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Yesterday the House gave up any effort to pass its own version of the Violence Against Women Act (VAWA) and accepted the Senate bill, which now goes to the President for his signature. In so doing the House decided not to revise the Senate provision expanding Indian tribal court jurisdiction over non-Indians charged with certain domestic violence crimes.

Various commentators have criticized that aspect of the bill. Heritage published two blog posts (here and here) noting that this expansion violated Articles II and III of the Constitution and one arguing that the bill was unwise as a matter of policy. A recently published Brigham Young University law review article made the same point.

Other commentators have identified different flaws in the Senate bill. For example, University of California, Los Angeles Professor Eugene Volokh, a noted First Amendment scholar, has concluded that elements of the Senate bill violate the First Amendment Free Speech Clause.

Tom Gede, a Commissioner on the Indian Law and Order Commission, has noted that there may be due process objections to the trial of non-Indians in tribal court, because, as Justice Anthony Kennedy has noted, it wrests constitutional protections from a U.S. citizen and turns him over to a foreign sovereign. The result is that, once the President signs the bill, lawyers, not legislators, will step in to raise those defects in federal court.

One likely scenario is this: A non-Indian held in custody on a domestic violence charge will petition a federal district court for a writ of habeas corpus. He will argue that the tribal court cannot constitutionally exercise jurisdiction over a non-Indian and that the tribes lack authority to try him and confine him pending trial. (The defendant also may raise the First Amendment and due process claims that others have noted.)

The tribe undoubtedly will argue that, because it always enjoyed inherent authority to prosecute non-Indians for crimes, Congress did not “delegate” new authority to them; Congress merely “recognized” the tribes’ inherent authority.

The problem, however, is that the Supreme Court held in Oliphant v. Suquamish Indian Tribe (1978) that tribes lack such inherent authority. Oliphant said in dicta that Congress could grant tribes that jurisdiction, and Congress has sought to do so in this law. But while Congress may be able to grant tribes that authority, Congress must still comply with the Constitution, including the requirements in Articles I, II, and III, in the process. As long as Oliphant remains good law, tribes lack inherent authority to prosecute non-Indians. What never existed therefore cannot be “recognized,” only “created.”

The district court will resolve those questions. There are reservations in several federal district courts, and appeals from those courts go to different courts of appeals. If the circuit courts disagree, the Supreme Court will need to resolve the matter. Once again, problems and litigation that could have been avoided will end up in the courts.

A fair question to ask is: Why did this happen? Congress had four other options: federal court, state court, tribal court with a right to remove the case to federal court, and tribal court followed by a trial de novo in federal court. Congress chose none of those options. A bill labeled “The Violence Against Women Act” became freighted with a needless federal constitutional controversy over tribal jurisdiction.

Ask yourself: Are women worse off with one of the four options noted above? The answer clearly is, No. Are women better off with prosecutions in tribal courts? The answer had better be, No. Otherwise, Congress has intentionally skewed the result against defendants, people presumed innocent until proved guilty.