[Federal Register Volume 78, Number 230 (Friday, November 29, 2013)]
[Notices]
[Pages 71645-71660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28653]


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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.

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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 [email protected].

FOR FURTHER INFORMATION CONTACT: Mr. Tracy Toulou, Director, Office of 
Tribal

[[Page 71646]]

Justice, Department of Justice, at (202) 514-8812 (not a toll-free 
number) or [email protected].

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\
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    \1\ Public 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).
    \2\ See 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).
    \3\ See 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).
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    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\
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    \4\ See 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.
    \5\ See 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 Married-Couple 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).
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    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 non-Indian, 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 non-Indian 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.
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    \6\ The tribal provisions of VAWA 2013 are gender-neutral; 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.
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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 non-Indians 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

[[Page 71647]]

[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\
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    \7\ Treaty with the Wyandot, Delaware, Ottawa, Chippewa, 
Potawatomi, and Sac Nations, art. IX, Jan. 9, 1789, 7 Stat. 28, 30.
    \8\ See Treaty with the Shawnee Nation, art. VII, Jan. 31, 1786, 
7 Stat. 26, 27.
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    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 non-Indians.\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 non-
Indians.\13\
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    \9\ 435 U.S. 191 (1978).
    \10\ See id. at 195-212.
    \11\ See id. at 195 & n.6, 206, 210-12.
    \12\ Public Law 90-284, tit. II, 82 Stat. 77 (1968).
    \13\ Oliphant, 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)).
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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.
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    \14\ Public Law 90-284, tit. II, 82 Stat. 77 (1968).
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    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\
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    \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).
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    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\
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    \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.
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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\
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    \17\ Public 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).
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    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

[[Page 71648]]

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 non-Indians 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\
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    \19\ Section 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).
    \20\ Section 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).
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    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.
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    \21\ 25 U.S.C. 1302(a)(4).
    \22\ Id. 1302(a)(6).
    \23\ Id. 1302(a)(8).
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    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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    \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 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).

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[[Page 71649]]

    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.
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    \25\ Public Law 111-211, tit. II, sec. 234(a)(3), 124 Stat. 
2258, 2280.
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    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 non-Indians. 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 non-Indian populations. Other 
communities in Indian country have few, if any, non-Indian members, and 
therefore inevitably will have few, if any, non-Indians 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

[[Page 71650]]

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\
---------------------------------------------------------------------------

    \26\ See Public Law 100-472, sec. 209, 102 Stat. 2285, 2296-98 
(1988).
---------------------------------------------------------------------------

    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 Technical-Assistance 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 victim-centered 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.

[[Page 71651]]

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 two-year 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,

[[Page 71652]]

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.

[[Page 71653]]

    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 subject-matter 
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 tribal-jurisdiction 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 one-on-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-to-government relationship between two sovereigns and 
deference to tribal self-governance 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.

[[Page 71654]]

    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.

[[Page 71655]]

    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 non-Indian 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 criminal-procedure 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.

[[Page 71656]]

    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.
---------------------------------------------------------------------------

    \27\ U.S. Department of Justice, Implementation of Sections 904 
and 908 of the Violence Against Women Reauthorization Act of 2013 
(Apr. 16, 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,

[[Page 71657]]

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, government-to-government consultations during Phase One, 
and in public comments received in September 2013. The two-phased 
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 follow-up 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 information-collection 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

[[Page 71658]]

     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, E-Mail: [email protected].

    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

[[Page 71659]]

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.
---------------------------------------------------------------------------

    * 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).
---------------------------------------------------------------------------

    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 ------ [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 ------ [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:

[[Page 71660]]

    Phone:
    FAX:
    Email:

Certification of the Tribe's Chief Legal Officer

    1. I am the chief legal officer of ------ [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 ------ [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