Federal Register / Vol. 78, No. 230 / Friday, November 29, 2013 / Notices 71645 

2. With respect to Complainants’ 

alleged licensed-based domestic 

industry, is there a continuing revenue 

stream from the existing licenses and is 

the licensing program ongoing? If the 

licensing program is ongoing, which 

complainant(s) is/are investing in the 

program and what is the nature (not 

amounts) of those investments? 

3. Please describe the claimed 

expenditures for patent prosecution and 

litigation and explain how they relate to 

Complainants’ domestic industry in 

licensing the ’336 patent. Please provide 

an estimate of the proportion of the total 

claimed investments in licensing the 

‘336 patent accounted for by the 

claimed patent prosecution and 

litigation expenditures. 

4. Discuss, in light of the statutory 

language, legislative history, the 

Commission ’s prior decisions, and 

relevant court decisions, including 

InterDigital Communications, LLC v. 

ITC, 690 F.3d 1318 (Fed. Cir. 2012), 707 

F.3d 1295 (Fed. Cir. 2013) and Microsoft 

Corp. v. ITC, Nos. 2012–1445 & -1535, 

2013 WL 5479876 (Fed. Cir. Oct. 3, 

2013), whether establishing a domestic 

industry based on licensing under 19 

U.S.C. 1337(a)(3)(C) requires proof of 

‘‘articles protected by the patent’’ (i.e., 

a technical prong). Assuming that is so, 

please identify and describe the 

evidence in the record that establishes 

articles protected by the asserted 

patents. 

The parties have been invited to brief 

only the discrete issues described above, 

with reference to the applicable law and 

evidentiary record. The parties are not 

to brief other issues on review, which 

are adequately presented in the parties’ 

existing filings. 

In connection with the final 

disposition of this investigation, the 

Commission may (1) issue an order that 

could result in the exclusion of the 

subject articles from entry into the 

United States, and/or (2) issue a cease 

and desist order that could result in the 

respondent being required to cease and 

desist from engaging in unfair acts in 

the importation and sale of such 

articles. If the Commission contemplates 

some form of remedy, it must consider 

the effects of that remedy upon the 

public interest. The factors the 

Commission will consider include the 

effect that an exclusion order and/or a 

cease and desist order would have on 

(1) the public health and welfare, (2) 

competitive conditions in the U.S. 

economy, (3) U.S. production of articles 

that are like or directly competitive with 

those that are subject to investigation, 

and (4) U.S. consumers. 

If the Commission orders some form 

of remedy, the U.S. Trade 

Representative, as delegated by the 

President, has 60 days to approve or 

disapprove the Commission’s action. 

See Presidential Memorandum of July 

21, 2005, 70 FR 43251 (July 26, 2005). 

During this period, the subject articles 

would be entitled to enter the United 

States under bond, in an amount 

determined by the Commission and 

prescribed by the Secretary of the 

Treasury. 

Written Submissions: The parties to 

the investigation are requested to file 

written submissions on the issues 

identified in this notice. Parties to the 

investigation, interested government 

agencies, the Office of Unfair Import 

Investigations, and any other interested 

parties are encouraged to file written 

submissions on the issues of remedy, 

the public interest, and bonding. Such 

submissions should address the 

recommended determination by the ALJ 

on remedy and bonding and the ALJ’s 

recommendation regarding the public 

interest. Complainant and OUII are also 

requested to submit proposed remedial 

orders for the Commission’s 

consideration. Complainant is also 

requested to state the date that the 

patent expires and the HTSUS numbers 

under which the accused products are 

imported. The written submissions and 

proposed remedial orders must be filed 

no later than close of business on 

December 23, 2013. Initial submissions 

are limited to 50 pages, not including 

any attachments or exhibits related to 

discussion of the public interest. Reply 

submissions must be filed no later than 

the close of business on December 30, 

2013. Reply submissions are limited to 

25 pages, not including any attachments 

or exhibits related to discussion of the 

public interest. No further submissions 

on these issues will be permitted unless 

otherwise ordered by the Commission. 

Persons filing written submissions 

must file the original document 

electronically on or before the deadlines 

stated above and submit 8 true paper 

copies to the Office of the Secretary by 

noon the next day pursuant to section 

210.4(f) of the Commission’s Rules of 

Practice and Procedure (19 CFR 

210.4(f)). Submissions should refer to 

the investigation number (‘‘Inv. No. 

337–TA–853’’) in a prominent place on 

the cover page and/or the first page. (See 

Handbook for Electronic Filing 

Procedures, http://www.usitc.gov/

secretary/fed_reg_notices/rules/

handbook_on_electronic_filing.pdf). 

Persons with questions regarding filing 

should contact the Secretary (202–205– 

2000). 

Any person desiring to submit a 

document to the Commission in 

confidence must request confidential 

treatment. All such requests should be 

directed to the Secretary to the 

Commission and must include a full 

statement of the reasons why the 

Commission should grant such 

treatment. See 19 CFR 201.6. Documents 

for which confidential treatment by the 

Commission is properly sought will be 

treated accordingly. A redacted nonconfidential version of the document 

must also be filed simultaneously with 

any confidential filing. All nonconfidential written submissions will be 

available for public inspection at the 

Office of the Secretary and on EDIS. 

The target date for completion of this 

investigation is extended to January 29, 

2014. 

The authority for the Commission’s 

determination is contained in section 

337 of the Tariff Act of 1930, as 

amended (19 U.S.C. 1337), and in 

sections 210.42–46 and 210.50 of the 

Commission’s Rules of Practice and 

Procedure (19 CFR 210.42–46 and 

210.50). 

By order of the Commission. 

Issued: November 25, 2013. 

Lisa R. Barton, 

Acting Secretary to the Commission. 

[FR Doc. 2013–28717 Filed 11–27–13; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Office of the Attorney General 

[Docket No. OAG 144; AG Order No. 3408– 

2013] 

Pilot Project for Tribal Jurisdiction 

over Crimes of Domestic Violence 

AGENCY: Office of the Attorney General, 

Justice. 

ACTION: Final notice; solicitation of 

applications for pilot project. 

SUMMARY: This final notice establishes 

procedures for Indian tribes to request 

designation as participating tribes under 

section 204 of the Indian Civil Rights 

Act of 1968, as amended, on an 

accelerated basis, under the voluntary 

pilot project described in the Violence 

Against Women Reauthorization Act; 

establishes procedures for the Attorney 

General to act on such requests; and 

solicits such requests from Indian tribes. 

DATES: This final notice is effective 

November 29, 2013. 

ADDRESSES: Mr. Tracy Toulou, Director, 

Office of Tribal Justice, Department of 

Justice, 950 Pennsylvania Avenue NW, 

Room 2310, Washington, DC 20530, 

email OTJ@usdoj.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Tracy Toulou, Director, Office of Tribal 


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

Remarks on Signing the Violence Against Women 

Reauthorization Act of 2013, 2013 Daily Comp. 

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

2See Letter from Ronald Weich, Assistant 

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

President, United States Senate, at 1–2 & 

attachments (July 21, 2011). 

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

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

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

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

at 1 (2013) (same). 

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

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

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

124 Stat. 2258, 2262. 

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

Census Bureau, 2010 Census Briefs, The American 

Indian and Alaska Native Population: 2010, at 13– 

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

American Indians and 3.5 million non-Indians 

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

Bureau, Census 2010 Special Tabulation, Census 

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

Coupled Households: 2010, Table 1, Hispanic 

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

(2012) (analyzing married-couple households 

nationwide, regardless of whether they reside 

within or outside Indian country, and showing that 

more than 54% of Indian wives have non-Indian 

husbands). 

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

notice sometimes uses male pronouns or examples 

to describe perpetrators of domestic violence or 

dating violence and female pronouns or examples 

to describe their victims. 

Justice, Department of Justice, at (202) 

514–8812 (not a toll-free number) or 

OTJ@usdoj.gov. 

SUPPLEMENTARY INFORMATION: 

Section 908(b)(2) of the Violence 

Against Women Reauthorization Act of 

2013 (VAWA 2013) establishes a 

voluntary pilot project for Indian tribes 

that wish to commence exercising 

jurisdiction on an accelerated basis over 

certain crimes of domestic violence and 

dating violence and certain criminal 

violations of protection orders in Indian 

country. This final notice establishes 

procedures for tribes to request 

designation as a participating tribe 

under the Pilot Project. A tribe may 

make such a request at any time prior 

to March 7, 2015, by submitting a 

completed Application Questionnaire, 

along with any attachments, by email 

(or, if necessary, by mail) to the Office 

of Tribal Justice, Department of Justice. 

The Department of Justice will give 

the same priority consideration to any 

tribal request that it receives within 30 

days after publication of this final notice 

in the Federal Register, regardless of the 

precise date within that initial 30-day 

period on which a tribe makes its 

request. Soon after that 30-day period 

has expired, the Department of Justice 

will begin reviewing each requesting 

tribe’s Application Questionnaire, 

including attached excerpts of tribal 

laws, rules, and policies. After 

coordinating with the Department of the 

Interior and consulting with affected 

tribes, the Department of Justice will 

determine whether the requesting tribe’s 

criminal justice system has adequate 

safeguards in place to protect 

defendants’ rights under the Indian 

Civil Rights Act of 1968, as amended by 

VAWA 2013. If the Department 

concludes that adequate safeguards are 

in place, it may grant the tribe’s request 

after consulting with the tribe to 

establish a date on which the tribe may 

commence exercising special domestic 

violence criminal jurisdiction. The 

Department of Justice will apply the 

same procedures to tribal requests made 

at any point later in the Pilot Project, up 

to March 7, 2015. 

Discussion 

1. Statutory Background 

Overview 

On March 7, 2013, President Obama 

signed into law the Violence Against 

Women Reauthorization Act of 2013 

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

entitled ‘‘Safety for Indian Women,’’ 

contains section 904 (Tribal Jurisdiction 

over Crimes of Domestic Violence) and 

section 908 (Effective Dates; Pilot 

Project), both of which were initially 

drafted and proposed to Congress by the 

Department of Justice in 2011.2 The 

purposes of these sections are to 

decrease domestic violence in Indian 

country, to strengthen the capacity of 

Indian tribes to exercise their inherent 

sovereign power to administer justice 

and control crime, and to ensure that 

perpetrators of domestic violence are 

held accountable for their criminal 

behavior.3

Section 904 recognizes the inherent 

power of ‘‘participating tribes’’ to 

exercise ‘‘special domestic violence 

criminal jurisdiction’’ (SDVCJ) over 

certain defendants, regardless of their 

Indian or non-Indian status, who 

commit acts of domestic violence or 

dating violence or violate certain 

protection orders in Indian country. 

Section 904 also specifies the rights that 

a participating tribe must provide to 

defendants in SDVCJ cases. 

Section 908(b)(1) provides that tribes 

generally cannot exercise SDVCJ until at 

least two years after the date of VAWA 

2013’s enactment—that is, on or after 

March 7, 2015. However, section 

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

that authorizes the Attorney General, in 

the exercise of his discretion, to grant a 

tribe’s request to be designated as a 

‘‘participating tribe’’ on an accelerated 

basis and to commence exercising 

SDVCJ on a date (prior to March 7, 

2015) set by the Attorney General, after 

coordinating with the Secretary of the 

Interior, consulting with affected tribes, 

and concluding that the tribe’s criminal 

justice system has adequate safeguards 

in place to protect defendants’ rights 

under the Indian Civil Rights Act of 

1968, as amended by VAWA 2013. This 

final notice establishes procedures for 

tribes to make such requests and for the 

Department of Justice to grant or deny 

them and also solicits applications from 

tribes that wish to commence exercising 

SDVCJ on an accelerated basis. 

Domestic Violence in Indian Country 

Congress found that Native American 

women suffer domestic violence and 

dating violence at epidemic rates, and 

often at the hands of non-Indian 

abusers.4 And Census data show that a 

large fraction of Indian-country 

residents are non-Indian and that tens of 

thousands of Native American married 

women have non-Indian husbands.5

Domestic violence and dating 

violence committed in Indian country 

by Indian abusers against their Indian 

spouses, intimate partners, and dating 

partners generally fall within the 

criminal jurisdiction of the tribe. But 

prior to the effective date of the tribal 

provisions in VAWA 2013, if the victim 

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

jurisdiction as a matter of federal law 

and the crime can be prosecuted only by 

the United States or, in some 

circumstances, by the state in which the 

tribe’s Indian country is located. Even 

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

in the presence of their Indian children, 

in their home on the Indian reservation, 

cannot be prosecuted by the tribe.6 This 

jurisdictional scheme has proved 

ineffective in ensuring public safety. 

Too often, crimes go unprosecuted and 

unpunished, and the violence escalates. 

The History of the Jurisdictional Gap 

This jurisdictional gap has not always 

existed. In the early days of the 

Republic, tribes routinely, and with the 

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

on tribal lands. For example, the very 

first Indian treaty ratified by the United 

States Senate under the Federal 

Constitution—the 1789 Treaty with the 

Wyandot, Delaware, Ottawa, Chippewa, 

Potawatomi, and Sac Nations— 

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

persons, citizens or subjects of the 

United States, or any other person not 

being an Indian, shall presume to settle 

upon the lands confirmed to the said 


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7Treaty with the Wyandot, Delaware, Ottawa, 

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

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

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

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

9 435 U.S. 191 (1978). 

10See id. at 195–212. 

11See id. at 195 & n.6, 206, 210–12. 

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

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

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

that the Constitution allows Congress to override 

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

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

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

15 25 U.S.C. 1304(a)(4). The term ‘‘Indian 

country’’ means ‘‘(a) all land within the limits of 

any Indian reservation under the jurisdiction of the 

United States Government, notwithstanding the 

issuance of any patent, and, including rights-of-way 

running through the reservation, (b) all dependent 

Indian communities within the borders of the 

United States whether within the original or 

subsequently acquired territory thereof, and 

whether within or without the limits of a state, and 

(c) all Indian allotments, the Indian titles to which 

have not been extinguished, including rights-of-way 

running through the same.’’ 18 U.S.C. 1151; see also 

25 U.S.C. 1304(a)(3). 

16 Due to a Senate amendment, VAWA 2013’s 

section 910(a) provides that the amendments made 

by section 904 (codified at 25 U.S.C. 1304) apply 

in Alaska only to the Indian country of the 

Metlakatla Indian Community, Annette Island 

Reserve. In addition, the Supreme Court held in 

Alaska v. Native Village of Venetie Tribal 

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

lands conveyed by the Alaska Native Claims 

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

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

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

Therefore, section 1304 will have no effect on the 

criminal jurisdiction of most Indian tribes in 

Alaska. 

17Public Law 102–137, sec. 1, 105 Stat. 646 

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

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

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

legislation) (same). ICRA defines the ‘‘powers of 

self-government’’ to include ‘‘the inherent power of 

Indian tribes, hereby recognized and affirmed, to 

exercise criminal jurisdiction over all Indians.’’ 25 

U.S.C. 1301(2). 

18 541 U.S. 193 (2004). 

[Indian tribal] nations, he and they shall 

be out of the protection of the United 

States; and the said nations may punish 

him or them in such manner as they see 

fit.’’ 7 Similar language appeared in the 

last Indian treaty ratified before the 

Constitutional Convention—the 1786 

Treaty with the Shawnee Nation.8

As recently as the 1970s, dozens of 

Indian tribes exercised criminal 

jurisdiction over non-Indians. But in 

1978, in Oliphant v. Suquamish Indian 

Tribe,9 the Supreme Court created 

federal common law preempting the 

exercise of the tribes’ inherent sovereign 

power to prosecute non-Indians.10 The 

Oliphant Court noted, however, that 

Congress has the constitutional 

authority to override the Court’s holding 

and restore tribes’ power to exercise 

criminal jurisdiction over nonIndians.11 Justice Rehnquist, writing for 

the majority in Oliphant, expressly 

stated that the increasing sophistication 

of tribal court systems, the protection of 

defendants’ procedural rights under the 

Indian Civil Rights Act of 1968,12 and 

the prevalence of non-Indian crime in 

Indian country were all ‘‘considerations 

for Congress to weigh’’ in deciding 

whether to authorize tribes to try nonIndians.13

Congress’s New Law Recognizing 

Special Domestic Violence Criminal 

Jurisdiction 

In enacting VAWA 2013, Congress 

expressly recognized tribes’ inherent 

power to resume exercising criminal 

jurisdiction over non-Indians. That 

recognition extends, however, only to 

crimes of domestic violence or dating 

violence and criminal violations of 

certain protection orders that occur in 

Indian country, in cases in which 

certain conditions are met. Specifically, 

the cases must have Indian victims; the 

defendants must reside in the Indian 

country of, or have other specified 

significant ties to, the prosecuting tribe; 

and the tribe’s criminal justice system 

must have adequate safeguards in place 

to fully protect defendants’ rights. 

Recognizing that many tribes may need 

time to implement those safeguards, 

Congress set an effective date two years 

after the enactment of VAWA 2013 (i.e., 

March 7, 2015), while giving tribes that 

are ready sooner the opportunity to 

participate in a Pilot Project at the 

Attorney General’s discretion. 

Section 904 of VAWA 2013 adds a 

new section 204 to the Indian Civil 

Rights Act of 1968 (ICRA).14 Prior to 

VAWA 2013’s enactment, ICRA was 

codified at 25 U.S.C. 1301–1303. 

Section 204 of ICRA is codified at 25 

U.S.C. 1304, so this final notice cites 

that United States Code section when 

referring to the new law. 

The Pilot Project established by 

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

specifically on the power of a 

‘‘participating tribe’’ to exercise SDVCJ 

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

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

simply an Indian tribe (as defined in 25 

U.S.C. 1301(1)) that elects to exercise 

SDVCJ over the tribe’s Indian country 

(as defined in 18 U.S.C. 1151).15

Becoming a ‘‘participating tribe’’ and 

exercising SDVCJ—whether as part of 

the Pilot Project between now and 

March 2015, or at any time after March 

2015—are entirely voluntary. There is 

no requirement that any particular tribe 

or any specific number of tribes choose 

to become participating tribes and 

exercise SDVCJ. VAWA 2013 does not 

impose an unfunded mandate upon any 

tribe or diminish the criminal 

jurisdiction of the United States or of 

any state. Tribes that do not choose to 

participate in the Pilot Project may 

nonetheless become participating tribes 

later, so long as they satisfy the statutory 

requirements. 

‘‘Special domestic violence criminal 

jurisdiction’’ is defined in section 

1304(a)(6) to mean ‘‘the criminal 

jurisdiction that a participating tribe 

may exercise under this section but 

could not otherwise exercise.’’ Nearly 

all tribes that possess governmental 

powers over an area of Indian country 

can already exercise criminal 

jurisdiction over any Indian in that area 

(whether the defendant is a member of 

the prosecuting tribe or a ‘‘nonmember 

Indian’’). For these tribes, therefore, 

SDVCJ effectively is confined to 

criminal jurisdiction over non-Indians. 

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

person who is not an Indian as defined 

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

be subject to federal criminal 

jurisdiction under the Major Crimes Act, 

18 U.S.C. 1153.16

The Nature of Special Domestic 

Violence Criminal Jurisdiction 

Subsection (b) of section 1304 

describes the nature of SDVCJ. 

Paragraph (1) of that subsection states 

that a participating tribe’s governmental 

powers include ‘‘the inherent power of 

that tribe, which is hereby recognized 

and affirmed, to exercise [SDVCJ] over 

all persons.’’ Congress patterned that 

language after the 1991 federal statute 

that expressly recognized and affirmed 

tribes’ inherent power to exercise 

criminal jurisdiction over all Indians, 

implicitly including nonmember 

Indians.17 The Supreme Court upheld 

the 1991 statute as a constitutional 

exercise of Congress’s authority in 

United States v. Lara.18

Paragraphs (2) and (3) of subsection 

1304(b) clarify that a participating tribe 

may exercise SDVCJ only concurrently, 

as the new law does not alter federal (or 

state) criminal jurisdiction. Importantly, 

the prohibition against double jeopardy 

does not prevent a defendant from being 

tried for the same conduct by more than 

one sovereign government. So, for 

example, a defendant who has been 

acquitted or convicted in a federal 

criminal proceeding can be tried for the 

same conduct in a subsequent tribal 

criminal proceeding. As always when a 

case falls under concurrent criminal 

jurisdiction, coordination between 

jurisdictions will help ensure that 

investigative and prosecutorial 

resources are deployed efficiently and 

that the same defendant is not expected 


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19Section 1304(c)(2) provides that a participating 

tribe may exercise SDVCJ over a defendant for ‘‘[a]n 

act that—(A) occurs in the Indian country of the 

participating tribe; and (B) violates the portion of 

a protection order that . . . prohibits or provides 

protection against violent or threatening acts or 

harassment against, sexual violence against, contact 

or communication with, or physical proximity to, 

another person; . . . was issued against the 

defendant; . . . is enforceable by the participating 

tribe; and . . . is consistent with [18 U.S.C. 

2265(b)].’’ 25 U.S.C. 1304(c)(2). Section 1304(a)(5) 

defines a ‘‘protection order’’ to mean ‘‘any 

injunction, restraining order, or other order issued 

by a civil or criminal court for the purpose of 

preventing violent or threatening acts or harassment 

against, sexual violence against, contact or 

communication with, or physical proximity to, 

another person,’’ including ‘‘any temporary or final 

order issued by a civil or criminal court, whether 

obtained by filing an independent action or as a 

pendent[e] lite order in another proceeding, if the 

civil or criminal order was issued in response to a 

complaint, petition, or motion filed by or on behalf 

of a person seeking protection.’’ Id. 1304(a)(5). 

A protection order issued by a state, tribal, or 

territorial court is consistent with 18 U.S.C. 2265(b) 

if ‘‘such court has jurisdiction over the parties and 

matter under the law of such State, Indian tribe, or 

territory; and . . . reasonable notice and 

opportunity to be heard is given to the person 

against whom the order is sought sufficient to 

protect that person’s right to due process. In the 

case of ex parte orders, notice and opportunity to 

be heard must be provided within the time required 

by State, tribal, or territorial law, and in any event 

within a reasonable time after the order is issued, 

sufficient to protect the respondent’s due process 

rights.’’ 18 U.S.C. 2265(b). As amended by VAWA 

2013’s section 905, 18 U.S.C. 2265(e) now provides 

that a tribal court ‘‘shall have full civil jurisdiction 

to issue and enforce protection orders involving any 

person, including the authority to enforce any 

orders through civil contempt proceedings, to 

exclude violators from Indian land, and to use other 

appropriate mechanisms, in matters arising 

anywhere in the Indian country of the Indian tribe 

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

the authority of the Indian tribe.’’ Id. 2265(e). 

20Section 1304(a)(2) defines the term ‘‘domestic 

violence’’ as ‘‘violence committed by a current or 

former spouse or intimate partner of the victim, by 

a person with whom the victim shares a child in 

common, by a person who is cohabitating with or 

has cohabitated with the victim as a spouse or 

intimate partner, or by a person similarly situated 

to a spouse of the victim under the domestic- or 

family-violence laws of an Indian tribe that has 

jurisdiction over the Indian country where the 

violence occurs.’’ 25 U.S.C. 1304(a)(2). Under 

section 1304(a)(7), which in turn incorporates 18 

U.S.C. 2266(7), the term ‘‘spouse or intimate 

partner’’ includes ‘‘a spouse or former spouse of the 

abuser, a person who shares a child in common 

with the abuser, and a person who cohabits or has 

cohabited as a spouse with the abuser; or . . . a 

person who is or has been in a social relationship 

of a romantic or intimate nature with the abuser, as 

determined by the length of the relationship, the 

type of relationship, and the frequency of 

interaction between the persons involved in the 

relationship; and . . . any other person similarly 

situated to a spouse who is protected by the 

domestic or family violence laws of the State or 

tribal jurisdiction in which the injury occurred or 

where the victim resides.’’ 18 U.S.C. 2266(7); see 25 

U.S.C. 1304(a)(7). Section 1304(a)(1) defines the 

term ‘‘dating violence’’ as ‘‘violence committed by 

a person who is or has been in a social relationship 

of a romantic or intimate nature with the victim, as 

determined by the length of the relationship, the 

type of relationship, and the frequency of 

interaction between the persons involved in the 

relationship.’’ 25 U.S.C. 1304(a)(1). 

21 25 U.S.C. 1302(a)(4). 

22 Id. 1302(a)(6). 

23 Id. 1302(a)(8). 

24 Id. 1304(e). ICRA provides that ‘‘[t]he privilege 

of the writ of habeas corpus shall be available to 

any person, in a court of the United States, to test 

the legality of his detention by order of an Indian 

tribe.’’ Id. 1303. A federal court shall grant a stay 

of further detention if the court ‘‘finds that there is 

a substantial likelihood that the habeas corpus 

petition will be granted’’ and, ‘‘after giving each 

to appear at two different trials 

simultaneously. 

Paragraph (4) sets forth two important 

exceptions to participating tribes’ 

exercise of SDVCJ. First, subparagraph 

(A) provides that there is no SDVCJ over 

an alleged offense if neither the 

defendant nor the alleged victim is an 

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

exclusive criminal jurisdiction. SDVCJ 

will be exercised in cases with Indian 

victims and non-Indian defendants. 

Second, subparagraph (B) limits SDVCJ 

to cases in which the defendant has 

significant ties to the participating tribe 

that is seeking to prosecute him. 

Specifically, the defendant must (1) 

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

be employed in the tribe’s Indian 

country; or (3) be a spouse, intimate 

partner, or dating partner either of an 

Indian who resides in the tribe’s Indian 

country or of a member of the tribe. 

Both of these two exceptions, as 

described in subparagraphs (A) and (B), 

are jurisdictional, so the prosecution 

will bear the burden of proving these 

jurisdictional facts. 

The Criminal Conduct Subject to 

Special Domestic Violence Criminal 

Jurisdiction 

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

second of the three key subsections for 

present purposes, describes the criminal 

conduct potentially encompassed by a 

participating tribe’s SDVCJ. The only 

types of criminal conduct that are 

subject to a tribe’s exercise of SDVCJ are 

(1) acts of domestic violence or dating 

violence that occur in the tribe’s Indian 

country, and (2) violations of certain 

protection orders that occur in the 

tribe’s Indian country.19 The terms 

‘‘domestic violence’’ and ‘‘dating 

violence’’ are defined in 25 U.S.C. 

1304(a)(2) and (1), respectively.20

Criminal conduct that occurs outside 

of Indian country is not covered. In 

addition, unless a violation of a 

protection order is involved, crimes of 

child abuse or elder abuse and crimes 

between two strangers (including sexual 

assaults) generally are not covered. 

Subsection (c) limits the categories of 

criminal conduct that are subject to 

SDVCJ. It does not define any criminal 

offense. The criminal offenses and their 

elements are a matter of tribal, not 

federal, law. 

The Rights of Criminal Defendants in 

SDVCJ Cases 

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

third key subsection for present 

purposes, describes the federal statutory 

rights that participating tribes must 

provide to defendants when exercising 

SDVCJ. Although the United States 

Constitution, which constrains the 

federal and state governments, has never 

applied to Indian tribes (which were not 

invited to, and did not attend, the 1787 

Constitutional Convention), that fact 

does not leave the rights of individual 

defendants in tribal courts unprotected. 

Both tribal law and federal statutory law 

provide important protections for 

criminal defendants’ rights. The tribal 

courts’ application of the federal 

statutory rights described in subsection 

1304(d) should be comparable to state 

courts’ application of the corresponding 

federal constitutional rights in similar 

cases. 

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

federal rights. The first set of 

defendants’ rights, in paragraph (1), 

incorporates all rights under ICRA, 25 

U.S.C. 1301–1304, that apply to a 

defendant in a criminal proceeding. 

This list of rights is substantively very 

similar (but not identical) to the set of 

criminal defendants’ rights that are 

protected by the United States 

Constitution’s Bill of Rights and have 

been incorporated into the Fourteenth 

Amendment’s Due Process Clause and 

thus made fully applicable to the states. 

For example, ICRA prohibits tribes from 

compelling any person in any criminal 

case to be a witness against himself 

(akin to the United States Constitution’s 

Fifth Amendment) 21 and from denying 

to any person in a criminal proceeding 

the right to a speedy and public trial 

(akin to the Sixth Amendment).22 ICRA 

also prohibits a tribe from denying to 

any person within its jurisdiction the 

equal protection of its laws or depriving 

any person of liberty or property 

without due process of law.23 Because 

federal law has required all tribes to 

protect these rights since Congress 

enacted ICRA in 1968, this list of rights 

should be familiar to tribal officials. 

Furthermore, as amended by VAWA 

2013, ICRA now requires a tribe that has 

ordered the detention of any person to 

timely notify him of his rights and 

privileges to petition a federal district 

court for a writ of habeas corpus and to 

petition the federal court to stay further 

detention and release him from custody 

pending review of the habeas petition.24


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alleged victim in the matter an opportunity to be 

heard, finds by clear and convincing evidence that 

under conditions imposed by the court, the 

petitioner is not likely to flee or pose a danger to 

any person or the community if released.’’ Id. 

1304(e)(2). 

25Public Law 111–211, tit. II, sec. 234(a)(3), 124 

Stat. 2258, 2280. 

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

requires a participating tribe exercising 

SDVCJ to provide defendants ‘‘all rights 

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

criminal proceeding in which ‘‘a term of 

imprisonment of any length may be 

imposed.’’ Section 1302(c) describes 

five rights, as set forth in amendments 

to ICRA that Congress enacted as part of 

the Tribal Law and Order Act of 2010 

(TLOA): 25 (1) The right to effective 

assistance of counsel at least equal to 

that guaranteed by the United States 

Constitution; (2) the right of an indigent 

defendant to the assistance of a licensed 

defense attorney, at the expense of the 

tribal government; (3) the right to a 

criminal proceeding presided over by a 

judge who is licensed to practice law 

and has sufficient legal training; (4) the 

right to have access, prior to being 

charged, to the tribe’s criminal laws, 

rules of evidence, and rules of criminal 

procedure; and (5) the right to a record 

of the criminal proceeding, including an 

audio or other recording of the trial 

proceeding. 

Under TLOA’s amendments to ICRA, 

codified in section 1302(c), these five 

rights must be provided to a defendant 

in any criminal proceeding in which the 

tribe imposes on the defendant a total 

term of imprisonment of more than one 

year. Therefore, these five rights are 

sometimes known as the ‘‘TLOA felony 

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

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

rights must be provided to a defendant 

in any SDVCJ criminal proceeding in 

which the tribe imposes, or may impose, 

a term of imprisonment of any length. 

So indigent defense counsel, for 

example, is required in any SDVCJ 

misdemeanor case in which a term of 

imprisonment may be imposed. 

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

guarantees the right to a trial by an 

impartial jury that is drawn from 

sources that reflect a fair cross section 

of the community and do not 

systematically exclude any distinctive 

group in the community, including nonIndians. This right to trial by an 

impartial jury is available to any 

defendant in any SDVCJ case, regardless 

of whether the defendant expressly 

requests a jury trial, and regardless of 

whether the offense that the tribe 

accuses him of is punishable by 

imprisonment. To properly safeguard 

this right, tribes exercising SDVCJ will 

have to determine who qualifies as part 

of the relevant ‘‘community’’ and how 

lists of those persons may be obtained 

and regularly updated. The law does not 

require that every jury in every SDVCJ 

case reflect a fair cross section of the 

community. Rather, the jury pool, or 

venire, from which the jury is drawn 

must be representative of the 

community. Some communities in 

Indian country contain sizeable nonIndian populations. Other communities 

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

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

existing tribal laws, some tribes’ jury 

pools already include non-Indians, 

while others do not. 

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

a ‘‘constitutional catch-all’’ provision. 

Although it is likely of little or no direct 

relevance to the Pilot Project, it has the 

potential to cause confusion and 

therefore merits further discussion here. 

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

1304(d) encompass all the rights that the 

113th Congress concluded must be 

protected in order for Congress, acting 

within the constraints that the United 

States Constitution imposes on its 

authority, to recognize and affirm the 

participating tribes’ inherent power to 

exercise SDVCJ over non-Indian 

defendants. The 113th Congress 

recognized, however, that the 

understanding of which rights are 

fundamental to our justice system can 

evolve over time. Therefore, Congress 

included paragraph (4), which requires 

a participating tribe to provide 

defendants in SDVCJ proceedings ‘‘all 

other rights whose protection is 

necessary under the Constitution of the 

United States in order for Congress to 

recognize and affirm the inherent power 

of the participating tribe to exercise 

[SDVCJ] over the defendant.’’ 

This provision does not require tribal 

courts to protect all federal 

constitutional rights that federal courts 

are required to protect (for example, the 

Fifth Amendment’s grand-jury 

indictment requirement, which state 

courts are also not required to protect). 

Rather, paragraph (4) gives courts the 

flexibility to expand the list of protected 

rights to include a right whose 

protection the 113th Congress did not 

foresee as essential to the exercise of 

SDVCJ. In the two-year period of the 

Pilot Project, however, it seems unlikely 

that courts will hold that any such 

unforeseen right falls within the scope 

of paragraph (4). 

Section 908, Effective Dates, and the 

Pilot Project 

VAWA 2013’s section 908 sets the 

effective dates for the three key 

subsections of 25 U.S.C. 1304— 

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

establishing the Pilot Project. Section 

908(b)(1) provides that these three 

subsections generally shall take effect 

on the date that is two years after the 

date of VAWA 2013’s enactment, or 

March 7, 2015. So tribes generally 

cannot exercise SDVCJ until at least 

March 7, 2015. On or after March 7, 

2015, any tribe that determines it meets 

the statutory requirements for exercising 

SDVCJ may do so. Approval from the 

Department of Justice will not be 

necessary. 

An exception to the 2015 starting 

date, however, is set forth in section 

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

Project that authorizes the Attorney 

General, in the exercise of his 

discretion, to grant a tribe’s request to be 

designated as a participating tribe on an 

accelerated basis and commence 

exercising SDVCJ earlier. Section 

908(b)(2) states in full: 

(2) Pilot Project.— 

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

year period beginning on the date of 

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

Indian tribe may ask the Attorney General to 

designate the tribe as a participating tribe 

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

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

accelerated basis. 

(B) Procedure.—The Attorney General may 

grant a request under subparagraph (A) after 

coordinating with the Secretary of the 

Interior, consulting with affected Indian 

tribes, and concluding that the criminal 

justice system of the requesting tribe has 

adequate safeguards in place to protect 

defendants’ rights, consistent with section 

204 of Public Law 90–284 [codified at 25 

U.S.C. 1304]. 

(C) Effective Dates for Pilot Projects.—An 

Indian tribe designated as a participating 

tribe under this paragraph may commence 

exercising special domestic violence criminal 

jurisdiction pursuant to subsections (b) 

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

284 [codified at 25 U.S.C. 1304(b)-(d)] on a 

date established by the Attorney General, 

after consultation with that Indian tribe, but 

in no event later than the date that is 2 years 

after the date of enactment of this Act [March 

7, 2015]. 

Only a tribe that wishes to begin 

exercising SDVCJ before March 7, 2015, 

needs to request approval from the 

Attorney General. 

2. The Pilot Project 

Given that the Pilot Project will 

directly and substantially affect Indian 

tribes in the next two years, the 

Department of Justice engaged in 

expedited but extensive consultation 


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26See Public Law 100–472, sec. 209, 102 Stat. 

2285, 2296–98 (1988). 

with tribal officials in the spring of 2013 

on how best to design the Pilot Project. 

The procedures established here reflect 

valuable input received from tribal 

officials during consultation, as well as 

public comments received in the 

summer of 2013. 

The Pilot Project’s Structure and Two 

Phases 

Congress provided a structure for the 

VAWA Pilot Project that is atypical. A 

conventional pilot or demonstration 

program lasts for several years and 

culminates with a report evaluating the 

program’s success or failure and 

recommending that the program either 

be made nationwide and permanent or 

be discontinued. By contrast, here 

Congress has already determined that 

the key feature of the Pilot Project— 

tribes’ exercise of SDVCJ—will become 

available nationwide just two years after 

VAWA 2013’s enactment. So the 

question raised by this Pilot Project is 

not whether to expand the exercise of 

SDVCJ, but rather how best to exercise 

SDVCJ. Thus, tribal leaders emphasized 

during consultation that one of the Pilot 

Project’s most important functions will 

be to support tribes in their efforts to 

collaboratively develop ‘‘best practices’’ 

that other (non-Pilot Project) tribes can 

use to implement SDVCJ in 2015 and 

beyond. 

Tribal officials and employees 

repeatedly highlighted the usefulness of 

exchanging ideas with their 

counterparts in other tribes, peer to 

peer. They recognized that the 

Department of Justice, in coordination 

with the Department of the Interior, 

could play a key role in facilitating an 

intertribal collaboration and exchange of 

ideas. Tribal officials pointed to the 

example of the Tribal Self-Governance 

Demonstration Project, which began in 

the late 1980s with fewer than a dozen 

tribes but has now expanded to include 

hundreds of tribes that are actively 

managing their own programs.26

Consistent with the views expressed 

by tribal leaders during consultation, 

the VAWA Pilot Project process has two 

phases: a planning and self-assessment 

phase that commenced with the 

publication of a notice in the Federal 

Register on June 14, 2013, and an 

implementation phase that commences 

with the publication of this final notice. 

In Phase One, in the summer and fall of 

2013, tribes that preliminarily expressed 

interest in the Pilot Project engaged in 

ongoing consultations with the 

Departments of Justice and the Interior 

to address questions and concerns. 

These tribes were strongly encouraged 

to join the Intertribal TechnicalAssistance Working Group on Special 

Domestic Violence Criminal Jurisdiction 

(ITWG) to exchange views, information, 

and advice about how tribes can best 

exercise SDVCJ, combat domestic 

violence, recognize victims’ rights and 

safety needs, and fully protect 

defendants’ rights. 

To assist the ITWG and its members, 

the Department of Justice appended to 

its June 2013 Federal Register notice a 

preliminary list of substantive questions 

that helped identify key issues and 

develop a checklist of best practices for 

exercising SDVCJ. Some of the questions 

focused on statutory requirements. 

Others touched on broader issues that 

are potentially relevant to tribal best 

practices but clearly are not required by 

VAWA 2013 or any other federal law. 

Starting with this preliminary list of 

questions, the ITWG’s peer-to-peer 

technical assistance has covered a broad 

set of issues, from drafting stronger 

domestic violence codes and victimcentered protocols and policies, to 

improving public defender systems, to 

analyzing detention and correctional 

options for non-Indians, to designing 

more broadly representative jury pools. 

The objective has been to develop not a 

single, one-size-fits-all ‘‘best practice’’ 

for each of these issues, but rather 

multiple ‘‘best practices’’ that can be 

tailored to each tribe’s particular needs, 

preferences, and traditions. 

Tribes participating in the ITWG also 

have had opportunities to engage with 

the Departments of Justice and the 

Interior, which have provided technical 

advice to the working group as a whole 

and worked with individual tribes to 

address specific issues or concerns as 

needed. The two Departments have 

coordinated with each other and have 

supported the ITWG with targeted 

training and technical assistance to the 

extent possible with available resources. 

Phase Two of the Pilot Project 

process, the implementation phase, will 

commence now, with the publication of 

this final notice, which specifies how 

tribes can certify that they meet the 

statutory requirements to exercise 

SDVCJ on an accelerated basis. During 

this phase, tribes may request 

designation as a participating tribe 

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

basis, and the Department will timely 

evaluate the requests based on the 

statutory criteria, after the required 

consultation with affected tribes and 

coordination with the Department of the 

Interior. The tribes whose requests are 

granted may commence prosecuting 

non-Indian perpetrators of domestic 

violence on a date established by the 

Department of Justice after further 

consultation with the tribe. The 

Department anticipates that some tribes 

may commence prosecuting SDVCJ 

cases in early 2014. 

During consultation, tribal officials 

uniformly encouraged the Department 

to develop a mechanism for tribes to 

‘‘self-certify’’ that they meet the 

statutory requirements to exercise 

SDVCJ. As a result, each requesting tribe 

will be expected to fill out an 

Application Questionnaire that asks the 

tribe to identify provisions of the tribe’s 

criminal code, rules of procedure, and 

written policies, as well as actual 

practices, that qualify the tribe to 

exercise SDVCJ on an accelerated basis. 

Each requesting tribe is asked to attach 

the relevant portions of its laws, rules, 

and policies to the completed 

Application Questionnaire. The 

materials collected from the tribes that 

successfully apply to participate in 

Phase Two of the Pilot Project 

eventually will be made publicly 

available on the Department of Justice’s 

Web site. The posted materials will 

serve as a resource for those tribes that 

may elect to commence exercising 

SDVCJ in March 2015 or later, after the 

Pilot Project has concluded. 

This two-phased Pilot Project will 

benefit three sets of tribes, each in 

distinct ways. First, the tribes that 

successfully apply in the Pilot Project’s 

second phase will have the opportunity 

to commence exercising SDVCJ, and 

thus enhance public safety in their 

communities, sooner than would 

otherwise be possible. And these tribes 

will establish an early, strong track 

record for effectively and fairly 

prosecuting all offenders who perpetrate 

crimes of domestic violence in Indian 

country, regardless of their Indian or 

non-Indian status. Second, the other 

tribes that, in the Pilot Project’s first 

phase, preliminarily expressed interest 

in the Pilot Project and joined the ITWG 

will continue to have the opportunity to 

shape best practices that will strengthen 

criminal justice systems on many 

reservations, including their own, and 

thus will be better prepared to exercise 

SDVCJ after March 2015. And third, the 

tribes that do not participate in either 

phase of the Pilot Project will have the 

opportunity to learn from the 

experiences of the first two sets of tribes 

and to benefit from the body of tribal 

laws, rules, and policies that those 

tribes will have developed and 

implemented. 


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Phase One: Ongoing Consultation, 

Preliminary Expressions of Interest, and 

the Intertribal Technical-Assistance 

Working Group 

In the weeks following the 

Department’s June 2013 Federal 

Register notice, 39 tribes submitted 

preliminary expressions of interest in 

the Pilot Project. A tribe that submitted 

a preliminary expression of interest 

during Phase One is not obligated 

during Phase Two to submit a request 

for designation as a participating tribe if 

the tribe decides to wait at least until 

March 7, 2015, to commence exercising 

SDVCJ. Conversely, a tribe that wishes 

during Phase Two to submit a request 

for designation as a participating tribe 

(so that it can commence exercising 

SDVCJ before March 7, 2015) need not 

have submitted a preliminary 

expression of interest during Phase One. 

However, submitting a preliminary 

expression of interest as early as 

possible facilitated the Justice 

Department’s efforts to provide timely 

information to the tribe, to address 

issues of unique concern to the tribe, 

and to identify, in coordination with 

tribal officials, those areas where the 

tribe might benefit from technical 

assistance. 

Each of the 39 tribes authorized at 

least one person to represent the tribe 

on the ITWG. The tribes’ representatives 

on the ITWG included tribal leaders, 

tribal judges, tribal attorneys, 

prosecutors, victim advocates, victim 

service providers, police officers, and 

court administrators. 

The Department of Justice asked 

particular Justice and Interior 

Department employees and non-federal 

experts (including persons affiliated 

with national intertribal organizations) 

to participate in ITWG meetings as 

observers or subject-matter experts who 

could provide technical assistance. But 

the tribal representatives were always 

free to meet without any federal 

employees present. And tribal members 

of the ITWG could informally exchange 

written drafts of tribal criminal code 

provisions, tribal rules of procedure, 

tribal policies, and other tribal best 

practices, with or without sharing these 

drafts with the federal employees. The 

lead organizations providing technical 

assistance to the ITWG have been the 

National Congress of American Indians 

(NCAI), the Tribal Law and Policy 

Institute (TLPI), and the National 

Council of Juvenile and Family Court 

Judges (NCJFCJ). 

The full ITWG has held two in-person 

meetings, in South Carolina on August 

20 and 21, 2013, and in North Dakota 

on October 29 and 30, 2013. And the 

ITWG or its subcommittees have met by 

conference call seven times, on July 19, 

August 5, September 10, September 20, 

October 4, October 8, and October 10, 

2013. A Tribal Code Development 

Subcommittee has developed a checklist 

that tribes can use as a tool to assess 

their compliance with federal 

requirements and readiness to exercise 

SDVCJ. The ITWG has also conducted 

Webinars and special sessions focusing 

on particular issues such as jury 

selection and indigent defense. On 

September 13, 2013, the Center for Jury 

Studies, a project of the National Center 

for State Courts, presented a Webinar on 

the fair cross section requirement, and 

a second Webinar on jury selection has 

been scheduled. The ITWG’s Public 

Defender Advisory Group (PDAG) 

conducted its first of four planned 

Webinars, on competency of defenders 

and the timing of their appointment, on 

September 27, 2013. PDAG’s upcoming 

Webinars will cover models for quality 

assurance and training of conflict 

attorneys; standards for defining 

indigency; and investigation services 

and caseload and workload standards. A 

series of Webinars on victims’ rights 

will commence this fall. 

Regional offshoots of the ITWG have 

also sprouted. For example, on 

September 5, 2013, ITWG members and 

other tribes from Oklahoma gathered in 

Okmulgee to discuss VAWA 

implementation in the unique context of 

Oklahoma. And NCAI sponsored 

breakout sessions for ITWG members 

and other tribes interested in VAWA 

implementation at their Mid-Year 

Conference in Reno, Nevada, on June 

24, 2013, and at their 70th Annual 

Convention in Tulsa, Oklahoma, on 

October 15, 2013. 

ITWG meetings will proceed into 

Phase Two, to continue identifying, 

documenting, and disseminating best 

practices that can be replicated by other 

tribes, and to help collect data and 

assess the Pilot Project tribes’ efforts to 

exercise SDVCJ, combat domestic 

violence, recognize victims’ rights and 

safety needs, and fully protect 

defendants’ rights. Alongside this 

intertribal work, the Department of 

Justice recognizes the importance of the 

government-to-government relationship 

that exists between the United States 

and each individual tribe. During Phase 

One, some tribes engaged in one-on-one 

discussions with the Department of 

Justice or the Department of the Interior 

about training, technical assistance, and 

issues unique to that tribal government. 

Both Departments look forward to 

further one-on-one consultations during 

Phase Two. 

Phase Two: Tribal Requests and the 

Application Questionnaire 

With Phase Two of the Pilot Project 

now beginning, tribes may request 

designation as participating tribes that 

may commence exercising SDVCJ on an 

accelerated basis. It is important to note 

that the statute does not set the number 

of tribes that can participate in the Pilot 

Project and exercise SDVCJ on an 

accelerated basis, though it does limit 

the Pilot Project to just two years, 

effectively ending in March 2015. After 

that time, any tribe that determines it 

meets the statutory requirements and 

wishes to exercise SDVCJ may do so 

without the involvement of the 

Department of Justice. 

During the course of the Pilot Project, 

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

statute authorizes the Department of 

Justice to grant a request only after 

concluding that the requesting tribe’s 

criminal justice system ‘‘has adequate 

safeguards in place to protect 

defendants’ rights, consistent with [25 

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

not restrict the Department’s purview to 

the rights of defendants specified in 

subsection 1304(d), but rather 

demanded consistency with all 

subsections of section 1304. The statute 

thus requires the Department to 

consider how the tribe plans to comply 

with the entirety of section 1304, 

focusing (though not exclusively) on the 

specific defendants’ rights enumerated 

in subsection 1304(d). 

The Attorney General is required to 

exercise his discretion in the Pilot 

Project process, as the statute states that 

he ‘‘may’’ (not ‘‘shall’’) grant a 

qualifying tribe’s request. In exercising 

his discretion, the Attorney General will 

be bound by the text of section 1304 and 

guided by the section’s broader 

purposes: to decrease domestic violence 

in Indian country, to strengthen the 

capacity of Indian tribes to exercise 

their inherent sovereign power to 

administer justice and control crime, 

and to ensure that perpetrators of 

domestic violence are held accountable 

for their criminal behavior. 

To address the overwhelming 

preference for a self-certification process 

that tribal leaders and experts expressed 

during consultation and in public 

comments, and to facilitate moving 

quickly during the Pilot Project’s twoyear window while fulfilling the 

Attorney General’s statutory duty, the 

Department will ask each requesting 

tribe to provide certified answers to a 

list of detailed questions about the 

various safeguards that the tribe has put 

in place to protect defendants’ rights. 

The Application Questionnaire, 


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appended to this final notice, is 

informed by comments that the public 

submitted in response to the June 2013 

Federal Register notice and by lessons 

learned through the ITWG process. 

The Application Questionnaire will 

need to be completed and certified as 

accurate by the tribe’s chief executive, 

judicial, and legal officers. To provide 

an adequate basis for the Justice 

Department to make the determination 

demanded by the statute, the questions 

are comprehensive and detailed. The 

bulk of the questions likely can be 

answered with a single sentence or a 

simple ‘‘yes’’ or ‘‘no,’’ supplemented 

with applicable excerpts from the tribe’s 

laws, rules, or policies. This way, the 

Questionnaire attempts to put as little 

burden as possible on tribal officials and 

employees, while addressing the 

Department’s need for sufficiently 

detailed information to perform its 

statutory responsibility. The 

Application Questionnaire also may 

help a tribe assess its own criminal 

justice system’s readiness to exercise 

SDVCJ. 

The completed, certified Application 

Questionnaire will serve as the tribe’s 

formal request to be designated as a 

participating tribe that can exercise 

SDVCJ on an accelerated basis under the 

Pilot Project. The Department will give 

the same priority consideration to any 

tribal request that it receives within 30 

days after publication of this final notice 

in the Federal Register, regardless of the 

precise date within that initial 30-day 

period on which a tribe makes its 

request. The Department also will 

consider any tribal request received 

before March 7, 2015. And the 

Department will consider Phase Two 

requests from both ITWG members and 

nonmembers. 

Phase Two: The Federal Response to 

Tribal Requests 

Once the Department of Justice has 

received a requesting tribe’s complete, 

certified Application Questionnaire, 

including attached excerpts of tribal 

laws, rules, and policies, the 

Department will take the following eight 

steps. 

First, the requesting tribe’s entire 

application will be shared with relevant 

components of the Department of 

Justice, including any U.S. Attorney’s 

Office with jurisdiction over the tribe’s 

Indian country, and relevant 

components of the Department of the 

Interior, including the Office of the 

Assistant Secretary of the Interior– 

Indian Affairs; the Office of the Solicitor 

of the Interior; and the Bureau of Indian 

Affairs’ Office of Justice Services (BIA– 

OJS). 

Second, the Justice Department will 

post a notice on its Tribal Justice and 

Safety Web site (http://www.justice.gov/ 

tribal/) indicating that the tribe has 

submitted a request in Phase Two of the 

Pilot Project. This notice will announce 

an expedited telephonic consultation for 

officials of federally recognized Indian 

tribes who wish to comment on the 

request, as well as an expedited 

deadline and instructions for submitting 

written comments. As required by 

VAWA 2013’s section 908(b)(2)(B), the 

Justice Department will consult with 

elected and duly appointed officials of 

affected tribes, on an expedited basis, 

consistent with applicable Executive 

Orders, Presidential Memoranda, and 

Department policy statements on tribal 

consultation. 

Third, generally working through the 

requesting tribe’s authorized point of 

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

Application Questionnaire, the Justice 

Department may make follow-up 

inquiries about the tribe’s criminal 

justice system. 

Fourth, personnel from the 

Departments of Justice and the Interior 

will coordinate in reviewing the 

requesting tribe’s application. They also 

may consider relevant information 

obtained in other contexts, including 

grant applications, such as the tribe’s 

prior Coordinated Tribal Assistance 

Solicitation (CTAS) applications, and 

any tribal-court review that BIA–OJS 

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

Fifth, if needed and if funding is 

available, the Department may provide 

appropriate training or technical 

assistance to a tribe. The Department 

may also offer specific training and 

technical assistance to address 

particular needs through the National 

Indian Country Training Initiative or 

through the Department’s grant-making 

components (the Office of Justice 

Programs (OJP), the Office on Violence 

Against Women (OVW), and the Office 

of Community-Oriented Policing 

Services (COPS)); coordinate with the 

Department of the Interior’s Office of 

Justice Services (BIA–OJS) to identify 

and arrange training and technical 

assistance specific to the tribe’s needs; 

and work with the ITWG to identify 

other tribal or intertribal resources that 

may assist the tribe. After receiving 

training or technical assistance, a tribe 

may elect to prepare and submit a 

revised request. 

Sixth, Justice Department personnel 

will recommend to the Associate 

Attorney General whether the 

requesting tribe should be designated as 

a participating tribe under 25 U.S.C. 

1304 on an accelerated basis. This 

recommendation will turn on whether 

the requesting tribe’s criminal justice 

system has adequate safeguards in place 

to protect defendants’ rights, consistent 

with all subsections of 25 U.S.C. 1304. 

The Department’s Office of Tribal 

Justice (OTJ) will inform the tribe’s POC 

of the recommendation. 

Seventh, if the recommendation is 

positive, the Department of Justice will 

consult with the requesting tribe to 

establish a date on which the tribe may 

commence exercising SDVCJ. The 

commencement date may be 

conditioned on the tribe receiving 

certain additional training or technical 

assistance or taking certain steps, such 

as notifying the public when the tribe 

will start exercising SDVCJ. 

Eighth, if the Department of Justice 

and the tribe can reach agreement on a 

starting date and conditions (if any), the 

Associate Attorney General, exercising 

discretion delegated by the Attorney 

General, may designate the tribe as a 

participating tribe under 25 U.S.C. 1304 

on an accelerated basis. The Department 

will publish notice of the designation on 

the Department’s Tribal Justice and 

Safety Web site (http://www.justice.gov/ 

tribal/) and in the Federal Register. The 

Department also will publish on its Web 

site the tribe’s final Application 

Questionnaire, including attached 

excerpts of or links to tribal laws, rules, 

and policies. 

3. Discussion of Public Comments on 

the June 2013 Notice 

In response to the notice published on 

June 14, 2013, see Pilot Project for 

Tribal Jurisdiction Over Crimes of 

Domestic Violence, 78 FR 35961 (June 

14, 2013), with a comment period 

through September 12, 2013, the 

Department of Justice received eight sets 

of comments: six from tribal 

governments or officials and two from 

national intertribal organizations. All 

comments have been considered in 

preparing this final notice. Set forth 

below is a summary of the comments, 

organized by topic, and the 

Department’s responses to them. 

The Intertribal Technical-Assistance 

Working Group (ITWG) 

Comments: Nearly all the commenters 

applauded the creation of the ITWG, the 

speed with which its work got 

underway, the dedication and 

seriousness of its tribal members, and 

the support that the Departments of 

Justice and the Interior have provided. 

Three commenters urged the 

Department of Justice to continue 

supporting the ITWG and its planning 

and information-sharing functions at 

least into Phase Two and perhaps 

beyond. 


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Response: At least until early 2015, 

the Departments of Justice and the 

Interior will continue to support the 

ITWG with training and technical 

assistance to the extent possible with 

available resources and to participate in 

ITWG meetings as observers or subjectmatter experts if the tribal 

representatives so request. 

Key Features of the June 2013 Notice 

Comments: Two commenters stated 

that the statutory background in the 

Department’s June 2013 Federal 

Register notice helped illuminate 

underlying constitutional and legal 

issues, historical context, the 

importance of inherent tribal sovereign 

authority, tribal governments’ concern 

for public safety, and Congress’s intent 

in enacting VAWA 2013’s tribaljurisdiction provisions. Most 

commenters stated that the extensive 

preliminary list of questions appended 

to that notice has been a useful tool for 

tribes as they assess their readiness to 

implement SDVCJ and consider 

amending their codes. One commenter, 

however, expressed concern that the 

way some questions were framed 

presumed that tribes were inadequately 

protecting important rights and thus 

understated the readiness and 

sophistication of many tribal court 

systems. 

Response: The statutory background 

section of this final notice largely 

mirrors its counterpart from the June 

2013 notice. The Department believes 

that the lengthy set of questions 

appended to the June 2013 notice has 

generally proved to be helpful to the 

ITWG and its members and was 

predicated on the well-founded 

assumption, grounded in decades of 

experience by the Departments of 

Justice and the Interior, that many tribal 

justice systems are sophisticated, fair, 

and fully capable of safeguarding the 

rights of all criminal defendants, Indian 

and non-Indian alike. 

Government-to-Government 

Consultation, Apart From the ITWG 

Comments: Four commenters asked 

the Department to remain available for 

one-on-one consultation with any tribe 

that wishes to have the Department 

preliminarily review proposed revisions 

to the tribe’s codes and procedures 

before the tribe undertakes the 

potentially time-consuming process of 

tribal community engagement and 

tribal-council approval or submits an 

application in Phase Two. 

Response: Upon request from a tribe, 

the Departments of Justice and the 

Interior will continue to engage in oneon-one, government-to-government 

consultation to address a tribe’s 

questions and concerns and, to the 

extent possible with available resources, 

to provide the training and technical 

assistance that the tribe’s officers, 

employees, or contractors need before 

the tribe commences exercising SDVCJ. 

Funding for Tribal Criminal Justice 

Systems 

Comments: One commenter asked the 

Departments of Justice and the Interior 

to make funds available for contracting 

with special prosecutors and defense 

attorneys, and also noted the need for 

federal funding to provide training, 

technical assistance, data collection, 

and evaluation of tribes’ criminal justice 

systems. Another commenter 

emphasized that, while the lack of 

federal funding makes the provision of 

tribal-court services more difficult, it 

does not actually endanger justice. 

Response: The Departments of Justice 

and the Interior have been, and will 

continue, providing training, technical 

assistance, and other support for tribal 

justice systems with available resources. 

Under VAWA 2013, Congress has 

authorized funds to provide grants to 

tribal governments for various purposes, 

including prosecution and indigent 

defense counsel, and also to provide 

training, technical assistance, data 

collection, and evaluation of tribes’ 

criminal justice systems. The 

Department of Justice will continue to 

evaluate what resources can be made 

available for these purposes. 

Speed and the Need To Review Tribes’ 

Criminal Justice Systems 

Comments: Five commenters 

acknowledged that the Department must 

thoroughly evaluate each tribe’s 

application, as Congress has given the 

Department the responsibility to 

determine whether the requesting tribe’s 

criminal justice system has adequate 

safeguards in place to protect 

defendants’ rights. But these and other 

commenters also urged the Department 

to continue on an expedited path and 

avoid getting bogged down in a lengthy 

or cumbersome process. As one 

commenter put it, tribal governments 

need to have their applications granted, 

so that they can ‘‘proceed with the 

important work of protecting their 

Native sisters, mothers, and daughters.’’ 

Another commenter noted that some 

tribes would not be ready to submit an 

Application Questionnaire immediately 

upon publication of this final notice and 

specifically called for a one-month 

limit, from the date an application is 

received to the date it is granted or 

denied, to ensure that the Pilot Project 

would not expire before those tribes 

have had an opportunity to prosecute 

SDVCJ cases. 

Response: Given the short time that 

Congress allotted, the Pilot Project’s 

effectiveness depends in part on a 

speedy federal process for reviewing 

tribal applications. However, the 

Department takes very seriously its 

statutory responsibilities (1) to ensure 

that each tribe that exercises SDVCJ on 

an accelerated basis under the Pilot 

Project has adequate safeguards in place 

to protect defendants’ rights, consistent 

with 25 U.S.C. 1304, and (2) to consult 

with affected tribes, and therefore 

believes that some applications will 

necessarily take longer than a month to 

properly review. 

The Nature of the Federal Process for 

Reviewing Tribal Applications 

Comments: Most commenters 

encouraged a flexible, collaborative 

process for Pilot Project approval, 

guided by respect for the government-togovernment relationship between two 

sovereigns and deference to tribal selfgovernance and self-determination, 

rather than a process that would be 

paternalistic, bureaucratic, burdensome, 

or resource-sapping. 

Response: The Department accepts 

these comments and has incorporated— 

and will continue to incorporate—these 

concepts in the approval process. 

Comments: One commenter requested 

clear and specific standards that the 

Department will use when reviewing a 

tribe’s Application Questionnaire and 

determining whether the tribe may 

commence exercising SDVCJ under the 

Pilot Project, so that tribes will know 

precisely what information would 

constitute an adequate response to each 

question in the Application 

Questionnaire. The commenter 

expressed concern that tribes not be 

‘‘arbitrarily’’ prevented from exercising 

SDVCJ at the earliest possible date. 

Response: The Department believes 

that this final notice sets forth clear 

standards grounded in the plain text of 

the new statute. Any effort to provide 

more detailed, precise, proscriptive 

guidance would, in the Department’s 

view, disrespect tribal discretion and 

undercut the flexibility to which each 

tribe, as a sovereign exercising its 

inherent authority, is entitled. 

Comment: One commenter stated that 

no tribe should have to go through 

multiple rounds of corrections and 

therefore, if an application is rejected, 

the Department should at the time of 

rejection clearly and completely explain 

the application’s deficiencies that will 

need to be addressed in order to 

approve a revised application. 


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Response: The Department will strive 

to inform the tribe clearly, completely, 

and reasonably promptly of any 

deficiencies in its initial application. 

Comments: One commenter suggested 

that the Department provide technical 

assistance to any tribe whose 

Application Questionnaire shows that 

the tribe’s criminal justice system does 

not meet VAWA 2013’s requirements, 

just as it would to a tribe that requests 

technical assistance prior to submitting 

an Application Questionnaire. Another 

commenter stated that, if the 

Department finds that a tribe does not 

meet at least one of VAWA 2013’s 

requirements, the tribe should be 

allowed to rectify the situation instead 

of the Department’s denying the 

application. 

Response: The Office of Tribal Justice 

(OTJ) will inform the tribe’s POC of the 

initial recommendation from Justice 

Department personnel. Receiving an 

initially negative response will not bar 

a tribe from submitting a revised request 

at any time during Phase Two of the 

Pilot Project. Moreover, if funding is 

available, the Department may provide 

appropriate training or technical 

assistance to the tribe, which may 

enable the tribe to prepare and submit 

a revised request. The Department may 

also offer specific training and technical 

assistance to address particular needs 

through the National Indian Country 

Training Initiative or the Department’s 

grant-making components (OJP, OVW, 

and COPS); coordinate with the 

Department of the Interior’s Office of 

Justice Services (BIA–OJS) to identify 

and arrange training and technical 

assistance specific to the tribe’s needs; 

and work with the ITWG to identify 

other tribal or intertribal resources that 

may assist the tribe. After receiving 

training or technical assistance, a tribe 

may elect to prepare and submit a 

revised request. 

Comment: One commenter asked the 

Department to approve a tribe’s 

application if its only deficiency is that 

the Secretary of the Interior has not yet 

approved changes that the tribe has 

made to its ordinances or codes in order 

to comply with VAWA 2013’s 

requirements. The commenter also 

asked the Justice Department to 

encourage the Department of the Interior 

to expedite the approval process for 

amendments to a tribe’s ordinances and 

codes. 

Response: If the sole deficiency in a 

tribe’s application is that some of the 

safeguards that it has put in place to 

protect defendants’ rights, consistent 

with 25 U.S.C. 1304, depend on tribal 

code amendments that are not yet 

effective because they have not yet been 

approved by the Secretary of the 

Interior, the Department of Justice 

would likely so inform the tribe, 

condition the tribe’s commencement 

date for exercising SDVCJ on Secretarial 

approval of the tribal code amendments, 

and encourage the Department of the 

Interior to expedite the approval 

process. 

Types of Questions on the Application 

Questionnaire 

Comments: Six commenters suggested 

that the Application Questionnaire 

focus on the required elements under 

VAWA 2013. Most of them noted that 

the preliminary list of discussion 

questions appended to the Department’s 

June 2013 notice, while helpful to the 

tribes in reviewing and internally 

assessing their own domestic violence 

efforts, focused on promoting tribal best 

practices rather than on revising tribal 

codes and procedures to satisfy VAWA 

2013, and thus was too long and 

cumbersome to serve as a model for the 

Application Questionnaire. Three 

commenters encouraged the inclusion, 

after the mandatory questions, of some 

optional questions regarding best 

practices (e.g., whether the tribe has a 

victims’ rights code) and noted that the 

answers to these optional questions 

could benefit other tribes. One 

commenter suggested that questions be 

designed to trigger very short answers, 

and three commenters suggested that 

short answers could be supplemented 

by attaching provisions from tribal 

codes and procedures. 

Response: The Department accepts 

these comments. 

Comment: One commenter suggested 

creating two options for federal 

approval of a tribe’s request: one option 

would allow a more streamlined 

approach for tribes that are ‘‘ready now’’ 

to commence exercising SDVCJ; the 

second option could apply to those 

tribes that may require additional 

technical assistance. 

Response: The Department rejects this 

comment and believes that, although 

each tribe’s criminal justice system is 

different and has unique strengths and 

weaknesses, all tribes seeking to 

commence exercising SDVCJ on an 

accelerated basis under the VAWA Pilot 

Project should start on an equal footing 

and be subject to consistent procedures 

and standards. Indeed, the central 

purpose of the Application 

Questionnaire is to determine which 

tribes are currently ‘‘ready’’ to exercise 

SDVCJ. Prematurely designating some 

tribes as ‘‘ready’’ and then exempting 

them from the requirement to complete 

the Application Questionnaire would be 

fundamentally unfair. 

Comment: One commenter requested 

that the Application Questionnaire 

avoid any question that inadvertently 

might compromise the attorney-client 

privilege between the tribal council and 

its attorneys by eliciting commentary 

supporting tribal code revisions made in 

response to VAWA 2013. 

Response: Answering the Application 

Questionnaire will not require the tribe 

to compromise, jeopardize, or waive its 

attorney-client privilege. 

Specific Topics Potentially Covered by 

the Application Questionnaire 

Comments: Three commenters 

suggested that the Application 

Questionnaire include questions on 

tribal criminal offenses for domestic 

violence, dating violence, and violations 

of protection orders; non-Indian 

defendants’ ties to the tribe; indigent 

defense counsel; licensed defense 

attorneys; public availability of tribal 

laws, including codes, regulations, 

rules, and interpretive documents; 

records of criminal proceedings; 

notification of federal habeas rights; the 

fair cross section requirement for jury 

pools (including a copy or description 

of a jury selection plan); and legal 

training and licenses for judges 

presiding over criminal proceedings. 

Response: The Department largely 

accepts these comments, as the 

Application Questionnaire touches on 

all these topics, consistent with the 

plain text of 25 U.S.C. 1304. 

Comment: One commenter asked the 

Department to provide further guidance 

on how jury pools can reflect a ‘‘fair 

cross section of the community’’ in the 

context of ‘‘checker-boarded’’ Indian 

country, where a tribe’s trust lands and 

restricted allotments are scattered across 

vast territory. This commenter also 

requested further guidance on how a 

tribe can enforce jury summonses on the 

non-Indian population in such 

circumstances. 

Response: To the extent possible with 

available resources, the Departments of 

Justice and the Interior will continue 

providing training and technical 

assistance on these issues, both directly 

to individual tribes and through the 

ITWG. 

Comment: One commenter stated that 

questions about venire statistics could 

require a tribe to review court files and 

summonses issued and responded to, 

and then enter that information into a 

database—a potentially expensive, 

burdensome process. 

Response: Although a tribe may want 

to collect or evaluate such data once it 

commences exercising SDVCJ, it need 

not do so before completing the 

Application Questionnaire. 


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Comment: One commenter opposed 

Application Questionnaire questions 

about individual judges’ and attorneys’ 

qualifications, especially for larger 

tribes that use rotating appointed 

counsel from the bar membership for 

indigent defense. The commenter also 

noted that changes in personnel could 

render the answers inaccurate. The 

commenter recommended focusing 

instead on the tribe’s process for hiring 

or appointing judges and attorneys. 

Response: The Application 

Questionnaire directly asks the tribe 

how it will safeguard defendants’ rights 

to licensed indigent defense counsel 

and law-trained, licensed judges. And 

the Application Questionnaire also asks, 

in the context of anticipated SDVCJ 

cases during the Pilot Project, for a list 

of all jurisdictions where each indigent 

defense attorney is licensed to practice 

law, a list of all jurisdictions where each 

judge presiding over an SDVCJ 

proceeding is licensed to practice law, 

and a brief description of each judge’s 

legal training to preside over criminal 

proceedings. To the extent that changes 

in personnel render the answers 

incomplete or inaccurate during the 

Pilot Project (i.e., prior to March 7, 

2015), the tribe’s authorized point of 

contact (POC) will have the 

responsibility to provide the 

Department with updated information. 

Comment: One commenter expressed 

concern about the Departments of 

Justice and the Interior holding tribal 

judges to higher standards than state 

judges or holding tribal indigent defense 

counsel to higher standards than state 

indigent defense counsel. The same 

commenter stated that the level of 

practice within the tribal courts, as to 

both the judges and the attorneys, often 

exceeds that found in state courts. 

Response: The Department believes 

that, in many tribal criminal justice 

systems, the judges’ and defense 

attorneys’ licenses, legal training, and 

experience will compare favorably to 

those of the state or local judges and 

defense attorneys who participate in 

similar criminal proceedings in cases 

arising in or near the tribe’s Indian 

country. The tribal courts’ application of 

the federal statutory rights described in 

25 U.S.C. 1304(d) should be comparable 

to state courts’ application of the 

corresponding federal constitutional 

rights in similar cases. 

Comment: One commenter objected to 

the Application Questionnaire asking 

for an accounting of the tribe’s 

compliance with ICRA, as that would 

call for a lengthy, burdensome 

dissertation on tribal governance and 

constitutional law. The commenter 

stated that most tribes have either two 

or three independent branches of 

government, each with its own 

responsibilities for protecting 

individuals’ rights. Furthermore, the 

commenter suggested that ICRA 

violations by tribal police or tribal 

prosecutors that were subsequently 

corrected, perhaps by the tribal courts 

themselves, should not disqualify a tribe 

from participating in the Pilot Project. 

Response: The Application 

Questionnaire does not call for a lengthy 

or burdensome dissertation on tribal 

governance and constitutional law. But 

it does require the tribe to certify and 

demonstrate that the tribe’s criminal 

justice system has adequate safeguards 

in place to protect all applicable rights 

of defendants under ICRA, as amended. 

Comment: One commenter suggested 

that the Application Questionnaire ask 

whether the tribe’s judiciary is 

independent, either statutorily or 

functionally. 

Response: Although the Application 

Questionnaire does not include a 

question specifically focusing on the 

independence of the tribe’s judiciary, 

several of its questions present an 

opportunity for the tribe to submit 

information and legal materials on the 

independence of the tribe’s judiciary. 

Comment: One commenter stated that 

the Application Questionnaire should 

not ask whether tribal law permits 

imprisonment for failure to pay a 

criminal fine because VAWA 2013 does 

not authorize such imprisonment of a 

non-Indian defendant. 

Response: The Application 

Questionnaire does not include any 

question about imprisonment for failure 

to pay a criminal fine. 

Comment: One commenter objected to 

the Application Questionnaire 

containing questions about the topics of 

‘‘tribal protection of victims’ rights’’; 

‘‘detention, corrections, probation, and 

parole’’; ‘‘crime information databases’’; 

and ‘‘commencing to exercise SDVCJ,’’ 

akin to the preliminary questions found 

at 78 FR 35973–74, although the 

commenter stated that these questions 

were useful for discussing the 

protection of victims and various 

administrative considerations. Another 

commenter asked the Department to 

omit from the Application 

Questionnaire any question about the 

tribe’s capacity to access certain 

national crime information databases. 

Response: The Application 

Questionnaire does not require answers 

to questions on these topics, but does 

allow each tribe, at its discretion, to 

provide additional information or legal 

materials relevant to these or other 

topics that may be helpful in addressing 

the tribe’s readiness to commence 

exercising SDVCJ on an accelerated 

basis while protecting defendants’ 

rights, consistent with 25 U.S.C. 1304. 

Comment: One commenter asked the 

Department to provide further guidance 

on how non-Indians may be detained 

and which parties will be responsible 

for health care for incarcerated nonIndian offenders. 

Response: To the extent possible with 

available resources, the Departments of 

Justice and the Interior will continue 

providing training and technical 

assistance on these issues, both directly 

to individual tribes and through the 

ITWG. 

Comment: One commenter opposed 

requiring Pilot Project tribes to collect 

and analyze data on the tribe’s SDVCJ 

cases, even if such statistics would be 

useful in reducing domestic violence or 

providing victim services. 

Response: The Department will not 

require Pilot Project tribes to collect or 

analyze data on SDVCJ cases, but tribes 

are free to do so either on their own or 

in collaboration with other tribes 

through the ITWG. 

Comment: One commenter asked the 

Department to include in the 

Application Questionnaire a question 

about whether, how, and by what 

amount VAWA 2013 implementation 

will cause increases in costs and 

budgets for tribal courts, prosecution, 

defense attorneys, and tribal police. 

Response: The final question in the 

Application Questionnaire invites 

tribes, at their discretion, to address any 

pertinent topic that the tribe would like 

the Departments of Justice and the 

Interior to consider when reviewing the 

tribe’s Application Questionnaire. So a 

tribe is free to submit information about 

costs and budgets, if it so chooses. 

Tribal Self-Certification and the 

Application Questionnaire 

Comments: Most commenters stated 

that the approval process should focus 

on ‘‘self-certification,’’ with a 

straightforward tribal government 

certification of well-known criminalprocedure standards. This approach was 

commended because there is limited 

time left within the two-year Pilot 

Project period, because the individuals 

working in or with the tribal justice 

system on a daily basis are best 

positioned to evaluate the adequacy of 

its safeguards to protect defendants’ 

rights, because those same individuals 

have a great incentive to avoid adverse 

findings in federal habeas proceedings, 

and also because self-certification 

promotes tribal self-determination and 

respects the tribes’ inherent authority to 

exercise this criminal jurisdiction. 


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27U.S. Department of Justice, Implementation of 

Sections 904 and 908 of the Violence Against 

Women Reauthorization Act of 2013 (Apr. 16, 

2013). 

Response: Tribal self-certification is a 

central feature of the procedures 

established by this final notice. The 

Application Questionnaire must be 

certified as complete and accurate by 

the tribe’s chief executive, judicial, and 

legal officers. Furthermore, each of these 

officers must certify that he or she has 

read the Indian Civil Rights Act, as 

amended by TLOA and VAWA 2013, 

and that the tribe’s criminal justice 

system has adequate safeguards in place 

to protect defendants’ rights, consistent 

with 25 U.S.C. 1304. 

Comment: One commenter suggested 

that, to ensure accurate information and 

minimize potential delays, the 

Department should rely on the tribe’s 

designated point of contact, who could 

be a tribal leader, a tribal chief judge, a 

tribal attorney, or another tribal 

governmental official. 

Response: The Application 

Questionnaire requires the tribe’s 

governing body to authorize one person 

to serve as the tribe’s point of contact 

(POC) with the Department of Justice for 

purposes of the VAWA Pilot Project. 

The POC, who can be the tribe’s chief 

executive, judicial, or legal officer, or 

some other person chosen by the tribe’s 

governing body, should make best 

efforts during the Pilot Project to 

promptly answer written or oral 

questions from the Departments of 

Justice and the Interior about the tribe’s 

criminal justice system; update any 

answers to the Application 

Questionnaire if they become 

incomplete, inaccurate, or outdated; fix 

any omissions in the Application 

Questionnaire; and submit to the 

Department of Justice any additions, 

deletions, or corrections to the 

Application Questionnaire. 

4. Statutory and Executive Order 

Reviews 

General Disclaimers 

This final notice is not intended to, 

and does not, create any right or benefit, 

substantive or procedural, enforceable at 

law or in equity by any party in any 

matter, civil or criminal, against the 

United States, its departments, agencies, 

or entities, its officers, employees, or 

agents, or any other person, nor does 

this final notice place any limitations on 

otherwise lawful litigative prerogatives 

of the U.S. Department of Justice. 

Furthermore, nothing in this final 

notice shall be construed to (1) encroach 

upon or diminish in any way the 

inherent sovereign authority of each 

tribe over its own government, legal 

system, law enforcement, and personnel 

matters; (2) imply that any tribal justice 

system is an instrumentality of the 

United States; or (3) alter the trust 

responsibility of the United States to 

Indian tribes. 

Administrative Procedure Act 

This final notice concerns interpretive 

rules, general statements of policy, or 

rules of agency organization, procedure, 

or practice for purposes of the 

Administrative Procedure Act, and 

therefore notice and comment are not 

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

Nonetheless, the Department of Justice 

published the June 2013 notice in the 

Federal Register and on the 

Department’s Tribal Justice and Safety 

Web site for public comment, as well as 

to solicit preliminary expressions of 

interest in the Pilot Project. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This final notice fully comports with 

Executive Order 13175 of November 6, 

2000. Although it creates no new 

substantive rights and imposes no 

binding legal requirements, the final 

notice has tribal implications because it 

will have substantial direct effects on 

Indian tribes and their relationships 

with the Federal Government. The 

Department therefore has engaged in 

meaningful consultation and 

collaboration with elected and duly 

appointed tribal officials in developing 

this final notice. 

More specifically, the Department of 

Justice organized and led two 

telephonic consultations with tribal 

leaders on how best to structure and 

implement the voluntary Pilot Project 

established under sections 904 and 908 

of VAWA 2013. To facilitate the 

consultation and frame the discussion 

with tribal governments, in mid-April 

the Department circulated a six-page 

framing paper that presented 

background on the new law and raised 

a series of questions on specific issues 

relating to the Pilot Project.27 The first 

consultation was held on May 14, 2013, 

and the second on May 17, 2013. The 

Department also consulted members 

and representatives of the Attorney 

General’s Tribal Nations Leadership 

Council on April 30, 2013. 

On April 12, 2013, the Department 

participated in a hearing of the Indian 

Law and Order Commission on 

implementation of VAWA 2013 and the 

Pilot Project, held in conjunction with 

the Federal Bar Association’s 38th 

Annual Indian Law Conference in New 

Mexico. In addition, the Department 

held a series of informal consultations 

with tribal stakeholders, including calls 

with tribal judges and court personnel 

(on May 8, 2013); tribal prosecutors 

(May 13); tribal public defenders (May 

2); federal public defenders (May 6); 

tribal in-house counsel (May 9); tribal 

victim advocates and victim service 

providers (May 1); and professors of 

Indian law (May 10). Finally, the 

Department received written comments 

from more than a dozen American 

Indian and Alaska Native tribes, 

members of the public, and intertribal 

organizations, including the National 

Congress of American Indians (NCAI), 

the National American Indian Court 

Judges Association (NAICJA), the 

National Association of Indian Legal 

Services (NAILS), and the Tribal Law 

and Policy Institute (TLPI). 

During these consultations, some 

tribal officials expressed a desire to 

expedite the Pilot Project process, while 

other tribal officials asked the 

Department of Justice to engage in 

further tribal consultation before 

proceeding. Generally, there was a 

consensus that the main value of the 

Pilot Project would lie in (1) 

collaboration and information-sharing 

among the Pilot Project tribes; (2) 

flexible interaction between tribes and 

criminal justice experts at the 

Department of Justice and elsewhere; 

and (3) collecting the various tribal laws 

and procedures developed by the Pilot 

Project tribes that exercise SDVCJ on an 

accelerated basis and ‘‘sharing that 

information forward’’ with tribes that 

may implement VAWA 2013 and 

exercise SDVCJ after the Pilot Project is 

completed in March 2015. 

There also was a strong consensus in 

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

is, a process in which the requesting 

tribe provides brief written answers to 

detailed questions about its criminal 

justice system; the tribe’s leader, 

attorney, and chief judge each certify 

the completeness and accuracy of the 

answers; and Justice Department 

personnel then rely principally on those 

answers and thus need to engage in only 

limited follow-up inquiries, rather than 

undertake extensive investigation and 

site visits. At the same time, tribal 

officials recognized that the Department 

of Justice has a responsibility to exercise 

due diligence in assessing tribes’ 

capacities and therefore must at times 

review extrinsic evidence of tribes’ 

compliance with the new federal law’s 

requirements, including tribal 

constitutional provisions, tribal code 

provisions, tribal court rules, tribal 

administrative orders, tribal written 

policies, and tribal written procedures, 


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as well as summaries of the 

qualifications of certain tribal staff. 

During the five months following the 

Department’s publication of the June 

2013 notice in the Federal Register, 

informal tribal consultation has 

continued. First, the Departments of 

Justice and the Interior have received 

extensive advice and guidance from 

tribal officers, employees, experts, and 

consultants as part of the ITWG’s 

collective deliberations. Second, on 

multiple occasions in the last five 

months, each Department has taken the 

opportunity to engage in one-on-one, 

government-to-government consultation 

on issues of unique concern to a 

particular tribal member of the ITWG. 

The Department of Justice believes 

that this final notice addresses the key 

concerns that tribal officials highlighted 

at the tribal consultations in April and 

May 2013, at ITWG meetings during 

Phase One, in one-on-one, governmentto-government consultations during 

Phase One, and in public comments 

received in September 2013. The twophased structure is designed to move 

forward quickly with implementation, 

yet allow adequate time for deliberation 

and consultation. Phase One of the Pilot 

Project addressed the consensus about 

intertribal collaboration and 

information-sharing. Phase Two will 

allow that collaboration and 

information-sharing to continue and 

will put into effect the consensus about 

tribal self-certification, while also 

providing for necessary, targeted followup inquiries by the Department of 

Justice. 

Executive Orders 12866 and 13563— 

Regulatory Planning and Review 

Because this final notice is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866 of September 30, 

1993 (‘‘Regulatory Planning and 

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

to review under Executive Order 12866 

or 13563. 

Executive Order 13132—Federalism 

This final notice will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

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

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

exercise SDVCJ only concurrently with 

the jurisdiction of the United States, of 

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

alter federal or state criminal 

jurisdiction. Therefore, in accordance 

with Executive Order 13132 of August 

4, 1999, this final notice does not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

assessment. 

Executive Order 12988—Civil Justice 

Reform 

This final notice meets the applicable 

standards set forth in section 3(a) and 

(b)(2) of Executive Order 12988 of 

February 5, 1996. 

Regulatory Flexibility Act 

Because this final notice is not 

promulgated as a final rule under 5 

U.S.C. 553 and was not required under 

that section to be published as a 

proposed rule, the requirements for the 

preparation of a regulatory flexibility 

analysis under 5 U.S.C. 604(a) do not 

apply. In any event, this final notice 

will not have a significant economic 

impact on a substantial number of small 

entities; thus, no regulatory flexibility 

analysis is required for that reason as 

well. Id. 605(b). 

Unfunded Mandates Reform Act of 1995 

This final notice will not result in the 

expenditure by state, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Moreover, becoming a 

participating tribe and exercising 

SDVCJ—whether as part of the Pilot 

Project between now and March 2015, 

or at any time after March 2015—are 

entirely voluntary. Therefore, no actions 

were deemed necessary under the 

provisions of the Unfunded Mandates 

Reform Act of 1995, Public Law 104–4. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

Because this final notice is not a rule, 

it need not be reviewed under section 

251 of the Small Business Regulatory 

Enforcement Fairness Act of 1996, 5 

U.S.C. 804. In any event, this final 

notice will not result in an annual effect 

on the economy of $100 million or 

more; a major increase in costs or prices; 

or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based enterprises to 

compete with foreign-based enterprises 

in domestic and export markets. See id. 

Paperwork Reduction Act 

This final notice establishes a new 

‘‘collection of information’’ covered by 

the Paperwork Reduction Act of 1995 

(PRA), as amended, 44 U.S.C. 3501– 

3521. Under the PRA, a covered agency 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid control 

number assigned by the Office of 

Management and Budget (OMB). Id. 

3507(a)(3), 3512. The information 

collection in this final notice requires an 

Indian tribe seeking to exercise SDVCJ 

on an accelerated basis during the Pilot 

Project established under VAWA 2013 

to provide to the Department certain 

information about the tribe’s criminal 

justice system and its safeguards for 

defendants’ Federal rights. The 

Department submitted an informationcollection request to OMB for review 

and approval in accordance with the 

review procedures of the PRA. OMB 

approved the collection on November 

20, 2013, and assigned OMB control 

number 1105–0101. 

The Department of Justice did not 

receive any comments specifically about 

the proposed collection. 

Dated: November 25, 2013. 

Eric H. Holder, Jr., 

Attorney General. 

Appendix 

Application Questionnaire for the VAWA 

Pilot Project on Tribal Criminal Jurisdiction 

Instructions 

Completing this Application Questionnaire 

is a necessary step for any Indian tribe that 

wishes to commence exercising special 

domestic violence criminal jurisdiction 

(SDVCJ) on an accelerated basis (i.e., prior to 

March 7, 2015) under the voluntary Pilot 

Project described in section 908(b)(2) of the 

Violence Against Women Reauthorization 

Act of 2013 (VAWA 2013). Please review this 

Application Questionnaire in its entirety 

before beginning to fill it out. 

It is the Tribe’s responsibility to ensure 

that the application is complete and accurate. 

To the extent that future changes in the 

Tribe’s laws, rules, policies, or personnel 

render the answers incomplete or inaccurate 

during the Pilot Project (i.e., prior to March 

7, 2015), the Tribe’s authorized point of 

contact (POC) will have the responsibility of 

providing the Department of Justice with 

updated information. 

Most questions can be answered with a 

‘‘Yes’’ or a ‘‘No.’’ If the Tribe wishes to 

provide a longer answer to a particular 

question, the Tribe should please feel free to 

attach additional pages, but on each 

additional page please identify by number 

the question(s) being answered. 

Most questions expressly call for ‘‘relevant 

legal materials.’’ When answering these 

questions, any of the following types of legal 

materials might be relevant: 

• Tribal constitutional provisions 

• Tribal code or statutory provisions 

• Tribal court rules, such as tribal rules of 

criminal procedure, tribal rules of evidence, 

or tribal rules of appellate procedure 

• Tribal judicial opinions 

• Tribal court administrator’s or clerk’s 

manuals 

• Tribal regulations 

• Tribal administrative orders 

• Tribal written policies 


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• Tribal written procedures 

• A concise written description of an 

otherwise unwritten tribal practice (whether 

or not the practice is based in the Tribe’s 

customs or traditions) 

These ‘‘relevant legal materials’’ will form 

the core of the Tribe’s application, so please 

be sure (1) to include all legal materials that 

are actually relevant to the question whether 

the Tribe’s criminal justice system has 

adequate safeguards in place to protect 

defendants’ rights, consistent with 25 U.S.C. 

1304, and (2) not to include irrelevant 

materials, as doing so may slow down the 

review process that the Departments of 

Justice and the Interior are statutorily 

required to undertake. In determining which 

legal materials are relevant, the Department 

recommends that the Tribe review the 

materials created or gathered by the 

Intertribal Technical-Assistance Working 

Group on Special Domestic Violence 

Criminal Jurisdiction (ITWG) and the list of 

substantive questions appended to the 

Department’s June 2013 Federal Register 

notice, see 78 FR 35961, 35969–74 (June 14, 

2013). 

These ‘‘relevant legal materials’’ collected 

from the tribes that successfully apply to 

participate in Phase Two of the Pilot Project 

eventually will be made publicly available on 

the Department of Justice’s Web site. The 

posted materials will serve as a resource for 

other tribes, including those that may elect to 

commence exercising SDVCJ after the Pilot 

Project has concluded. 

The Tribe may submit ‘‘relevant legal 

materials’’ in either of two ways. First, if the 

particular document (e.g., a tribal code 

provision or court rule) is freely and publicly 

available on the Internet, the Tribe may 

provide a full legal citation to the precise 

material that the Tribe deems relevant to 

answering the question, such as a specific 

subsection of a tribal code provision, along 

with the exact URL (i.e., Web address) where 

the material can be found on the Internet. 

Second, the precise material that the Tribe 

deems relevant to answering the question 

may be attached to the Tribe’s completed 

Application Questionnaire as an electronic 

copy (if the Tribe is submitting the 

application by email) or as a paper copy (if 

the Tribe is submitting the application by 

mail). 

Please send the completed Application 

Questionnaire, along with all attachments, by 

email (or, if necessary, by mail) to: 

Office of Tribal Justice, Department of 

Justice, 950 Pennsylvania Avenue NW., 

Room 2310, Washington, DC 20530, EMail: OTJ@usdoj.gov. 

If you have questions or need assistance, 

please contact Mr. Tracy Toulou, Director, 

Office of Tribal Justice, Department of 

Justice, at (202) 514–8812 (not a toll-free 

number). 

A tribe may apply at any time before March 

7, 2015. All applications received at any time 

within 30 days after the publication of the 

Department of Justice’s final notice in the 

Federal Register (i.e., the final notice to 

which this Application Questionnaire is 

appended) will be given the same priority 

consideration. There is no advantage to be 

gained by submitting an Application 

Questionnaire immediately after publication 

of the final notice. The Tribe should ensure 

that it completely and accurately answers all 

questions and attaches all relevant legal 

materials. 

The Department of Justice will not 

consider an application that is incomplete, 

but will attempt to notify the Tribe’s POC 

regarding any deficiencies. The Tribe may 

submit a revised application at any time prior 

to March 7, 2015. Final decisions regarding 

whether or when a tribe may commence 

exercising SDVCJ on an accelerated basis are 

not appealable. 

Questions 

The Right to Trial by an Impartial Jury 

1. In a criminal proceeding in which the 

Tribe will exercise SDVCJ, will the Tribe 

provide to the defendant the right to a trial 

by an impartial jury that is drawn from 

sources that reflect a fair cross section of the 

community and do not systematically 

exclude any distinctive group in the 

community, including non-Indians? Please 

answer ‘‘Yes’’ or ‘‘No.’’ Please provide 

relevant legal materials detailing the 

safeguards that the Tribe’s criminal justice 

system has in place to protect this right. 

The Right to Effective Assistance of Counsel 

2. In a criminal proceeding in which the 

Tribe will exercise SDVCJ and in which a 

term of imprisonment of any length may be 

imposed, will the Tribe provide to the 

defendant the right to effective assistance of 

counsel at least equal to that guaranteed by 

the United States Constitution? Please 

answer ‘‘Yes’’ or ‘‘No.’’ Please provide 

relevant legal materials detailing the 

safeguards that the Tribe’s criminal justice 

system has in place to protect this right. 

The Right to Indigent Defense Counsel 

3. In a criminal proceeding in which the 

Tribe will exercise SDVCJ and in which a 

term of imprisonment of any length may be 

imposed, will the Tribe provide to each 

indigent defendant, at no cost to the 

defendant, the right to the assistance of a 

defense attorney licensed to practice law by 

any jurisdiction in the United States that 

applies appropriate professional licensing 

standards and effectively ensures the 

competence and professional responsibility 

of its licensed attorneys? Please answer 

‘‘Yes’’ or ‘‘No.’’ Please provide relevant legal 

materials detailing the safeguards that the 

Tribe’s criminal justice system has in place 

to protect this right. 

4. For each licensed defense attorney that 

the Tribe anticipates will be appointed to 

represent an indigent defendant in a criminal 

proceeding in which the Tribe will exercise 

SDVCJ during the Pilot Project (i.e., prior to 

March 7, 2015) and in which a term of 

imprisonment of any length may be imposed, 

please provide a list of all jurisdictions in 

which the defense attorney is licensed to 

practice law. Please provide a separate list of 

jurisdictions for each attorney (who can be 

identified either by name or anonymously as 

‘‘Attorney 1,’’ ‘‘Attorney 2,’’ etc.). 

The Right to a Law-Trained, Licensed Judge 

5. In a criminal proceeding in which the 

Tribe will exercise SDVCJ and in which a 

term of imprisonment of any length may be 

imposed, will the Tribe provide to the 

defendant the right to a criminal proceeding 

presided over by a judge who has sufficient 

legal training to preside over criminal 

proceedings and is licensed to practice law 

by any jurisdiction in the United States? 

Please answer ‘‘Yes’’ or ‘‘No.’’ Please provide 

relevant legal materials detailing the 

safeguards that the Tribe’s criminal justice 

system has in place to protect this right. 

6. For each judge that the Tribe anticipates 

will preside over a criminal proceeding in 

which the Tribe will exercise SDVCJ during 

the Pilot Project (i.e., prior to March 7, 2015) 

and in which a term of imprisonment of any 

length may be imposed, please provide (a) a 

brief description of the judge’s legal training 

to preside over criminal proceedings, and (b) 

a list of all jurisdictions in which that judge 

is licensed to practice law. Please provide a 

separate answer for each judge (who can be 

identified either by name or anonymously as 

‘‘Judge 1,’’ ‘‘Judge 2,’’ etc.). 

The Right to Publicly Available Laws and 

Rules 

7. In a criminal proceeding in which the 

Tribe will exercise SDVCJ and in which a 

term of imprisonment of any length may be 

imposed, will the Tribe, prior to charging the 

defendant, make publicly available the 

criminal laws (including regulations and 

interpretative documents), rules of evidence, 

and rules of criminal procedure (including 

rules governing the recusal of judges in 

appropriate circumstances) of the tribal 

government? Please answer ‘‘Yes’’ or ‘‘No.’’ 

Please provide relevant legal materials 

detailing the safeguards that the Tribe’s 

criminal justice system has in place to 

protect this right. 

The Right to Records of the Criminal 

Proceeding 

8. In a criminal proceeding in which the 

Tribe will exercise SDVCJ and in which a 

term of imprisonment of any length may be 

imposed, will the Tribe maintain a record of 

the criminal proceeding, including an audio 

or other recording of the trial proceeding? 

Please answer ‘‘Yes’’ or ‘‘No.’’ Please provide 

relevant legal materials detailing the 

safeguards that the Tribe’s criminal justice 

system has in place to protect this right. 

The Right to Timely Notice of Federal Habeas 

Corpus Rights and Privileges 

9. Will the Tribe provide to each person 

detained by order of the Tribe timely notice 

of the person’s rights and privileges to file in 

a court of the United States a petition for a 

writ of habeas corpus under 25 U.S.C. 1303 

and a petition to stay further detention under 

25 U.S.C. 1304(e)? Please answer ‘‘Yes’’ or 

‘‘No.’’ Please provide relevant legal materials 

detailing the safeguards that the Tribe’s 

criminal justice system has in place to 

protect this right to timely notice. 

Other Rights Protected by the Indian Civil 

Rights Act of 1968 

10. In a criminal proceeding in which the 

Tribe will exercise SDVCJ, will the Tribe 

provide to the defendant all applicable rights 

under the Indian Civil Rights Act of 1968, as 

amended, including but not limited to (a) the 

right of the people to be secure in their 


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* A protection order issued by a state, tribal, or 

territorial court is consistent with 18 U.S.C. 2265(b) 

if ‘‘such court has jurisdiction over the parties and 

matter under the law of such State, Indian tribe, or 

territory; and . . . reasonable notice and 

opportunity to be heard is given to the person 

against whom the order is sought sufficient to 

protect that person’s right to due process. In the 

case of ex parte orders, notice and opportunity to 

be heard must be provided within the time required 

by State, tribal, or territorial law, and in any event 

within a reasonable time after the order is issued, 

sufficient to protect the respondent’s due process 

rights.’’ 18 U.S.C. 2265(b). 

persons, houses, papers, and effects against 

unreasonable search and seizures, and not to 

be subjected to a warrant unless it was issued 

upon probable cause, was supported by oath 

or affirmation, and particularly described the 

place to be searched and the person or thing 

to be seized; (b) the right not to be twice put 

in jeopardy for the same offense; (c) the right 

not to be compelled to be a witness against 

himself; (d) the right to a speedy and public 

trial; (e) the right to be informed of the nature 

and cause of the accusation; (f) the right to 

be confronted with the witnesses against 

him; (g) the right to have compulsory process 

for obtaining witnesses in his favor; (h) the 

right to be free from excessive bail; (i) the 

right to be free from excessive fines; (j) the 

right against cruel and unusual punishments; 

(k) the right to the equal protection of the 

Tribe’s laws; (l) the right not to be deprived 

of liberty or property without due process of 

law; (m) the right not to be subjected to an 

ex post facto law; and (n) the right to a trial 

by jury of not less than six persons? Please 

answer ‘‘Yes’’ or ‘‘No.’’ Please provide 

relevant legal materials detailing the 

safeguards that the Tribe’s criminal justice 

system has in place to protect these rights. 

Tribal Criminal Jurisdiction 

11. Will the Tribe exercise SDVCJ over a 

defendant only for criminal conduct 

constituting, within the meaning of 25 U.S.C. 

1304, either (a) an act of domestic violence 

or dating violence that occurs in the Indian 

country of the Tribe, or (b) an act that occurs 

in the Indian country of the Tribe and 

violates the portion of a protection order that 

(1) prohibits or provides protection against 

violent or threatening acts or harassment 

against, sexual violence against, contact or 

communication with, or physical proximity 

to, another person; (2) was issued against the 

defendant; (3) is enforceable by the Tribe; 

and (4) is consistent with 18 U.S.C. 

2265(b)? * Please answer ‘‘Yes’’ or ‘‘No.’’ 

Please provide relevant legal materials 

detailing the safeguards that the Tribe’s 

criminal justice system has in place to 

protect this right. 

12. In a criminal proceeding in which the 

Tribe will exercise SDVCJ, will the Tribe 

convict a non-Indian defendant at trial only 

if the Tribe proves that the alleged victim is 

an Indian? Please answer ‘‘Yes’’ or ‘‘No.’’ 

Please provide relevant legal materials 

detailing the safeguards that the Tribe’s 

criminal justice system has in place to 

protect this right. 

13. In a criminal proceeding in which the 

Tribe will exercise SDVCJ, will the Tribe 

convict a defendant at trial only if the Tribe 

proves that the defendant resides in the 

Indian country of the Tribe; is employed in 

the Indian country of the Tribe; or is a 

spouse, intimate partner, or dating partner 

either of a member of the Tribe or of an 

Indian who resides in the Indian country of 

the Tribe? Please answer ‘‘Yes’’ or ‘‘No.’’ 

Please provide relevant legal materials 

detailing the safeguards that the Tribe’s 

criminal justice system has in place to 

protect this right. 

Other Considerations 

14. This final question is optional. If the 

Tribe believes it would be helpful to the 

Departments of Justice and the Interior in 

fulfilling their statutory duties related to the 

Pilot Project, the Tribe may provide any 

additional information or relevant legal 

materials addressing the Tribe’s readiness to 

commence exercising SDVCJ on an 

accelerated basis while protecting 

defendants’ rights, consistent with 25 U.S.C. 

1304. Additional information or relevant 

legal materials may focus on any of the 

following topics: (a) the Tribe’s history of 

compliance with the Indian Civil Rights Act 

of 1968, as amended; (b) the Tribe’s recent 

history, following the 2010 enactment of 25 

U.S.C. 1302(b)–(c), of imposing total terms of 

imprisonment of more than one year; (c) the 

Tribe’s formal or informal policies for 

coordinating with federal or state criminal 

investigators and prosecutors in cases where 

the Tribe may have concurrent criminal 

jurisdiction; (d) the Tribe’s efforts to combat 

domestic violence and dating violence, 

including issuing and enforcing protection 

orders; (e) the Tribe’s efforts to protect the 

rights and safety of victims of domestic 

violence and dating violence; (f) the Tribe’s 

methods for summoning, selecting, and 

instructing jurors; (g) the Tribe’s efforts to 

strengthen law enforcement, prosecution, 

trial and appellate courts, probation systems, 

detention and correctional facilities, 

alternative rehabilitation centers, culturally 

appropriate services and assistance for 

victims and their families, criminal codes, 

rules of criminal procedure, rules of 

appellate procedure, rules of evidence, and 

the capacity of law enforcement or court 

personnel to enter information into and 

obtain information from national crime 

information databases; (h) the Tribe’s needs 

for training, technical assistance, data 

collection, and evaluation of the Tribe’s 

criminal justice system; (i) the date on which 

the Tribe would like to commence exercising 

SDVCJ under the Pilot Project; (j) the Tribe’s 

plans to notify the public before commencing 

to exercise SDVCJ; and (k) any other 

pertinent topic that the Tribe would like the 

Departments of Justice and the Interior to 

consider when reviewing the Tribe’s 

Application Questionnaire. 

Certifications 

The completeness and accuracy of this 

Application Questionnaire must be certified 

by (1) the chief executive officer of the Tribe 

(e.g., the tribal chairperson, president, 

governor, principal chief, or other equivalent 

official); (2) the chief judicial officer of the 

Tribe (e.g., the tribal chief justice, chief 

judge, or other equivalent official); (3) the 

chief legal officer of the Tribe (e.g., the tribal 

attorney general, attorney, general counsel, or 

other equivalent official); and (4) the person 

authorized by the Tribe’s governing body to 

be the Tribe’s point of contact (POC) for the 

Department of Justice in this application 

process. The POC may be either one of the 

three officers listed above or a fourth 

individual selected by the Tribe’s governing 

body. Each of these individuals must sign 

and certify the Application Questionnaire 

below. 

Certification of the Tribe’s Chief Executive 

Officer 

1. I am the chief executive officer 

of lll [enter the name of the requesting 

tribe] (‘‘the Tribe’’). 

2. I certify that I have read the Indian Civil 

Rights Act, as amended, 25 U.S.C. 1301– 

1304, including the amendments made by 

VAWA 2013. 

3. I certify that, to the best of my 

knowledge, information, and belief, formed 

after an inquiry that is reasonable under the 

circumstances, the answers to this 

Application Questionnaire are complete and 

accurate. 

4. I certify that, to the best of my 

knowledge, information, and belief, formed 

after an inquiry that is reasonable under the 

circumstances, the criminal justice system of 

the Tribe has adequate safeguards in place to 

protect defendants’ rights, consistent with 25 

U.S.C. 1304. 

Signature: 

Date: 

Name: 

Title or Position: 

Address: 

City/State/Zip: 

Phone: 

FAX: 

Email: 

Certification of the Tribe’s Chief Judicial 

Officer 

1. I am the chief judicial officer of lll 

[enter the name of the requesting tribe] (‘‘the 

Tribe’’). 

2. I certify that I have read the Indian Civil 

Rights Act, as amended, 25 U.S.C. 1301– 

1304, including the amendments made by 

VAWA 2013. 

3. I certify that I have read the final notice 

on the ‘‘Pilot Project for Tribal Jurisdiction 

over Crimes of Domestic Violence’’ published 

by the Department of Justice in the Federal 

Register on November 29, 2013. 

4. I certify that, to the best of my 

knowledge, information, and belief, formed 

after an inquiry that is reasonable under the 

circumstances, the answers to this 

Application Questionnaire are complete and 

accurate. 

5. I certify that, to the best of my 

knowledge, information, and belief, formed 

after an inquiry that is reasonable under the 

circumstances, the criminal justice system of 

the Tribe has adequate safeguards in place to 

protect defendants’ rights, consistent with 25 

U.S.C. 1304. 

Signature: 

Date: 

Name: 

Title or Position: 

Address: 

City/State/Zip: 


sroberts on DSK5SPTVN1PROD with NOTICES
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1The Show Cause Order also notified Applicant 

of his right to request a hearing on the allegations 

or to submit a written statement while waiving his 

right to a hearing, the procedure for electing either 

option, and the consequence of failing to elect 

either option. GX 5, at 2–3 (citing 21 CFR 1301.43). 

2On July 12, 2013, the mailing was returned to 

DEA and marked as ‘‘Return to sender, unclaimed, 

unable to forward, returned to sender.’’ GX 6, at 1. 

3Regarding the two email addresses, the 

Diversion Investigator (DI), who investigated the 

application, ‘‘discovered that [Applicant] gave the 

Board the email address of jacksonstone22@

hotmail.com . . . [and] [o]n a residential rental 

application in San Diego . . . Applicant listed his 

email address as zizhuangli@yahoo.com.’’ GX 4, at 

2. The latter is the same email address Applicant 

provided on his DEA application. 

Phone: 

FAX: 

Email: 

Certification of the Tribe’s Chief Legal Officer 

1. I am the chief legal officer of lll 

[enter the name of the requesting tribe] (‘‘the 

Tribe’’). 

2. I certify that I have read the Indian Civil 

Rights Act, as amended, 25 U.S.C. 1301– 

1304, including the amendments made by 

VAWA 2013. 

3. I certify that I have read the final notice 

on the ‘‘Pilot Project for Tribal Jurisdiction 

over Crimes of Domestic Violence’’ published 

by the Department of Justice in the Federal 

Register on November 29, 2013. 

4. I certify that, to the best of my 

knowledge, information, and belief, formed 

after an inquiry that is reasonable under the 

circumstances, the answers to this 

Application Questionnaire are complete and 

accurate. 

5. I certify that, to the best of my 

knowledge, information, and belief, formed 

after an inquiry that is reasonable under the 

circumstances, the criminal justice system of 

the Tribe has adequate safeguards in place to 

protect defendants’ rights, consistent with 25 

U.S.C. 1304. 

Signature: 

Date: 

Name: 

Title or Position: 

Address: 

City/State/Zip: 

Phone: 

FAX: 

Email: 

Certification of the Tribe’s Point of Contact 

1. I have been authorized by the governing 

body of lll [enter the name of the 

requesting tribe] (‘‘the Tribe’’) to serve as the 

Tribe’s point of contact (POC) with the 

Department of Justice for purposes of the 

VAWA Pilot Project. 

2. I certify that I have read the Indian Civil 

Rights Act, as amended, 25 U.S.C. 1301– 

1304, including the amendments made by 

VAWA 2013. 

3. I certify that I have read the final notice 

on the ‘‘Pilot Project for Tribal Jurisdiction 

over Crimes of Domestic Violence’’ published 

by the Department of Justice in the Federal 

Register on November 29, 2013. 

4. I certify that, to the best of my 

knowledge, information, and belief, formed 

after an inquiry that is reasonable under the 

circumstances, the answers to this 

Application Questionnaire are complete and 

accurate. 

5. I certify that, to assist the Department of 

Justice in fulfilling its statutory duty to 

determine whether the criminal justice 

system of the Tribe has adequate safeguards 

in place to protect defendants’ rights, 

consistent with 25 U.S.C. 1304, I will make 

best efforts, for the remainder of the Pilot 

Project’s duration (i.e., prior to March 7, 

2015), to promptly answer written or oral 

questions from the Departments of Justice 

and the Interior about the Tribe’s criminal 

justice system; to promptly update any 

answers to this Application Questionnaire if 

they become incomplete, inaccurate, or 

outdated; to promptly fix any omissions in 

the Application Questionnaire; and to 

promptly submit to the Department of Justice 

any additions, deletions, or corrections to the 

Application Questionnaire. 

Signature: 

Date: 

Name: 

Title or Position: 

Address: 

City/State/Zip: 

Phone: 

FAX: 

Email: 

[FR Doc. 2013–28653 Filed 11–27–13; 8:45 am] 

BILLING CODE 4410–A5–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Zizhuang Li, M.D.; Decision and Order 

On June 10, 2013, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Zizhuang Li, M.D. 

(Applicant), of Leawood, Kansas. GX 5. 

The Show Cause Order proposed the 

denial of Applicant’s application for a 

DEA Certificate of Registration as a 

practitioner, on the ground that his 

‘‘registration would be inconsistent with 

the public interest.’’ Id. at 1 (citing 21 

U.S.C. 823(f)). 

As basis for the denial, the Show 

Cause Order alleged that ‘‘[o]n 

September 27, 2012, the Mississippi 

State Board of Medical Licensure 

(Board) found that from April through 

August 2010, [Applicant] prescribed 

controlled substances, including 

oxycodone, carisoprodol, and 

alprazolam, outside the course of 

professional practice to four patients.’’ 

Id. Next, the Show Cause Order alleged 

that the Board found that Applicant 

‘‘engaged in unprofessional conduct’’ by 

failing ‘‘to conduct an appropriate risk/ 

benefit analysis for [his] patients,’’ and 

that he also ‘‘failed to document proper 

written treatment plans.’’ Id. (citing 

Miss. Code Ann. §§ 73–25–29(8)(d) & 

(13); 73–25–83(a)). The Order then 

alleged that based on its findings, the 

Board suspended Applicant’s medical 

license for twelve months.1 Id. 

On June 10, 2013, the Government 

attempted to serve the Show Cause 

Order by certified mail, return receipt 

requested, addressed to Applicant at the 

address he provided on his application 

for receiving mail from the Agency. GX 

6, at 1. However, on July 6, 2013, the 

Government queried the Postal Service’s 

Track and Confirm Web page and 

determined that the mailing had not 

been accepted.2 Accordingly, on July 9, 

2013, the Government mailed the Show 

Cause Order to Applicant at the same 

address using first class mail. Id. That 

same day, DEA also emailed an 

electronic version of the Show Cause 

Order to two email addresses 

purportedly used by Applicant, 

including the address which he had 

provided on his application for 

registration.3 Id. Neither email was 

returned as undeliverable or resulted in 

an error message. Id. 

Based on the above, I find that the 

Government has complied with its 

obligation ‘‘to provide ‘notice, 

reasonably calculated under all the 

circumstances, to apprise [Applicant] of 

the pendency of the action and afford 

[him] an opportunity to present [his] 

objections.’ ’’ Jones v. Flowers, 547 U.S. 

220, 226 (2006) (quoting Mullane v. 

Central Hanover Bank & Trust Co., 339 

U.S. 306, 314 (1950)); see also Emilio 

Luna, 77 FR 4829, 4830 n.2 (2012) (‘‘[I]t 

seems relatively clear that when 

certified mail is returned unclaimed, in 

most cases, the Government can satisfy 

its constitutional obligation by simply 

re-mailing the Show Cause Order by 

regular first class mail.’’) (citing Jones, 

547 U.S. at 234–35). 

On August 20, 2013, the Government 

submitted its Request for Final Agency 

Action, along with the Investigative 

Record. Based on the Government’s 

submission, I further find that more 

than thirty days have now passed since 

service of the Show Cause Order was 

accomplished, and neither Applicant, 

nor anyone purporting to represent him, 

has either requested a hearing or 

submitted a written statement in lieu of 

a hearing. 21 CFR 1301.43(a) & (c). 

Accordingly, I find that Applicant has 

waived his right to a hearing or to 

submit a written statement. 21 CFR 

1301.43(d). I therefore issue this 

Decision and Final Order based on 

relevant material contained in the 

Investigative Record submitted by the 

Government. I make the following 

findings of fact. 


sroberts on DSK5SPTVN1PROD with NOTICES