Violence Against Women Act (VAWA) 2022 Update

Violence Against Women Act (VAWA) 2022 Update

By Ryan Lolar, Indigenous Peoples Unit Staff Attorney, and Alida Pitcher-Murray, Indigenous Peoples Unit Legal Intern

TW: This article deals with difficult discussions of domestic violence, sexual assault, stalking, and dating violence, particularly against Indigenous people. If you or someone you know is experiencing these, please find resources for state and Tribal DV/SA agencies within the resource pages at the back of this newsletter.

In the last edition of the Wabanaki Legal News, we discussed the potential for an updated VAWA Reauthorization Act to pass through Congress that may expand recognition of Tribal sovereignty, restore Tribal jurisdiction over crimes related to domestic and sexual violence, and recognize that the Wabanaki Tribes are included in VAWA’s Tribal provisions. The legislation we discussed passed through Congress in early 2022 and was signed into law by President Joseph R. Biden on March 15, 2022. VAWA 2022 builds on the previous iterations of VAWA and includes many of the previously discussed provisions.

The previous iteration of VAWA, VAWA 2013, included a provision that recognized the authority of Tribes to exercise "special domestic violence criminal jurisdiction" (SDVCJ). Unfortunately, the applicability of SDVCJ was in question because of provisions of the federal Maine Indian Claims Settlement Act (MICSA) that prohibits the application of federal laws that benefit Tribal members and Tribes if those laws "affect or preempt" the laws of Maine. However, the Maine legislature passed a law in 2020 that provides that VAWA 2022 explicitly recognizes “any participating tribes in the State of Maine.” This means that VAWA 2022 applies to the Wabanaki Tribes.

VAWA 2022 took effect in October 2022. It amends VAWA 2013, expanding the "covered crimes" listed under its provisions. This "special tribal criminal jurisdiction" (STCJ) covers, in addition to the VAWA 2013 crimes, assault of Tribal justice personnel, child violence, obstruction of justice, sexual violence, sex trafficking, and stalking. The complete list of "covered crimes" is as follows:

  • Assault of Tribal justice personnel
  • Child violence
  • Dating violence
  • Domestic violence
  • Obstruction of justice
  • Sexual violence
  • Sex trafficking
  • Stalking
  • Criminal violations of protection orders

Under VAWA 2022, Tribes exercise their sovereign power to investigate, prosecute, convict, and sentence Indian and non-Indian defendants who commit covered crimes in Indian country against Indian victims. However, in cases of obstruction of justice and assault of Tribal justice personnel, the victim need not be Indian. Tribes may exercise STCJ jurisdiction regardless of whether the non-Indian defendant has ties to the participating Tribe. This program is voluntary; Tribes are free to choose to participate or not. If they do participate, the elements of each crime will be determined by Tribal law.

Criminal defendants have certain rights under VAWA 2022. Participating Tribes must:

  • Protect the rights of defendants under the Indian Civil Rights Act of 1968, including the right to due process under the U.S. Constitution;
  • Protect the rights of defendants under the Tribal Law and Order Act of 2010, by providing:
    • Effective assistance of counsel for defendants;
    • Free, appointed, licensed attorneys for indigent defendants;
    • Law-trained Tribal judges who are also licensed to practice law;
    • Publicly available Tribal criminal laws and rules; and
    • Recorded criminal proceedings.
  • Include a fair cross-section of the community in jury pools and not systematically exclude non-Indians;
  • Inform (in writing) defendants detained by a Tribal court of their right to file federal habeas corpus petitions.

Funding

VAWA 2022 reauthorized the VAWA 2013 grant program and authorized a new program to reimburse Tribal governments for expenses incurred in, relating to, or associated with exercising STCJ. VAWA 2013 had appropriations of $5.5 million in FY 2022. In addition, the Act authorized annual appropriations of $25 million for both grants and reimbursements. Please note that no more than 40 percent of the funds may be used for reimbursements. Funding for Tribal criminal justice systems and victims’ services related to the exercise of STCJ is also available from DOJ’s Bureau of Justice Assistance, Office of Community Oriented Policing Services, and Office for Victims of Crime.

Paragraphs

The Wabanaki Legal News is published by Pine Tree Legal Assistance, Inc. and is funded in part through a grant from the Legal Services Corporation. The views expressed by the authors in this newsletter are not necessarily shared by Pine Tree Legal Assistance or its staff.

Indigenous Peoples Unit
Lisa Chase, Managing Attorney
Suzanne Burke, Staff Attorney
Sadie Harris, Staff Attorney

115 Main St. #2
Bangor, ME 04401

Pine Tree Indigenous Peoples Unit toll free hotline: 1-877-213-5630; V/TTY: 711.

Please call our toll-free hotline to request assistance. You may also call Pine Tree Legal Assistance during call center hours.