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Criminal jurisdiction in Indian country is divided among federal, tribal, and state governments, depending on the location of the crime, the type of crime, the race of the perpetrator, and the race of the victim. 191 (1978), held that tribal courts lack criminal jurisdiction over non-Indian defendants.
However, if the assault does occur within the context of one of those three offenses, then the defendant may be held accountable in tribal court.
This is noteworthy because the definitions of domestic and dating violence require some evidence of a preexisting relationship between the defendant and the victim.
They therefore prohibit the prosecution of a defendant for sexual assault that occurred during a “hook up,” or any other instance in which the defendant and the victim do not have a prior romantic relationship.
One of the more debilitating factors, however, is that tribal courts are without any recourse against non-Indian offenders in Indian country due to a 1978 Supreme Court case. Among its other provisions, Congress amended the Indian Civil Rights Act (ICRA) of 1968 to authorize "special domestic violence criminal jurisdiction" to tribal courts over non-Indian offenders who commit (1) domestic violence, (2) dating violence, or (3) violate a protection order. Note that due to jurisdictional frameworks in existence prior to VAWA, either the federal or state government will continue to have concurrent jurisdiction over these same non-Indian offenders, for the same crime prosecuted by the tribal court.
Note that because tribes are distinct sovereigns from the states and from the federal government, there are no double jeopardy concerns for dual prosecutions.
The expanded jurisdiction does NOT apply when: Note that while a defendant must have certain connections to the tribe in order to be prosecuted by the tribal court, these restrictions pertain to "Indians," rather than "tribal-members." Therefore, a non-Indian defendant may be prosecuted for domestic violence involving an Indian victim, regardless of whether the victim is a member of the prosecuting tribal court, so long as the crime took place in the Indian country of the prosecuting tribe, and the defendant satisfies at least one of the three factors for sufficient ties.