes, dating violence, and certain violations of protection orders on Tribal land. In the light of the significant role that Tribes play in the judicial processes of their members, a thorough understanding of Tribal law is a necessary component of any discussion of sexual violence in Indian Country.

Tribal Codes on Sexual Violence

Under the Tribal Codes on Sexual Violence tab, the reader will find tribal statutes that are relevant to victims of sexual violence. These codes include not only criminal rape statutes but also include tribal sex offender registration statutes and applicable civil statutes.

Many Tribes, consistent with their governmental and political autonomy, have enacted criminal and civil codes, many of which are relevant to victims of sexual violence. Codes are only one aspect of the law. 
 
Courts provide insight, interpretation, discussion, and consideration of Tribal statutes (including Tribal sexual violence statutes) through written opinions. When considering a Tribal law, it is not only essential to consider the statute itself, but it is also crucial to consider the Tribal court’s interpretation of that statute. The evidence admitted at trial influences the outcome of both criminal and civil cases. Just as Tribes have the inherent authority to adopt their own criminal codes, Tribal courts also have the power to adopt their own rules of evidence. These rules are used to determine what evidence is admissible and which evidence precludes admission at trial.

Evidence

The Evidence tab contains a compilation of all available tribal rules of evidence as well as a discussion of the different types of “rape shield” rules. “Rape shield” rules are evidentiary rules that protect victims from harassment and embarrassment at trial.

Utilizing Custom and Tradition

Federal and state courts are built upon Anglo and common law traditions, while Tribal courts frequently incorporate their own people’s cultural traditions. The culture and traditions often inform Tribal court decisions. For example, even if Tribes do not have statutes allowing victim advocates to speak for victims in court, it can be argued that, in the old days, victims were not forced to stand alone. Further, Tribal courts can impose civil remedies and punishments on perpetrators that may not be available in Anglo courts. For example, in communities that value fishing as an essential, traditional, life-preserving activity, the perpetrator may be ordered to bring the victim fish that he has caught as partial compensation for his criminal acts. The Utilizing Custom and Tradition tab discusses these concepts in more depth and provides relevant
resources.

Tribal Court Prosecution

Tribal court prosecutions are essential to obtaining convictions against perpetrators of sexual violence in Indian Country. Correspondingly, the Tribal Court Prosecution tab has information and resources specifically tailored to Tribal court prosecutors. These resources include discussions about best practices and Tribal court jurisdiction.

Tribal Law Enforcement

Tribal law enforcement officers play a critical role in investigating and prosecuting sexual violence crimes in Indian Country. Tribal law enforcement officers usually collect evidence used for Tribal prosecutions and sometimes even federal prosecutions. The Tribal Law Enforcement tab has resources and information formulated explicitly for law enforcement officers in Indian Country. Some of these resources include model SART protocols, DNA/forensic science collection protocols, discussions about law enforcement jurisdiction in Indian Country, and best practices for tribal law enforcement.

Tribal Law and Policy Documents

Contact NICCSA

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Phone: (520) 623-8192
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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.