Godfrey & Kahn Updates

"Indian Nations Law Update - March 2013"
March 06, 2013
by Brian L. Pierson

Congress Renews Violence Against Women Act, Expands Tribal Court Jurisdiction
On February 28, the House of Representatives approved Senate Bill 47, which reauthorizes and amends the Violence Against Women Act of 1994 (VAWA). The Bill, already approved in the Senate, will become law shortly when the President signs it.

The VAWA is a major legislative achievement for Indian country. The Supreme Court held in 1978 that tribes lack inherent power to exercise criminal jurisdiction over non-Indians. For the first time since that decision, Congress has authorized tribes to exercise such jurisdiction. Title IX of the VAWA amends the Indian Civil Rights Act (ICRA) to permit tribes to exercise "special domestic violence criminal jurisdiction" over non-Indians who are charged with domestic violence, dating violence, and violations of protective orders that occur on their lands. Features of special domestic violence criminal jurisdiction include:

  • either the perpetrator or victim must be Indian
  • the tribe must prove that the defendant has ties to the tribal community
  • tribal jurisdiction is concurrent with state and federal jurisdiction
  • the defendant has the right to a trial by an impartial jury that is drawn from sources that -
    • reflect a fair cross section of the community; and
    • do not systematically exclude any distinctive group in the community, including non-Indians
  • In the event that a sentence of imprisonment "may" be imposed, the tribe must guarantee the defendant the enhanced procedural rights added to the ICRA by the Tribal Law and Order Act of 2010, including:
    • effective assistance of counsel, paid for by the tribe if the defendant is indigent
    • a legally trained judge licensed to practice law
    • published laws and rules of criminal procedure
    • recorded proceedings

Godfrey & Kahn has experience assisting tribes in drafting criminal codes and procedures that permit exercise of maximum jurisdiction and sentencing authority pursuant to the 2010 Tribal Law and Order Act and 2013 Amendments to VAWA. For more information, contact Brian Pierson at 414.287.9456 or bpierson@gklaw.com.

Supreme Court Arguments in ICWA Case Set for April 16
The Supreme Court has scheduled oral arguments for April 16 in the case of Adoptive Couple v. Baby Girl. The case involves important issues relating to the Indian Child Welfare Act (ICWA), including whether an Indian parent could object to an adoption of his child even though, under state law, he lacked parental standing and whether the ICWA applies when a child is not in an Indian home (see our February Update). The April argument means that the Court will almost certainly issue its decision before the end of its term in June.

The Court is waiting to hear the views of the Solicitor General of the United States before deciding whether to review two other Indian law cases. Michigan v. Bay Mills Indian Community presents the question whether tribal sovereign immunity bars the state from enforcing alleged violations of the Indian Gaming Regulatory Act (see our September 2012 Update). The issue in Madison County v. Oneida Indian Nation is the status of the New York Oneida Tribe's reservation (see our November 2011 Update).

National American Indian Housing Council Publishes 2013 Housing Development Handbook Authored By Brian Pierson
The National American Indian Housing Council (NAIHC) has published the 2013 edition of its Indian Housing Development Handbook, authored by Godfrey & Kahn Indian Nations Law team leader Brian Pierson. The Handbook, first issued in 2009 and twice updated and revised, is intended to serve as a resource for tribes, tribal housing agencies, developers, lenders and others in the Indian housing industry.

Godfrey & Kahn has extensive experience working with tribes to take advantage of federal, state and private sources of financing for Indian housing. For more information, contact Brian Pierson at 414.287.9456 or bpierson@gklaw.com. Digital copies of the Handbook are available at the NAIHC website.

NBI Teleconference "Tribal Land Use: Unique Opportunities and Challenges" April 9, 2013
The National Business Institute (NBI) will sponsor a live teleconference, "Tribal Land Use: Unique Opportunities and Challenges," at 11:00 a.m. - 12:30 p.m. Eastern Standard Time, presented by Godfrey & Kahn's Indian Nations Law team leader Brian Pierson. The course will provide a general overview of the unique legal principles that provide the framework for Indian country economic development. One and a half hours of Continuing Legal Education credit will be awarded. For registration information, contact NBI at
800.931.3140 or www.nbi-sems.com.

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