DOJ Issues FAQ for Prosecuting Under VAWA

Congress recently passed the Violence Against Women Reauthorization Act of 2013, or “VAWA 2013.” This new law includes significant provisions addressing tribal jurisdiction over non-Indian perpetrators of domestic violence. These tribal provisions were proposed by the Justice Department in 2011.

WHAT WILL TRIBES BE ABLE TO DO UNDER THE NEW LAW?
Tribes will be able to exercise their sovereign power to investigate, prosecute, convict, and sentence both Indians and non-Indians who assault Indian spouses or dating partners or violate a protection order in Indian country. VAWA 2013 also clarifies tribes’ sovereign power to issue and enforce civil protection orders against Indians and non-Indians.

WHEN DOES THIS NEW LAW TAKE EFFECT?
Although tribes can issue and enforce civil protection orders now, generally tribes cannot criminally prosecute non-Indian abusers until at least March 7, 2015.

WILL THIS BE VOLUNTARY?
Yes, tribes will be free to participate, or not. The authority of U.S. Attorneys (and state/local prosecutors, where they have jurisdiction) to prosecute crimes in Indian country remains unchanged.

WHAT CRIMES ARE COVERED?
Covered offenses will be determined by tribal law. But tribes’ criminal jurisdiction over non-Indians will be limited to the following, as defined in VAWA 2013:

• Domestic violence; 
• Dating violence; and 
• Criminal violations of protection orders. 

WHAT CRIMES ARE NOT COVERED?
The following crimes will generally not be covered:

• Crimes committed outside of Indian country;
• Crimes between two non-Indians; 
• Crimes between two strangers, including sexual assaults;
• Crimes committed by a person who lacks sufficient ties to the tribe, such as living or working on its reservation; and 
• Child abuse or elder abuse that does not involve the violation of a protection order. 

WHAT IS THE PILOT PROJECT?
A tribe can start prosecuting non-Indian abusers sooner than March 7, 2015, if

• The tribe’s criminal justice system fully protects defendants’ rights under Federal law;
• The tribe asks to participate in the new Pilot Project; and 
• The Justice Department grants the tribe’s request and sets a starting date. 

WHAT RIGHTS DO NON-INDIAN DEFENDANTS HAVE?
A tribe must
• Protect the rights of defendants under the Indian Civil Rights Act of 1968, which largely tracks the Federal Constitution’s Bill of Rights, including the right to due process.
• Protect the rights of defendants described in the Tribal Law and Order Act of 2010, by providing

• Effective assistance of counsel for defendants; 
• Free, appointed, licensed attorneys for indigent defendants; • Law-trained tribal judges who are also licensed to practice law; 
• Publicly available tribal criminal laws and rules; and 
• Recorded criminal proceedings. 
• Include Indians and non-Indians in jury pools. 
• Inform defendants ordered detained by a tribal court of their right to file Federal habeas corpus petitions. 

IS THERE NEW FUNDING FOR THE TRIBES?
In VAWA 2013, Congress authorized up to $25 million total for tribal grants in fiscal years 2014 to 2018, but Congress has not yet appropriated any of those funds. However, tribes may continue to apply for funding through DOJ’s Coordinated Tribal Assistance Solicitation (CTAS), which can support VAWA implementation. Additional funding sources may be available through other Federal agencies.

HOW CAN WE LEARN MORE?
Please contact the Justice Department’s Office of Tribal Justice (OTJ) at 202-514-8812 or Office on Violence against Women (OVW) at 202-307-6026, or visit www.justice.gov/tribal.

Teens Getting High On "Weed Candy"

Medical and legal marijuana has led to a growth industry for THC-laden food products, including a range of candy bars, lollipops, gummy candies, chocolates and hard candies that have been finding their way into the hands—and mouths—of school children. Police from Florida to Oregon, through Texas and the Midwest, have been reporting the growing trend. States near Washington and Colorado have also been reporting a sharp increase in drug arrests that also net quantities of marijuana-laced candy. The candy sells on the street for as little as a dollar a piece, but also sells briskly at as much $10 a piece. Some of the candy is made for sale in legal dispensaries, and is packaged to look like common brands of candy.

Other areas are reporting the use of weed candy that is cooked up at home, out of simple ingredients like corn syrup and powdered drink mix. Some kids attempt to make it themselves, but others buy from dealers who make the candy with dangerously concentrated THC, synthetic THC or other unregulated ingredients. The odorless candy can pack a serious punch and seriously impair driving, not to mention ability to learn anything.

In an effort to combat the appeal of marijuana for kids, Georgia has banned the sale of marijuana-flavored candy to minors, but a national measure to ban marketing controlled substances to minors died in the Senate Judiciary Committee.

Parents and police are being advised that even if weed candy hasn't hit your area yet, it's a matter of time. Parents and school officials can watch for unwrapped candy, candy with strange brand names, and the classic signs of marijuana use like slurred words or slowed motor control. Parents can also monitor their kids' Internet history to see if they've been researching DIY recipes.

Hopi Tribe Ready for Enhanced Sentencing, VAWA

The Hopi Tribe recently revised its criminal code in order to start implementing enhanced sentencing under the Tribal Law and Order Act, becoming the first tribe of its size to give its tribal courts more authority under this law.  Thanks to this effort, as well as better training on preserving evidence and criminal reporting, the Hopi will also be among the first tribes in the nation ready to prosecute non-Native domestic violence offenders under the (newly signed!!) Violence Against Women Act. According to a story released today from Fronteras: The Changing America Desk, Hopi Tribal Chairman LeRoy Shingoitewa said,

"This makes me proud because the Hopi Tribe has already taken a step to meet those requirements. All of this helps Hopi and other tribes strengthen control over the crimes that happen on their land. Tribal sovereignty is truly a valuable asset but it also gives us that opportunity to exercise that sovereignty by developing the laws and actually implementing them."

Fred Urbina, the chief prosecutor for the Pascua Yaqui Tribe is anxious to follow in the path of the Hopi and get the tribe in a position to implement VAWA. In an AP story today, he described the tribe's efforts to address the jurisdictional gap as a "patchwork" that is "not satisfactory in all cases."

But as both Shingoitewa and Urbina pointed out, implementing the laws is key. A Harper's article from 2011 explored the different obstacles to reporting, documenting, investigating and prosecuting rape cases, none of which would be affected by the new VAWA law or by enhanced sentencing. Only systemic change, including increased funding, training and data collection could change the conditions that lead to what a U.S. prosecutor told Hopi nurses and officers was a "culture of silence," when it came to sexual and domestic violence.

If the laws are implemented, detention is another key part of what tribes need to address. BIA prisons are insufficient for current populations; it's unlikely that enhanced sentencing and prosecuting more domestic violence cases will help that. With everything else in place, even the Hopi are still seeking funding for new detention facilities.