The VAWA amendments show Congress’s concern with protecting the victims of domestic violence, balanced with protecting constitutional rights of criminal defendants in tribal courts, especially non-Indian criminal defendants. If tribes wish to pursue a goal of more complete control of criminal law enforcement generally, as the Commission recommends, the VAWA precedent suggests a general structure that Congress might approve again, for those tribes interested in pursuing it.

Although the expanded special domestic violence jurisdiction in the VAWA will not be an available option for all tribes until March 7, 2015, tribes may apply to the U.S. Department of Justice (DOJ) to exercise the authority immediately under a pilot program. On February 6, 2014, DOJ granted three tribes (Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington, and the Umatilla Tribes of Oregon) the authority to exercise special domestic violence jurisdiction. Although the jurisdiction is limited, for the first time since 1978, these tribes have the authority to arrest, prosecute, and sentence non-Indians who commit domestic violence on their lands, and tribes are exercising this new authority. As of July 1, the Pascua Yaqui Tribe reported that 12 VAWA investigations that have lead to arrests of non-Indians, and the first trial of a non-Indian criminal defendant in tribal court is scheduled for August 19, 2014.

The provisions of the TLOA and the VAWA affirming enhanced inherent tribal criminal jurisdiction do not give the tribes criminal jurisdiction over non-Indians except in the domestic violence context, and thus are insufficient in the Commission’s view. These laws do, however, provide tribal governments an opportunity to lay the foundation for the broader reform recommended in the Commission’s Report or incremental steps such as an extension of special domestic violence jurisdiction to cover additional offenses such as violence against children.