29–010 

Calendar No. 579 

112TH CONGRESS REPORT " ! SENATE 2d Session 112–265 

STAND AGAINST VIOLENCE AND EMPOWER NATIVE 

WOMEN ACT 

DECEMBER 27, 2012.—Ordered to be printed 

Mr. AKAKA, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 1763] 

The Committee on Indian Affairs, to which was referred the bill 

(S. 1763) to decrease the incidence of violent crimes against Indian 

women, to strengthen the capacity of Indian tribes to exercise the 

sovereign authority of Indian tribes to respond to violent crimes 

committed against Indian women, and to ensure that perpetrators 

of violent crimes committed against Indian women are held accountable for that criminal behavior, and for other purposes, having considered the same, reports favorably with an amendment in 

the nature of a substitute and recommends that the bill, as amended, do pass. 

PURPOSE

S. 1763 would decrease the incidence of violent crimes against 

Indian women, strengthen the capacity of Indian tribes to exercise 

the sovereign authority of Indian tribes to respond to violent crimes 

committed against Indian women, and ensure that perpetrators of 

violent crimes committed against Indian women are held accountable for that criminal behavior, and for other purposes. The legislation would recognize inherent tribal jurisdiction over domestic violence against Indian women to include acts committed by non-Indian offenders. The legislation also would seek to improve victim 

protection and information gathering on sex trafficking. 

BACKGROUND AND HISTORY

The Stand Against Violence and Empower Native Women 

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1 Currently, there are 566 federally recognized American Indian and Alaska Native tribes in 

the United States. While no single term is universally accepted by all indigenous peoples in the 

United States, the terms American Indian, Alaska Native, Indigenous, and Native or Native 

American, are used somewhat interchangeably. The use of one term over the other in this report 

is not meant to minimize, exclude, generalize the individuals involved, or endorse one term over 

the other. 2 VAWA was first passed in 1994 as Title IV, §§ 40001–40703 of the Violent Crime Control 

and Law Enforcement Act (Pub. L. 103–322,108 Stat. 1796). 3Deidre Bannon, VAWA at the Crossroads, The Crime Report, Jan. 31, 2012 (quoting Statement of Susan Carbon, Director of the Department of Justice’s Office on Violence Against 

Women) (‘‘When VAWA was originally passed in 1994, it was seen as a landmark piece of legislation—people tended to look at these crimes and blame the victim for causing the violence. We 

needed to have a comprehensive national approach to address these crimes—and that’s an ongoing need we still have.’’). 4Title IX (commonly referred to as the Tribal Title), 18 U.S.C. § 2265. 

5Lynn Rosenthal & Kimberly Teehee, Strengthening the Violence Against Women Act, The 

White House (Apr. 25, 2012). 6 Id. 

7 Id. 

8 Id. 

ervations by increasing awareness of domestic violence and sexual 

assault against Indian women,1 by enhancing the response to violence against Indian women at the Federal, State, and Tribal levels, by identifying and providing technical assistance to coalition 

membership and Tribal communities to enhance access to essential 

services to Indian women victimized by domestic and sexual violence, including sex trafficking, and by assisting Indian tribes in 

developing and promoting legislation and policies that enhance best 

practices for responding to violent crimes against Indian women, 

including the crimes of domestic violence, dating violence, sexual 

assault, sex trafficking, and stalking. 

1. Indian women are not adequately protected under current law: a 

brief overview of the Violence Against Women Act 

In 1994, Congress enacted the Violence Against Women Act 

(VAWA).2 It was founded on the basic premise that every woman 

deserves to be safe from violence. This groundbreaking legislation 

was the result of many years of dedication by women’s advocates 

and the incredible leadership of then-Senator Joseph Biden. VAWA 

created the first Federal legislation acknowledging domestic violence and sexual assault as crimes, and provided Federal resources 

to encourage community-coordinated responses to combating violence.3 VAWA was reauthorized in 2000 and improved the foundation established in 1994 by creating a much-needed legal assistance 

program for victims and by expanding the definition of crime to include dating violence and stalking. Its subsequent reauthorization 

in 2005 created new programs to meet the emerging needs of communities working to prevent violence. VAWA’s reauthorization in 

2005, for the first time, contained a specific provision designed to 

improve safety and justice for American Indian and Alaska Native 

women.4

Since the passage of VAWA, annual incidents of domestic violence have dropped by more than 60 percent.5 While tremendous 

progress has been made, violence is still a significant problem facing women, men, families, and communities. On average, three 

women die every day as a result of domestic violence.6 One in five 

women has been sexually assaulted at some time in their lives.7

Stalking affects one in six women.8

VAWA creates and supports comprehensive, effective, and cost 

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9 157 Cong. Rec. S8071 (daily ed. Nov. 30, 2011) (statement of Sen. Patrick Leahy, for himself 

and Sen. Mike Crapo). 10 In his report, United Nations Special Rapporteur James Anaya says Congress should make 

legislation protecting Native women an ‘‘immediate priority’’ and he recommends the United 

States immediately address violence against women through legislation. His report points to the 

fact that Native women suffer at horrendous rates of domestic and sexual violence compared 

to the rest of the country. James Anaya, United Nations, Report of the Special Rapporteur on 

the Rights of Indigenous Peoples 10–11, 21–22 (Aug. 30, 2012) (A/HRC/21/47/Add.1). 11See Crime in the United States 2011, Violent Crime, FBI (Nov. 6, 2012) (‘‘When considering 

5- and 10-year trends, the 2011 estimated violent crime total was 15.4 percent below the 2007 

level and 15.5 percent below the 2002 level.’’). 12See also Factsheet: The Violence Against Women Act, The White House (Nov. 5, 2012, 12:56 

PM). 13 Id. (between 1993 to 2010). 14 Id. (between 1993 to 2007). 15Monica McLaughlin, National Network to End Domestic Violence (NNEDV), Reauthorization of the Violence Against Women Act 1 (citing National Crime Victimization Survey (NCVS), 

U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics) (noting that 

the decrease is based on data collected between 1993 and 2008). 16 Native women are more unlikely to personally report their victimization to the police. See 

Ronet Bachman, et al., Violence Against American Indian and Alaska Native Women and the 

Criminal Justice Response: What Is Known 5 & 39, Table 10 (Aug. 2008) (noting that while 49 

Continued 

lence, sexual assault, and stalking. The VAWA programs, administered by the Departments of Justice and Health and Human Services, have dramatically changed and improved Federal, Tribal, 

State, and local responses to these crimes. More victims are coming 

forward and receiving lifesaving services to help them move from 

crisis to stability, and the criminal justice system has improved its 

ability to keep victims safe and hold perpetrators accountable. 

Since VAWA’S passage in 1994, no other law has done 

more to stop domestic and sexual violence in our communities. The resources and training provided by VAWA have 

changed attitudes toward these reprehensible crimes, improved the response of law enforcement and the justice 

system, and provided essential services for victims struggling to rebuild their lives. It is a law that has saved 

countless lives, and it is an example of what we can accomplish when we work together.9

VAWA has also helped improve the response to violence against 

Native women by funding critical research and establishing a Tribal registry to track sex offenders and orders of protection. While 

such VAWA programs have encouraged systemic changes to meet 

the needs of Native victims and help save countless lives, VAWA 

expired in 2011 and more work still needs to be done.10

2. The need for additional legislation: the Stand Against Violence 

and Empower Native Women Act 

Across the nation, homicides and other violent crimes have been 

on the decline.11 States have reformed their laws to take violence 

against women more seriously by passing more than 660 laws to 

combat domestic violence, sexual assault and stalking. All States 

have passed laws making stalking a crime and strengthened laws 

addressing date rape and spousal rape.12 As a result of efforts such 

as these, the rate of intimate partner violence declined 67 percent.13 The number of individuals killed by an intimate partner has 

decreased by 35 percent for women 14 and the rate of non-fatal intimate partner violence against women has decreased 53 percent.15

Since VAWA was first enacted in 1994, reporting of domestic violence has increased by as much as 51 percent.16


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percent of Native women victimization is reported to the police, only 17 percent is reported directly by the victim, ‘‘[A]t worst, less than one in four [intimate partner violent crimes] are ever 

reported.’’) (citations omitted). See also Stewart Wakeling, Miriam Jorgensen, Susan Michaelson 

& Manley Begay, Policing on American Indian Reservations, U.S. Department of Justice, Office 

of Justice Programs, National Institute of Justice 13 (July 2001) (noting that the underreporting, between reservation citizens and their police agencies and between these tribal police 

agencies and such Federal agencies as the FBI and the Bureau of Indian Affairs (BIA), on reservations may contribute to the poor crime data in Indian country). 17Stewart Wakeling, Miriam Jorgensen, Susan Michaelson & Manley Begay, Policing on 

American Indian Reservations, U.S. Department of Justice, Office of Justice Programs, National 

Institute of Justice 13 (July 2001). Steven W. Perry, American Indians And Crime, A BJS Statistical Profile, 1992–2002, U.S. Department Of Justice, Bureau Of Justice Statistics at iv 

(2004). ‘‘The BJS statistics do have some limitations. They are based primarily on nationwide 

victimization surveys, administered through interviews of individuals at a nationally representative number of households. These data fail to distinguish between Indian reservations and other 

rural and urban settings. The BJS victimization data encompasses the more than 60 percent 

of all Indians who live outside reservations, including large urban Indian populations in places 

such as Los Angeles and Minneapolis.’’ Carole Goldberg & Kevin Washburn, Lies, Damn Lies, 

and Crime Statistics, Turtle Talk (July 31, 2008). However, because rape is still an underreported crime, the data collected from crime victims should not be ignored. ‘‘If Indian women 

do not believe that their reports will be investigated, they are much less likely to report.’’ Id. 

(responding to a South Dakota study questioning BJS statistics regarding the race of the defendants). 18 Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on Indian Affairs, 112th Cong. 

24 (Nov. 10, 2011) (statement of Thomas B. Heffelfinger, Attorney, Best & Flanagan LLP) (citing 

Amnesty International, Maze of Injustice: The failure to protect Indigenous women from sexual 

violence in the USA 4 (2007)). 19 Id. (noting that ‘‘[t]he sheer volume of violence inflicted upon Native American women is 

largely attributable to violence by non-Native men’’). 20 Bea Hanson, Protecting Native American and Alaska Native Women from Violence: November is Native American Heritage Month, OVW Blog, The United States Department of Justice 

(Nov. 29, 2012) (citing statistics from the National Center For Injury Prevention and Control 

of the Centers For Disease Control and Prevention, The National Intimate Partner and Sexual 

Violence Survey: 2010 Summary Report 3, 39 (Nov. 2011)). 21 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 7 (July 14, 2011) (statement 

of Thomas J. Perrelli, Associate Attorney General, U.S. Department of Justice). Hearing on S. 

1763, S. 872, & S. 1192 Before the S. Comm. on Indian Affairs, 112th Cong. 7 (Nov. 10, 2011) 

(statement of Sen. Lisa Murkowski) (‘‘[W]hen we realize these rates of violence and abuse that 

we see that are perpetuated against Native women and children, it is well past time that we 

make it a national priority.’’). 22 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 7 (July 14, 2011) (statement 

of Thomas J. Perrelli, Associate Attorney General, U.S. Department of Justice). ‘‘Advocates state 

that these statistics provide a very low estimate and that rates of sexual assault against American Indian women are actually much higher.’’ Serving Ethnic and Racial Communities: American Indian Victims, Put the Focus on Victims, SART Toolkit, Office of Justice Programs (last 

visited Dec. 10, 2012). These numbers are based on an old definition of rape and that the number of rapes may actually be much higher. The Obama administration announced on January 

6, 2012 that the federal government would be changing the definition of rape to include other 

forms of bodily intrusion. 23 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 7 (July 14, 2011) (statement 

of Thomas J. Perrelli, Associate Attorney General, U.S. Department of Justice). 

While the national crime rate has been on the decline in the last 

decade, Native Americans experience violent crimes at a rate much 

higher than the general population.17 This trend carries over to 

violent crimes against Native American women and is particularly 

troubling for Native American women who live on reservations 

within the United States. Native American women experience domestic and dating violence at a rate that is more than twice the 

rate of non-Indian women.18 This is the highest rate of victimization from violent crime of any group in the United States.19 Fortysix percent, nearly half of all Native American women have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime.20 These statistics are staggering. 

These epidemic rates 21 mean that one in three Native American 

women will be raped in her lifetime.22 Three out of five Native 

American women will be physically assaulted.23 Native American 

women are more than twice as likely to be stalked as other 


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24Patricia Tjaden & Nancy Thoennes, U.S. Department of Justice, Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women 22 (2000) (noting that seventeen 

percent of Native women are stalked each year, twice that of other populations). 25 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 7 (July 14, 2011) (statement 

of Thomas J. Perrelli, Associate Attorney General, U.S. Department of Justice). See also Ronet 

Bachman, et al., Violence Against American Indian and Alaska Native Women and the Criminal 

Justice Response: What Is Known 37 (Aug. 2008) (noting that American Indian and Alaska Native women are over 2 times as likely to face an armed offender compared to other women). 26Press Release, The United States Department of Justice, Acting Associate Attorney General 

Tony West Speaks at the Press Conference Regarding Sexual Assault Response Team Initiative 

(June 6, 2012) (noting that one of the major contributing factors to underreporting is a lack of 

faith in criminal justice system). 27 Ronet Bachman, et al., Violence Against American Indian and Alaska Native Women and 

the Criminal Justice Response: What is Known 38 (Aug. 2008). 28 435 U.S. 191, 195 (1978). Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on 

Indian Affairs, 112th Cong. 22–23 (Nov. 10, 2011) (statement of Thomas B. Heffelfinger, Attorney, Best & Flanagan LLP) (noting that because the Oliphant decision deprived tribes of the 

jurisdiction over non-Indians, this ‘‘has had a dramatic and detrimental impact upon public safety in Indian country’’). 29See Hearing on Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Before the S. Comm. on Indian Affairs, 112th Cong. 98 (July 14, 2011) (Appendix, prepared statement of the National Congress of American Indians (NCAI) Task Force 

on Violence Against Women) (calling on Congress to restore optional, concurrent tribal criminal 

jurisdiction over non-Indian perpetrators of domestic violence, sexual assault, and related crimes 

that are committed within the exterior boundaries of the reservation). 30Terri Henry, Co-Chair, NCAI Task Force on Violence Against Women, Councilwoman, Eastern Band of Cherokee Indians, and Board member for the Indian Law Resource Center, Violence 

Against Native Women Gaining Global Attention, Indian Law Resource Center (last visited Nov. 

3, 2012). 

women.24 On some Indian reservations, the murder rate for Native 

American women is 10 times the national average and accounts for 

the third leading cause of death for Native American women.25

Sexual assault remains the most underreported violent crime in 

the country with recent statistics indicating that 70–80 percent of 

sexual assaults in Indian country are not reported.26

Rape and sexual assault in the general population are usually 

intra-racial.27 Of course, rape and sexual assault may also be interracial. Under Federal law, Tribal authorities do not have jurisdiction over cases in which the defendant is non-Indian. In many 

states, State authorities do not have jurisdiction on Tribal lands. 

Therefore, rape and domestic violence cases are deferred to Federal 

authorities. 

The Supreme Court decided Oliphant v. Suquamish in 1978 and 

ruled that tribes do not possess the authority to fully prosecute 

these kinds of violent crimes that occur within their territories.28

Since Oliphant, and unlike all other local communities, Indian nations and Alaska Native villages are legally prohibited from prosecuting non-Indians. The Oliphant decision created a jurisdictional 

gap that has had grave consequences for Indian women. When the 

perpetrator is non-Indian, Indian women are frequently left without any criminal recourse.29 According to one Tribal official, ‘‘This 

leaves Indian nations, which have sovereignty over their territories 

and people, as the only governments in America without jurisdiction and the local control needed to combat such violence in their 

communities.’’ 30

Since Oliphant, the United States Attorney’s office has been the 

principal prosecutor of criminal cases for violation of Federal laws 

in Indian country. Domestic violence and sexual abuse against Native women fall within this realm. Unfortunately, the need to investigate and prosecute these crimes, often on many different reservations (or Tribal lands), creates a burden on Federal authorities 

who are often located far from any reservations and stretched too 


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31Final Report, National Advisory Committee on Violence Against Women 22 (June 2012) 

(‘‘[A]pproximately 60–70 percent of crimes by non-Indians are not prosecuted because of declination by U.S. Attorneys.’’); see Tribal Law and Order Act One Year Later: Have We Improved Public Safety and Justice Throughout Indian Country? Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 2 (Sept. 22, 2011) (statement of Sen. Tester). 32 U.S. Government Accountability Office, GAO–11–167R, U.S. Department of Justice Declinations of Indian Country Criminal Matters 3 (2010). 33 Id. at 3, 9. 34See Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on Indian Affairs, 112th 

Cong. 70–71 (Nov. 10, 2011) (statement of Thomas B. Heffelfinger, Attorney, Best & Flanagan 

LLP). 35See id. at 8 (statement of Thomas J. Perrelli, Associate Attorney General, U.S. Dep’t of Justice). 36 Id. at 8–9. 37 ‘‘Even when Indian nations exercise criminal jurisdiction, the Indian Civil Rights Act 

(ICRA) generally limits the sentencing authority of tribal courts to no more than a year of imprisonment, no matter how heinous the offense. In 2010, the Tribal Law and Order Act (TLOA) 

was enacted to improve criminal justice on Indian lands, including amendments to ICRA that 

allow tribal courts to extend sentences, but only if tribes meet certain requirements. Indian nations now face substantial setbacks in implementing TLOA after some $90 million was cut from 

FY 2012 funding for tribal justice programs and crime fighting efforts in Native communities.’’ 

Jana Walker, Senior Staff Attorney and Director of the Indian Law Resource Center’s Safe 

Women, Strong Nations Project, Using the Declaration to End Violence Against Native Women, 

Indian Law Resource Center (Feb. 1, 2012). 

thin to be effective. Federal law also does not provide the tools and 

the types of graduated sanctions that are found in State laws 

across the country. This lack of capacity results in many cases of 

domestic violence on reservations being delayed or untried. Already, United States Attorneys decline to prosecute 60–70 percent 

of all Indian country matters referred to them.31 Assault and sexual abuse charges were the leading types of charges in Indian 

country, comprising 55 percent of all matters referred to U.S. attorneys.32 Federal prosecutors declined to prosecute 67 percent of 

crimes sexual abuse and more than 46 percent of assault matters 

in Indian country.33

These declinations leave an entire group of offenders who are essentially immune from the law because tribes must rely on Federal 

prosecutors, people who are outside of the community and remote 

from the community, to provide the support they need to protect 

their citizens.34 The absence of an adequate legal framework to address this problem has undercut law enforcement efforts to stop 

countless acts of violence against Native women and has left victims unable or unwilling to seek help.35

Tribal law enforcement is not in a position to fully address these 

crimes because tribes do not have jurisdiction over all offenders in 

their communities. ‘‘Tribal governments, police, and prosecutors 

and courts should be in a central part of the response to these 

crimes, but under current law throughout the Country they lack 

the authority to be part of that response.’’ 36

A tribe’s ability to protect its citizens from violence should not 

depend on the race of the assailant. The SAVE Act would restore 

jurisdiction to tribes so they can prosecute crimes of violence 

against women committed by non-Indians within their territories.37

The restoration of inherent Tribal authority to investigate, prosecute, convict, and sentence perpetrators of violence against women 

would allow tribes to protect victims of violence and address these 

pervasive crimes against Native American women. 

‘‘Incest, child sexual assault, domestic violence, sexual abuse, sex 

trafficking, these are all forms of a systemic exploitation of those 

who have the least power, and that needs to be addressed as a sysVerDate Mar 15 2010 02:19 Jan 10, 2013 Jkt 029010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR265.XXX SR265

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38 Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on Indian Affairs, 112th Cong. 

20 (Nov. 10, 2011) (statement of Suzanne Koepplinger, Executive Director, Minnesota Indian 

Women’s Resource Center). 39Statement of Juana Majel-Dixon, Vice President of the National Congress of American Indians and Co-Chair of the NCAI Task Force on Violence Against Women. Violence Against Native 

Women Gaining Global Attention; Congress Encouraged to Act, Indian Country Today (Oct. 11, 

2012) (‘‘Congress can act now and NCAI is calling on members of the House and Senate to not 

let this crisis continue for one more day.’’). 40 Jana Walker, Senior Staff Attorney and Director of the Indian Law Resource Center’s Safe 

Women, Strong Nations Project, Using the Declaration to End Violence Against Native Women, 

Indian Law Resource Center (Feb. 1, 2012). 41Letter from Troy A. Eid, Chairman, Indian Law and Order Commission and Former United 

States Attorney for the District of Colorado & Thomas B. Heffelfinger, Former United States 

Attorney for the District of Minnesota, to the Senate (Mar. 13, 2012). 42 Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on Indian Affairs, 112th Cong. 

18 (Nov. 10, 2011) (statement of Sen. Al Franken) (noting that the Act also authorizes services 

for victimized youth and for victims of sex trafficking). 43 Id. at 9 (statement of Thomas J. Perrelli, Associate Attorney General, U.S. Dep’t of Justice). 

temic matter.’’ 38 Criminals tend to see Indian reservations and 

Alaska Native villages as places they have free reign, where they 

can hide behind the current ineffectiveness of the judicial system.39

Without the authority to prosecute crimes of violence against 

women, a cycle of violence is perpetuated that allows, and even encourages, criminals to act with impunity in Tribal communities and 

denies Native women equality under the law by treating them differently than other women in the United States.40 The SAVE Act 

will help Tribal communities break this cycle.41

The SAVE Native Women Act makes important updates 

to the law to ensure that Native American communities 

have the tools and resources they need to stop acts of violence against Native Women. . . . It provides Native 

Americans in Indian country the legal authority they need 

to prosecute acts of violence committed in their communities. And it updates the Federal assault statute applicable in Indian country.42

The SAVE Act addresses these three key areas where legislative 

reform is critical: Tribal criminal jurisdiction, Tribal civil jurisdiction, and Federal criminal offenses. 

The SAVE Act closes the jurisdiction gap by restoring tribes inherent authority to hold offenders accountable for their crimes 

against Native women, regardless of the perpetrator’s race. ‘‘Together, by filling these three holes, the [SAVE] Act will take many 

steps forward in our ability to combat violence in Alaska Native 

and American Indian communities.’’ 43 The SAVE Act builds on 

current law to improve the effectiveness and efficiency of Tribal 

justice systems and will provide additional tools to Tribal and Federal prosecutors to address domestic violence in Indian country. 


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44Pub. L. 106–386, 114 Stat. 1464 (2000) (codified as 22 U.S.C. §§ 7101–7112). Confronted 

with the unique nature of human trafficking in the United States, Congress promulgated the 

Trafficking Victims Protection Act (TVPA) of 2000. TVPA criminalizes human trafficking and 

is the first comprehensive federal law to address trafficking in persons. The TVPA does not only 

provide legal tools for prosecution of traffickers and those who aid traffickers, it also provides 

valuable protection for victims of trafficking. The law provides a three-pronged approach that 

includes prevention, protection, and prosecution. The TVPA was reauthorized through the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2003, 2005, and 2008. 45Pub. L. No. 111–211, 124 Stat. 2258 (2010) (codified as amended in various sections of 25 

U.S.C.). In July 2010, the President signed the Tribal Law and Order Act, which helps to address crime in tribal communities and places a strong emphasis on decreasing violence against 

American Indian and Alaska Native women. 46 Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on Indian Affairs, 112th Cong. 

9 (Nov. 10, 2011) (statement of Thomas J. Perrelli, Associate Attorney General, U.S. Dep’t of 

Justice) (‘‘[T]he current jurisdictional framework has left many serious acts of domestic and dating violence unprosecuted and unpunished.’’). 47 Hearing on Tribal Law and Order One Year Later: Have We Improved Public Safety and 

Justice Throughout Indian Country, Hearing Before the Senate Committee on Indian Affairs, 112th Cong. 63 (Sept. 22, 2011) (statement of Jacqueline Johnson-Pata, Executive Director, National Congress of the American Indian (NCAI)). 48Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 (1978). 49See Steven W. Perry, American Indians and Crime, A BJS Statistical Profile, 1992–2002, 

U.S. Department of Justice, Bureau of Justice Statistics 9 (2004) (noting that nearly 4 in 5 

American Indian victims of rape/sexual assault described the offender as white). 50See Hearing on Tribal Law and Order One Year Later: Have We Improved Public Safety 

and Justice Throughout Indian Country, Hearing Before the Senate Committee on Indian Affairs, 112th Cong. 63 (Sept. 22, 2011) (statement of Jacqueline Johnson-Pata, Executive Director, National Congress of the American Indian (NCAI)). 51 Hearing on Tribal Law and Order One Year Later: Have We Improved Public Safety and 

Justice Throughout Indian Country, Hearing Before the Senate Committee on Indian Affairs, 112th Cong. (Sept. 22, 2011) (statement of Jacqueline Johnson-Pata, Executive Director, National Congress of the American Indian (NCAI)) (citations omitted). 52 Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on Indian Affairs, 112th Cong. 

22 (Nov. 10, 2011) (statement of Thomas B. Heffelfinger, Attorney, Best & Flanagan LLP). 

3. The SAVE Act closes jurisdictional gaps to better address crimes 

against Native women 

Although Federal laws such as VAWA, Trafficking Victims Protection Act (TVPA),44 and the Tribal Law and Order Act (TLOA) 45

address crime in Indian country, these laws leave unaddressed the 

lack of Tribal authority to prosecute non-Indians committing violent crimes on the reservation. This jurisdictional void means that 

some crimes committed by non-Indians in Indian country can still 

go unpunished.46 ‘‘The lack of tribal jurisdiction over non-Indian offenders on Indian lands may be the key reason for the creation and 

perpetuation of disproportionate violence against American Indian 

and Alaska Native women.’’ 47

In 1978, the Supreme Court ruled that Indian tribes do not have 

criminal jurisdiction over non-Indians who commit crimes on Indian lands.48 As such, Indian women—most of whom describe the 

offender as non-Indian 49—often have no criminal recourse against 

non-Indian offenders.50 This leaves a sense of lawlessness on Indian reservations and a perpetuation of victimization of Native 

women, a perception which is at odds with the purposes of VA WA 

that have guided our nation since its enactment over fifteen years 

ago.51 The SAVE Act, ‘‘by providing Tribes with jurisdiction over 

domestic violence committed by all offenders, recognizes Tribal sovereignty and Tribal responsibility.’’ 52

a. The SAVE Act recognizes the inherent authority of tribes 

to prosecute any person who commits domestic violence 

or dating violence against a Tribal member in Indian 

country 

The current legal framework for criminal jurisdiction in Indian 

country is complicated and often produces an inadequate and deVerDate Mar 15 2010 02:19 Jan 10, 2013 Jkt 029010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\SR265.XXX SR265

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53See, e.g., Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on Indian Affairs, 112th Cong. 9 (Nov. 10, 2011) (statement of Thomas J. Perrelli, Associate Attorney General, 

U.S. Dep’t of Justice). See also Ronet Bachman, et al., Violence Against American Indian and 

Alaska Native Women and the Criminal Justice Response: What Is Known 8–9 (Aug. 2008) (noting that cross-deputization agreements with state police authorities can serve to alleviate the 

jurisdictional confusion, but that the complicated jurisdictional issues still produce many unique 

barriers for Indian women seeking help from a criminal justice authority on tribal lands). 54 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 19 (July 14, 2011) (attachment 

to prepared statement of Thomas J. Perrelli, Associate Attorney General, U.S. Department of 

Justice, entitled Questions and Answers on Proposed Federal Legislation to Help Tribal Communities Combat Violence Against Native Women). See also Hearing on Native Women: Protecting, 

Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Before the S. Comm. on Indian Affairs, 112th Cong. 82–83 (July 14, 2011) (prepared statement of the Cherokee Nation) 

(noting that the ‘‘confusion as to whether local, state, federal, or tribal law enforcement agencies 

possess criminal jurisdiction’’ often results in ‘‘acts of violence against women often fall[ing] 

through the cracks and are never prosecuted’’). 55 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 8 (July 14, 2011) (statement 

of Thomas J. Perrelli, Associate Attorney General, U.S. Department of Justice) (noting that such 

legislation would build on the intent of the Tribal Law and Order Act). 56 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 11 (July 14, 2011) 

(letter from Ronald Welch, Assistant Attorney General, included as an attachment to prepared 

statement of Thomas J. Perrelli, Associate Attorney General, U.S. Department of Justice). 57 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 8 (July 14, 2011) 

(statement of Thomas J. Perrelli, Associate Attorney General, U.S. Department of Justice). 58 Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on Indian Affairs, 112th Cong. 

70–71 (Nov. 10, 2011) (statement of Thomas B. Heffelfinger, Attorney, Best & Flanagan LLP) 

(‘‘What is wonderful about [the SAVE Native Women] Act is that it lets the courts and the law 

enforcement and the prosecutor, who are right there in the community and have the ability to 

respond immediately and directly to the violence going on in that community. And that is not 

simply making arrests and initiating prosecutions. It is also the ability to give the courts jurisdiction to fashion a sentence that can not only punish, but prevent and deter.’’). 

layed response to Indian women victims, further undermining their 

safety.53 ‘‘The patchwork of Federal, State, and Tribal criminal jurisdiction in Indian country has made it difficult for law enforcement and prosecutors to adequately address domestic violence— 

particularly misdemeanor domestic violence, such as simple assaults and criminal violations of protection orders.’’ 54 In the 112th 

Congress, the Committee has received testimony from 17 witnesses 

during three hearings on how necessary it is for tribes to exercise 

concurrent criminal jurisdiction over domestic-violence cases, regardless of whether the defendant is Indian or non-Indian.55

Under current law, Tribal governments—police, prosecutors, and 

courts—lack the authority to address many of these crimes.56 The 

SAVE Act builds on the Tribal Law and Order Act (TLOA) by recognizing certain tribes’ concurrent criminal jurisdiction to investigate, prosecute, convict, and sentence both Indians and non-Indians who assault Indian spouses, intimate partners, or dating partners, or who violate protection orders in Indian country. TLOA supports the idea of tribes addressing violence in their own communities and it offers additional authority to Tribal courts and prosecutors if certain procedural protections are established.57

‘‘[D]omestic violence is among those types of criminal offenses 

which are most properly handled as close to the community, as 

close to the act level as you possibly can.’’ 58 Local Tribal officers 

and justice systems are more capable and more accountable to victims of violence and their communities. 

[T]he current legal structure for prosecuting domestic violence in Indian country is not well-suited to combating 

this pattern of escalating violence. Federal resources, 

which are often the only ones that can investigate and 


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59 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 7 (July 14, 2011) 

(statement of Thomas J. Perrelli, Associate Attorney General, U.S. Department of Justice). 60Sen. Harry Reid, Majority Leader, The Violence Against Women Reauthorization Act (S. 

1925), United States Senator for Nevada Harry Reid (last visited Dec. 12, 2012) (noting that 

the expanded jurisdiction ‘‘was designed with the Department of Justice over several years of 

consultation’’). 61See SAVE Native Women Act, S. 1763, 112th Cong. §§ 201(a)–201(d) (2011). The SAVE Act 

would allow tribes to exercise concurrent criminal jurisdiction over all persons committing acts 

of domestic violence on Indian reservations because of tribes’ inherent power of self-government. 

SAVE Native Women Act, S. 1763, 112th Cong. §§ 201(b)(1) (2011). 62See SAVE Native Women Act, S. 1763, 112th Cong. §§ 201(a)–201(d) (2011). 63Tribal Law and Order Act One Year Later: Have We Improved Public Safety and Justice 

throughout Indian Country? Oversight Hearing Before the S. Comm. on Indian Affairs, 112th 

Cong. 1 (Sept. 22, 2011) (statement of Sen. Daniel K. Akaka, Chairman, S. Comm. on Indian 

Affairs) (‘‘Native justice systems are also extremely underfunded and lack adequate data, training and coordination with State and Federal agencies to deal with the problem.’’). 

prosecute these crimes, are often far away and stretched 

thin. Federal law does not provide the tools needed to address the types of domestic or dating violence that elsewhere in the United States might lead to convictions and 

sentences ranging from approximately six months to five 

years.59

Neither the Federal Government nor any State would lose any 

criminal jurisdiction as a result of restoration of criminal jurisdiction for Tribal lands.60 Without impinging on any other government’s jurisdiction, the SAVE Act recognizes that a tribe has concurrent jurisdiction over a tightly defined set of crimes committed 

in Indian country: domestic violence, dating violence, and violations 

of enforceable protection orders.61 To the extent those crimes can 

be prosecuted today by Federal or State prosecutors, that jurisdictional scheme would not be changed by the SAVE Act. Similar to 

TLOA, this additional Tribal authority under the SAVE Act would 

be available only to those tribes that guarantee sufficient protections for the rights of the defendants. 

For example, if a Native woman is a victim of violence committed 

on a reservation by a non-Indian with whom she does not have a 

relationship, the tribe will not have jurisdiction to prosecute that 

crime. Additionally, the SAVE Act allows non-Indian defendants to 

have their case dismissed if the defendant files a pretrial motion 

to dismiss and the tribe does not prove that the victim is Indian.62

Tribes exercising this statutorily recognized jurisdiction over 

crimes of domestic violence would be required to protect a robust 

set of rights, similar to those protected in State court criminal prosecutions. Tribes that choose not to provide these protections would 

not have this additional authority. 

Because restoring Tribal criminal jurisdiction over all perpetrators of domestic violence would tax the already scarce resources 63

of most tribes that might wish to exercise this jurisdiction under 

the SAVE Act, the Act also authorizes grants to support participating tribes by strengthening their criminal justice systems, providing indigent criminal defendants with licensed defense counsel 

at no cost to those defendants, ensuring that jurors are properly 

summoned, selected, and instructed, and according crime victims’ 

rights to victims of domestic violence. 

It is important that the United States consider recommendations 

from experts with the United Nations and the Organization of 

American States as it begins to take action. A report to the U.N. 

General Assembly in 2011 concluded that the United States should 


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64 Rashida Manjoo, U.N. Special Rapporteur on Violence Against Women, United Nations 

Human Rights Council, Report of the Special Rapporteur on violence against Women, its causes 

and consequences 30 (June 6, 2011). 65 Jana Walker, Senior Staff Attorney and Director of the Indian Law Resource Center’s Safe 

Women, Strong Nations Project, Using the Declaration to End Violence Against Native Women, 

Indian Law Resource Center (Feb. 1, 2012). 66This would effectively reverse a 2008 decision from a Federal district court in Washington, 

which held that an Indian Tribe lacked authority to enter a protection order for a nonmember 

Indian against a non-Indian residing on non-Indian fee land within the reservation. Martinez 

v. Martinez, No. C08–5503 FBD, 2008 WL 5262793 (D. Wash. Dec. 16, 2008). 67 Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on Indian Affairs, 112th Cong. 

13–14 (Nov. 10, 2011) (statement of Thomas J. Perrelli, Associate Attorney General, U.S. Dep’t 

of Justice). 68 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 8 (July 14, 2011) 

(attachment to prepared statement of Thomas J. Perrelli, Associate Attorney General, U.S. Department of Justice). Tribal Law and Order Act One Year Later: Have We Improved Public Safety and Justice Throughout Indian Country? Oversight Hearing Before the S. Comm. on Indian 

Affairs, 112th Cong. 47 (Sept. 22, 2011) (statement of Troy A. Eid, Chair, Indian Law and Order 

Commission) (noting that the Commission had received testimony indicating that state court 

judges do not always enforce a restraining order issued by a tribal court and the lack of protection that occurs without full faith and credit). ‘‘Domestic violence perpetrators don’t care where 

the victim is. They are going to hunt that victim down. So we have to try to protect that person.’’ 

Id. 

69 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 96 (July 14, 2011) 

(appendix, prepared statement of Jana L. Walker, Senior Attorney, Indian Law Resource Center). 

‘‘consider restoring, in consultation with Native American tribes, 

Tribal authority to enforce Tribal law over all perpetrators, both 

native and non-native, who commit acts of sexual and domestic violence within their jurisdiction.’’ 64 The global reach and international human rights law is a strong push on Congress to act and 

remove the legal barriers in the United States that affect Native 

women. According to one advocate, ‘‘Native women must not continue to suffer disproportionately higher rates of rape, sexual assault, and murder, and lower rates of enforcement, prosecution, 

and punishment just because they are Indian and live on an Indian 

reservation or in an Alaska Native village.’’ 65

b. The SAVE Act clarifies that Tribal courts have full civil 

jurisdiction to issue and enforce protection orders against 

Indians and non-Indians alike 

The SAVE Act addresses Tribal civil jurisdiction. Specifically, it 

confirms the intent of Congress in enacting the Violence Against 

Women Act of 2000 by clarifying that every Tribe has full civil jurisdiction to issue and enforce certain protection orders against 

both Indians and non-Indians.66 ‘‘Without the ability to issue and 

enforce protection orders and to get full faith and credit for those 

protection orders, there is a real risk to Native women to be threatened again.’’ 67 To help tribes better protect victims, Tribal courts 

should have full civil jurisdiction to issue and enforce certain protection orders involving any persons, Indian or non-Indian.68 Because Native communities are often located in rural areas, physically distant from State courts and police stations, Tribal courts 

are often in the best position to best meet the needs of the residents of the community. ‘‘Orders of protection can be a strong tool 

to prevent future violence, but they are only as strong as their recognition and enforcement.’’ 69


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70 Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on Indian Affairs, 112th Cong. 

12–13 (Nov. 10, 2011) (statement of Thomas J. Perrelli, Associate Attorney General, U.S. Dep’t 

of Justice) (‘‘Existing Federal law provides a six-month misdemeanor assault or assault-and-battery offense that can be charged against an Indian or a non-Indian defendant only if the victim’s 

injuries rise to the level of ‘serious bodily injury,’ which is significantly more severe than ‘substantial bodily injury.’ . . . Federal prosecutors today often find that they cannot seek sentences 

in excess of six months. And where both the defendant and the victim are Indian, Federal courts 

may lack jurisdiction altogether.’’). 71 18 U.S.C. § 1153. Federal prosecutors use the Major Crimes Act to prosecute Indians for 

virtually all violent crimes committed on tribal lands against Indian and non-Indian victims. 72 Hearing on S. 1763, S. 872, & S. 1192 before the S. Comm. on Indian Affairs, 112th Cong. 

13–14 (Nov. 10, 2011) (statement of Thomas J. Perrelli, Associate Attorney General, U.S. Dep’t 

of Justice) (noting that these amendments to the Federal assault statute will stop domestic violence at its earlier states and prevent it from reaching its most severe levels). 

c. The SAVE Act amends Federal law to enable Federal prosecutors to more effectively combat three types of assault 

that are frequently committed against Native women in 

Indian country: assault by strangling or suffocating, assault resulting in substantial bodily injury; and assault 

by striking, beating, or wounding 

The SAVE Act involves Federal criminal offenses rather than 

Tribal prosecutions. By amending the Federal Criminal Code to 

make it more consistent with State laws in this area where the 

Federal Government (and not the State) has jurisdiction, the SAVE 

Act simply ensures that perpetrators will be subject to similar potential punishments regardless of where they commit their crimes. 

To assist Federal prosecutors in combating domestic violence in Indian country, the SAVE Act amends the Federal Criminal Code to 

provide a ten-year offense for assaulting a spouse, intimate partner, or dating partner by strangling or suffocating; a five-year offense for assaulting a spouse, intimate partner, or dating partner 

resulting in substantial bodily injury; and a one-year offense for assaulting a person by striking, beating, or wounding. All of these are 

in line with the types of sentences that would be available in State 

courts across the Nation if the crime occurred outside Indian country.70

The SAVE Act simplifies the Major Crimes Act 71 to cover all felony assaults under section 113 of the Federal Criminal Code. This 

includes the two new felony offenses discussed above—assaults resulting in substantial bodily injury to a spouse, intimate partner, 

or dating partner; and assaults upon a spouse, intimate partner, or 

dating partner by strangling or suffocating—as well as assault with 

intent to commit a felony other than murder, which is punishable 

by a maximum ten-year sentence. Without this amendment to the 

Major Crimes Act, Federal prosecutors could not charge any of 

these three felonies when the perpetrator is an Indian. Under the 

SAVE Act, assault by striking, beating, or wounding remains a 

misdemeanor and is not covered by the Major Crimes Act. The 

SAVE Act would strengthen Tribal jurisdiction over crimes of domestic violence, Tribal protection orders, and Federal assault prosecutions. ‘‘These measures, taken together, have the potential to 

significantly improve the safety of women in Tribal communities 

and allow Federal and Tribal law enforcement agencies to hold 

more perpetrators of domestic violence accountable for their 

crimes.’’ 72


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73 Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters, Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 123 (July 14, 2011) 

(appendix, prepared statement of Suzanne Koepplinger, Executive Director, Minnesota Indian 

Women’s Resource Center). See also Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. 

on Indian Affairs, 112th Cong. (Nov. 10, 2011) (statement of Sen. Al Franken, noting that sex 

traffickers tend to target homeless Native women and children). 74 22 U.S.C. § 7102(9). Some States, such as Minnesota, have trafficking laws that do not require traffickers to use ‘‘force, fraud or coercion.’’ See Minnesota Indian Women’s Resource Center, Shattered Hearts 21 (Aug. 2009) (‘‘Minnesota law recognizes that a person can never consent to being sexually exploited and considers individuals who have been prostituted by others 

as trafficking victims. Federal law requires an assessment of the level of ‘consent’ of the prostituted person in determining whether the crime of trafficking has occurred.’’) (citations omitted). 75Melissa Farley, et al., Garden of Truth: The Prostitution and Trafficking of Native Women 

in Minnesota 56 (Oct. 27, 2011) (noting that it is important that organizations that provide services to Native women educate their staff members to recognize, empathize, and support victims 

of trafficking). ‘‘In the U.S., very little research has been published on the sex trafficking or commercial sexual exploitation of Native women and youth. What exists is specific to two states, 

Minnesota and Alaska. A number of publications have addressed trafficking and prostitution of 

Native women and youth in Canada, but in both countries, most of these describe small local 

studies, are produced by organizations serving victims, or are press releases and interviews citing law enforcement personnel. To date, no U.S.-based research has been published in peer-reviewed journals.’’ Alexandra (Sandi) Pierce & Suzanne Koepplinger, New Language, Old Problem: Sex Trafficking of American Indian Women and Children, National Online Resource Center 

on Violence Against Women 3 (Oct. 2011). 76 Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on Indian Affairs, 112th Cong. 

20 (Nov. 10, 2011) (statement of Suzanne Koepplinger, Executive Director, Minnesota Indian 

Women’s Resource Center) (noting that victims of trafficking are much more likely to disclose 

their assault to frontline advocates). 77 Id. at 15 (statement of Thomas J. Perrelli, Associate Attorney General, U.S. Dep’t of Justice). 78 Id. at 20 (Nov. 10, 2011) (statement of Suzanne Koepplinger, Executive Director, Minnesota 

Indian Women’s Resource Center) (‘‘[C]ollecting data on the scope of sex trafficking is a challenge. And this is due in large part because many of the women do not identify as victims. They 

do not report these crimes to authorities.’’). 79 ‘‘[The arrest and prosecution of victims is counter-productive and exacerbates the problems.’’ 

Melissa Farley, et al., Garden of Truth: The Prostitution and Trafficking of Native Women in 

Minnesota 56 (Oct. 27, 2011). 80Tribal Law and Order One Year Later: Have We Improved Public Safety and Justice 

Throughout Indian Country, Oversight Hearing Before the Senate Committee on Indian Affairs, 112th Cong. 31–32 (Sept. 22, 2011) (statement of Brendan Johnson, U.S. Attorney, District of 

Continued 

4. The SAVE Act addresses the growing problem of the sex trafficking of Indian women 

‘‘Historical trauma and multi-generational grief and loss, compounded by high rates of poverty and sexual violence make American Indians extremely vulnerable to sexual predators.’’ 73 Sex trafficking is defined in the Trafficking Victims Protection Act as the 

‘‘recruitment, harboring, transportation, provision, or obtaining of a 

person for the purpose of a commercial sex act.’’ 74

Trafficking is a growing problem in Indian country, but the depth 

of the sexual exploitation of American Indian women is only now 

beginning to be uncovered.75 ‘‘[T]his is due in large part because 

many of the women do not identify as victims. They do not report 

these crimes to authorities.’’ 76 The SAVE Act would improve data 

gathering programs to better understand and respond to the sex 

trafficking of Native American women. Trafficking is a crime that 

is ‘‘very difficult to investigate and get a handle on’’ 77 and ‘‘[t]here 

are many challenges to identifying and responding to [the] sex trafficking’’ of Native women.78 The scope of the problem needs to be 

better understood in order to offer more effective services.79 ‘‘We 

know . . . very clearly that this issue [trafficking of Native women] 

exists and we know it has a terrible effect on communities where 

this occurs. . . . [A] big part of [addressing trafficking] is education. It is training for both law enforcement, as well as the community.’’ 80


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South Dakota, U.S. Department of Justice) (emphasizing the importance of training Federal law 

enforcement in Indian country because, what might look like a prostitution case at first could 

be a much larger human trafficking operation). 81 Alexandra (Sandi) Pierce & Suzanne Koepplinger, New Language, Old Problem: Sex Trafficking of American Indian Women and Children, National Online Resource Center on Violence 

Against Women 3 (Oct. 2011) (noting that Arizona ‘‘requires adult victims to prove the trafficker 

used force, fraud, or coercion’’ while Minnesota ‘‘does not require victims of any age to prove 

the means by which they were induced’’). ‘‘In. . . federal law, sexually trafficked minors are 

automatically considered to be victims, but trafficked adults are required to prove that the trafficker used force, fraud, or coercion to become eligible for victim services.’’ Id. at 5. 82 Id. at 6 (noting that although ‘‘a handful of programs, such as Breaking Free and PRIDE 

in Minneapolis, offer shelter, transitional housing, and support services to domestically trafficked adults, none receive federal trafficking dollars for these services.’’) (citations omitted). 83 United States Department of State, Trafficking in Persons Report 3 (June 2011) (quoting 

Ambassador Richard Holbrooke). 84 Hearing on S. 1763, S. 872 & S. 1192 Before the S. Comm. on Indian Affairs, 112th Cong. 

20 (Nov. 10, 2011) (statement of Suzanne Koepplinger, Executive Director, Minnesota Indian 

Women’s Resource Center). 

Forty states have already passed State laws criminalizing sex 

trafficking. However, these State laws vary in criteria for establishing victimization.81 Trafficking cases that arise from within the 

United States, as compared to international trafficking, also tend 

to be more difficult to prosecute and provide challenges to helping 

the victims. There is currently no dedicated Federal funding for 

services to aid or protect domestically-trafficked U.S.-born adults. 

The SAVE Act includes research for, as well as grants towards understanding and addressing sex trafficking. Because domesticallytrafficked U.S.-born adult victims are offered fewer protections 

than international victims while the case is being heard, adult domestic victims often refuse to testify, fearing potentially lethal retribution by the trafficker.82

Ending human trafficking should not be a political issue, but a 

human responsibility.83

Investing in the safety of women and children is an investment in the wellbeing of our families and communities. 

It is not only the right thing to do, it is fiscally prudent 

thing to provide preventive and healing services to those 

in need. The trauma of unreported or untreated sexual violence leads to higher end-use of social services, multigenerational abuse, increased rates of homelessness, and 

other costs.84

NEED FOR LEGISLATION

Some question the ability of Congress to restore the inherent 

criminal authority of Indian tribes over all individuals who commit 

crimes of domestic and dating violence, regardless of their status 

as Indian or non-Indian. Congress has exercised, and the United 

States Supreme Court has affirmed, broad plenary authority over 

Indian affairs for more than two centuries. In the recent past, Congress restored the inherent criminal jurisdiction of Indian tribes 

over non-member Indians. The Supreme Court upheld the law. Provisions to restore Tribal government authority over on-reservation 

acts of domestic and dating violence by non-Natives with ties to the 

reservation are well within Congress’ constitutional authority over 

Indian affairs. 

Prior to contact with European nations, Indian tribes were separate sovereigns possessing full authority to investigate and prosecute crimes committed by all who entered their lands. These nations and the United States, upon its formation, acknowledged the 


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85 118 U.S. 375 (1886). 86 Id at 384. 87 435 U.S. 191 (1978). 88 Id. at 204. 89 Id. at 212. 90 495 U.S. 676 (1990). 91 25 U.S.C. § 1301(2). 92 541 U.S. 193 (2004). 

full realm of Tribal government criminal jurisdiction in Indian 

treaties. The United States added acknowledgement of Tribal selfgoverning authority through several references to Indian tribes in 

the Constitution. Through these acknowledgements, Congress has 

exercised, and the Supreme Court has affirmed as constitutional, 

broad plenary authority over Indian affairs. 

Specifically regarding criminal justice on Indian lands, the Court 

in U.S. v. Kagama found that Congress had the constitutional authority to enact the Major Crimes Act of 1885, which restricted 

Tribal authority over crimes committed by Indians on the reservation.85 The Court found that due to Congress’ ‘‘course of dealing 

with [Indian tribes], and the treaties in which it has been promised, there arises the duty of protection, and with it the power.’’ 86

For nearly 130 years since Kagama, based on this authority, Congress has enacted hundreds of laws impacting Indian affairs, including laws taking Tribal homelands, authorizing the boarding of 

Indian children against parental consent, suppressing of the practice of Native religions and prohibition on speaking Tribal language, and much more. No Federal court has questioned or struck 

down these laws. 

In the 1978 Oliphant v. Suquamish Indian Tribe case, the Court 

held that Congress ‘‘implicitly divested’’ Tribal authority over nonIndians.87 The Court reasoned that various Federal laws enacted 

over the past 150 years ‘‘demonstrated an intent to reserve jurisdiction over non-Indians to the Federal courts.’’ 88 An additional part 

of the rationale was that non-Indians could not participate in jury 

pools or Tribal politics. The Oliphant Court acknowledged that the 

‘‘prevalence’’ of non-Indian crime on Indian reservations, but noted 

that ‘‘these are considerations for Congress to weigh. . . .’’ 89

In 1990, the Court in Duro v. Reina, similarly held that Congress 

implicitly restricted Tribal criminal authority over non-member Indians.90 Non-members Indians also cannot vote in Tribal elections 

or otherwise participate in Tribal politics. Congress legislatively reversed Duro, relaxing the restriction by amending the Indian Civil 

Rights Act (ICRA) to ‘‘recognize and affirm’’ the inherent Tribal 

government criminal authority over ‘‘all Indians.’’ 91

In 2004, the Supreme Court in United States v. Lara, upheld the 

ICRA amendment acknowledging Tribal inherent criminal authority over all Indians.92 The central question raised in Lara was 

whether Congress has the constitutional power to recognize Indian 

tribes’ ‘‘inherent’’ under the Constitution rested on six considerations, all of which apply to the proposed VAWA Tribal jurisdiction 

provision: (1) ‘‘the Constitution grants Congress broad general powers to legislate in respect to Indian tribes’’; (2) ‘‘Congress, with this 

Court’s approval, has interpreted the Constitution’s ‘plenary’ grants 

of power as authorizing it to enact legislation that both restricts 

and, in turn, relaxes those restrictions on tribal sovereign authority’’; (3) ‘‘Congress’ statutory goal—to modify the degree of autonVerDate Mar 15 2010 02:19 Jan 10, 2013 Jkt 029010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\SR265.XXX SR265

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93 Id. at 216–17 (Thomas, J., concurring in the judgment) (citing Morrison v. Olson, 487 U.S. 

654, 691 (1988)). 

omy enjoyed by a dependent sovereign that is not a State—is not 

an unusual legislative objective’’; (4) there is ‘‘no explicit language 

in the Constitution suggesting a limitation on Congress’ institutional authority to relax restrictions on tribal sovereignty previously imposed by the political branches’’; (5) ‘‘the change at issue 

here is a limited one, . . . [largely concerning] a tribe’s authority 

to control events that occur upon the tribe’s own land’’; and (6) the 

Court’s ‘‘conclusion that Congress has the power to relax the restrictions imposed by the political branches on the tribes’ inherent 

prosecutorial authority is consistent with [the Supreme Court’s] 

earlier cases.’’ 

While the ICRA provision at issue in Lara was broad criminal 

authority over all types of crimes committed by any non-member 

Indian who acts on Indian lands, the proposed VAWA Tribal provision is limited to misdemeanor crimes of domestic and dating violence committed on a reservation by a non-Indian who either lives 

or works on the reservation and who has a pre-existing relationship with the victim. In addition, the proposal requires that Tribal 

courts provide the suspect of abuse with a full list of protections 

that mirror protections offered defendants before State courts. 

These protections were not required in the ICRA amendment at 

issue in Duro. 

Opponents of restoring inherent Tribal authority have proposed 

a delegation of Federal criminal authority to Indian tribes over 

non-Native crimes of domestic and dating violence. Delegating Federal criminal authority to Tribal governments will raise more constitutional questions that it could possibly answer. Indian tribes 

and Tribal officials are neither appointed by the President nor subject to his removal authority. Tribal prosecutors (unlike United 

States Attorneys) are not controlled (hired and fired) by the President. Such a system, at minimum, would be required in order for 

a delegation to be found constitutional. 

Justice Thomas, in his concurrence in response to Justice 

Souter’s dissent, laid out the argument against Federal delegations 

of criminal authority to Indian tribes. 

The power to bring federal prosecutions, which is part of 

the putative delegated power, is manifestly and 

quintessentially executive power. Congress cannot transfer 

federal executive power to individuals who are beyond 

‘‘meaningful Presidential control.’’ And this means that, at 

a minimum, the President must have some measure of 

‘‘the power to appoint and remove’’ those exercising that 

power.93

It does not appear that the President has any control 

over tribal officials, let alone a substantial measure of the 

appointment and removal power. Thus, at least until we 

are prepared to recognize absolutely independent agencies 

entirely outside of the Executive Branch with the power to 

bind the Executive Branch (for a tribal prosecution would 

then bar a subsequent federal prosecution), the tribes cannot be analogized to administrative agencies, as the dissent suggests. That is, reading the ‘‘Duro fix’’ as a delegaVerDate Mar 15 2010 02:19 Jan 10, 2013 Jkt 029010 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\SR265.XXX SR265

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94 Id at 216 (Thomas, J., concurring in the judgment). 95Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harvard 

L. Rev. 431, 471 n. 223 (2005). 96 H.R. 6625. 

tion of federal power (without also divining some adequate 

method of Presidential control) would create grave constitutional difficulties. Accordingly, the Court has only two 

options: Either the ‘‘Duro fix’’ changed the result in Duro 

or it did nothing at all.94

‘‘[Justice Thomas] cogently explained that any delegation of that 

sort would be constitutionally suspect in any event, for it would 

transfer a core executive function—the prosecution of crime—to an 

entity not simply beyond the President’s appointment and removal 

authority, but entirely outside the executive branch.’’ 95

Just as important, a Federal delegation would prove unworkable 

on-the-ground and would do little to address the epidemic of violence faced by many Tribal communities. It would place significant 

additional burdens on Tribal governments, courts, and police—as 

opposed to exercising the restored authority listed in the Issa bill 96

even with the added requirements and protections that they must 

provide to suspects of abuse. In addition, a delegation of Federal 

authority—if it can ever be found constitutional—must come with 

an entirely new Federal bureaucracy and regulatory regime to 

oversee local Tribal law enforcement, prosecutors, public defenders, 

judges, and other justice officials, all of which must be funded by 

Congress. 

Congress has much broader plenary authority to legislate over 

Indian affairs than it does delegating criminal enforcement powers 

that are reserved for the Federal Government. Recognizing and affirming a tribe’s inherent power to exercise criminal jurisdiction 

over certain nonmembers is exactly what Congress did in the ‘‘Duro 

fix,’’ which the Supreme Court upheld in United States v. Lara. 

LEGISLATIVE HISTORY

In developing S. 1763, the Committee worked to continue the tradition of strong bipartisan support for the Violence Against Women 

Act (VAWA). S. 1763 includes a Department of Justice proposal 

submitted to Congress on July 21, 2011 in anticipation of the reauthorization of the VAWA. That proposal was the product of extensive of previous work developing the Tribal Law and Order Act, 

which became law in 2010. 

The Committee held a hearing on the proposal on July 14, 2011. 

Three critical priorities emerged from the July hearing: (1) To reauthorize and improve the Native programs under VAWA; (2) To 

strengthen Tribal governments so that they have the authority to 

address these crimes; and (3) To examine the increasing problem 

of sex trafficking of Native women. These priorities were then incorporated into draft legislation which was widely circulated in August, 2011, and posted on the Committee’s website. 

In response to the feedback the Committee received, Senator 

Akaka modified the draft bill and introduced the Stand Against Violence and Empower Native Women (SAVE Native Women) Act on 

October 31, 2011, along with Senators Baucus, Begich, Bingaman, 

Franken, Inouye, Johnson, Murray, Tester, and Udall. Senators 


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Conrad, Crapo, Murkowski, Reid, and Sanders were later added as 

co-sponsors. The Committee held a hearing on November 10, 2011 

to further review and evaluate the legislation. The Committee reported S. 1763 on December 8, 2011 by voice vote with bipartisan 

support. The Committee ordered the bill be reported with an 

amendment in the nature of a substitute favorably. 

The Committee on Indian Affairs worked closely with the Committee on the Judiciary. The Committee on the Judiciary accepted 

the provisions in S. 1763 and the bill was incorporated into S. 

1925, the Violence Against Women Reauthorization Act of 2012. S. 

1925, also known as the ‘‘Leahy-Crapo bill,’’ was introduced on November 30, 2011 by Senator Leahy and has 60 cosponsors. Judiciary reported S. 1925 with an amendment in the nature of a substitute on February 7, 2012. Judiciary filed a written report with 

minority views, Report No. 112–153, on March 12, 2012. On April 

26, 2012, S. 1925 passed the Senate with an amendment by YeaNay recorded vote of 68–31. 

A companion bill, H.R. 4154, was introduced by Congressman 

Boren on March 7, 2012 in the House of Representatives. The bill 

was referred to the House Subcommittee on Indian and Alaska Native Affairs and the Subcommittee on Crime, Terrorism, and Homeland Security. 

SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE

Senator Akaka offered a substitute amendment and the amendment was accepted by the Committee on December 8, 2011. 

This amendment: 

Amends the Omnibus Crime Control and Safe Streets Act of 

1968 to include sex trafficking as a target of the grants to Indian 

Tribal governments to combat violent crime against Indian women. 

Allows those grants to be used to: (1) address the needs of youth 

who are victims of, or exposed to, domestic violence, dating violence, sexual assault, sex trafficking, or stalking; and (2) develop 

and promote best practices for responding to domestic violence, dating violence, sexual assault, sex trafficking, and stalking. 

Allows Tribal coalition grants to be used to develop and promote 

legislation and policies that enhance best practices for responding 

to violent crimes against Indian women. Requires the Attorney 

General to award such grants annually to: (1) each Tribal coalition 

that meets certain criteria under the Violence Against Women Act 

of 1994 (VAWA), is recognized by the Office on Violence Against 

Women, and serves Indian tribes; and (2) organizations that propose to incorporate and operate a Tribal coalition in areas where 

Indian tribes are located but no Tribal coalition exists. 

Amends the Violence Against Women and Department of Justice 

Reauthorization Act of 2005 to: (1) include the Secretary of the Interior, in addition to the Secretary of Health and Human Services 

(HHS) and the Attorney General, as a participant in consultations 

with Indian tribes regarding the administration of Tribal funds and 

programs, enhancement of Indian women’s safety, and Federal response to violent crimes against Indian women; and (2) require the 

National Institute of Justice to include women in Alaska Native 

Villages and sex trafficking in its study of violence against Indian 

women. Reauthorizes appropriations for the study for FY2012– 

FY2013. 


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Amends VAWA to define or revise definitions of ‘‘native village,’’ 

‘‘sex trafficking,’’ and ‘‘tribal coalition.’’ 

Restores Indian tribes criminal jurisdiction over domestic violence, dating violence, and violations of protective orders that occur 

on their lands. Provides that a participating tribe shall exercise 

special domestic violence criminal jurisdiction concurrently, not exclusively. Authorizes the Attorney General to award grants to assist Indian tribes in exercising such jurisdiction, providing indigent 

defendants with free legal counsel, and securing the rights of victims of such crimes. Authorizes appropriations for such grant program and to provide participating Indian tribes with training, technical assistance, data collection, and an evaluation of their criminal 

justice systems. 

Gives Indian courts civil jurisdiction to issue and enforce protection orders. 

Amends the Federal criminal code to increase the maximum Federal penalties for assault convictions. Subjects individuals who: (1) 

commit an assault resulting in substantial bodily injury to a 

spouse, intimate partner, or a dating partner to a fine or imprisonment for up to five years, or both; and (2) assault a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate, by a fine or imprisonment up to 

10 years, or both. Makes Federal felony assault penalties applicable to Indians. 

Makes Indian tribes’ criminal jurisdiction over domestic violence, 

dating violence, and violations of protection orders that occur on 

their lands effective two years after this Act’s enactment. Gives Indian tribes the opportunity to participate in a pilot project that allows them to exercise that jurisdiction sooner. 

Amends the Federal criminal code to subject individuals convicted under Tribal law of repeat domestic violence or stalking offenses to maximum Federal penalty provisions for repeat offenders. 

Makes violations of civil protection orders issued by a Tribal 

court or other judicial tribunal of an Indian tribe a federal crime. 

Amends the Indian Law Enforcement Reform Act to require a report to Congress within 90 days of enactment, and each fiscal year 

thereafter, to provide details on implementation of the high priority 

performance goal pilot program carried out by the Secretary of the 

Interior to reduce violent crime in Indian communities. 

Amends the Indian Law Enforcement Reform Act to extend the 

Indian Law and Order Commission’s reporting deadline by one 

year. 

Amends the Indian Civil Rights Act of 1968 to (1) authorize a 

discretionary four-year pilot project whereby the Secretary of the 

Interior shall promulgate regulations for misdemeanor crimes with 

penalties (of no more than a $1000 fine, one year imprisonment, or 

both) that apply to Indian country, and select up to five tribes for 

each of fiscal years 2012 to 2018 for participation; (2) require publication of requirements and selection criteria for the project within 

180 days of enactment for the Secretary, after consulting with 

tribes; (3) cross-deputize Tribal officers to issue citations into the 

applicable Federal district court—the Central Violations Bureau. 

Enforcement of the regulations would be concurrent with any State 

or local law enforcement efforts; and (4) require a report to ConVerDate Mar 15 2010 02:19 Jan 10, 2013 Jkt 029010 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\SR265.XXX SR265

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gress within five years, assessing and evaluating the effectiveness 

of the project. 

Senator Murkowski also offered an amendment. The amendment 

clarifies that nothing in section 202 (Tribal Protection Orders) 

would limit, alter, expand, or diminish the civil or criminal jurisdiction of the State of Alaska, any subdivision of the State of Alaska, 

or any Indian tribe in the State of Alaska. This amendment was 

also accepted by the Committee on December 8, 2011. 

SECTION-BY-SECTION ANALYSIS OF THE BILL, AS AMENDED

Title I—Grants 

Sec. 101. Grants to Indian Tribal governments 

This section amends the Violence Against Women Act to add the 

following as authorized grant activities: (1) services to sex trafficking victims; (2) services to address the needs of victimized 

youth and support services for nonabusing parents or the child’s 

caretaker; and (3) drafting and conducting outreach on Tribal codes 

and best practices for responding to violent crimes and other 

crimes (including stalking and dating violence) against Indian 

women. 

Sec. 102. Tribal Coalition Grants 

For grants to Tribal coalitions, this section: (1) adds drafting and 

conducting outreach on Tribal codes and best practices for responding to violent crimes and other crimes (including stalking and dating violence) against Indian women as authorized grant activities; 

(2) limits grants to coalitions, not individuals, as eligible grantees; 

and (3) authorizes grants, cooperative agreements, and contracts 

for technical assistance and training to Tribal coalitions and Tribal 

organizations whose primary purpose is serving Tribal coalitions. 

Sec. 103. Consultation 

This section amends VAWA to: (1) require the participation of 

the Secretary of the Interior in consultations. (Previously only the 

Secretary of HHS and Attorney General were required); (2) require 

notice of consultation at least 120 days prior; and (3) include preventing the sex trafficking of Native American women as a consultation topic for the Attorney General. 

Sec. 104. Analysis and research on violence against women 

This section amends VAWA to: (1) add women in Alaska Native 

Villages and Native Hawaiian women to the required scope of the 

national baseline study of violence against Indian women; (2) add 

‘‘sex trafficking’’ to the scope of the national baseline study; and (3) 

reauthorize appropriations of $1 million for the study for fiscal 

years 2012 and 2013. 

Sec. 105. Definitions 

This section amends VAWA to: (1) add an area or community associated with a ‘‘federally recognized Indian tribe’’ to the definition 

of a ‘‘rural area’’ and ‘‘rural community’’ so that tribes may be eligible for the DOJ Office of Violence Against Women’s Rural Grant 

Program; (2) include a definition of ‘‘sex trafficking’’ to the VAWA 

consistent with the definition under Federal criminal statutes; (3) 


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clarify and streamline the definition of ‘‘Tribal coalition’’ for purposes of DOJ grants; and (4) add nonprofit, nongovernmental ‘‘Native Hawaiian organizations’’ to the definition of ‘‘Tribal coalition.’’ 

Title II—Tribal Jurisdiction and Criminal Offenses 

Sec. 201. Tribal jurisdiction over crimes of domestic violence 

This section amends the Indian Civil Rights Act of 1968 to: (1) 

recognize any participating tribes’ concurrent criminal jurisdiction 

to investigate, prosecute, convict, and sentence persons (including 

non-Indians) who assault Indian spouses, intimate, partners, or 

dating partners, or who violate protection orders, in Indian Country; (2) require a participating tribe exercising ‘‘special domestic violence criminal jurisdiction,’’ to provide certain additional constitutional rights to any defendant prosecuted under this section; and 

(3) authorize grants to Indian tribes to assist in exercising special 

domestic violence jurisdiction, including, among other purposes, 

providing indigent defense counsel, and authorize such sums as are 

necessary to carry out this section. 

Sec. 202. Tribal protection orders 

This section amends 18 U.S.C. § 2265 to: (1) clarify provisions in 

prior amendments to the VAWA, enacted in 2000, that Indian 

tribes have full civil jurisdiction to issue and enforce certain protection orders involving any persons, Indian or non-Indian, in matters 

arising in the Indian country of the tribe ‘‘or otherwise in the authority of the tribe.’’ (At least one Federal district court has interpreted the language in current law to be ambiguous regarding jurisdiction of an Indian tribe to enter a protection order for a nonmember Indian against a non-Indian residing on non-Indian fee 

land within the reservation. This amendment would clarify that 

tribes have full civil jurisdiction over these matters.); and (2) clarify that nothing in this section limits, alters, expands, or diminishes the civil or criminal jurisdiction of the State of Alaska or any 

subdivision of the State of Alaska, or any Indian tribe in the State 

of Alaska. 

Sec. 203. Amendments to the Federal assault statute 

Amends the Federal assault statute (18 U.S.C. § 113) to: (1) establish a new crime with a penalty of imprisonment up to 10-years 

for assaulting a spouse, intimate partner, or dating partner by 

strangling or suffocating, or attempting to strangle or suffocate; (2) 

provide a 5-year offense for assaulting a spouse, intimate partner, 

or dating partner resulting in substantial bodily injury, adding the 

type of victim; (3) provide a 1-year offense for assaulting a person 

by striking, beating, or wounding, increased from six months. 

This section also amends the Indian Major Crimes Act (18 U.S.C. 

§ 1153(a)) to: (1) include any felony assault under 18 U.S.C. § 113, 

as amended by Section 203 and 205 of this proposed legislation, to 

the list of major crimes over which the Federal Government has exclusive jurisdiction, if committed by an Indian in Indian country. 

These changes will enable Federal prosecutors to more effectively 

combat three types of assault frequently committed against women 

in Indian country and to appropriately address the gradual escaVerDate Mar 15 2010 02:19 Jan 10, 2013 Jkt 029010 PO 00000 Frm 00021 Fmt 6659 Sfmt 6602 E:\HR\OC\SR265.XXX SR265

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lation of seriousness often associated with domestic violence offenses. 

Sec. 204. Effective dates; pilot project 

This section provides that the concurrent Tribal jurisdiction over 

crimes of domestic violence shall take effect two years after the enactment of this proposed legislation. This section establishes a new 

pilot project for tribes wishing to exercise concurrent jurisdiction 

over crimes of domestic violence on an accelerated basis. Tribes 

wishing to participate would apply to the Attorney General, who 

would coordinate with Department of Interior, and consult with affected Indian tribes. 

Sec. 205. Assaults; repeat offenders 

This section amends the Federal assault statute (18 U.S.C. 

§ 113(a)) to provide a term of imprisonment of up to 20 years, a 

fine, or both, for assault with intent to commit a felony of aggravated sexual abuse; and it removes the self-defense of ‘‘just cause 

or excuse’’ from the crime of assault with a deadly weapon with intent to commit bodily harm. 

This section also amends 18 U.S.C. § 2265A(b)(1)(B) to recognize 

within the Federal system, Tribal convictions for domestic violence 

or stalking offenses for purposes of repeat offender sentencing. 

Sec. 206. Violations of Tribal civil protection orders 

This section amends the Indian Major Crimes Act (18 U.S.C. 

§ 1153) to: (1) provide a punishable Federal offense for a violation 

of a Tribal civil protection order, if the order meets the procedural 

due process requirements contained in Section 2265 of Title 18 in 

order to be afforded full faith and credit under that section; (2) provide a maximum 1-year sentence, a fine of up to $1,000, or both, 

for first violations; (3) provide a maximum 3-year sentence, a fine 

of up to $5,000, or both, for subsequent violations; and (4) require 

that the Tribal order include a statement that violation of the order 

may result in criminal prosecution and penalty under Federal law. 

Sec. 207. High priority performance goal pilot program reporting 

This section amends the Indian Law Enforcement Reform Act (25 

U.S.C. § 2802(c)) to require a report to Congress within 90 days of 

enactment, and each fiscal year thereafter, providing details on implementation of the high priority performance goal pilot program 

carried out by the Secretary of the Interior to reduce violent crime 

in Indian communities. 

Title III—Indian Law and Order Commission 

Sec. 301. Indian Law and Order Commission 

This section extends the Indian Law and Order Commission reporting deadline from two years to three years. 

Title IV—Safety Enhancement Study and Demonstration Projects 

Sec. 401. Safety enhancement study and demonstration projects 

This section amends the Indian Civil Rights Act of 1968 to (1) 

authorize a discretionary four-year pilot project whereby the SecVerDate Mar 15 2010 02:19 Jan 10, 2013 Jkt 029010 PO 00000 Frm 00022 Fmt 6659 Sfmt 6602 E:\HR\OC\SR265.XXX SR265

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retary of the Interior shall promulgate regulations for misdemeanor 

crimes with penalties (of no more than a $1000 fine, one year imprisonment, or both) that apply to Indian country, and select up to 

five tribes for each of fiscal years 2012 to 2018 for participation; 

(2) require publication of requirements and selection criteria for the 

project within 180 days of enactment for the Secretary, after consulting with tribes; (3) cross-deputize Tribal officers to issue citations into the applicable Federal district court—the Central Violations Bureau. Enforcement of the regulations would be concurrent 

with any State or local law enforcement efforts; and (4) require a 

report to Congress within five years, assessing and evaluating the 

effectiveness of the Project. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

In an open business meeting on December 8, 2011, the Committee on Indian Affairs, by voice vote, adopted S. 1763 with an 

amendment in the nature of a substitute and ordered the bill reported to the Senate, with the recommendation that the Senate do 

pass S. 1763 as reported. 

COST AND BUDGETARY CONSIDERATIONS

The following cost estimate, as provided by the Congressional 

Budget Office, dated May 10, 2012, was prepared for S. 1763: 

MAY 10, 2012. 

Hon. DANIEL K. AKAKA, 

Chairman, Committee on Indian Affairs, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1763, the Stand Against Violence and Empower Native Women Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Martin von Gnechten. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

S. 1763—Stand Against Violence and Empower Native Women Act 

Summary: S. 1763 would amend various laws and programs related to violence against Native American women. The legislation 

would expand grants to tribal governments and tribal coalitions for 

programs to strengthen criminal justice and law enforcement capabilities related to violence against women. Additionally, S. 1763 

would expand penalties for certain violent crimes. 

Based on information from the Department of Justice and the 

Department of the Interior, CBO estimates that implementing S. 

1763 would cost $192 million over the 2012–2017 period, subject to 

appropriation of the necessary funds. 

Enacting S. 1763 also would affect direct spending and revenues 

because those prosecuted and convicted under the bill could be subject to criminal fines; therefore, pay-as-you-go procedures apply. 

Criminal fines are recorded as revenues, deposited in the Crime 

Victims Fund, and later spent. CBO expects that any additional 

revenues and direct spending would not be significant because of 

the small number of cases likely affected. 


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S. 1763 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

and would impose no costs on state, local, or tribal governments. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 1763 is shown in the following table. The costs 

of this legislation fall within budget function 450 (community and 

regional development). 

By fiscal year, in millions of dollars— 

2012 2013 2014 2015 2016 2017 2012– 

2017 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Estimated Authorization Level ..................................... 39 40 39 40 40 41 239 

Estimated Outlays ....................................................... 6 28 39 39 40 40 192 

Basis of estimate: For this estimate, CBO assumes that S. 1763 

will be enacted in 2012, that the necessary funds will be provided 

for each year, and that spending will follow historical patterns for 

similar programs. 

Spending subject to appropriation 

S. 1763 would authorize $1 million for each of fiscal years 2012 

and 2013 for a baseline study of violence against Native American 

women to be completed within three years of enactment. The legislation also would authorize whatever sums are necessary for grants 

to tribal governments or their designees to improve law enforcement, the court system, and detention facilities. In 2012, about $38 

million was appropriated for similar grants to tribal governments. 

Assuming that spending for grants under S. 1763 would be in 

line with existing grant programs, that they would supplement 

rather than supplant those grants, and that appropriations would 

be provided as necessary each year, CBO estimates that implementing the bill would cost $192 million over the 2012–2017 period. 

Direct spending and revenues 

S. 1763 would establish new federal crimes, broaden the coverage 

of existing crimes related to violence against women in tribal areas, 

and expand existing penalties. Enacting the bill could increase collections of criminal fines (which are recorded in the budget as revenues) for violations of the bill’s provisions. CBO estimates that any 

additional collections would not be significant because of the relatively small number of additional cases likely to be affected. 

Criminal fines are recorded as revenues, deposited in the Crime 

Victims Fund, and subsequently spent without further appropriation. 

Intergovernmental and private-sector impact: S. 1763 contains no 

intergovernmental or private-sector mandates as defined in UMRA 

and would impose no costs on state, local, or tribal governments. 

Previous CBO estimate: On March 29, 2012, CBO transmitted a 

cost estimate for S. 1925, the Violence Against Women Reauthorization Act of 2011, as ordered reported by the Senate Committee 

on the Judiciary on February 7, 2012. Title IX of S. 1925 contains 

provisions very similar to those in S. 1763, and the cost estimates 

reflect the difference in the authorized levels of funding. 


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Estimate prepared by: Federal Costs: Martin von Gnechten; Impact on State, Local, and Tribal Governments: Melissa Merrell; Impact on the Private Sector: Marin Randall. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires each report accompanying a bill to evaluate the regulatory and paperwork impact that would be incurred in carrying 

out the bill. The Committee believes that S. 1763 will have a minimal impact on regulatory or paperwork requirements. 

EXECUTIVE COMMUNICATIONS

The Committee received the following letters from the Department of Justice in support of S. 1763: 


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Office of the Assistant Attorney General 

The Honorable Joseph R. Biden, Jr. 

President . 

United States Senate 

Washington, D.C. 20510 

Dear Mr. President: 

U.S. Department of Justice 

Office of Legislative Affairs 

Washington. D.C. 20530 

July 21, 2011 

In anticipation of this year's reauthorization of the Violence Against Women Act 

(\lAW A), the Department of Justice has been engaging in comprehensive discussions, including 

formal consultations with Indian tribes, about how best to protect the safety of Native women. 

As you know, the Department has placed a high priority on combating violence against women 

in tribal communities. We now believe that this goal could be significantly advanced by new 

Federailegislation. 

Violence against Native women has reached epidemic rates. One regional survey 

conducted by Univeraity of Oklahoma researchers showed that nearly three out of five Native 

American women had been assaulted by their spouses or intimate partners. According to a 

nationwide survey funded by the National Institute of Justice (NU), one third of all American 

Indian women will be raped during their lifetimes. And an NU-funded analysis of death 

certificates found that, on some reservations, Native women are murdered at a rate more than ten 

times the national average. Tribal leaders, police officers, and prosecutors tell us of an all-toofamiliar pattern of escalating violence that goes unaddressed, with beating after beating, each 

more severe than the last, ultimately leading to death or severe physical injury. 

Something must be done to address this cycle of violence. For a host of reasons, the 

current legal structure for prosecuting domestic violence in Indian country is not well-suited to 

combating this pattern of escalating violence. Federal resources, which are often the only ones 

that can investigate and prosecute these crimes, are often far away and stretched thin. Federal 

law does not provide the tools needed to address the types of domestic or dating violence that 

elsewhere in the United States might lead to convictions and sentences ranging from 

approximately six months to five years - precisely the sorts of prosecutions that respond to the 

early instances of escalating violence against spouses or intimate partners. 

Tribal governments - police, prosecutors, and courts - should be essential parts of the 

response to these crimes. But under current law, they lack the authority to address many of these 

crimes. Until recently, no matter how violent the offense, tribal courts could only sentence 

Indian offenders to one year in prison. Under the Tribal Law and Order Act (TLOA), landmark 

legislation that Congress enacted last year, tribal courts can now sentence Indian offenders for up 

to three years per offense, provided defendants are given proper procedural protections, 

including legal counsel. But tribal courts have no authority at all to prosecute a non-Indian, even 

ifhe lives on the reservation and is married to a tribal member. Tribal police officers who 

respond to a domestic-violence call, only to discover that the accused is non-Indian and therefore 
27 


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The Honorable Joseph R. Biden, Jr. 

Page Two 

outside the tribe's criminal jurisdiction, often mistakenly believe they cannot even make an 

arrest. Not surprisingly, abusers who are not arrested are more likely to repeat, and escalate, 

their attacks. Research shows that law enforcement's failure to arrest and prosecute abusers both 

emboldens attackers and deters victims from reporting future incidents. 

In short, the jurisdictional framework has left many serious acts of domestic violence and 

dating violence unprosecuted and unpunished. 

The Department of Justice is therefore asking Congress to consider proposals to address 

the epidemic of domestic violence against Native women. Draft legislative language and an 

explanatory document are attached to this letter. The legislation we propose would: 

• Recognize certain tribes' concurrent criminal jurisdiction to investigate, prosecute, 

convict, and sentence both Indians and non-Indians who assault Indian spouses, intimate 

partners, or dating partners, or who violate protection orders, in Indian country. 

• Clarify that tribal courts have full civil jurisdiction to issue and enforce certain protection 

orders against both Indians and non-Indians. 

• Amend the Federal Criminal Code to provide a ten-year offense for assaulting a spouse, 

intimate partner, or dating partner by strangling or suffocating; a five-year offense for 

assaulting a spouse, intimate partner, or dating partner resulting in substantial bodily 

injury; and a one-year offense for assaulting a person by striking, beating, or wounding. 

We believe that these changes in Federal law will significantly improve the safety of 

women in tribal communities and allow Federal and tribal law-enforcement agencies to hold 

more perpetrators of domestic violence accountable for their crimes. We look forward to 

working with you on these critically important issues. 

Thank you for the opportunity to present these proposals. The Office of Management 

and Budget has advised us that there is no objection to submission of this legislative proposal 

from the standpoint of the Administration's program. 

Sincerely, 

/M~ 

Ronald Weich 

Assistant Attorney General 

Attachments 

IDENTICAL LEITER SENT TO THE HONORABLE JOHN A. BOEHNER, SPEAKER 

OF THE U.S. HOUSE OF REPRESENTATIVES 
28 


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Office of the Assistant Attorney General 

The Honorable John A. Boehner 

Speaker of the House 

United States House of Representatives 

Washington, D.C. 20515 

Dear Mr. Speaker; 

U.S. Department of Justice 

Office of Legislative Affairs 

Washingtan, D.C. ]0530 

July 21, 2011 

In anticipation of this year's reauthorization of the Violence Against Women Act 

(II A W A), the Department of Justice has been engaging in comprehensive discussions, including 

formal consultations with Indian tribes, about how best to protect the safety of Native women. 

As you know, the Department has placed a high priority on combating violence against women 

in tribal communities. We now believe that this goal could be significantly advanced by new 

Federal legislation. 

Violence against Native women has reached epidemic rates. One regional survey 

conducted by University of Oklahoma researchers showed that nearly three out of five Native 

American women had been assaulted by their spouses or intimate partners. According to a 

nationwide survey funded by the National Institute of Justice (NIJ), one third of all American 

Indian women will be raped during their lifetimes. And an NIJ-funded analysis of death 

certificates found that, on some reservations, Native women are murdered at a rate more than ten 

times the national average. Tribal leaders, police officers, and prosecutors tell us of an all-toofamiliar pattern of escalating violence that goes unaddressed, with beating after beating, each 

more severe than the last, ultimately leading to death or severe physical injury. 

Something must be done to address this cycle of violence. For a host of reasons, the 

current legal structure for prosecuting domestic violence in Indian country is not well-suited to 

combating this pattern of escalating violence. Federal resources, which are often the only ones 

that can investigate and prosecute these crimes, are often far away and stretched thin. Federal 

law does not provide the tools needed to address the types of domestic or dating violence that 

elsewhere in the United States might lead to convictions and sentences ranging from 

approximately six months to five years - precisely the sorts of prosecutions that respond to the 

early instances of escalating violence against spouses or intimate partners. 

Tribal governments - police, prosecutors, and courts should be essential parts of the 

response to these crimes. But under current law, they lack the authority to address many of these 

crimes. Until recently, no matter how violent the offense, tribal courts could only sentence 

Indian offenders to one year in prison. Under the Tribal Law and Order Act (TLOA), landmark 

legislation that Congress enacted last year, tribal courts can now sentence Indian offenders for up 

to three years per offense, provided defendants are given proper procedural protections, 

including legal counsel. But tribal courts have no authority at all to prosecute a non-Indian, even 

ifhe lives on the reservation and is married to a tribal member. Tribal police officers who 

respond to a domestic-violence call, only to discover that the accused is non-Indian and therefore 
29 


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The Honorable John A. Boehner 

Page Two 

outside the tribe's criminal jurisdiction, often mistakenly believe they cannot even make an 

arrest. Not surprisingly, abusers who are not arrested are more likely to repeat, and escalate, 

their attacks. Research shows that law enforcement's failure to arrest and prosecute abusers both 

emboldens attackers and deters victims from reporting future incidents. 

In short, the jurisdictional framework has left many serious acts of domestic violence and 

dating violence unprosecuted and unpunished. 

The Department of Justice is therefore asking Congress to consider proposals to address 

the epidemic of domestic violence against Native women. Draft legislative language and an 

explanatory document are attached to this letter. The legislation we propose would: 

• Recognize certain tribes' concurrent criminal jurisdiction to investigate, prosecute, 

convict, and sentence both Indians and non-Indians who assault Indian spouses, intimate 

partners, or dating partners, or who violate protection orders, in Indian country. 

• Clarify that tribal courts have full civil jurisdiction to issue and enforce certain protection 

orders against both Indians and non-Indians. 

• Amend the Federal Criminal Code to provide a ten-year offense for assaulting a spouse, 

intimate partner, or dating partner by strangling or suffocating; a five-year offense for 

assaulting a spouse, intimate partner, or dating partner resulting in substantial bodily 

injury; and a one-year offense for assaulting a person by striking, beating, or wounding. 

We believe that these changes in Federal law will significantly improve the safety of 

women in tribal communities and allow Federal and tribal law-enforcement agencies to hold 

more perpetrators of domestic violence accountable for their crimes. We look forward to 

working with you on these critically important issues. 

Thank you for the opportunity to present these proposals. The Office of Management 

and Budget has advised us that there is no objection to submission of this legislative proposal 

from the standpoint of the Administration's program. 

Sincerely, 

IV\~~ 

Ronald Weich 

Assistant Attorney General 

Attachments 

IDENTICAL LEITER SENT TO THE HONORABLE JOSEPH BIDEN, PRESIDENT OF 

THE UNITED STATES SENATE 
30 


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Title: To decrease the incidence of violent crimes against Indian women, to strengthen 

2 the capacity of Indian tribes to exercise their sovereign authority to respond to violent 

3 crimes committed against Indian women, and to ensure that perpetrators of violent crimes 

4 committed against Indian women are held accountable for their criminal behavior, and 

5 for other purposes. 

6 

7 

8 Be it enacted by the Senate and House of Representatives of the United States of 

9 America in Congress assembled, 

10 SECTION 1. TABLE OF CONTENTS. 

11 The table of contents for this new title of the Violence Against Women Act of 20 II is 

12 as follows: 

13 Sec. 1. Table of contents. 

14 Sec. 2. Tribal jurisdiction over crimes of domestic violence. 

15 Sec. 3. Tribal protection orders. 

16 Sec. 4. Amendments to the Federal assault statute. 

17 Sec. 5. Effective dates; pilot project. 

18 Sec. 6. Severability. 

19 Sec. 7. Technical amendments. 

20 SEC. 2. TRIBAL JURISDICTION OVER CRIMES OF 

21 DOMESTIC VIOLENCE. 

22 Subchapter I of chapter 15 of title 25, United States Code (25 U.S.C. 1301 et seq.), is 

23 amended by adding at the end the following new section: 

24 "SEC. 1304. TRIBAL JURISDICTION OVER CRIMES OF 

25 DOMESTIC VIOLENCE. 

26 "(a) DEFINITIONs.-In this section, the term27 "(1) 'dating violence' means violence committed by a person who is or has been in 

28 a social relationship of a romantic or intimate nature with the victim, as determined 

29 by the length of the relationship, the type of relationship, and the frequency of 

30 interaction between the persons involved in the relationship; 

31 "(2) 'domestic violence' means violence committed by a current or former spouse 

32 of the victim, by a person with whom the victim shares a child in common, by a 

33 person who is cohabitating with or has cohabitated with the victim as a spouse, or by 

34 a person similarly situated to a spouse of the victim under the domestic- or family35 violence laws of an Indian tribe that has jurisdiction where the violence occurs; 
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1 "(3) 'Indian Civil Rights Act' means sections 1301 to 1303, as amended; 

2 "(4) 'Indian country' has the meaning given that term in section 1151 of title 18, 

3 United States Code; 

4 "(5) 'participating tribe' means an Indian tribe that elects to exercise special 

5 domestic-violence criminal jurisdiction over the Indian country of such tribe; 

6 "(6) 'protection order' means any injunction, restraining order, or other order 

7 issued by a civil or criminal court for the purpose of preventing violent or threatening 

8 acts or harassment against, sexual violence against, contact or communication with, 

9 or physical proximity to, another person, including any temporary or final order 

10 issued by a civil or criminal court whether obtained by filing an independent action 

11 or as a pendente lite order in another proceeding so long as any civil or criminal 

12 order was issued in response to a complaint, petition, or motion filed by or on behalf 

13 of a person seeking protection; 

14 "(7) 'special domestic-violence criminal jurisdiction' means the criminal 

15 jurisdiction that a participating tribe can exercise pursuant to this section but could 

16 not otherwise exercise; and 

17 "(8) 'spouse or intimate partner' has the meaning given that term in section 

18 2266(7) of title 18, United States Code. 

19 "(b) NATURE OF THE CRIMINAL JURlSDICTION.-

20 "(I) Notwithstanding any other provision of law, in addition to all powers of self21 government recognized and affirmed by the Indian Civil Rights Act, the powers of 

22 self-government of participating tribes include the inherent power of those tribes, 

23 hereby recognized and affirmed, to exercise special domestic-violence criminal 

24 jurisdiction over all persons, subject to the limitations set forth in this subchapter. 

2S "(2) A participating tribe shall exercise special domestic-violence criminal 

26 jurisdiction concurrently, not exclusively. 

27 "(3) Nothing in this section creates or eliminates any Federal or State criminal 

28 jurisdiction or affects the authority of the United States, or any State government that 

29 has been delegated authority by the United States, to investigate and prosecute any 

30 criminal violation in Indian country. 

31 "(c) CRIMINAL CONDUCT.-A participating tribe may exercise special domestic32 violence criminal jurisdiction over a defendant only for criminal conduct that falls into 

33 one or both of the following categories: 

34 "(1) DOMESTIC VIOLENCE AND DATING VIOLENCE.-Any act of domestic violence 

35 or dating violence that is occurring or has occurred in the Indian country of the 

36 participating tribe. 

37 "(2) VIOLA nONS OF PROTECTION ORDERS.-Any act that is occurring or has 

38 occurred in the Indian country of the participating tribe and that violates or violated 

39 the relevant portion of a protection order that was issued against the defendant, is 

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enforceable by the participating tribe, and is consistent with section 2265(b) of title 

2 18, United States Code. In this paragraph, the tenn 'relevant portion of a protection 

3 order' means the portion of such order that prohibits or provides protection against 

4 violent or threatening acts or harassment against, sexual violence against, contact or 

5 communication with, or physical proximity to, another person. 

6 "(d) DISMISSAL OF CERTAIN CASES.-

7 H( I) In a criminal proceeding in which a participating tribe exercises special 

8 domestic-violence criminal jurisdiction, if the defendant files a pretrial motion to 

9 dismiss on the ground that the crime did not involve any Indian, the case shall be 

10 dismissed if the prosecuting tribe fails to prove that the defendant or an alleged 

11 victim, or both, is an Indian. 

12 "(2) In a criminal proceeding in which a participating tribe exercises special 

13 domestic-violence criminal jurisdiction, if the defendant files a pretrial motion to 

14 dismiss on the ground that the defendant and the alleged victim lack sufficient ties to 

15 the tribe, the case shall be dismissed if the prosecuting tribe fails to prove that the 

16 defendant or an alleged victim, or both, resides in the Indian country of the 

17 prosecuting tribe, is employed in the Indian country of the prosecuting tribe, or is a 

18 spouse or intimate partner of a member of the prosecuting tribe. 

19 "(3) A knowing and voluntary failure to file a pretrial motion under paragraph (1) 

20 or paragraph (2) shall be deemed a waiver. 

21 "(4) In any criminal proceeding in which a participating tribe exercises special 

22 domestic-violence criminal jurisdiction based on a criminal violation of a protection 

23 order, the 'victim' shall be deemed to be the person or persons specifically protected 

24 by the provision of the order that the defendant allegedly violated. 

25 "(e) RIGHTS OF DEFENDANTs.-In a criminal proceeding in which a participating tribe 

26 exercises special domestic-violence criminal jurisdiction, the tribe shall provide to the 

27 defendant28 "(1) all rights protected by the Indian Civil Rights Act; 

29 "(2) if a tenn of imprisonment of any length is imposed, all rights described in 

30 paragraphs (1) through (5) of section 1302(c); and 

31 "(3) all other rights whose protection would be required by the United States 

32 Constitution in order to allow the participating tribe to exercise criminal jurisdiction 

33 over the defendant. 

34 "(f) PETITIONS TO STAY DETENTION.-Any person who has flied a petition for a writ of 

35 habeas corpus in a court of the United States under section 1303 may petition that court 

36 to stay further execution of his tribal detention. The court shall grant the stay if it finds 

37 that there is a substantial likelihood that the habeas corpus petition will be granted and, 

38 after giving the alleged victim or victims of the petitioner an opportunity to be heard, also 

39 finds by clear and convincing evidence that, under conditions imposed by the court, the 

40 petitioner is not likely to flee or pose a danger to any person or to the community if 

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1 released. 

2 "(g) GRANTS TO TRIBAL GOVERNMENTS.-The Attorney General may award grants to 

3 the governments of Indian tribes (or to authorized designees of those governments) to--

4 "(I) strengthen tribal criminal-justice systems, including law enforcement 

5 (including the capacity to enter information into and obtain information from 

6 national crime information databases), prosecution, trial and appellate courts, 

7 probation, detention and correctional facilities, alternative rehabilitation centers, 

8 culturally appropriate services and assistance for victims and their families, criminal 

9 codes, and rules of criminal procedure, appellate procedure, and evidence, to assist 

10 tribes in exercising special domestic-violence criminal jurisdiction; 

11 "(2) provide indigent criminal defendants with the effective assistance of licensed 

12 defense counsel, at no cost to those defendants, in criminal proceedings in which a 

13 tribe is prosecuting a crime of domestic or dating violence or a criminal violation of a 

14 protection order; 

15 "(3) ensure that, in criminal proceedings in which a participating tribe exercises 

16 special domestic-violence criminal jurisdiction, jurors are summoned, selected, and 

17 instructed in a manner consistent with all legal requirements; and 

18 "(4) accord victims of domestic violence, dating violence, and protection-order 

19 violations a set of crime victims' rights similar to those described in section 377I(a) 

20 oftitIe IS, United States Code, consistent with tribal law and custom. 

21 "(h) AUTHORIZATION OF APPROPRIATlONS.-There are authorized to be appropriated 

22 such sums as may be necessary for the grants described in subsection (g) and to provide 

23 training, technical assistance, data collection, and evaluation to improve the criminal24 justice systems of participating tribes. 

25 "(i) NONSUPPLANTATlON.-Amounts made available under this subchapter shall be 

26 used to supplement and not supplant other Federal, State, tribal, and local funds expended 

27 to further the purposes of this subchapter.". 

28 SEC. 3. TRIBAL PROTECTION ORDERS. 

29 Section 2265 of title IS, United States Code, is amended by striking subsection (e) and 

30 inserting the following: 

31 "(e) For purposes of this section, a court of an Indian tribe shall have full civil 

32 jurisdiction to issue and enforce protection orders involving any persons, including 

33 authority to enforce uny orders through civil contempt proceedings, exclusion of violators 

34 from Indian lands, and other appropriate mechanisms, in matters arising anywhere in the 

3S Indian country of the Indian tribe (as defined in section IISl of title IS) or otherwise 

36 within the authority of the Indian tribe.". 

37 SEC. 4. AMENDMENTS TO THE FEDERAL ASSAULT 

38 STATUTE. 

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1 (a) ASSAULTS BY STRIKING, BEATING, OR WOUNDING.-Section I 13 (a)(4) of title 18, 

2 United States Code, is amended by striking "six months" and inserting "I year". 

3 (b) ASSAULTS RESULTING IN SUBSTANTIAL BODlL Y INJURY.-Section I 13 (a)(7) of title 

4 18, United States Code, is amended by striking "substantial bodily injury to an 

5 individual who has not attained the age of 16 years" and inserting "substantial 

6 bodily injury to a spouse or intimate partner, a dating partner, or an individual who 

7 has not attained the age of 16 years". 

8 (c) ASSAULTS BY STRANGLING OR SUFFOCATlNG.-Section I 13 (a) of title 18, United 

9 States Code, is amended by adding at the end the following new paragraph: 

10 "(8) Assault upon a spouse or intimate partner or dating partner by strangling, 

11 suffocating, or attempting to strangle or suffocate, by a fine under this title or 

12 imprisonment for not more than ten years, or both.". 

13 (d) DEFINITIONS.-Section 113(b) of title 18, United States Code, is amended14 (I) by striking "As used in this subsection" and inserting "As used in this section"; 

15 (2) in paragraph (1), by striking "and"; 

16 (3) in paragraph (2), by striking the period and inserting a semicolon; 

17 (4) by adding at the end the following new paragraphs: 

18 "(3) the term 'dating partner' has the meaning given that term in section 2266(10); 

19 "(4) the term 'spouse or intimate partner' has the meaning given that term in 

20 section 2266(7); 

21 "(5) the term 'strangling' means intentionally, knowingly, or recklessly impeding 

22 the normal breathing or circulation of the blood of a person by applying pressure to 

23 the throat or neck, regardless of whether such conduct results in any visible injury 

24 and regardless of whether there is any intent to kill or protractedly injure the victim; 

25 and 

26 "(6) the term 'suffocating' means intentionally, knowingly, or recklessly impeding 

27 the normal breathing of a person by covering the mouth of the person, the nose of the 

28 person, or both, regardless of whether such conduct results in any visible inj ury and 

29 regardless of whether there is any intent to kill or protractedly injure the victim.". 

30 (e) INDIAN MAJOR CRIMES.-Section 1I 53(a) of title 18, United States Code, is 

31 amended by striking "assault with intent to commit murder, assault with a 

32 dangerous weapon, assault resulting in serious bodily injury (as defined in section 

33 \365 of this title)" and inserting "a felony assault under section 113". 

34 SEC. 5. EFFECTIVE DATES; PILOTPROJECT. 

35 (a) GENERAL EFFECTIVE DArE.-Except as provided in subsection (b), this new title 

36 shall take effect on the date of enactment of this Act. 

37 (b) EFFECTIVE DATE FOR SPECIAL DOMESTIC-VIOLENCE CRIMINAL JURISDICTION.-

38 (I) IN GENERAL.-Except as provided in paragraph (2), subsections (b), (c), (d), and 

39 (e) of section 1304 of title 25, United States Code, as added by section 2 of this 

40 new title, shall take effect on the date 2 years after the date of enactment of this 

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1 Act. 

2 (2) PILOT PROJECT.-

3 (A) IN GENERAL.-At any time within 2 years after the date of enactment of 

4 this Act, an Indian tribe may ask the Attorney General to designate the tribe as a 

5 participating tribe on an accelerated basis. The Attorney General (or his 

6 designee) may grant such a request after coordinating with the Secretary of the 

7 Interior (or his designee), consulting with Indian tribes, and concluding that the 

8 criminal-justice system of the requesting tribe has adequate safeguards in place 

9 to protect defendants' rights, consistent with section 1304( e) of title 25, United 

10 States Code, as added by section 2 of this new title. 

11 (B) EFFECTIVE DATES FOR PILOT-PROJECT TRlBEs.-An Indian tribe whose 

12 request is granted may commence exercising special domestic-violence criminal 

13 jurisdiction pursuant to subsections (b), (c), (d), and (e) of section 1304 of title 

14 25, United States Code, as added by section 2 of this new title, on a date 

15 established by the Attorney General, after consultation with such tribe, but in no 

16 event later than the date 2 years after the date of enactment of this Act. The 

17 tribe may continue exercising such jurisdiction thereafter. 

18 SEC. 6. SEVERABILITY. 

19 If any provision of this Act, an amendment made by this Act, or the application of such 

20 a provision or amendment to any individual, entity, or circumstance, is determined by a 

21 court of competent jurisdiction to be invalid, the remaining provisions of this Act, the 

22 remaining amendments made by this Act, and the application ofthose provisions and 

23 amendments to individuals, entities, or circumstances other than the affected individual, 

24 entity, or circumstance shall not be affected. 

25 SEC. 7. TECHNICAL AMENDMENTS. 

26 (a) ASSAULTS.-Section 113(a) of tide 18, United States Code, is amended27 (I) in paragraph (1), by striking "Assault with intent to commit murder, by 

28 imprisonment for not more than twenty years" and inserting "Assault with intent to 

29 commit murder or a felony under chapter 109 A, by a fine under this title or 

30 imprisonment for not more than twenty years, or both"; 

31 (2) in paragraph (3), by striking "and without just cause or excuse" and by striking 

32 the comma immediately following those words; and 

33 (3) in paragraph (7), by striking "fine" and inserting "a fine". 

34 (b) REPEAT OffENDERS.-8ection 2265A(b)( 1 )(B) of title 18, United States Code, is 

35 amended by inserting "or tribal" after "State". 

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Questions and Answers on 

Proposed Federal Legislation to Help Tribal Communities 

Combat Violence Against Native Women 

The Department of Justice is proposing new Federal legislation to 

better protect women in tribal communities from violent crime. The 

following Questions and Answers explain the proposed legislation's 

overall purposes and its substantive provisions, section by section. 

OVERVIEW 

What are the key gaps in current Jaw that the proposed legislation would fill? 

The Department of Justice sees three major legal gaps that Congress could address, 

involving tribal criminal jurisdiction, tribal civil jurisdiction, and Federal criminal 

offenses. 

First, the patchwork of Federal, state, and tribal criminal jurisdiction in Indian country 

has made it difficult for law enforcement and prosecutors to adequately address domestic 

violence particularly misdemeanor domestic violence, such as simple assaults and 

criminal violations of protection orders. The Department therefore is proposing Federal 

legislation recognizing certain tribes' power to exercise concurrent criminal jurisdiction 

over domestic-violence cases, regardless of whether the defendant is Indian or nonIndian. Fundamentally, such legislation would build on the Tribal Law and Order Act of 

2010 (TLOA). The philosophy behind TLOA was that tribal nations with sufficient 

resources and authority will be best able to address violence in their own communities; it 

offered additional authority to tribal courts and prosecutors if certain procedural 

protections were established. 

Second, at least one Federal court has opined that tribes lack civil jurisdiction to issue and 

enforce protection orders against non-Indians who reside on tribal lands. That ruling 

undermines the ability of tribal courts to protect victims. Accordingly, the Department is 

proposing Federal legislation to confirm the inlent of Congress in enacting tbe Violence 

Against Women Act of2000 by clarifying that tribal courts have full civil jurisdiction to 

issue and enforce certain protection orders involving any persons, Indian or non-Indian. 

Third, Federal prosecutors lack the necessary tools to combat domestic violence in Indian 

country. So the Department is proposing Federal legislation to provide a one-year 

offense for assaulting a person by striking, beating, or wounding; a five-year offense for 
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assaulting a spouse, intimate partner, or dating partner, resulting in substantial bodily 

injury; and a ten-year offense for assaulting a spouse, intimate partner, or dating partner 

by strangling, suffocating, or attempting to strangle or suffocate. 

How signifieant a problem is domestic violence in tribal communities? 

Violence against Native women has reached epidemic rates. One regional survey 

conducted by University of Oklahoma researchers showed that nearly three out of five 

Native American women had been assaulted by their spouses or intimate partners. 

According to a nationwide survey funded by the National Institute of Justice (NIJ), one 

third of all American Indian women will be raped during their lifetimes. And an NIJfunded analysis of death certificates found that, on some reservations, Native women are 

murdered at a rate more than ten times the national average. Tribal leaders, police 

officers, and prosecutors tell us of an all-too-familiar pattern of escalating violence that 

goes unaddressed, with beating after beating, each more severe than the last, ultimately 

leading to death or severe physical injury. 

Something must be done to address this cycle of violence. For a host of reasons, the 

current legal structure for prosecuting domestic violence in Indian country is not wellsuited to combating this pattern of escalating violence. Federal resources, which are 

often the only ones that can investigate and prosecute these crimes, are often far away 

and stretched thin. Federal law does not provide the tools needed to address the types of 

domestic or dating violence that elsewhere in the United States might lead to convictions 

and sentences ranging from approximately six months to five years - precisely the sorts 

of prosecutions that respond to the early instances of escalating violence against spouses 

or intimate partners. 

Tribal governments - police, prosecutors, and courts - should be essential parts of the 

response to these crimes. But under current law, they lack the authority to address many 

of these crimes. Until recently, no matter how violent the offense, tribal courts could 

only sentence Indian offenders to one year in prison. Under the Tribal Law and Order 

Act (TLOA), landmark legislation that Congress enacted last year, tribal courts can now 

sentence Indian offenders for up to three years per offense, provided defendants are given 

proper procedural protections, including legal counsel. But tribal courts have no 

authority at all to prosecute a non-Indian, even ifhe lives on the reservation and is 

married to a tribal member. Tribal police officers who respond to a domestic-violence 

call, only to discover that the accused is non-Indian and therefore outside the tribe's 

criminal jurisdiction, often mistakenly believe they cannot even make an arrest. Not 

surprisingly, abusers who are not arrested are more likely to repeat, and escalate, their 

attacks. Research shows that law enforcement's failure to arrest and prosecute abusers 

both emboldens attackers and deters victims from reporting future incidents. 

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In short, the jurisdictional framework has left many serious acts of domestic violence and 

dating violence unprosecuted and unpunished. 

Has the Department of Justice consulted with Indian tribes about this proposal? 

Yes. Consistent with Executive Order 13175 and President Obama's November 5, 2009 

Memorandum on tribal consultation, the Department of Justice has been consulting with 

tribal leaders about public safety generally and about violence against women 

specifically. We have discussed these issues at many sessions, including the Attorney 

General's listening conference in 2009, the tribal consultations that we held on Tribal 

Law and Order Act implementation in 2010, and our annual tribal consultations under the 

Violence Against Women Act in Prior Lake in 2006, in Albuquerque in 2007, in Palm 

Springs in 2008, in St. Paul in 2009, and in Spokane last October. 

Moreover, the Department held tribal consultations focused on this legislative proposal in 

Milwaukee on June 14,2011, and by conference calls with tribal leaders on June 16 and 

17,2011. The Department also received extensive written comments on the proposal 

from tribal leaders and domestic-violence experts throughout the country. 

All of these consultations - indeed, all of the Justice Department's work in this area, 

especially in the wake of the TLOA's enactment last year - has also involved close 

coordination across Federal agencies, including the Departments of the Interior and of 

Health and Human Services. 

What were the main points that tribal leaders made during these consultations? 

The common thread that ran through nearly all the tribal input focused on the need for 

greater tribal jurisdiction over domestic-violence cases - very much along the lines of 

what the Department of Justice is proposing here. 

Specifically, tribal leaders expressed concern that the crime-fighting tools currently 

available to their prosecutors differ vastly, depending on the race of the domesticviolence perpetrator. If an Indian woman is battered by her husband or boyfriend, then 

the tribe typically can prosecute him if he is Indian. But absent an express Act of 

Congress, the tribe cannot prosecute a violently abusive husband or boyfriend ifhe is 

non-Indian. And recently, one Federal court went so far as to hold that, in some 

circumstances, a tribal court could not even enter a civil protection order against a nonIndian husband. 

Faced with these criminal and civil jurisdictional limitations, tribal leaders repeatedly 

have told the Department that a tribe's ability to protect a woman from violent crime 

should not depend on her husband's or boyfriend's race, and that it is immoral for an 

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Indian woman to be left vulnerable to violence and abuse simply because the man she 

married, the man she lives with, the man who fathered her children is not an Indian. 

TRIBAL JURISDICTION OVER CRIMES OF DOMESTIC VIOLENCE (SECTION 2) 

What would section 2 of the proposed legislation - on "Tribal Jurisdiction over Crimes of 

Domestic Violence" - accomplish? 

Section 2 would recognize certain tribes' concurrent criminal jurisdiction to investigate, 

prosecute, convict, and sentence persons who assault Indian spouses, intimate partners, or 

dating partners, or who violate protection orders, in Indian country. 

Could any tribe be a "participating tribe"? 

Any federally recognized Indian tribe could elect to become a "participating tribe," so 

long as (1) it exercises powers of self-government over an area of Indian country and (2) 

it adequately protects the rights of defendants. Those two requirements follow longstanding principles of Federal Indian law. 

Why does the proposed legislation state that exercising this criminal jurisdiction is an 

"inherent power" of the tribe? 

Under this proposed legislation, when a tribe prosecutes an accused perpetrator of 

domestic violence, it would be exercising an inherent tribal power, not a delegated 

Federal power. One practical consequence would be to render the Double Jeopardy 

Clause inapplicable to sequential prosecutions of the same act of domestic violence by 

the tribe and the Federal Government Oust as the Clause is inapplicable to sequential 

prosecutions by a State and the Federal Government). For example, if a tribe 

unsuccessfully prosecuted a domestic-violence case under the authority recognized in this 

legislation, the Federal Government would not then be barred from proceeding with its 

own prosecution of the same defendant for a discrete Federal offense. That is the normal 

rule when prosecutions are brought by two separate sovereigns. 

What does the proposed legislation mean in stating that tribes will exercise this jurisdiction 

"concurrently, not exclusively"? 

Neither the United States nor any State would lose any criminal jurisdiction under this 

proposed legislation. The Federal and State governments could still prosecute the same 

crimes that they currently can prosecute. But in addition, tribes could prosecute some 

crimes that they cannot currently prosecute. In many parts ofIndian country, this 

statutorily recognized tribal criminal jurisdiction would be concurrent with Federal 

jurisdiction under the General Crimes Act (also known as the Indian Country Crimes 

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Act). In some parts of Indian country, however, it would be concurrent with State 

jurisdiction under Public Law 280 or an analogous statute. 

Without this proposed legislation, do tribes have any criminal jurisdiction over domesticviolence cases? 

Yes. Even without this new legislation, generally tribes already have criminal 

jurisdiction over domestic-violence and dating-violence crimes committed by Indians 

(but not by non-Indians) in Indian country. Because existing jurisdiction is expressly 

excluded from the proposed legislation's definition of "special domestic-violence 

criminal jurisdiction," existing tribal jurisdiction over crimes committed by Indians 

would be unaffected by this legislation. 

What types of crimes would this proposed legislation cover? 

The proposed legislation is narrowly tailored to cover three types of crimes: 

• Domestic violence. 

• Dating violence. 

• Violations of protection orders. 

Could a tribe use this new law to prosecute crimes that occur off the reservation and 

outside of Indian country? 

No. 

Why would protection orders need to be "enforceable" and "consistent with section 2265(b) 

of title 18, United States Code," to form the basis of a tribal criminal offense? 

That language ensures that the person against whom the protection order was issued was 

given reasonable notice and an opportunity to be heard, which are essential for protecting 

the right to due process. If the accused had no chance of learning that a protection order 

was being issued against him, a violation of the order, by itself, would not be a criminal 

offense. 

For a crime involving domestic violence, dating violence, or the violation of an enforceable 

protection order, would the specific elements of the criminal offense be determined by 

Federal law or by tribal law? 

Tribal law. 

Wbat is tbe purpose of the subsection on "Dismissal of Certain Cases"? 

This subsection clarifies that tribes would not have criminal jurisdiction over cases in 

which neither the accused nor the victim is Indian. Since at least the late nineteenth 

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century, criminal cases involving only non-Indians have been understood to rest within 

the exclusive jurisdiction of the State where the offense occurred. This legislation would 

not alter that long-standing rule. Likewise, this subsection states that tribes would not 

have criminal jurisdiction over cases in which neither the accused nor the victim has 

sufficient ties to the tribe. 

What rights of criminal defendants are protected by the Indian Civil Rights Act and 

therefore would be protected under this proposed legislation? 

Since Congress enacted it in 1968, the Indian Civil Rights Act has protected individual 

liberties and constrained the powers of tribal governments in much the same ways that 

the Federal Constitution, especially the Bill of Rights and the Fourteenth Amendment, 

limits the powers of the Federal and State governments. The Indian Civil Rights Act 

protects tbe following rights, among others: 

• The right against unreasonable search and seizures. 

• The right not to be twice put in jeopardy for the same offense. 

• The right not to be compelled to testifY against oneself in a criminal case. 

• The right to a speedy and public trial. 

• The right to be informed of the nature and cause of the accusation in a criminal case. 

• The right to be confronted with adverse witnesses. 

• The right to compulsory process for obtaining witnesses in one's favor. 

• The right to have the assistance of defense counsel, at one's own expense. 

• The rights against excessive bail, excessive fines, and cruel and unusual punishments. 

• The right to the equal protection of the tribe's laws. 

• The right not to be deprived of liberty or property without due process of law. 

• The right to a trial by jury of not less than six persons when accused of an offense 

punishable by imprisonment. 

• The right to petition a Federal court for habeas corpus, to challenge the legality of 

one's detention by the tribe. 

What are the "rights described in paragraphs (1) through (5) ofsection 1302(c)," which 

also would be protected under this proposed legislation? 

In 2010, Congress passed the Tribal Law and Order Act, which (among other things) 

amended the Indian Civil Rights Act to allow trihal courts to impose longer sentences. In 

return, the 20 I 0 amendments require tribal courts imposing longer sentences to undertake 

additional measures to safeguard defendants' rights. The Department's proposed 

legislation would apply these additional safeguards to domestic-violence cases with 

shorter sentences, as well: 

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• The right to effective assistance of counsel at least equal to that guaranteed by the 

United States Constitution. 

• The right of an indigent defendant to the assistance of a licensed defense attorney at 

the tribe's expense. 

• The right to be tried by a judge with sufficient legal training who is licensed to 

practice law. 

• The right to access the tribe's criminal laws, rules of evidence, and rules of criminal 

procedure. 

• The right to an audio or other recording of the trial proceeding and a record of other 

criminal proceedings. 

Under the proposed law, would a tribe exercising this jurisdiction be required to provide 

counsel for indigent defendants in all cases where imprisonment is imposed? 

The proposed legislation would require participating tribes to provide all indigent nonIndian domestic-violence and dating-violence defendants with licensed defense counsel . 

in any criminal proceeding where imprisonment is imposed, regardless of the length of 

the sentence. It is also quite possible that the Indian Civil Rights Act or tribal law would 

be interpreted to require that those same tribes then must provide appointed counsel to 

similarly situated Indian defendants. 

Although certain indigent defendants would not have to pay for an attorney, the proposed 

legislation would authorize Federal grants to help tribes cover these costs. 

What is the purpose of the constitutional catch-all provision? 

In addition to the rights described in the Indian Civil Rights Act and the Tribal Law and 

Order Act, paragraph (3) of proposed section l304(e) would require a participating tribe 

to provide the defendant with all rights whose protection would be required by the United 

States Constitution in order to allow that tribe to exercise criminal jurisdiction over the 

defendant. Given that paragraphs (1) and (2) of this proposed section would already 

protect most of the rights that a criminal defendant in State (or Federal) court has under 

the Federal Constitution, the set of additional rights, if any, that would be captured by this 

paragraph wilt ultimately be fleshed out by tribal courts and by Federal courts reviewing 

habeas corpus petitions. One indirect effect of this constitutional catch-all provision 

might be to encourage participating tribes (and tribes that aspire to participate) to provide 

all the same protections that would be provided in Federal and State courts. 

What avenues for appellate or habeas review would be available to defendants? 

Defendants typically would have a direct right to appeal to a tribal (or intertribal) 

appellate court. And the Indian Civil Rights Act gives any defendant detained by order 

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of an Indian tribe the right to seek release by petitioning a Federal district court for a writ 

of habeas corpus. There would, however, be no direct right of appeal to a Federal court. 

What is the purpose oftbe subsection on "Petitions to Stay Detention"? 

This subsection, which would apply to any habeas corpus proceeding under the Indian 

Civil Rights Act, would clarify the current legal standards for determining whether a 

person can be released from tribal detention prior to final resolution of his habeas 

petition. 

Why does the bill authorize Federal grants to tribal governments? 

Expanding tribal criminal jurisdiction to cover more perpetrators of domestic violence 

would tax the already scarce resources of most tribes that might wish to participate. 

Therefore, the proposed legislation would authorize a new grant program to support 

tribes that are or wish to become participating tribes. 

TRIBAL PROTECTION ORDERS (SECTION 3) 

What would section 3 of the proposed legislation on "Tribal Protection Orders" -

accomplish? 

Section 3 would confirm the intent of Congress in enacting the Violence Against Women 

Act of 2000 by clarifying that every tribe has full civil jurisdiction to issue and enforce 

certain protection orders involving any persons, Indian or non-Indian. This section would 

effectively reverse Martinez v. Martinez, 2008 WL 5262793, No. C08-55-3 FDB (W.D. 

Wash. Dec 16,2008), which held that an Indian tribe lacked authority to enter a 

protection order for a nonmember Indian against a non-Indian residing on non-Indian fee 

land within the reservation. 

AMENDMENTS TO THE FEDERAL ASSAULT STATUTE (SECTION 4) 

What would section 4 of the proposed legislation - on "Amendments to the Federal 

Assault Statute" - accomplish? 

Section 4 would amend the Federal Criminal Code to provide a ten-year offense for 

assaulting a spouse, intimate partner, or dating partner by strangling or suffocating; a 

five-year offense for assaulting a spouse, intimate partner, or dating partner resulting in 

substantial bodily injury; and a one-year offense for assaulting a person by striking, 

beating, or wounding. (The amendments would not directly affect tribal prosecutions.) 

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Why are amendments to the I<'ederal assault statute needed? 

The proposed legislation would enable Federal prosecutors more effectively to combat 

three types of assault frequently committed against women in Indian country assault 

by strangling or suffocating; assault resulting in substantial bodily injury; and assault by 

striking, beating, or wounding. 

Existing Federal law provides a six-month misdemeanor assault or assault-and-battery 

offense that can be charged against a non-Indian (but not against an Indian) who commits 

an act of domestic violence against an Indian victim. (A similar crime committed by an 

Indian would fall within the exclusive jurisdiction of the tribe.) A Federal prosecutor 

typically can charge afelony offense (against either an Indian or a non-Indian defendant) 

only if the victim's injuries rise to the level of "serious bodily injury," which is 

significantly more severe than "substantial bodily injury." 

So, in cases involving any of these three types of assaults - (1) assault by strangling or 

suffocating; (2) assault resulting in substantial (but not serious) bodily injury; and (3) 

assault by striking, beating, or wounding - Federal prosecutors today often find that 

they carmot seek sentences in excess of six months. And where both the defendant and 

the victim are Indian, Federal courts may lack jurisdiction altogether. 

How would the proposed amendments to the Federal assault statute compare to State 

criminal laws? 

In general, Federal criminal law has not developed over time in the same marmer as State 

criminal laws, which have recognized the need for escalating responses to specific acts of 

domestic and dating violence. Amending the Federal Criminal Code to make it more 

consistent with State laws in this area where the Federal Government (and not the State) 

has jurisdiction would simply ensure that perpetrators would be subject to similar 

potential punishments regardless of where they commit their crimes. The maximum 

sentences proposed here are in line with the types of sentences that would be available in 

State courts across the Nation if the crime occurred other than in Indian country. 

What would the language on "Assaults by Striking, Beating, or Wounding" accomplish? 

This language would increase the maximum sentence from six months to one year for an 

assault by striking, beating, or wounding, committed by a non-Indian against an Indian in 

Indian country. (Similar assaults by Indians, committed in Indian country, would remain 

within the tribe's exclusive jurisdiction.) Although the Federal offense would remain a 

misdemeanor, increasing the maximum sentence to one year would reflect the fact that 

this is a serious offense that often forms the first or second rung on a ladder to more 

severe acts of domestic violence. 

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What would the language on "Assaults Resulting in Substantial Bodily Injury" 

accomplish? 

These assaults sometimes fonn the next several rungs on the ladder of escalating 

domestic violence, but they too are inadequately covered today by the Federal Criminal 

Code. Under current law, an assault resulting in "serious" bodily injury is subject to a 

maximum ten-year sentence; and an assault resulting in "substantial" bodily injury 

(which is less severe) is subject to a maximum five-year sentence if the victim is less than 

16 years old. But if an adult Indian victim suffers a substantial bodily injury at the hands 

of her spouse or intimate partner or dating partner, typically the sentence will be capped 

at six months if the perpetrator is non-Indian and there will be no Federal jurisdiction at 

all if the perpetrator is Indian. The proposed legislation would fill this gap by amending 

the Federal Criminal Code to provide a five-year offense for assault resulting in 

substantial bodily injury to a spouse, intimate partner, or dating partner. 

What would the language on "Assaults by Strangling or Suffocating" accomplish? 

It would amend the Federal Criminal Code to provide a ten-year offense for assaulting a 

spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to 

strangle or suffocate. Strangling and suffocating - conduct that is not uncommon in 

intimate-partner cases - carry a high risk of death. But the severity of these offenses is 

frequently overlooked because there may be no visible external injuries on the victim. As 

with assaults resulting in substantial bodily injury, Federal prosecutors need the tools to 

deal with these crimes as felonies, with sentences potentially far exceeding the six -month 

maximum that often applies today. 

Why would the proposed legislation amend the Major Crimes Act? 

Federal prosecutors use the Major Crimes Act to prosecute Indians for major crimes 

committed against Indian and non-Indian victims. This amendment would simplify the 

Major Crimes Act to cover all felony assaults under section 113 of the Federal Criminal 

Code, as amended. That would include the two new felony offenses discussed above 

assaults resulting in substantial bodily injury to a spouse, intimate partner, or dating 

partner; and assaults upon a spouse, intimate partner, or dating partner by strangling, 

suffocating, or attempting to strangle or suffocate. It also would include a felony assault 

that currently is omitted from the Major Crimes Act: assault with intent to commit a 

fdullY utlll:r than murder (which is punishable by a maximum ten-year sentence). 

Without this amendment to the Major Crimes Act, Federal prosecutors could not charge 

any of these three felonies when the perpetrator is an Indian. Assault by striking, beating, 

or wounding, which would have a maximum sentence of twelve months under the 

proposed legislation, would remain a misdemeanor and would not be covered by the 

Major Crimes Act. 

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EFFECTIVE DATES ANI) THE PILOT PROJECT (SECTION 5) 

What would section 5 of the proposed legislation - on "Effective Dates" and a "Pilot 

Project" - accomplish? 

Section 5 would set the effective dates for each part of the proposed legislation and 

establish a pilot project for tribes wishing to exercise jurisdiction over crimes of domestic 

violence on an accelerated basis. 

When would the reforms in this proposed legislation take effect? 

Most of the proposed legislation would take effect immediately upon enactment. But 

four subsections that form the core of the provision on tribal criminal jurisdiction would 

generally take effect two years after enactment, to give tribes time to amend their codes 

and procedures as necessary to exercise this expanded jurisdiction. However, if a tribe 

believes it is ready to proceed in less than two years, it can request an earlier start date 

from the Attorney General, as part of a pilot project. 

How would the pilot project work? 

The tribes wishing to participate in the pilot project would apply to the Attorney General, 

who then would coordinate with the Department of the Interior and consult with the 

tribes. If the Attorney General concluded that a particular tribe's criminal-justice system 

had adequate safeguards in place to protect defendants' rights, then he could grant an 

earlier starting date for the tribe's exercise of this statutorily recognized criminal 

jurisdiction. 

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CHANGES IN EXISTING LAW

In the opinion of the committee, it is necessary to dispense with 

the requirements of paragraph 12 of rule XXVI of the Standing 

Rules of the Senate to expedite the business of the Senate. 

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