Federal Register / Vol. 78, No. 115 / Friday, June 14, 2013 / Notices 35961 

1Public Law 113–4, 127 Stat. 54 (2013); see 

Remarks on Signing the Violence Against Women 

Reauthorization Act of 2013, 2013 Daily Comp. 

Pres. Docs. 139 (Mar. 7, 2013). 

Notice is further given that, pursuant to 

16 U.S.C. 460l-9(c)(1), the boundary of 

Mojave National Preserve is modified to 

exclude 48.14 acres of improved land 

identified as Tract 114–05, a portion of 

tax parcel number 0544–033–09. No 

change in ownership will result from 

this action. The land is located in San 

Bernardino County, California, at the 

northwest boundary of the preserve in 

the unincorporated area of Baker. The 

boundary revisions are depicted on Map 

No. 170/115,469 dated October 2012. 

The map is available for inspection at 

the following locations: National Park 

Service, Land Resources Program 

Center, Pacific West Region, 333 Bush 

Street, Suite 500, San Francisco, 

California 94104, and National Park 

Service, Department of the Interior, 

Washington, DC 20240. 

FOR FURTHER INFORMATION CONTACT: 

Chief Realty Officer Greg Gress, 

National Park Service, Pacific Land 

Resources Program Center, 333 Bush 

Street, Suite 500, San Francisco, 

California 94104, telephone (415) 623– 

2120. 

DATES: The effective date of this 

boundary revision is June 14, 2013. 

SUPPLEMENTARY INFORMATION: 16 U.S.C. 

460l-9(c)(1) provides that, after notifying 

the House Committee on Natural 

Resources and the Senate Committee on 

Energy and Natural Resources, the 

Secretary of the Interior is authorized to 

make this boundary revision upon 

publication of notice in the Federal 

Register. The Committees have been 

notified of this boundary revision. The 

inclusion of Tract 103–28 will enable 

the United States to accept a donation 

of land as compensation for a 

wastewater pipeline failure and 

resulting hazardous spill, and to more 

fully educate the public regarding the 

desert tortoise life cycle, threats and 

recovery efforts. The exclusion of Tract 

114–05 will resolve an unauthorized 

land use issue and have no effect on its 

ownership or use. 

Dated: May 23, 2013. 

Christine S. Lehnertz, 

Regional Director, Pacific West Region. 

[FR Doc. 2013–14066 Filed 6–13–13; 8:45 am] 

BILLING CODE 4312–FF–P 

DEPARTMENT OF JUSTICE 

Office of the Attorney General 

[Docket No. OAG 144; AG Order No. 3391– 

2013] 

Pilot Project for Tribal Jurisdiction 

Over Crimes of Domestic Violence 

AGENCY: Office of the Attorney General, 

Justice. 

ACTION: Notice; solicitation of comments 

and preliminary expressions of interest. 

SUMMARY: This notice proposes 

procedures for an Indian tribe to request 

designation as a participating tribe 

under section 204 of the Indian Civil 

Rights Act of 1968, as amended, on an 

accelerated basis, pursuant to the 

voluntary pilot project described in 

section 908(b)(2) of the Violence Against 

Women Reauthorization Act of 2013 

(‘‘the Pilot Project’’), and also proposes 

procedures for the Attorney General to 

act on such a request. This notice also 

invites public comment on the proposed 

procedures and solicits preliminary 

expressions of interest from tribes that 

may wish to participate in the Pilot 

Project. 

DATES: Preliminary expressions of 

interest from tribes are due on or before 

July 15, 2013. Comments on the 

proposed procedures are due on or 

before September 12, 2013. 

ADDRESSES: Mr. Tracy Toulou, Director, 

Office of Tribal Justice, Department of 

Justice, 950 Pennsylvania Avenue NW., 

Room 2310, Washington, DC 20530, 

email OTJ@usdoj.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Tracy Toulou, Director, Office of Tribal 

Justice, Department of Justice, at (202) 

514–8812 (not a toll-free number) or 

OTJ@usdoj.gov. 

SUPPLEMENTARY INFORMATION: In 

addition to mailing or emailing 

comments and preliminary expressions 

of interest to the Director, Office of 

Tribal Justice, you may submit 

comments and preliminary expressions 

of interest electronically or view an 

electronic version of this notice at 

http://www.regulations.gov. To ensure 

proper handling, please reference OAG 

Docket No. 144 on your correspondence. 

The Department of Justice strongly 

encourages electronic or email 

submissions, as hard copies sent by mail 

may be subject to significant delays. 

The electronic Federal Docket 

Management System will accept 

comments or preliminary expressions of 

interest until 11:59 p.m. Eastern Time 

on the last day of the relevant period. 

Late-filed comments and preliminary 

expressions of interest will be 

considered only to the extent 

practicable. 

Posting of Public Comments. Please 

note that all comments and preliminary 

expressions of interest received are 

considered part of the public record and 

may be made available for public 

inspection online at http:// 

www.regulations.gov. Such information 

includes personal identifying 

information (such as your name, 

address, etc.) that you might voluntarily 

submit. 

You are not required to submit 

personal identifying information in 

order to comment or provide a 

preliminary expression of interest. If 

you want to submit personal identifying 

information (such as your name, 

address, etc.) but do not want it to be 

posted online, you must include the 

phrase ‘‘Personal Identifying 

Information’’ in the first paragraph of 

your submission. You also must locate 

all the personal identifying information 

you do not want posted online in the 

first paragraph of your submission and 

identify what information you want 

redacted. 

If you want to submit confidential 

business information but do not want it 

to be posted online, you must include 

the phrase ‘‘Confidential Business 

Information’’ in the first paragraph of 

your submission. You also must 

prominently identify confidential 

business information to be redacted 

within the submission. If a submission 

has so much confidential business 

information that it cannot be effectively 

redacted, all or part of that submission 

may not be posted on http:// 

www.regulations.gov. 

Personal identifying information and 

confidential business information 

identified and located as set forth above 

will be placed in the agency’s public 

docket file, but not posted online. If you 

wish to inspect the agency’s public 

docket file in person by appointment, 

please see the FOR FURTHER INFORMATION

CONTACT section. 

Discussion 

1. Statutory Background 

Overview 

On March 7, 2013, President Obama 

signed into law the Violence Against 

Women Reauthorization Act of 2013 

(VAWA 2013).1 Title IX of VAWA 2013, 

entitled ‘‘Safety for Indian Women,’’ 

contains section 904 (Tribal Jurisdiction 

over Crimes of Domestic Violence) and 

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35962 Federal Register / Vol. 78, No. 115 / Friday, June 14, 2013 / Notices 

2See Letter from Ronald Weich, Assistant 

Attorney General, to the Hon. Joseph R. Biden, Jr., 

President, United States Senate, at 1–2 & 

attachments (July 21, 2011). 

3See S. Rep. No. 112–153, at 8–11, 32 (2012); see 

also S. 1763, 112th Cong., at 1–2 (as reported by the 

S. Comm. on Indian Affairs, Dec. 27, 2012) (long 

title listing bill’s purposes); H.R. 757, 113th Cong., 

at 1 (2013) (same). 

4See S. Rep. No. 112–153, at 3, 7–11, 32 (2012) 

(citing studies); see also Tribal Law and Order Act 

of 2010, Public Law 111–211, tit. II, sec. 202(a)(5), 

124 Stat. 2258, 2262. 

5See S. Rep. No. 112–153, at 9 (2012); U.S. 

Census Bureau, 2010 Census Briefs, The American 

Indian and Alaska Native Population: 2010, at 13– 

14 & tbl. 5 (2012) (showing that 1.1 million 

American Indians and 3.5 million non-Indians 

reside in American Indian areas); U.S. Census 

Bureau, Census 2010 Special Tabulation, Census 

2010 PHC–T–19, Hispanic Origin and Race of 

Coupled Households: 2010, Table 1, Hispanic 

Origin and Race of Wife and Husband in MarriedCouple Households for the United States: 2010 

(2012) (analyzing married-couple households 

nationwide, regardless of whether they reside 

within or outside Indian country, and showing that 

more than 54% of Indian wives have non-Indian 

husbands). 

6The tribal provisions of VAWA 2013 are genderneutral; but in the interests of brevity, this notice 

sometimes uses male pronouns or examples to 

describe perpetrators of domestic violence or dating 

violence and female pronouns or examples to 

describe their victims. 

7Treaty with the Wyandot, Delaware, Ottawa, 

Chippewa, Potawatomi, and Sac Nations, art. IX, 

Jan. 9, 1789, 7 Stat. 28, 30. 

8See Treaty with the Shawnee Nation, art. VII, 

Jan. 31, 1786, 7 Stat. 26, 27. 

9 435 U.S. 191 (1978). 

10See id. at 195–212. 

11See id. at 195 & n.6, 206, 210–12. 

12Public Law 90–284, tit. II, 82 Stat. 77 (1968). 

13Oliphant, 435 U.S. at 212; see also United 

States v. Lara, 541 U.S. 193, 206 (2004) (holding 

that the Constitution allows Congress to override 

‘‘‘judicially made Indian law’’’ (quoting Oliphant, 

435 U.S. at 206) (emphasis added in Lara)). 

section 908 (Effective Dates; Pilot 

Project), both of which were initially 

drafted and proposed to Congress by the 

Department of Justice in 2011.2 The 

purposes of these sections are to 

decrease domestic violence in Indian 

country, to strengthen the capacity of 

Indian tribes to exercise their inherent 

sovereign power to administer justice 

and control crime, and to ensure that 

perpetrators of domestic violence are 

held accountable for their criminal 

behavior.3

Section 904 recognizes the inherent 

power of ‘‘participating tribes’’ to 

exercise ‘‘special domestic violence 

criminal jurisdiction’’ (SDVCJ) over 

certain defendants, regardless of their 

Indian or non-Indian status, who 

commit acts of domestic violence or 

dating violence or violate certain 

protection orders in Indian country. 

Section 904 also specifies the rights that 

a participating tribe must provide to 

defendants in SDVCJ cases. 

Section 908(b)(1) provides that tribes 

generally cannot exercise SDVCJ until at 

least two years after the date of VAWA 

2013’s enactment—that is, on or after 

March 7, 2015. However, section 

908(b)(2) establishes a ‘‘Pilot Project’’ 

that authorizes the Attorney General, in 

the exercise of his discretion, to grant a 

tribe’s request to be designated as a 

‘‘participating tribe’’ on an accelerated 

basis and to commence exercising 

SDVCJ on a date (prior to March 7, 

2015) set by the Attorney General, after 

coordinating with the Secretary of the 

Interior, consulting with affected tribes, 

and concluding that the tribe’s criminal 

justice system has adequate safeguards 

in place to protect defendants’ rights. 

This notice proposes procedures for 

tribes to make such requests and for the 

Department of Justice to grant or deny 

them, invites public comment on these 

proposed procedures, and also solicits 

preliminary expressions of interest from 

tribes that may wish to participate in the 

Pilot Project. 

Domestic Violence in Indian Country 

Congress found that Native American 

women suffer domestic violence and 

dating violence at epidemic rates, and 

often at the hands of non-Indian 

abusers.4 And Census data show that a 

large fraction of Indian-country 

residents are non-Indian and that tens of 

thousands of Native American married 

women have non-Indian husbands.5

Domestic violence and dating 

violence committed in Indian country 

by Indian abusers against their Indian 

spouses, intimate partners, and dating 

partners generally fall within the 

criminal jurisdiction of the tribe. But 

prior to the effective date of the tribal 

provisions in VAWA 2013, if the victim 

is Indian and the perpetrator is nonIndian, the tribe lacks criminal 

jurisdiction as a matter of federal law 

and the crime can be prosecuted only by 

the United States or, in some 

circumstances, by the state in which the 

tribe’s Indian country is located. Even 

violent crimes committed by a nonIndian husband against his Indian wife, 

in the presence of their Indian children, 

in their home on the Indian reservation, 

cannot be prosecuted by the tribe.6 This 

jurisdictional scheme has proved 

ineffective in ensuring public safety. 

Too often, crimes go unprosecuted and 

unpunished, and the violence escalates. 

The History of the Jurisdictional Gap 

This jurisdictional gap has not always 

existed. In the early days of the 

Republic, tribes routinely, and with the 

United States’ assent, punished nonIndians who committed acts of violence 

on tribal lands. For example, the very 

first Indian treaty ratified by the United 

States Senate under the Federal 

Constitution—the 1789 Treaty with the 

Wyandot, Delaware, Ottawa, Chippewa, 

Potawatomi, and Sac Nations— 

recognized that, ‘‘[i]f any person or 

persons, citizens or subjects of the 

United States, or any other person not 

being an Indian, shall presume to settle 

upon the lands confirmed to the said 

[Indian tribal] nations, he and they shall 

be out of the protection of the United 

States; and the said nations may punish 

him or them in such manner as they see 

fit.’’ 7 Similar language appeared in the 

last Indian treaty ratified before the 

Constitutional Convention—the 1786 

Treaty with the Shawnee Nation.8

As recently as the 1970s, dozens of 

Indian tribes exercised criminal 

jurisdiction over non-Indians. But in 

1978, in Oliphant v. Suquamish Indian 

Tribe,9 the Supreme Court created 

federal common law preempting the 

exercise of the tribes’ inherent sovereign 

power to prosecute non-Indians.10 The 

Oliphant Court noted, however, that 

Congress has the constitutional 

authority to override the Court’s holding 

and restore Indian tribes’ power to 

exercise criminal jurisdiction over nonIndians.11 Then-Justice Rehnquist, 

writing for the majority in Oliphant, 

expressly stated that the increasing 

sophistication of tribal court systems, 

the protection of defendants’ procedural 

rights under the Indian Civil Rights Act 

of 1968,12 and the prevalence of nonIndian crime in Indian country were all 

‘‘considerations for Congress to weigh’’ 

in deciding whether to authorize Indian 

tribes to try non-Indians.13

Congress’s New Law Recognizing 

Special Domestic Violence Criminal 

Jurisdiction 

In enacting VAWA 2013, Congress 

expressly recognized tribes’ inherent 

power to resume exercising criminal 

jurisdiction over non-Indians. That 

recognition extended, however, only to 

crimes of domestic violence or dating 

violence and criminal violations of 

certain protection orders that occur in 

Indian country, in cases in which 

certain conditions are met. Specifically, 

the cases must have Indian victims, the 

defendants must reside in or have other 

specified significant ties to the 

prosecuting tribe, and the tribe’s 

criminal justice system must have 

adequate safeguards in place to fully 

protect defendants’ rights. Recognizing 

that many tribes may need time to 

implement those safeguards, Congress 

set an effective date two years after the 

enactment of VAWA 2013 (i.e., March 7, 

2015), while giving tribes that are ready 

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Federal Register / Vol. 78, No. 115 / Friday, June 14, 2013 / Notices 35963 

14Public Law 90–284, tit. II, 82 Stat. 77 (1968). 

15 Due to a Senate amendment, VAWA 2013’s 

section 910(a) provides that the amendments made 

by section 904, to be codified at 25 U.S.C. 1304, 

apply in Alaska only to the Indian country of the 

Metlakatla Indian Community, Annette Island 

Reserve. In addition, the Supreme Court held in 

Alaska v. Native Village of Venetie Tribal 

Government, 522 U.S. 520, 526–34 (1998), that 

lands conveyed by the Alaska Native Claims 

Settlement Act of 1971, Public Law 92–203, 85 Stat. 

688 (codified, as amended, at 43 U.S.C. 1601– 

1629h), do not constitute ‘‘Indian country.’’ 

Therefore, section 1304 will have no effect on the 

criminal jurisdiction of most Indian tribes in 

Alaska. 

16Public Law 102–137, sec. 1, 105 Stat. 646 

(1991) (permanent legislation) (codified at 25 U.S.C. 

1301(2)); see Public Law 101–511, tit. VIII, sec. 

8077(b), 104 Stat. 1892 (1990) (temporary 

legislation) (same). 

17 541 U.S. 193 (2004). 

sooner the opportunity to participate in 

a Pilot Project at the Attorney General’s 

discretion. 

Section 904 of VAWA 2013 adds a 

new section 204 to the Indian Civil 

Rights Act of 1968 (ICRA).14 ICRA is 

codified at 25 U.S.C. 1301–1303. 

Section 204 of ICRA will be codified at 

25 U.S.C. 1304, so this notice cites that 

United States Code section when 

referring to the new law. 

The Pilot Project established by 

VAWA 2013’s section 908(b)(2) focuses 

specifically on the power of a 

‘‘participating tribe’’ to exercise SDVCJ 

under subsections (b), (c), and (d) of 25 

U.S.C. 1304. A ‘‘participating tribe’’ is 

simply a federally recognized Indian 

tribe (as defined in 25 U.S.C. 1301(1)) 

that elects to exercise SDVCJ over the 

tribe’s Indian country (as defined in 18 

U.S.C. 1151). 

Becoming a ‘‘participating tribe’’ and 

exercising SDVCJ—whether as part of 

the Pilot Project between now and 

March 2015, or at any time after March 

2015—are entirely voluntary. There is 

absolutely no requirement, and no 

expectation, that any particular tribe or 

any specific number of tribes will 

choose to become participating tribes 

and exercise SDVCJ. VAWA 2013 does 

not impose an unfunded mandate upon 

any tribe or diminish the criminal 

jurisdiction of the United States. Tribes 

that do not choose to participate in the 

Pilot Project may nonetheless become 

participating tribes later, so long as they 

satisfy the statutory requirements. 

SDVCJ, or special domestic violence 

criminal jurisdiction, is defined in 

section 1304(a)(6) to mean ‘‘the criminal 

jurisdiction that a participating tribe 

may exercise under this section but 

could not otherwise exercise.’’ Nearly 

all tribes that possess governmental 

powers over an area of Indian country 

can already exercise criminal 

jurisdiction over any Indian in that area 

(whether the defendant is a member of 

the prosecuting tribe or a ‘‘nonmember 

Indian’’). For these tribes, therefore, 

SDVCJ effectively is confined to 

criminal jurisdiction over non-Indians. 

Here, the term ‘‘non-Indian’’ means any 

person who is not an Indian as defined 

in 25 U.S.C. 1301(4) and thus could not 

be subject to federal criminal 

jurisdiction under the Major Crimes Act, 

18 U.S.C. 1153.15

The Nature of Special Domestic 

Violence Criminal Jurisdiction 

Subsection (b) of section 1304 

describes the nature of SDVCJ. 

Paragraph (1) of that subsection states 

that a participating tribe’s governmental 

powers include ‘‘the inherent power of 

that tribe, which is hereby recognized 

and affirmed, to exercise [SDVCJ] over 

all persons.’’ Congress patterned that 

language after the 1991 federal statute 

that expressly recognized and affirmed 

tribes’ inherent power to exercise 

criminal jurisdiction over all Indians, 

implicitly including nonmember 

Indians.16 The Supreme Court upheld 

the 1991 statute as a constitutional 

exercise of Congress’s authority in 

United States v. Lara.17

Paragraphs (2) and (3) of subsection 

1304(b) clarify that a participating tribe 

may exercise SDVCJ only concurrently, 

as the new law does not alter federal (or 

state) criminal jurisdiction. Importantly, 

the prohibition against double jeopardy 

does not prevent a defendant from being 

tried for the same conduct by more than 

one sovereign government. So, for 

example, a defendant who has been 

acquitted or convicted in a federal 

criminal proceeding can be tried for the 

same conduct in a subsequent tribal 

criminal proceeding. As is always the 

case when a case falls under concurrent 

criminal jurisdiction, coordination 

between jurisdictions will help ensure 

that investigative and prosecutorial 

resources are deployed efficiently and 

that the same defendant is not expected 

to appear at two different trials 

simultaneously. 

Paragraph (4) sets forth two important 

exceptions to participating tribes’ 

exercise of SDVCJ. First, subparagraph 

(A) provides that there is no SDVCJ over 

an alleged offense if neither the 

defendant nor the alleged victim is an 

Indian. Cases involving only nonIndians typically fall within a state’s 

exclusive criminal jurisdiction. SDVCJ 

will be exercised in cases with Indian 

victims and non-Indian defendants. 

Second, subparagraph (B) limits SDVCJ 

to cases in which the defendant has 

significant ties to the participating tribe 

that is seeking to prosecute him. 

Specifically, the defendant must (1) 

Reside in the tribe’s Indian country; (2) 

be employed in the tribe’s Indian 

country; or (3) be a spouse, intimate 

partner, or dating partner either of an 

Indian who resides in the tribe’s Indian 

country or of a member of the tribe. 

Both of these two exceptions, as 

described in subparagraphs (A) and (B), 

are jurisdictional, so the prosecution 

will bear the burden of proving these 

jurisdictional facts beyond a reasonable 

doubt. 

The Criminal Conduct Subject to 

Special Domestic Violence Criminal 

Jurisdiction 

Subsection (c) of 25 U.S.C. 1304, the 

second of the three key subsections for 

present purposes, describes the criminal 

conduct potentially encompassed by a 

participating tribe’s SDVCJ. The only 

types of criminal conduct that are 

subject to a tribe’s exercise of SDVCJ are 

(1) acts of domestic violence or dating 

violence that occur in the tribe’s Indian 

country, and (2) violations of certain 

protection orders that occur in the 

tribe’s Indian country. The terms 

‘‘domestic violence’’ and ‘‘dating 

violence’’ are defined in 25 U.S.C. 

1304(a)(2) and (1), respectively. 

Criminal conduct that occurs outside 

of Indian country is not covered. In 

addition, unless a violation of a 

protection order is involved, crimes of 

child abuse or elder abuse and crimes 

between two strangers (including sexual 

assaults) generally are not covered. 

Subsection (c) limits the categories of 

criminal conduct that are subject to 

SDVCJ. It does not define any criminal 

offense. The criminal offenses and their 

elements are a matter of tribal, not 

federal, law. 

The Rights of Criminal Defendants in 

SDVCJ Cases 

Subsection (d) of 25 U.S.C. 1304, the 

third key subsection for present 

purposes, describes the federal statutory 

rights that participating tribes must 

provide to defendants when exercising 

SDVCJ. Although the United States 

Constitution, which constrains the 

federal and state governments, has never 

applied to Indian tribes (which were not 

invited to, and did not attend, the 1787 

Constitutional Convention), that fact 

does not leave the rights of individual 

defendants in tribal courts unprotected. 

Both tribal law and federal statutory law 

provide important protections for 

criminal defendants’ rights. The tribal 

courts’ application of the federal 

statutory rights described in subsection 

1304(d) should be comparable to state 

courts’ application of the corresponding 

federal constitutional rights in similar 

cases. 

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35964 Federal Register / Vol. 78, No. 115 / Friday, June 14, 2013 / Notices 

18 25 U.S.C. 1302(a)(4). 

19 Id. 1302(a)(6). 

20 Id. 1302(a)(8). 

21 Id. 1304(e). 

22Public Law 111–211, tit. II, sec. 234(a)(3), 124 

Stat. 2258, 2280. 

Subsection (d)(1)–(4) lists four sets of 

federal rights. The first set of 

defendants’ rights, in paragraph (1), 

incorporates all rights under ICRA, 25 

U.S.C. 1301–1304, that apply to a 

defendant in a criminal proceeding. 

This list of rights is substantively very 

similar (but not identical) to the set of 

criminal defendants’ rights that are 

protected by the United States 

Constitution’s Bill of Rights and have 

been incorporated into the Fourteenth 

Amendment’s Due Process Clause and 

thus made fully applicable to the states. 

For example, ICRA prohibits tribes from 

compelling any person in any criminal 

case to be a witness against himself 

(akin to the United States Constitution’s 

Fifth Amendment) 18 and from denying 

to any person in a criminal proceeding 

the right to a speedy and public trial 

(akin to the Sixth Amendment).19 ICRA 

also prohibits a tribe from denying to 

any person within its jurisdiction the 

equal protection of its laws or depriving 

any person of liberty or property 

without due process of law.20 Because 

federal law has required all tribes to 

protect these rights since Congress 

enacted ICRA in 1968, this list of rights 

should be familiar to tribal officials. 

Furthermore, as amended by VAWA 

2013, ICRA now requires a tribe that has 

ordered the detention of any person to 

timely notify him of his rights and 

privileges to petition a federal district 

court for a writ of habeas corpus and, 

where appropriate, to petition the 

federal court to stay further detention 

and release him from custody pending 

review of the habeas petition.21

Paragraph (2) of 25 U.S.C. 1304(d) 

requires a participating tribe exercising 

SDVCJ to provide defendants ‘‘all rights 

described in [25 U.S.C. 1302(c)]’’ in any 

criminal proceeding in which ‘‘a term of 

imprisonment of any length may be 

imposed.’’ The Tribal Law and Order 

Act of 2010 (TLOA),22 amended ICRA to 

add the five rights described in section 

1302(c): (1) The right to effective 

assistance of counsel at least equal to 

that guaranteed by the United States 

Constitution; (2) the right of an indigent 

defendant to the assistance of a licensed 

defense attorney, at the expense of the 

tribal government; (3) the right to a 

criminal proceeding presided over by a 

judge who is licensed to practice law 

and has sufficient legal training; (4) the 

right to have access, prior to being 

charged, to the tribe’s criminal laws, 

rules of evidence, and rules of criminal 

procedure; and (5) the right to a record 

of the criminal proceeding, including an 

audio or other recording of the trial 

proceeding. 

Under TLOA’s amendments to ICRA, 

codified in section 1302(c), these five 

rights must be provided to a defendant 

in any criminal proceeding in which the 

tribe imposes on the defendant a total 

term of imprisonment of more than one 

year. Therefore, these five rights are 

sometimes known as the ‘‘TLOA felony 

sentencing’’ requirements. In 25 U.S.C. 

1304(d)(2), however, these same five 

rights must be provided to a defendant 

in any SDVCJ criminal proceeding in 

which the tribe imposes, or may impose, 

a term of imprisonment of any length. 

So indigent defense counsel, for 

example, is required in any SDVCJ 

misdemeanor case in which 

imprisonment may be imposed. 

Paragraph (3) of 25 U.S.C. 1304(d) 

guarantees 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 nonIndians. Tribes exercising SDVCJ 

therefore will have to determine who 

qualifies as part of the relevant 

community and how lists of those 

persons may be obtained and regularly 

updated. The law does not require that 

every jury in every case reflect a fair 

cross-section of the community. Rather, 

the jury pool, or venire, from which the 

jury is drawn must be representative of 

the community. Some communities in 

Indian country contain sizeable nonIndian populations. Other communities 

in Indian country have few, if any, nonIndian members, and therefore 

inevitably will have few, if any, nonIndians in their jury pools. Under 

existing tribal laws, some tribes’ jury 

pools already include non-Indians, 

while others do not. 

Paragraph (4) of 25 U.S.C. 1304(d) is 

a ‘‘constitutional catch-all’’ provision. 

Although it is likely of little or no direct 

relevance to the Pilot Project, it has the 

potential to cause confusion and 

therefore merits further discussion here. 

The three prior paragraphs of 25 U.S.C. 

1304(d) encompass all the rights that the 

113th Congress concluded must be 

protected in order for Congress, acting 

within the constraints that the United 

States Constitution imposes on its 

authority, to recognize and affirm the 

participating tribes’ inherent power to 

exercise SDVCJ over non-Indian 

defendants. The 113th Congress 

recognized, however, that the 

understanding of which rights are 

fundamental to our justice system can 

evolve over time. Therefore, Congress 

included paragraph (4), which requires 

a participating tribe to provide 

defendants in SDVCJ proceedings ‘‘all 

other rights whose protection is 

necessary under the Constitution of the 

United States in order for Congress to 

recognize and affirm the inherent power 

of the participating tribe to exercise 

[SDVCJ] over the defendant.’’ 

This provision does not require tribal 

courts to protect all federal 

constitutional rights that federal courts 

are required to protect (for example, the 

Fifth Amendment’s grand-jury 

indictment requirement, which state 

courts are also not required to protect). 

Rather, paragraph (4) gives courts the 

flexibility to expand the list of protected 

rights to include a currently unforeseen 

right whose protection the 113th 

Congress did not believe was essential 

to the exercise of SDVCJ. In the two-year 

period of the Pilot Project, however, it 

seems unlikely that courts will hold that 

any such unforeseen right falls within 

the scope of paragraph (4). 

Section 908, Effective Dates, and the 

Pilot Project 

VAWA 2013’s section 908 sets the 

effective dates for the three key 

subsections of 25 U.S.C. 1304— 

subsections (b), (c), and (d)—as well as 

establishing the Pilot Project. Section 

908(b)(1) provides that those three 

subsections generally shall take effect 

on the date that is two years after the 

date of VAWA 2013’s enactment, or 

March 7, 2015. So tribes generally 

cannot exercise SDVCJ until at least 

March 7, 2015. After March 7, 2015, any 

tribe that determines it meets the 

statutory requirements for exercising 

SDVCJ may do so. Approval from the 

Department of Justice will not be 

necessary. 

An exception to the 2015 starting 

date, however, is set forth in section 

908(b)(2), which establishes a Pilot 

Project that authorizes the Attorney 

General, in the exercise of his 

discretion, to grant a tribe’s request to be 

designated as a participating tribe on an 

accelerated basis and commence 

exercising SDVCJ earlier. Section 

908(b)(2) states in full: 

(2) Pilot project.— 

(A) In general.—At any time during the 2- 

year period beginning on the date of 

enactment of this Act [March 7, 2013], an 

Indian tribe may ask the Attorney General to 

designate the tribe as a participating tribe 

under section 204(a) of Public Law 90–284 

[to be codified at 25 U.S.C. 1304(a)] on an 

accelerated basis. 

(B) Procedure.—The Attorney General may 

grant a request under subparagraph (A) after 

coordinating with the Secretary of the 

Interior, consulting with affected Indian 

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23See Public Law 100–472, sec. 209, 102 Stat. 

2285, 2296–98 (1988). 

tribes, and concluding that the criminal 

justice system of the requesting tribe has 

adequate safeguards in place to protect 

defendants’ rights, consistent with section 

204 of Public Law 90–284 [to be codified at 

25 U.S.C. 1304]. 

(C) Effective dates for pilot projects.—An 

Indian tribe designated as a participating 

tribe under this paragraph may commence 

exercising special domestic violence criminal 

jurisdiction pursuant to subsections (b) 

through (d) of section 204 of Public Law 90– 

284 [to be codified at 25 U.S.C. 1304(b)–(d)] 

on a date established by the Attorney 

General, after consultation with that Indian 

tribe, but in no event later than the date that 

is 2 years after the date of enactment of this 

Act [March 7, 2015]. 

2. The Pilot Project 

Given that the Pilot Project will 

directly and substantially affect Indian 

tribes in the next two years, the 

Department of Justice has engaged in 

expedited but extensive consultation 

with tribal officials on how best to 

design the Pilot Project. The procedures 

proposed here reflect valuable input 

received from tribal officials during 

consultation. 

The Pilot Project’s Structure and Two 

Phases 

Congress provided a structure for the 

VAWA Pilot Project that is atypical. A 

conventional pilot or demonstration 

program lasts for several years and 

culminates with a report evaluating the 

program’s success or failure and 

recommending that the program either 

be made nationwide and permanent or 

be discontinued. By contrast, here 

Congress has already determined that 

the key feature of the Pilot Project— 

tribes exercising SDVCJ—will spread 

nationwide just two years after VAWA 

2013’s enactment. So the question 

raised by this Pilot Project is not 

whether to expand the exercise of 

SDVCJ, but rather how best to exercise 

SDVCJ. Thus, tribal leaders emphasized 

during consultation that one of the Pilot 

Project’s most important functions will 

be to support tribes in their efforts to 

collaboratively develop ‘‘best practices’’ 

that other (non-Pilot Project) tribes can 

use to implement SDVCJ in 2015 and 

beyond. 

Tribal officials and employees 

repeatedly highlighted the usefulness of 

exchanging ideas with their 

counterparts in other tribes, peer to 

peer. They recognized that the 

Department of Justice, in coordination 

with the Department of the Interior, can 

play a key role in facilitating that 

intertribal collaboration and exchange of 

ideas. That may well turn out to be a 

singular lasting legacy of this Pilot 

Project. Indeed, tribal officials pointed 

to the example of the Tribal SelfGovernance Demonstration Project, 

which began in the late 1980s with 

fewer than a dozen tribes but has now 

expanded to include hundreds of tribes 

that are actively managing their own 

programs.23

Consistent with and informed by the 

views expressed by tribal leaders during 

consultation, the Department of Justice 

therefore is proposing a VAWA Pilot 

Project process with two phases: A 

planning and self-assessment phase that 

commences with the publication of this 

notice, and an implementation phase 

that will commence with the 

publication of a final notice, which the 

Department anticipates will occur later 

this year. In Phase One, in the summer 

and fall of 2013, tribes that 

preliminarily express interest in the 

Pilot Project may engage in ongoing 

consultation with the Departments of 

Justice and the Interior to address any 

questions or concerns. These tribes will 

also be strongly encouraged to join the 

Intertribal Technical-Assistance 

Working Group on Special Domestic 

Violence Criminal Jurisdiction (ITWG). 

Members of the ITWG will exchange 

views, information, and advice about 

how tribes can best exercise SDVCJ, 

combat domestic violence, recognize 

victims’ rights and safety needs, and 

fully protect defendants’ rights. 

This peer-to-peer technical assistance 

may cover a broad set of issues, from 

drafting stronger domestic violence 

codes and victim-centered protocols and 

policies, to improving public defender 

systems, to analyzing detention and 

correctional options for non-Indians, to 

designing more broadly representative 

jury pools. The objective will be to 

develop not a single, one-size-fits-all 

‘‘best practice’’ for each of these issues, 

but rather multiple ‘‘best practices’’ that 

can be tailored to each tribe’s particular 

needs, preferences, and traditions. 

Tribes participating in the ITWG will 

also have an opportunity to engage with 

the Departments of Justice and the 

Interior, which will provide technical 

advice to the working group as a whole 

and work with individual tribes to 

address specific issues or concerns as 

needed. The Department of Justice will 

support the ITWG with training and 

technical assistance to the extent 

possible with available resources. 

Indeed, in section 1304(h), Congress 

expressly authorized funding ‘‘to 

provide training [and] technical 

assistance’’ to tribes’ criminal justice 

systems. 

Phase Two of the Pilot Project 

process, the implementation phase, will 

commence with the Justice 

Department’s publication in the Federal 

Register of a final notice specifying how 

tribes can certify that they meet the 

statutory requirements to exercise 

SDVCJ on an accelerated basis. Some 

tribes will then request designation as a 

participating tribe under 25 U.S.C. 1304 

on an accelerated basis, and the 

Department will timely evaluate the 

requests based on the statutory criteria, 

after the required consultation with 

affected tribes and coordination with 

the Department of the Interior. The 

tribes whose requests are granted may 

commence prosecuting non-Indian 

perpetrators of domestic violence on a 

date established by the Department of 

Justice after further consultation with 

the tribe. The Department anticipates 

that Phase Two likely will commence in 

late 2013 and continue through March 

7, 2015, with some tribes potentially 

prosecuting SDVCJ cases by late 2013 or 

early 2014. 

During consultation, tribal officials 

uniformly encouraged the Department 

to develop a mechanism for tribes to 

‘‘self-certify’’ that they meet the 

statutory requirements to exercise 

SDVCJ. As a result, each requesting tribe 

will be expected to fill out an 

Application Questionnaire that will ask 

the tribe to identify provisions of the 

tribe’s criminal code, rules of procedure, 

and written policies, as well as actual 

practices, that qualify the tribe to 

exercise SDVCJ on an accelerated basis. 

Each requesting tribe will be asked to 

attach the relevant portions of its laws, 

rules, and policies to the completed 

Application Questionnaire. These 

materials, collected from the various 

tribes applying to participate in Phase 

Two of the Pilot Project, will serve as a 

great resource for the much larger 

number of tribes that may elect to 

commence exercising SDVCJ in March 

2015 or later. 

This two-phased Pilot Project will 

benefit tribes in several ways. First, the 

tribes that successfully apply in the 

Pilot Project’s second phase will have 

the opportunity to commence exercising 

SDVCJ, and thus enhance public safety 

in their communities, sooner than 

would otherwise be possible. And these 

tribes will establish an early, strong 

track record for effectively and fairly 

prosecuting all offenders who perpetrate 

crimes of domestic violence in Indian 

country, regardless of their Indian or 

non-Indian status. Second, the other 

tribes that preliminarily express interest 

in the Pilot Project and opt to join the 

ITWG will have the opportunity to 

shape best practices that will strengthen 

criminal justice systems on many 

reservations, including their own, and 

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thus will be better prepared to exercise 

SDVCJ after March 2015. And third, the 

tribes that do not participate in either 

phase of the Pilot Project will have the 

opportunity to learn from the 

experiences of the first two sets of tribes 

and to benefit from the body of tribal 

laws and practices that those tribes will 

have developed and implemented. 

Phase One: Ongoing Consultation, 

Preliminary Expressions of Interest, and 

the Intertribal Technical-Assistance 

Working Group 

If a tribe’s elected leadership believes 

that the tribe might be a strong 

candidate for participation in both 

phases of the Pilot Project, and thus for 

exercising SDVCJ prior to 2015, the tribe 

may submit a ‘‘preliminary expression 

of interest.’’ A preliminary expression of 

interest should take the form of a short 

letter from the tribe’s leader or 

governing body to Mr. Tracy Toulou, 

Director, Office of Tribal Justice, 

Department of Justice, 950 Pennsylvania 

Avenue NW., Room 2310, Washington, 

DC 20530, email OTJ@usdoj.gov. The 

preliminary expression of interest 

should be submitted as soon as possible 

and in any event no later than July 15, 

2013. 

A tribe that submits a preliminary 

expression of interest during Phase One 

will not be obligated during Phase Two 

to submit a request for designation as a 

participating tribe if the tribe decides to 

wait until after March 7, 2015, to 

commence exercising SDVCJ. 

Conversely, a tribe that wishes during 

Phase Two to submit a request for 

designation as a participating tribe (so 

that it can commence exercising SDVCJ 

before March 2015) need not have 

submitted a preliminary expression of 

interest during Phase One. However, 

submitting a preliminary expression of 

interest as early as possible will greatly 

facilitate the Justice Department’s efforts 

to provide timely information to the 

tribe, to address issues of unique 

concern to the tribe, and to identify, in 

coordination with tribal officials, those 

areas where the tribe may benefit from 

technical assistance. 

The letter preliminarily expressing 

interest also should identify the name 

and title of any person the tribe 

authorizes as its representative to the 

ITWG, if the tribe chooses to participate 

in the ITWG. This person should be a 

tribal officer, employee, or contractor 

who has been designated by the tribe’s 

elected officers to act on their behalf 

and serve on the ITWG. The authorized 

representative could be, for example, a 

tribal leader, trial judge, appellate judge, 

attorney, prosecutor, public defender, 

victim advocate, victim service 

provider, police chief, criminal justice 

consultant, or court administrator. The 

tribe’s authorized representative should 

have the time, energy, and technical 

expertise to meaningfully participate in 

the ITWG. The Department of Justice 

anticipates that participation in the 

ITWG may demand a substantial time 

commitment, at least in 2013. 

A tribe may choose to authorize more 

than one person to participate in the 

ITWG. For example, a tribe may want 

both a judge and a victim advocate, or 

both a prosecutor and a public defender, 

to contribute to the ITWG’s discussions. 

But each tribe should designate one 

authorized representative who can serve 

as the main point of contact for the 

Justice Department and for other tribes. 

The Department of Justice may ask 

particular federal employees (from the 

Departments of Justice and the Interior 

and perhaps other agencies) and nonfederal experts (including persons 

affiliated with national or regional 

intertribal organizations) to provide 

support to the ITWG. And the 

Department will support the ITWG with 

training and technical assistance. 

It is anticipated that the ITWG 

members will meet in person or by 

telephone, video conference, or 

interactive Webinar technology at least 

twice a month for the duration of Phase 

One of the Pilot Project. If funding is 

available, the Department may support 

travel expenses for ITWG members to 

attend in-person meetings. Members 

also will meet, perhaps less frequently, 

during Phase Two, to continue 

identifying, documenting, and 

disseminating best practices that can be 

replicated by other tribes, and to help 

collect data and assess the Pilot Project 

tribes’ efforts to exercise SDVCJ, combat 

domestic violence, recognize victims’ 

rights and safety needs, and fully 

protect defendants’ rights. 

After receiving timely preliminary 

expressions of interest from the tribes, 

the Department of Justice will help 

convene and facilitate the initial ITWG 

meeting. Although it is anticipated that 

federal employees ordinarily will be 

invited to participate in subsequent 

ITWG meetings as observers or subjectmatter experts who can provide 

technical assistance, the tribal 

representatives may choose sometimes 

to meet without any federal employees 

present. In addition, tribal members of 

the ITWG may informally exchange 

written drafts of tribal criminal code 

provisions, tribal rules of procedure, 

tribal policies, and other tribal best 

practices, with or without sharing these 

drafts with the federal employees. Tribal 

members of the ITWG also may opt to 

meet in smaller groups, arranged either 

by region or by subject-matter expertise. 

The ITWG may choose to discuss 

anything that its members deem 

relevant to the proper implementation 

of sections 904 and 908 of VAWA 2013. 

The Department of Justice has appended 

to this notice a list of substantive 

questions that may provide a useful 

starting point in identifying key issues 

and developing a checklist of best 

practices for exercising SDVCJ. Some of 

the questions focus on statutory 

requirements. Others touch on broader 

issues that are potentially relevant to 

tribal best practices but clearly are not 

required by VAWA 2013 or any other 

federal law. 

The principal goal of the ITWG will 

be to provide a forum for peer-to-peer 

learning as tribes assess their own 

criminal justice systems and prepare to 

exercise SDVCJ. Secondary goals of the 

ITWG will be to create a network of peer 

mentors, identify an array of different 

model codes and rules, and document 

best practices, all of which can assist 

other tribes as they prepare to exercise 

SDVCJ in the future. 

Consistent with the views expressed 

during consultation, the ITWG has been 

designed to maximize the collaborative 

sharing of information among tribal 

governments. At the same time, the 

Department of Justice recognizes the 

importance of the government-togovernment relationship that exists 

between the United States and each 

individual Indian tribe. During (or after) 

Phase One, any tribe may also engage in 

one-on-one discussions with the 

Department of Justice or the Department 

of the Interior on any issue that may 

arise that is unique to that tribal 

government. Such discussions may 

involve specific requests for additional 

training or technical assistance if 

funding is available. 

Phase Two: Tribal Requests and the 

Application Questionnaire 

In Phase Two of the Pilot Project, 

tribes may request designation as 

participating tribes that may commence 

exercising SDVCJ on an accelerated 

basis. It is important to note that the 

statute does not set the number of tribes 

that can participate in the Pilot Project 

and exercise SDVCJ on an accelerated 

basis, though it does limit the Pilot 

Project to just two years, effectively 

ending in March 2015. After that time, 

any tribe that determines it meets the 

statutory requirements and wishes to 

exercise SDVCJ may do so without the 

involvement of the Department of 

Justice. 

During the course of the Pilot Project, 

however, section 908(b)(2)(B) of the 

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statute authorizes the Department of 

Justice to grant a request only after 

concluding that the requesting tribe’s 

criminal justice system ‘‘has adequate 

safeguards in place to protect 

defendants’ rights, consistent with [25 

U.S.C. 1304].’’ Tellingly, Congress did 

not restrict the Department’s purview to 

the rights of defendants specified in 

subsection 1304(d), but rather 

demanded consistency with all 

subsections of section 1304. The statute 

thus requires the Department to 

consider how the tribe plans to comply 

with the entirety of section 1304, 

focusing (though not exclusively) on the 

specific defendants’ rights enumerated 

in subsection 1304(d). 

The Attorney General is required to 

exercise his discretion in the Pilot 

Project process, as the statute states that 

he ‘‘may’’ (not ‘‘shall’’) grant a 

qualifying tribe’s request. In exercising 

his discretion, the Attorney General will 

be bound by the text of section 1304 and 

guided by the section’s broader 

purposes: to decrease domestic violence 

in Indian country, to strengthen the 

capacity of Indian tribes to exercise 

their inherent sovereign power to 

administer justice and control crime, 

and to ensure that perpetrators of 

domestic violence are held accountable 

for their criminal behavior. 

To address the overwhelming 

preference for a self-certification process 

that tribal leaders and experts expressed 

during consultation, and to facilitate 

moving quickly during the Pilot 

Project’s two-year window while 

fulfilling the Attorney General’s 

statutory duty, the Department will ask 

each requesting tribe to provide certified 

answers to a list of detailed questions. 

These questions may touch on matters 

such as the tribe’s criminal justice 

system, its ongoing efforts to combat 

domestic violence and provide victim 

services and support, its history of ICRA 

compliance, and the various safeguards 

that the tribe has put in place to protect 

defendants’ rights. The precise 

substance and form of the Application 

Questionnaire have not yet been 

determined. It will be appended to the 

final notice that the Department of 

Justice publishes in the Federal Register 

several months from now, and it will be 

informed by comments that the public 

submits in response to this notice and 

by lessons learned through the ITWG 

process. 

However, some broad outlines are 

clear. The Application Questionnaire 

will need to be completed and certified 

as accurate by the tribe’s chief 

executive, judicial, and legal officers. To 

provide an adequate basis for the Justice 

Department to make the determination 

demanded by the statute, the questions 

will need to be comprehensive and 

detailed. The bulk of the questions 

likely could be answered with a single 

sentence or a simple ‘‘yes’’ or ‘‘no,’’ 

supplemented with applicable excerpts 

from the tribe’s laws, rules, or policies. 

This way, the questionnaire will put as 

little burden as possible on tribal 

officials and employees, while 

addressing the Department’s need for 

sufficiently detailed information to 

perform its statutory responsibility. The 

Application Questionnaire also may 

help a tribe assess its own criminal 

justice system’s readiness for the 

exercise of SDVCJ. 

The completed, certified Application 

Questionnaire will serve as the tribe’s 

formal request to be designated as a 

participating tribe that can exercise 

SDVCJ on an accelerated basis under the 

Pilot Project. The Department will give 

priority consideration to requests that it 

receives during the first 30 days after 

publication in the Federal Register of 

the final notice (not this notice). But the 

Department will consider all requests 

received before March 7, 2015. And 

although the Department strongly 

encourages tribes that may submit a 

formal request in Phase Two to join the 

ITWG during Phase One, the 

Department will consider Phase Two 

requests from both ITWG members and 

nonmembers. 

Phase Two: The Federal Response to 

Tribal Requests 

Once the Department of Justice has 

received a requesting tribe’s completed, 

certified Application Questionnaire, 

including attached excerpts of tribal 

laws, rules, and policies, the 

Department proposes to take the 

following steps. 

First, the requesting tribe’s entire 

application will be shared with relevant 

components of the Department of 

Justice, including any U.S. Attorney’s 

Office with jurisdiction over the tribe’s 

Indian country, and relevant 

components of the Department of the 

Interior, including the Office of the 

Assistant Secretary of the Interior– 

Indian Affairs; the Office of the Solicitor 

of the Interior; and the Bureau of Indian 

Affairs’ Office of Justice Services (BIA– 

OJS). 

Second, the Justice Department will 

post a notice on its Tribal Justice and 

Safety Web site indicating that the tribe 

has submitted a request in Phase Two of 

the Pilot Project. This notice will 

announce a telephonic consultation for 

officials of federally recognized Indian 

tribes who wish to comment on the 

request, as well as a deadline for 

submitting written comments. As 

required by VAWA 2013’s section 

908(b)(2)(B), the Justice Department will 

consult with elected and duly appointed 

officials of affected tribes, consistent 

with applicable Executive Orders and 

Presidential Memoranda on tribal 

consultation. 

Third, generally working through the 

requesting tribe’s authorized point of 

contact (POC), as identified in the tribe’s 

Application Questionnaire, the Justice 

Department may make follow-up 

inquiries about the tribe’s criminal 

justice system. But the specificity of the 

questions in the Application 

Questionnaire should minimize the 

need for extensive follow-up inquiries. 

Fourth, personnel from the 

Departments of Justice and the Interior 

will coordinate in reviewing the 

requesting tribe’s application. They also 

may consider information obtained in 

other contexts, including grant 

applications, such as the tribe’s prior 

Coordinated Tribal Assistance 

Solicitation (CTAS) applications, and 

any tribal-court review that BIA–OJS 

has conducted under 25 U.S.C. 3612. 

Fifth, Justice Department personnel 

will make a recommendation to the 

Associate Attorney General about 

whether the requesting tribe should be 

designated as a participating tribe under 

25 U.S.C. 1304 on an accelerated basis. 

This recommendation will turn on 

whether the requesting tribe’s criminal 

justice system has adequate safeguards 

in place to protect defendants’ rights, 

consistent with all subsections of 25 

U.S.C. 1304. 

Sixth, if the recommendation is 

negative, the Justice Department’s Office 

of Tribal Justice (OTJ) will so inform the 

tribe’s POC. If funding is available, the 

Department may provide appropriate 

technical assistance to a tribe that 

wishes to prepare and submit a revised 

request. The Department may also offer 

specific training and technical 

assistance to address particular needs 

through its grant-making components, 

the Office of Justice Programs (OJP), the 

Office on Violence Against Women 

(OVW), and the Office of CommunityOriented Policing Services (COPS), and 

may work with the ITWG to identify 

other tribal or intertribal resources that 

may assist the tribe. 

Seventh, if the recommendation is 

positive, the Department of Justice will 

consult with the requesting tribe to 

establish a date on which the tribe may 

commence exercising SDVCJ. The 

commencement date may be 

conditioned on the tribe receiving 

certain additional training or technical 

assistance or taking certain steps, such 

as notifying the public when the tribe 

will start exercising SDVCJ. 

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24U.S. Department of Justice, Implementation of 

Sections 904 and 908 of the Violence Against 

Women Reauthorization Act of 2013 (Apr. 16, 

2013). 

Eighth, if the Department of Justice 

and the tribe can reach agreement on a 

starting date and conditions (if any), the 

Associate Attorney General, exercising 

discretion delegated by the Attorney 

General, may designate the tribe as a 

participating tribe under 25 U.S.C. 1304 

on an accelerated basis. The Department 

will publish notice of the designation on 

the Department’s Tribal Justice and 

Safety Web site and in the Federal 

Register. 

3. Statutory and Executive Order 

Reviews 

General Disclaimers 

This notice is not intended to, and 

does not, create any right or benefit, 

substantive or procedural, enforceable at 

law or in equity by any party in any 

matter, civil or criminal, against the 

United States, its departments, agencies, 

or entities, its officers, employees, or 

agents, or any other person, nor does 

this notice place any limitations on 

otherwise lawful litigative prerogatives 

of the U.S. Department of Justice. 

Furthermore, nothing in this notice 

shall be construed to (1) Encroach upon 

or diminish in any way the inherent 

sovereign authority of each tribe over its 

own government, legal system, law 

enforcement, and personnel matters; (2) 

imply that any tribal justice system is an 

instrumentality of the United States; or 

(3) alter the trust responsibility of the 

United States to Indian tribes. 

Administrative Procedure Act 

This notice concerns interpretive 

rules, general statements of policy, or 

rules of agency organization, procedure, 

or practice for purposes of the 

Administrative Procedure Act, and 

therefore notice and comment are not 

required under 5 U.S.C. 553(b)(A). 

Nonetheless, the Department of Justice 

is publishing this notice in the Federal 

Register and on the Department’s Tribal 

Justice and Safety Web site for public 

comment, as well as to solicit 

preliminary expressions of interest in 

the Pilot Project. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This notice fully comports with 

Executive Order 13175 of November 6, 

2000. Although it creates no new 

substantive rights and imposes no 

binding legal requirements, the notice 

has tribal implications because it will 

have substantial direct effects on Indian 

tribes and their relationships with the 

Federal Government. The Department 

therefore has engaged in meaningful, 

though speedy, consultation and 

collaboration with elected and duly 

appointed tribal officials in developing 

this notice. 

More specifically, the Department of 

Justice organized and led two 

telephonic consultations with tribal 

leaders on how best to structure and 

implement the voluntary Pilot Project 

established under sections 904 and 908 

of VAWA 2013. To facilitate the 

consultation and frame the discussion 

with tribal governments, in mid-April 

the Department circulated a six-page 

framing paper that presented 

background on the new law and raised 

a series of questions on specific issues 

relating to the Pilot Project.24 The first 

consultation was held on May 14, 2013, 

and the second on May 17, 2013. The 

Department also consulted members 

and representatives of the Attorney 

General’s Tribal Nations Leadership 

Council on April 30, 2013. 

On April 12, 2013, the Department 

participated in a hearing of the Indian 

Law and Order Commission on 

implementation of VAWA 2013 and the 

Pilot Project, held in conjunction with 

the Federal Bar Association’s 38th 

Annual Indian Law Conference in New 

Mexico. In addition, the Department 

held a series of informal consultations 

with tribal stakeholders, including calls 

with tribal judges and court personnel 

(on May 8, 2013); tribal prosecutors 

(May 13); tribal public defenders (May 

2); federal public defenders (May 6); 

tribal in-house counsel (May 9); tribal 

victim advocates and victim service 

providers (May 1); and professors of 

Indian law (May 10). Finally, the 

Department received written comments 

from more than a dozen American 

Indian and Alaska Native tribes, 

members of the public, and intertribal 

organizations, including the National 

Congress of American Indians (NCAI), 

the National American Indian Court 

Judges Association (NAICJA), the 

National Association of Indian Legal 

Services (NAILS), and the Tribal Law 

and Policy Institute (TLPI). 

During these consultations, some 

tribal officials expressed a desire to 

expedite the Pilot Project process, while 

other tribal officials asked the 

Department of Justice to engage in 

further tribal consultation before 

proceeding. Generally, there was a 

consensus that the main value of the 

Pilot Project will lie in (1) Collaboration 

and information-sharing among the Pilot 

Project tribes; (2) flexible interaction 

between tribes and criminal justice 

experts at the Department of Justice and 

elsewhere; and (3) collecting the various 

tribal laws and procedures developed by 

the Pilot Project tribes that exercise 

SDVCJ on an accelerated basis and 

‘‘sharing that information forward’’ with 

tribes that may implement VAWA 2013 

and exercise SDVCJ after the Pilot 

Project is completed. 

There also was a strong consensus in 

favor of tribal ‘‘self-certification’’—that 

is, a process in which the requesting 

tribe provides brief written answers to 

detailed questions about its criminal 

justice system; the tribe’s leader, 

attorney, and chief judge each certify 

the completeness and accuracy of the 

answers; and Justice Department 

personnel then rely principally on those 

answers and thus need to engage in only 

limited follow-up inquiries, rather than 

undertake extensive investigation and 

site visits. At the same time, tribal 

officials recognized that the Department 

of Justice has a responsibility to exercise 

due diligence in assessing tribes’ 

capacities and therefore must at times 

review extrinsic evidence of tribes’ 

compliance with the new federal law’s 

requirements, including tribal 

constitutional provisions, tribal code 

provisions, tribal court rules, tribal 

administrative orders, tribal written 

policies, and tribal written procedures, 

as well as summaries of the 

qualifications of certain tribal staff. 

The Department of Justice believes 

that the key concerns that tribal officials 

highlighted at the tribal consultations in 

April and May 2013 have been 

addressed in this notice. The twophased structure is designed to move 

forward quickly with implementation, 

yet allow adequate time for deliberation 

and consultation. The proposed Phase 

One of the Pilot Project addresses the 

consensus about intertribal 

collaboration and information-sharing. 

Proposed Phase Two addresses the 

consensus about tribal self-certification, 

while also providing for necessary, 

targeted follow-up inquiries by the 

Department of Justice. 

Executive Orders 12866 and 13563— 

Regulatory Planning and Review 

Because this notice is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866 of September 30, 

1993 (‘‘Regulatory Planning and 

Review’’), as amended, it is not subject 

to review under Executive Order 12866 

or 13563. 

Executive Order 13132—Federalism 

This notice will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

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distribution of power and 

responsibilities among the various 

levels of government. Under 25 U.S.C. 

1304(b)(2)–(3), a participating tribe may 

exercise SDVCJ only concurrently with 

the jurisdiction of the United States, of 

a state, or of both. The new law does not 

alter federal or state criminal 

jurisdiction. Therefore, in accordance 

with Executive Order 13132 of August 

4, 1999, this notice does not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

assessment. 

Executive Order 12988—Civil Justice 

Reform 

This notice meets the applicable 

standards set forth in section 3(a) and 

(b)(2) of Executive Order 12988 of 

February 5, 1996. 

Regulatory Flexibility Act 

Because this notice is not required to 

be published as a proposed rule under 

5 U.S.C. 553, it need not be reviewed 

under the Regulatory Flexibility Act, 5 

U.S.C. 603(a). In any event, this notice 

will not have a significant economic 

impact on a substantial number of small 

entities; thus, no regulatory flexibility 

analysis is required for that reason as 

well. Id. 605(b). 

Unfunded Mandates Reform Act of 1995 

This notice will not result in the 

expenditure by state, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Moreover, becoming a 

participating tribe and exercising 

SDVCJ—whether as part of the Pilot 

Project between now and March 2015, 

or at any time after March 2015—are 

entirely voluntary. Therefore, no actions 

were deemed necessary under the 

provisions of the Unfunded Mandates 

Reform Act of 1995, Public Law 104–4. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

Because this notice does not include 

a rule, it need not be reviewed under 

section 251 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996, 5 U.S.C. 804. In any event, this 

notice will not result in an annual effect 

on the economy of $100 million or 

more; a major increase in costs or prices; 

or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based enterprises to 

compete with foreign-based enterprises 

in domestic and export markets. See id. 

Dated: June 10, 2013. 

Eric H. Holder, Jr., 

Attorney General. 

Appendix 

Substantive Questions for Consideration by 

Interested Tribes and by the Intertribal 

Technical-Assistance Working Group on 

Special Domestic Violence Criminal 

Jurisdiction 

The following is a preliminary list of 

questions that tribes interested in the Pilot 

Project might find useful as a starting point 

in identifying key issues and developing a 

checklist of best practices for exercising 

special domestic violence criminal 

jurisdiction (SDVCJ) on an accelerated basis. 

Some of the questions on this list focus on 

statutory requirements that Congress 

included in the Violence Against Women 

Reauthorization Act of 2013 (VAWA 2013). 

Other questions touch on broader topics, 

such as those covered in the authorized 

grants to tribal governments in 25 U.S.C. 

1304(f), that are potentially relevant to tribal 

‘‘best practices’’ but clearly are not required 

by VAWA 2013 or any other federal law. 

Many of these questions were raised during 

tribal consultation. The Department of Justice 

anticipates that they may be further 

discussed by members of the Intertribal 

Technical-Assistance Working Group on 

Special Domestic Violence Criminal 

Jurisdiction (ITWG) in collaboratively 

developing tribal best practices. 

Some—but certainly not all—of these 

questions touch on issues that the 

Department of Justice anticipates addressing 

in the Application Questionnaire, which will 

serve as a tribe’s formal request to commence 

exercising SDVCJ on an accelerated basis 

during Phase Two of the Pilot Project. The 

Application Questionnaire will be appended 

to the final notice that the Department of 

Justice expects to publish in the Federal 

Register, probably in late 2013. 

Some of the questions in this Appendix 

may be answered by reference to unwritten 

tribal practices. But most of these questions 

deal with features of a tribal criminal justice 

system that would likely be memorialized in 

the tribe’s constitution, criminal code, rules 

of evidence, rules of criminal procedure, 

rules of appellate procedure, or written 

policies. Therefore, for each of these 

questions, interested tribes might consider 

whether amendments to their laws, rules, or 

policies are needed. 

The Right to Trial by an Impartial Jury 

Statutory Background: Section 1304(d)(3) 

provides that, ‘‘[i]n a criminal proceeding in 

which a participating tribe exercises [SDVCJ], 

the participating tribe shall provide to the 

defendant . . . the right to a trial by an 

impartial jury that is drawn from sources 

that—(A) reflect a fair cross section of the 

community; and (B) do not systematically 

exclude any distinctive group in the 

community, including non-Indians.’’ 

Section 1304(f)(3) authorizes grants to 

tribal governments ‘‘to ensure that, in 

criminal proceedings in which a 

participating tribe exercises [SDVCJ], jurors 

are summoned, selected, and instructed in a 

manner consistent with all applicable 

requirements.’’ Congress has not yet 

appropriated funds for any grant authorized 

by section 1304. 

Geographic Scope of the Community: For 

purposes of determining the composition of 

the jury pool for SDVCJ cases, how will the 

tribe define the geographic scope of the 

‘‘community’’? Is the ‘‘community’’ 

coextensive with the tribe’s Indian country? 

Is the existence or geographic scope of the 

tribe’s Indian country in dispute? 

Membership in the Community: To be 

deemed a member of the relevant 

‘‘community,’’ must a person reside within 

the community’s geographic scope? Does the 

community include persons who reside 

outside, but are employed within, the 

community’s geographic scope? Does the 

community include all employees of the 

tribe, its agencies, and its business entities? 

Lists of Prospective Jurors: How will the 

tribe obtain and maintain an accurate, 

updated list of adult community members, 

including nonmember Indians and nonIndians, who are potentially eligible to be 

jurors in SDVCJ cases? In compiling the 

tribe’s official list of prospective jurors, what 

lists will the tribe use (e.g., state or local lists 

of registered voters or actual voters, tribal 

lists of registered voters or actual voters, state 

or tribal lists of licensed drivers, lists 

provided by various tribal agencies such as 

the tribal housing or taxing authority)? How 

often will those lists be updated and merged, 

to form the tribe’s official list of prospective 

jurors? Will the tribe maintain one official 

list of prospective jurors for SDVCJ cases and 

a separate official list of prospective jurors 

for cases with Indian defendants, or will the 

tribe maintain one official list of prospective 

jurors for all cases? Are non-Indians (and 

nonmember Indians) already included in the 

tribe’s jury pools? 

Inclusiveness of the List: Approximately 

how many adults are members of the 

community? Approximately how many 

persons are on the tribe’s official list of 

prospective jurors for SDVCJ cases? 

Representativeness of the List: 

Approximately what percentage of adult 

community members (the population eligible 

to serve as jurors in SDVCJ cases) do tribal 

members, nonmember Indians, and nonIndians represent? For comparison, 

approximately what percentage of the tribe’s 

official list of prospective jurors for SDVCJ 

cases do tribal members, nonmember 

Indians, and non-Indians represent? Will the 

tribe collect demographic data by 

questionnaire from all persons reporting for 

jury duty in SDVCJ cases (whether they are 

selected as a trial juror or not)? Is there a 

significant disparity between the percentage 

of the venire (i.e., the persons reporting for 

jury duty) that is non-Indian and the 

percentage of adult community members that 

is non-Indian? 

Failure of Prospective Jurors to Appear: 

Given that the tribe lacks general criminal 

jurisdiction over non-Indians in the 

community, how will the tribe encourage 

non-Indians to fulfill their obligation to serve 

as jurors when summoned for SDVCJ cases? 

Randomness of Jury Selection: What are 

the qualifications for eligibility for jury 

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service (e.g., minimum age, maximum age, 

length of residence/membership in the 

community, lack of a felony conviction or 

pending felony charges, U.S. citizenship, 

ability to communicate in English or another 

language, etc.)? When, if ever, can 

prospective jurors be removed based on 

challenges for cause or peremptory 

challenges? Are there any other respects in 

which the selection of jurors is non-random? 

Jury Verdicts: Will the tribe require 

unanimous guilty verdicts in SDVCJ cases? 

Waiver: Under tribal law, what are the 

standards and procedures for determining 

whether a defendant is competent and has, 

by guilty plea or otherwise, knowingly and 

intelligently waived his right to have the case 

tried by a jury? 

ICRA’s Jury Right and VAWA’s ImpartialJury Right: Under section 1304(d)(3), as 

enacted in VAWA 2013, a participating tribe 

must provide the defendant in an SDVCJ case 

an absolute right to a jury trial, regardless of 

whether the offense is punishable by 

imprisonment, and regardless of whether the 

person accused requests a jury trial. Under 

section 1302(a)(10), as enacted in the Indian 

Civil Rights Act of 1968 (ICRA), tribes cannot 

‘‘deny to any person accused of an offense 

punishable by imprisonment the right, upon 

request, to a trial by jury of not less than six 

persons.’’ Because section 1304(d)(3) does 

not so qualify the right to a trial by an 

impartial jury, the right to a trial by an 

impartial jury in an SDVCJ case applies even 

if the defendant does not expressly request a 

jury trial and even if the offense is not 

punishable by imprisonment. Are the tribe’s 

laws consistent with these federal statutory 

rights? 

The Rights Described in the Tribal Law and 

Order Act of 2010 

Statutory Background: Section 1304(d)(2) 

provides that, ‘‘[i]n a criminal proceeding in 

which a participating tribe exercises [SDVCJ], 

the participating tribe shall provide to the 

defendant . . . [,] if a term of imprisonment 

of any length may be imposed, all rights 

described in section 202(c) [of ICRA].’’ 

As amended by the Tribal Law and Order 

Act of 2010 (TLOA), ICRA’s section 202(c), 

codified at 25 U.S.C. 1302(c), describes five 

rights, all of which will apply in SDVCJ cases 

in which imprisonment may be imposed: 

In a criminal proceeding . . ., the Indian 

tribe shall— 

(1) provide to the defendant the right to 

effective assistance of counsel at least equal 

to that guaranteed by the United States 

Constitution; and 

(2) at the expense of the tribal government, 

provide an indigent defendant the assistance 

of a defense attorney licensed to practice law 

by any jurisdiction in the United States that 

applies appropriate professional licensing 

standards and effectively ensures the 

competence and professional responsibility 

of its licensed attorneys; 

(3) require that the judge presiding over the 

criminal proceeding— 

(A) has sufficient legal training to preside 

over criminal proceedings; and 

(B) is licensed to practice law by any 

jurisdiction in the United States; 

(4) prior to charging the defendant, make 

publicly available the criminal laws 

(including regulations and interpretative 

documents), rules of evidence, and rules of 

criminal procedure (including rules 

governing the recusal of judges in 

appropriate circumstances) of the tribal 

government; and 

(5) maintain a record of the criminal 

proceeding, including an audio or other 

recording of the trial proceeding. 

25 U.S.C. 1302(c). 

Section 1304(f)(2) authorizes grants to 

tribal governments ‘‘to provide indigent 

criminal defendants with the effective 

assistance of licensed defense counsel, at no 

cost to the defendant, in criminal 

proceedings in which a participating tribe 

prosecutes a crime of domestic violence or 

dating violence or a criminal violation of a 

protection order.’’ This provision expressly 

refers to all such criminal proceedings and is 

not limited to SDVCJ cases with non-Indian 

defendants. 

Section 1304(f)(1) authorizes grants to 

tribal governments, among other things, ‘‘to 

strengthen tribal criminal justice systems to 

assist Indian tribes in exercising [SDVCJ], 

including . . . prosecution; . . . trial and 

appellate courts; . . . [and] criminal codes 

and rules of criminal procedure, appellate 

procedure, and evidence.’’ 

General Questions on the TLOA Rights 

Felony Sentencing Under TLOA: With 

TLOA’s enactment, the rights described in 25 

U.S.C. 1302(c) must be protected in all 

criminal cases in which a tribe ‘‘imposes a 

total term of imprisonment of more than 1 

year on a defendant.’’ Since TLOA was 

enacted on July 29, 2010, have the tribe’s 

courts sentenced any criminal defendant to a 

total term of imprisonment of more than one 

year? If not, does the tribe have plans to 

commence exercising this enhanced 

sentencing authority under TLOA? 

Cases in Which Imprisonment ‘‘May Be 

Imposed’’: Under tribal law, in what 

circumstances, if any, may a criminal 

defendant who was sentenced only to pay a 

criminal fine and not to serve a term of 

imprisonment be imprisoned for failure to 

pay the fine? 

Defense Attorneys 

Effective Assistance of Licensed Defense 

Attorneys: In criminal proceedings in which 

the tribe will exercise SDVCJ and terms of 

imprisonment of any length are or may be 

imposed, how will the tribe protect 

defendants’ right to effective assistance of 

counsel at least equal to that guaranteed by 

the United States Constitution? In such 

criminal proceedings, how will the tribe 

provide to indigent defendants, at the 

expense of the tribal government, the 

assistance of defense attorneys licensed to 

practice law by any jurisdiction in the United 

States that applies appropriate professional 

licensing standards and effectively ensures 

the competence and professional 

responsibility of its licensed attorneys? Will 

indigent Indian defendants be afforded the 

same rights as indigent non-Indian 

defendants, at least in cases involving crimes 

of domestic violence or dating violence or 

criminal violations of protection orders? 

Qualifications of Licensed Defense 

Attorneys: In answering the following 

questions, it may be helpful to focus on each 

individual attorney who the tribal 

government pays to assist indigent 

defendants in criminal proceedings in the 

tribe’s courts. Where is the attorney licensed 

to practice law (including state and tribal 

jurisdictions)? Would the attorney be 

qualified to continue representing an 

indigent defendant in federal district court by 

filing a petition for a writ of habeas corpus 

under 25 U.S.C. 1303? Are the tribe’s 

appointed defense attorneys provided with 

and required to attend continuing legal 

education? Overall, how do the appointed 

defense attorneys’ licenses to practice law 

and qualifications to represent clients in 

tribal and federal courts compare to those of 

the tribe’s prosecutors? 

Tribal Licenses to Practice Law: If the tribe 

licenses attorneys to practice law, what 

professional licensing standards (including 

educational requirements) does the tribe 

apply? How does the tribe effectively ensure 

the competence and professional 

responsibility of its licensed attorneys? 

Independence of Defense Attorneys: What 

measures does the tribe take to ensure that 

appointed defense attorneys are free from 

political and financial influence and can 

exercise independent professional judgment? 

Caseload: If the tribe hires full-time public 

defenders, how many cases do they carry per 

year, on average? 

Criminal Defense Support: Do the tribe’s 

appointed defense attorneys have meaningful 

access to investigative and expert services? 

Indigency: In cases in which indigent 

defendants have a right to appointed counsel, 

does the tribe provide free criminal defense 

services to all defendants, to all defendants 

who request counsel, or to all defendants 

who request counsel and demonstrate that 

they are financially unable to obtain adequate 

representation without substantial hardship? 

If a defendant must demonstrate eligibility, 

what are the tribe’s standards for making this 

determination? 

When the Right Attaches: In cases in which 

the tribe provides appointed counsel, how 

soon after arrest, detention, or request for 

counsel are defense attorneys assigned and 

made available to the defendant? Under tribal 

law, does a defendant’s right to appointed 

counsel extend to cases in the tribe’s 

appellate courts? 

Waiver: Under tribal law, what are the 

standards and procedures for determining 

whether a defendant is competent and has 

knowingly and intelligently waived his right 

to counsel? 

Tribal Judges 

Licensed, Legally Trained Judges: In 

criminal proceedings in which the tribe will 

exercise SDVCJ and terms of imprisonment of 

any length are or may be imposed, how will 

the tribe ensure that the judges presiding 

over the criminal proceedings (pretrial, at 

trial, and on appeal) have sufficient legal 

training to preside over criminal proceedings 

and are licensed to practice law by any 

jurisdiction in the United States? 

Qualifications of Licensed Judges: In 

answering the following questions, it may be 

helpful to focus on each individual judge 

who presides over criminal proceedings in 

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the tribe’s courts. Where is the judge licensed 

to practice law (including state and tribal 

jurisdictions)? What legal training to preside 

over criminal proceedings has the judge 

received? How many years of experience 

does the judge have in practicing law and in 

serving on the bench? How do the judges’ 

licenses, legal training, and experience 

compare to those of the state or local judges 

who preside over similar criminal 

proceedings in cases arising in or near the 

tribe’s Indian country? 

Legal Training for Judges: Does the tribe 

have any law, rule, or policy defining what 

constitutes sufficient legal training to preside 

over criminal proceedings? Are the judges 

who preside over the tribe’s criminal 

proceedings provided with and required to 

attend continuing legal education? 

Tribal Laws and Rules 

Public Access to Tribal Laws and Rules: 

How will the tribe provide to the defendants 

and their licensed defense attorneys, prior to 

charging the defendant, the right to review, 

along with other members of the public, the 

criminal laws (including regulations and 

interpretative documents), rules of evidence, 

and rules of criminal procedure (including 

rules governing the recusal of judges in 

appropriate circumstances) of the tribal 

government? How and where can a member 

of the public access these laws and rules? Is 

there any fee or charge for reviewing these 

laws or rules? Are they freely available on the 

Internet? 

Scope of the Publicly Available Laws and 

Rules: What types of regulations, if any, 

constitute part of the tribe’s criminal laws? 

What types of interpretative documents, if 

any, constitute part of the tribe’s criminal 

laws? Do these documents include judicial 

opinions? Are the tribe’s rules of appellate 

procedure accessible in the same manner as 

the rules of evidence and criminal 

procedure? 

Judicial Standards: Does the tribe have 

written rules or codes for judicial 

performance and conduct, including rules 

governing the recusal of tribal judges in 

appropriate circumstances? 

Tribal Court Records 

Records of Criminal Proceedings: How will 

the tribe maintain and provide to defendants 

in SDVCJ cases a record of criminal 

proceedings, including an audio or other 

recording of the trial proceedings? What form 

do these records or recordings take (e.g., a 

court reporter’s transcript, an audio 

recording, a video recording, etc.)? Does the 

tribe waive any fee for obtaining these 

records or recordings if the defendant is 

indigent? 

Habeas Corpus Rights 

Statutory Background: Section 1304(d)(1) 

provides that, ‘‘[i]n a criminal proceeding in 

which a participating tribe exercises [SDVCJ], 

the participating tribe shall provide to the 

defendant . . . all applicable rights under 

this Act.’’ The term ‘‘this Act’’ refers to ICRA, 

25 U.S.C. 1301–1304, as amended, including 

by TLOA in 2010 and by VAWA 2013. 

Section 1304(e)(3) provides that ‘‘[a]n 

Indian tribe that has ordered the detention of 

any person has a duty to timely notify such 

person of his rights and privileges under 

[subsection 1304(e)] and under section 

[1303].’’ Section 1303 provides that ‘‘[t]he 

privilege of the writ of habeas corpus shall 

be available to any person, in a court of the 

United States, to test the legality of his 

detention by order of an Indian tribe.’’ 

Section 1304(e)(1) provides that ‘‘[a] person 

who has filed a petition for a writ of habeas 

corpus in a court of the United States under 

section [1303] may petition that court to stay 

further detention of that person by the 

participating tribe’’—that is, to be released 

from the tribe’s custody. Section 1304(e)(2) 

provides the criteria for granting such a stay. 

The Tribe’s ICRA Compliance: If in recent 

years (for example, in the last decade) any 

person detained by order of the tribe has 

prevailed in a federal habeas case against the 

tribe under 25 U.S.C. 1303, or any federal or 

tribal court has found that the tribe violated 

a criminal defendant’s rights, has the tribe 

adopted (or is it planning to implement) 

changes or new procedures to avoid such 

issues in the future? More generally, if 

challenged by a habeas petitioner, how can 

the tribe document a track record of 

complying with the rights described in 

ICRA’s section 1302? 

Timely Notice of Habeas Rights: When and 

how does the tribe timely notify each person 

whose detention it has ordered of his rights 

and privileges under both 25 U.S.C. 1303 and 

25 U.S.C. 1304(e)? 

Other Rights Protected by the Indian Civil 

Rights Act of 1968 

Statutory Background: Section 1304(d)(1) 

provides that, ‘‘[i]n a criminal proceeding in 

which a participating tribe exercises [SDVCJ], 

the participating tribe shall provide to the 

defendant . . . all applicable rights under 

this Act [25 U.S.C. 1301–1304].’’ 

Section 1302(a) provides the following 

rights, some of which may have few, if any, 

applications in SDVCJ cases: 

No Indian tribe in exercising powers of 

self-government shall— 

(1) make or enforce any law prohibiting the 

free exercise of religion, or abridging the 

freedom of speech, or of the press, or the 

right of the people peaceably to assemble and 

to petition for a redress of grievances; 

(2) violate the right of the people to be 

secure in their persons, houses, papers, and 

effects against unreasonable search and 

seizures, nor issue warrants, but upon 

probable cause, supported by oath or 

affirmation, and particularly describing the 

place to be searched and the person or thing 

to be seized; 

(3) subject any person for the same offense 

to be twice put in jeopardy; 

(4) compel any person in any criminal case 

to be a witness against himself; 

(5) take any private property for a public 

use without just compensation; 

(6) deny to any person in a criminal 

proceeding the right to a speedy and public 

trial, to be informed of the nature and cause 

of the accusation, to be confronted with the 

witnesses against him, to have compulsory 

process for obtaining witnesses in his favor, 

and at his own expense to have the assistance 

of counsel for his defense . . . ; 

(7)(A) require excessive bail, impose 

excessive fines, or inflict cruel and unusual 

punishments; 

* * * * * 

(8) deny to any person within its 

jurisdiction the equal protection of its laws 

or deprive any person of liberty or property 

without due process of law; 

(9) pass any bill of attainder or ex post 

facto law; or 

(10) deny to any person accused of an 

offense punishable by imprisonment the 

right, upon request, to a trial by jury of not 

less than six persons. 

25 U.S.C. 1302(a). 

Tribal Self-Assessment for Each Applicable 

Right: For each of the individual rights 

described in paragraphs (1) through (10) of 

section 1302(a) that might apply in an SDVCJ 

case, how do the tribe’s laws, rules, policies, 

and practices protect a criminal defendant’s 

rights? The answers may reflect not only the 

tribe’s written laws, rules, and policies, but 

also the actual, on-the-ground practices in 

the tribe’s criminal justice system. This selfassessment includes section 1302(a)(8), 

which prohibits a tribe from denying to any 

person ‘‘the equal protection of its laws’’ or 

depriving any person of ‘‘liberty or property 

without due process of law.’’ 

Custodial Interrogation: Prior to custodial 

interrogation, does the tribe advise the 

suspect that he has the right to remain silent, 

that any statement he makes may be used 

against him in court, and that he has the right 

to obtain counsel and, if indigent, to have 

counsel appointed for him? 

Criminal Discovery: Does the tribe allow 

criminal defendants to discover the evidence 

against them? Does the tribe require 

prosecutors to disclose exculpatory evidence 

to criminal defendants? 

Language Access: Does the tribe protect the 

defendant’s right to have the free assistance 

of an interpreter if he cannot understand or 

speak the language used in court? 

Juvenile Defendants: Will the tribe exercise 

SDVCJ over any person who was less than 18 

years of age at the time of the offense? If so, 

in what respects, if any, will the tribe treat 

the juvenile defendant differently from an 

adult defendant? 

Appeals: Does the tribe provide every 

person convicted of a tribal crime the right 

to appeal the conviction, the sentence, or 

both to a tribal or intertribal appellate court 

composed of judges who have sufficient legal 

training, were not involved in the trial 

proceedings, and do not serve as legislative 

or executive officers of the tribe? Under tribal 

law, can the prosecution appeal a jury’s notguilty verdict? 

Equal Protection of the Tribe’s Laws: How 

will the tribe guarantee the equal protection 

of its laws to Indian defendants who are not 

subject to SDVCJ? Will Indian defendants 

have the same rights as similarly situated 

non-Indian defendants, and vice versa? 

Tribal Remedies for Violations of 

Defendants’ Rights: Under tribal law, if a 

tribal court finds that the rights of a criminal 

defendant were violated, what remedies are 

available to the court? 

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Tribal Criminal Code Provisions Specifically 

for SDVCJ Cases 

Statutory Background: Section 

1304(b)(4)(A)(i) provides that ‘‘[a] 

participating tribe may not exercise [SDVCJ] 

over an alleged offense if neither the 

defendant nor the alleged victim is an 

Indian.’’ That is simply a restatement of the 

long-standing case law providing exclusive 

state (rather than tribal) jurisdiction over 

most Indian-country crimes involving only 

non-Indians. ICRA’s section 1301(4) defines 

an Indian as ‘‘any person who would be 

subject to the jurisdiction of the United 

States as an Indian under [18 U.S.C. 1153] if 

that person were to commit an offense listed 

in that section in Indian country to which 

that section applies.’’ 

Section 1304(b)(4)(B) provides that ‘‘[a] 

participating tribe may exercise [SDVCJ] over 

a defendant only if the defendant . . . resides 

in the Indian country of the participating 

tribe; . . . is employed in the Indian country 

of the participating tribe; or . . . is a spouse, 

intimate partner, or dating partner of . . . a 

member of the participating tribe . . . [or] an 

Indian who resides in the Indian country of 

the participating tribe.’’ This provision 

ensures that a non-Indian defendant has 

sufficient ties to the prosecuting tribe. 

Victim and Defendant Are Both NonIndian: Will the tribe’s criminal code require 

prosecutors in cases with non-Indian 

defendants to allege and then prove beyond 

a reasonable doubt that the victim is Indian? 

Are special jury instructions needed? 

Defendant’s Ties to the Indian Tribe: Will 

the tribe’s criminal code require prosecutors 

in SDVCJ cases to allege and then prove 

beyond a reasonable doubt that the defendant 

resides in the tribe’s Indian country; is 

employed in the tribe’s Indian country; or is 

a spouse, intimate partner, or dating partner 

either of an Indian who resides in the tribe’s 

Indian country or of a member of the tribe? 

Are special jury instructions needed? 

Concurrent Criminal Jurisdiction 

Statutory Background: Section 1304(b)(2) 

provides that ‘‘[t]he exercise of [SDVCJ] by a 

participating tribe shall be concurrent with 

the jurisdiction of the United States, of a 

State, or of both.’’ And section 1304(b)(3) 

provides that ‘‘[n]othing in . . . section 

[1304] . . . creates or eliminates any Federal 

or State criminal jurisdiction over Indian 

country; or . . . affects the authority of the 

United States[,] or any State government that 

has been delegated authority by the United 

States[,] to investigate and prosecute a 

criminal violation in Indian country.’’ 

Tribal Coordination with Federal (or State) 

Prosecutors: Has the tribe developed formal 

or informal policies with the relevant U.S. 

Attorney’s Office or Offices (or, where the 

state has concurrent jurisdiction, the relevant 

state or local prosecutor) for coordination, 

abstention, or deferral in cases in which more 

than one government seeks to investigate or 

prosecute the same defendant for 

substantially the same act or acts? Are any 

prosecutors for the tribe currently serving as 

Special Assistant United States Attorneys 

(SAUSAs) under 25 U.S.C. 2810(d) or 28 

U.S.C. 543(a)? 

The Tribe’s Laws on Domestic Violence and 

Dating Violence 

Statutory Background: Section 1304(c) 

provides that ‘‘[a] participating tribe may 

exercise [SDVCJ] over a defendant for 

criminal conduct that falls into one or more 

of the following categories. . . .’’ The first 

category, described in section 1304(c)(1), is 

‘‘[a]n act of domestic violence or dating 

violence that occurs in the Indian country of 

the participating tribe.’’ 

Section 1304(a)(2) defines the term 

‘‘domestic violence’’ as ‘‘violence committed 

by a current or former spouse or intimate 

partner of the victim, by a person with whom 

the victim shares a child in common, by a 

person who is cohabiting with or has 

cohabited with the victim as a spouse or 

intimate partner, or by a person similarly 

situated to a spouse of the victim under the 

domestic- or family-violence laws of an 

Indian tribe that has jurisdiction over the 

Indian country where the violence occurs.’’ 

Under section 1304(a)(7), which in turn 

incorporates 18 U.S.C. 2266(7), the term 

‘‘spouse or intimate partner’’ includes ‘‘a 

spouse or former spouse of the abuser, a 

person who shares a child in common with 

the abuser, and a person who cohabits or has 

cohabited as a spouse with the abuser; or 

. . . a person who is or has been in a social 

relationship of a romantic or intimate nature 

with the abuser, as determined by the length 

of the relationship, the type of relationship, 

and the frequency of interaction between the 

persons involved in the relationship; and 

. . . any other person similarly situated to a 

spouse who is protected by the domestic or 

family violence laws of the State or tribal 

jurisdiction in which the injury occurred or 

where the victim resides.’’ 

Section 1304(a)(1) defines the term ‘‘dating 

violence’’ as ‘‘violence committed by a 

person who is or has been in a social 

relationship of a romantic or intimate nature 

with the victim, as determined by the length 

of the relationship, the type of relationship, 

and the frequency of interaction between the 

persons involved in the relationship.’’ 

Specialized Court or Docket: Does the tribe 

have a specialized domestic violence and 

dating violence court, or a specialized 

domestic violence and dating violence 

docket? 

The Tribe’s Criminal Code and SDVCJ 

Cases: Does the tribe’s criminal code 

establish offenses for acts of domestic 

violence and dating violence that fall 

squarely within the category of criminal 

conduct covered by section 1304(c)(1)? Or 

will these acts be prosecuted under a general 

assault statute in which the relationship 

between the defendant and the victim is not 

an element of the offense? 

Arresting Perpetrators: Do the tribe’s laws 

or policies encourage or mandate arrests of 

domestic violence and dating violence 

offenders based on probable cause that an 

offense has been committed? Do the tribe’s 

laws or policies authorize warrantless arrests 

of domestic violence and dating violence 

offenders based on probable cause that a 

misdemeanor has been committed? Do the 

tribe’s laws, policies, or practices discourage 

dual arrests of offender and victim? 

The Tribe’s Laws on Protection Orders 

Statutory Background: Section 1304(c) 

provides that ‘‘[a] participating tribe may 

exercise [SDVCJ] over a defendant for 

criminal conduct that falls into one or more 

of the following categories. . .’’ The second 

category, described in section 1304(c)(2), is 

‘‘[a]n act that—(A) occurs in the Indian 

country of the participating tribe; and (B) 

violates the portion of a protection order that 

. . . prohibits or provides protection against 

violent or threatening acts or harassment 

against, sexual violence against, contact or 

communication with, or physical proximity 

to, another person; . . . was issued against 

the defendant; . . . is enforceable by the 

participating tribe; and . . . is consistent 

with [18 U.S.C. 2265(b)].’’ 

Section 1304(a)(5) defines a ‘‘protection 

order’’ to mean ‘‘any injunction, restraining 

order, or other order issued by a civil or 

criminal court for the purpose of preventing 

violent or threatening acts or harassment 

against, sexual violence against, contact or 

communication with, or physical proximity 

to, another person,’’ including ‘‘any 

temporary or final order issued by a civil or 

criminal court, whether obtained by filing an 

independent action or as a pendent[e] lite 

order in another proceeding, if the civil or 

criminal order was issued in response to a 

complaint, petition, or motion filed by or on 

behalf of a person seeking protection.’’ 

A protection order issued by a state, tribal, 

or territorial court is consistent with 18 

U.S.C. 2265(b) if ‘‘such court has jurisdiction 

over the parties and matter under the law of 

such State, Indian tribe, or territory; and . . . 

reasonable notice and opportunity to be 

heard is given to the person against whom 

the order is sought sufficient to protect that 

person’s right to due process. In the case of 

ex parte orders, notice and opportunity to be 

heard must be provided within the time 

required by State, tribal, or territorial law, 

and in any event within a reasonable time 

after the order is issued, sufficient to protect 

the respondent’s due process rights.’’ 

As amended by VAWA 2013’s section 905, 

18 U.S.C. 2265(e) now provides that a tribal 

court ‘‘shall have full civil jurisdiction to 

issue and enforce protection orders involving 

any person, including the authority to 

enforce any orders through civil contempt 

proceedings, to exclude violators from Indian 

land, and to use other appropriate 

mechanisms, in matters arising anywhere in 

the Indian country of the Indian tribe (as 

defined in [18 U.S.C.] 1151) or otherwise 

within the authority of the Indian tribe.’’ 

The Tribe’s Criminal Code and SDVCJ 

Cases: Does the tribe’s criminal code 

establish offenses for protection-order 

violations that fall squarely within the 

category of criminal conduct covered by 

section 1304(c)(2)? 

Tribal-Court Issuance of Protection Orders: 

Do the tribe’s laws or rules authorize the 

tribe’s courts to issue protection orders, as 

defined in section 1304(a)(5), involving any 

person, Indian or non-Indian, in matters 

arising anywhere in the tribe’s Indian 

country or otherwise within the tribe’s 

authority? 

Mutual Restraining Orders: Do the tribe’s 

laws, policies, or practices prohibit issuance 

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of mutual restraining orders of protection 

except in cases in which both parties file a 

claim and the court makes detailed findings 

of fact indicating that both parties acted 

primarily as aggressors and that neither party 

acted primarily in self-defense? 

Tribal Registry: Do the tribe’s courts 

maintain a registry of the protection orders 

they issue? 

Tribal-Court Enforcement of Protection 

Orders: Do the tribe’s courts enforce 

protection orders, as defined in section 

1304(a)(5), involving any person, Indian or 

non-Indian, in matters arising anywhere in 

the tribe’s Indian country or otherwise within 

the tribe’s authority? What mechanisms do 

the tribe’s courts use to enforce protection 

orders? Do the tribe’s laws or policies 

encourage or mandate arrest of domestic 

violence offenders who violate the terms of 

a valid and outstanding protection order? 

Cross-Jurisdiction Recognition of 

Protection Orders: Do the tribe’s courts 

recognize and enforce protection orders 

issued by the courts of the state or states in 

which the tribe’s Indian country is located, 

and vice versa? 

Internet Publication: Do the tribe’s laws or 

policies prevent publication on the Internet 

of the registration or filing of a protection 

order if such publication would reveal the 

identity of the party protected by the order? 

Tribal Protection of Victims’ Rights 

Statutory Background: Section 

1304(f)(1)(G) authorizes grants to tribal 

governments, among other things, ‘‘to 

strengthen tribal criminal justice systems to 

assist Indian tribes in exercising [SDVCJ], 

including . . . culturally appropriate services 

and assistance for victims and their 

families.’’ Section 1304(f)(4) authorizes 

grants to tribal governments ‘‘to accord 

victims of domestic violence, dating 

violence, and violations of protection orders 

rights that are similar to the rights of a crime 

victim described in [18 U.S.C. 3771(a)], 

consistent with tribal law and custom.’’ 

Eight rights of crime victims are described 

in 18 U.S.C. 3771(a), a federal statute that 

does not directly apply to or impose 

obligations on tribes or tribal courts: 

(1) The right to be reasonably protected 

from the accused. 

(2) The right to reasonable, accurate, and 

timely notice of any public court proceeding, 

or any parole proceeding, involving the crime 

or of any release or escape of the accused. 

(3) The right not to be excluded from any 

such public court proceeding, unless the 

court, after receiving clear and convincing 

evidence, determines that testimony by the 

victim would be materially altered if the 

victim heard other testimony at that 

proceeding. 

(4) The right to be reasonably heard at any 

public proceeding in the district court 

involving release, plea, sentencing, or any 

parole proceeding. 

(5) The reasonable right to confer with the 

attorney for the Government in the case. 

(6) The right to full and timely restitution 

as provided in law. 

(7) The right to proceedings free from 

unreasonable delay. 

(8) The right to be treated with fairness and 

with respect for the victim’s dignity and 

privacy. 

18 U.S.C. 3771(a). 

Crime Victims’ Rights Under Tribal Law: 

How do the tribe’s laws, rules, policies, and 

practices protect the rights of victims of 

domestic violence and dating violence, 

consistent with tribal law and custom, while 

providing victim services and assistance in a 

manner appropriate to the tribe’s culture? 

Availability of Victim Services and 

Assistance: Do the tribe’s laws or policies 

make services and assistance available to 

victims of domestic violence or dating 

violence, regardless of the victim’s decision 

to report the crime to law enforcement or 

cooperate in any law enforcement 

investigation and regardless of the victim’s 

relationship to the alleged perpetrator? 

Safety Planning: Do the tribe’s laws or 

policies encourage safety planning with 

victims of domestic violence or dating 

violence who report crimes or seek services? 

Victim Notification: Does the tribe operate 

its own victim notification system? Does the 

tribe participate in the victim notification 

system of each state in which the tribe’s 

Indian country is located? 

Confidential Victim Information: Do the 

tribe’s laws or policies prevent domestic 

violence service provider programs from 

sharing confidential victim information with 

outside organizations or individuals without 

the victim’s documented consent? 

Juvenile Victims: Are there any special 

provisions in the tribe’s laws, rules, or 

policies that would apply in an SDVCJ case 

because the victim is less than 18 years of 

age? 

Detention, Corrections, Probation, and 

Parole 

Statutory Background: Section 

1304(f)(1)(D)–(F) authorizes grants to tribal 

governments, among other things, ‘‘to 

strengthen tribal criminal justice systems to 

assist Indian tribes in exercising [SDVCJ], 

including . . . probation systems; . . . 

detention and correctional facilities; . . . 

[and] alternative rehabilitation centers.’’ 

Non-Indian Inmates: Does any federal, 

state, local, or tribal statutory, regulatory, or 

contractual provision prohibit the tribe from 

housing non-Indians accused or convicted of 

tribal criminal offenses in the same jails and 

prisons in which the tribe houses Indians 

accused or convicted of tribal criminal 

offenses? 

Where Tribal Sentences Are Served: Does 

the tribe have a tribal correctional center 

appropriate for both short- and long-term 

incarceration? Does the tribe have an 

alternative rehabilitation center? Does the 

tribe have an agreement with a state or local 

government to house prisoners in a state or 

local government-approved detention or 

correctional center that is appropriate for 

both short- and long-term incarceration? 

Alternative Punishments: Does the tribe 

sentence defendants in domestic violence or 

dating violence cases to serve alternative 

forms of punishment, as determined by a 

tribal judge under tribal law, or consistent 

with tribal custom or traditional tribal 

dispute resolution? 

Batterer-Intervention Programs: Does the 

tribe have a court-ordered and courtmonitored batterer intervention program 

(BIP) to hold batterers accountable for their 

behavior without incarcerating them? Do the 

tribe’s courts hold accountable the batterers 

who fail to complete such court-ordered 

BIPs? 

Probation or Parole and Reentry: Does the 

tribe have or provide access to a reentry 

program for defendants who have been 

incarcerated? 

Crime Information Databases 

Statutory Background: Section 

1304(f)(1)(A) authorizes grants to tribal 

governments, among other things, ‘‘to 

strengthen tribal criminal justice systems to 

assist Indian tribes in exercising [SDVCJ], 

including . . . law enforcement (including 

the capacity of law enforcement or court 

personnel to enter information into and 

obtain information from national crime 

information databases).’’ 

Tribal Databases: Do the tribe’s law 

enforcement or court personnel maintain a 

criminal justice information repository, such 

as a database of convicted persons? 

State Databases: Do the tribe’s court 

personnel enter protection orders into the 

state protection-order database for the state or 

states in which the tribe’s Indian country is 

located? 

CJIS Databases: Do the tribe’s court 

personnel (1) enter protection orders into the 

FBI Criminal Justice Information Services 

(CJIS) National Crime Information Center 

(NCIC) Protection Order File; and (2) enter 

data (e.g., orders committing a person to a 

mental institution) into CJIS’s National 

Instant Criminal Background Check System 

(NICS) Index? Do the tribe’s law enforcement 

personnel, court personnel, or both (1) obtain 

criminal history information from CJIS 

databases; (2) enter court disposition data 

into CJIS databases; (3) enter arrest warrants 

into CJIS’s NCIC Wanted Person File; (4) 

enter information about sex offenders into 

the CJIS’s NCIC/National Sex Offender 

Registry (NSOR); and (5) take fingerprints 

from arrestees and submit fingerprint data to 

CJIS’s Integrated Automated Fingerprint 

Identification System (IAFIS)? 

UCR Data: Do the tribe’s law enforcement 

personnel submit Uniform Crime Reporting 

(UCR) data? If so, is the UCR data submitted 

directly to FBI CJIS, through the Bureau of 

Indian Affairs’ Office of Justice Services 

(BIA–OJS), through the state, or through 

some other route? 

Commencing to Exercise SDVCJ 

Statutory Background: In authorizing 

funding for these purposes, section 1304(h) 

recognizes the potential need ‘‘to provide 

training, technical assistance, data collection, 

and evaluation of the criminal justice 

systems of participating tribes.’’ VAWA 

2013’s section 908(b)(2)(C) provides that the 

date on which a participating tribe may 

commence exercising SDVCJ under the Pilot 

Project must be ‘‘established by the Attorney 

General, after consultation with that Indian 

tribe.’’ 

Training and Technical Assistance: What 

additional training or technical assistance, if 

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any, is needed by the tribe’s officers, 

employees, or contractors before 

commencing the exercise of SDVCJ? 

Data Collection and Assessment: For the 

duration of the Pilot Project period (i.e., until 

March 7, 2015), would the tribe be willing to 

actively participate in the ITWG and collect 

and analyze data on the tribe’s SDVCJ cases 

(and any resulting federal habeas cases)? 

[FR Doc. 2013–14158 Filed 6–13–13; 8:45 am] 

BILLING CODE 4410–A5–P 

DEPARTMENT OF LABOR 

Mine Safety and Health Administration 

Proposed Information Collection; 

Comment Request; Coal Mine Rescue 

Teams; Arrangements for Emergency 

Medical Assistance and Transportation 

for Injured Persons; Agreements; 

Reporting Requirements; Posting 

Requirements 

AGENCY: Mine Safety and Health 

Administration, Labor. 

ACTION: 60-Day Notice. 

SUMMARY: The Department of Labor, as 

part of its continuing effort to reduce 

paperwork and respondent burden, 

conducts a pre-clearance consultation 

program to provide the general public 

and Federal agencies with an 

opportunity to comment on proposed 

and continuing collections of 

information in accordance with the 

Paperwork Reduction Act of 1995, 42 

U.S.C. 3506(c)(2)(A). This program 

helps to assure that requested data can 

be provided in the desired format, 

reporting burden (time and financial 

resources) is minimized, collection 

instruments are clearly understood, and 

the impact of collection requirements on 

respondents can be properly assessed. 

Currently, the Mine Safety and Health 

Administration is soliciting comments 

concerning the extension of the 

information collection related to 30 CFR 

Sections 49.12, 49.13, 49.16, 49.17, 

49.18, 49.19, 49.50, 75.1713–1 and 

77.1702. 

DATES: All comments must be 

postmarked or received by midnight 

Eastern Standard Time on August 13, 

2013. 

ADDRESSES: Comments concerning the 

information collection requirements of 

this notice must be clearly identified 

with ‘‘OMB 1219–0144’’ and sent to the 

Mine Safety and Health Administration 

(MSHA). Comments may be sent by any 

of the methods listed below. 

• Federal E-Rulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments for docket number [MSHA– 

2013–0016]. 

• Regular Mail or Hand Delivery: 

MSHA, Office of Standards, 

Regulations, and Variances, 1100 

Wilson Boulevard, 21st floor, Room 

2350, Arlington, VA 22209–3939. 

FOR FURTHER INFORMATION CONTACT: 

Sheila McConnell, Deputy Director, 

Office of Standards, Regulations, and 

Variances, MSHA, at 

McConnell.Sheila.A@dol.gov (email); 

202–693–9440 (voice); or 202–693–9441 

(facsimile). 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 103(h) of the Federal Mine 

Safety and Health Act of 1977 (Mine 

Act), 30 U.S.C. 813, authorizes MSHA to 

collect information necessary to carry 

out its duty in protecting the safety and 

health of miners. 

30 CFR Part 49, Mine Rescue Teams, 

Subpart B—Mine Rescue Teams for 

Underground Coal Mines, sets standards 

related to the availability of mine rescue 

teams; alternate mine rescue capability 

for small and remote mines; inspection 

and maintenance records of mine rescue 

equipment and apparatus; physical 

requirements for mine rescue team 

members and alternates; and experience 

and training requirements for team 

members and alternates. This package 

covers the following requirements for 

coal mines. 

Section 49.12 requires each operator 

of an underground coal mine to send the 

District Manager a statement describing 

the mine’s method of compliance with 

this standard. 

Section 49.13 provides that operators 

of small and remote mines may submit 

an application for alternative mine 

rescue capability to MSHA for approval. 

Section 49.16 requires that a person 

trained in the use and care of a 

breathing apparatus must inspect and 

test the apparatus at intervals not 

exceeding 30 days and must certify by 

signature and date that the required 

inspections and tests were done, and 

record any corrective action taken. 

Section 49.17 requires that each 

member of a mine rescue team be 

examined annually by a physician who 

must certify that each person is 

physically fit to perform mine rescue 

and recovery work. 

Section 49.18 requires that a record of 

the training received by each mine 

rescue team member be made and kept 

on file at the mine rescue station for a 

period of one year. The operator must 

provide the District Manager 

information concerning the schedule of 

upcoming training when requested. 

Section 49.19 requires that each mine 

have a mine rescue notification plan 

outlining the procedures to be followed 

in notifying the mine rescue teams 

when there is an emergency that 

requires their services. 

Section 49.50 requires underground 

coal mine operators to certify that each 

designated coal mine rescue team meets 

the requirements of 30 CFR part 49 

subpart B. 

Sections 75.1713–1 and 77.1702 

require operators to make arrangements 

for 24-hour emergency medical 

assistance and transportation for injured 

persons and to post this information at 

appropriate places at the mine, 

including the names, titles, addresses, 

and telephone numbers of all persons or 

services currently available under those 

arrangements. 

II. Desired Focus of Comments 

The Mine Safety and Health 

Administration (MSHA) is soliciting 

comments concerning the proposed 

extension of the information collection 

related to Coal Mine Rescue Teams; 

Arrangements for Emergency Medical 

Assistance and Transportation for 

Injured Persons; Agreements; Reporting 

Requirements; Posting Requirements. 

MSHA is particularly interested in 

comments that: 

• Evaluate whether the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information has practical utility; 

• Evaluate the accuracy of the 

MSHA’s estimate of the burden of the 

collection of information, including the 

validity of the methodology and 

assumptions used; 

• Suggest methods to enhance the 

quality, utility, and clarity of the 

information to be collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

OMB clearance requests are available 

on MSHA’s Web site at http:// 

www.msha.gov under ‘‘Federal Register 

Documents’’ on the right side of the 

screen by selecting ‘‘New and Existing 

Information Collections and Supporting 

Statements’’. The document will be 

available on MSHA’s Web site for 60 

days after the publication date of this 

notice, and on regulations.gov. 

Comments submitted in writing or in 

electronic form will be made available 

for public inspection on regulations.gov. 

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