The U.S. House of Represents recently passed the reauthorization of the Violence Against Women Act (VAWA) (H.R. 4970) on a largely Republican partisan vote. Indian tribes and many non-partisan women’s advocacy groups have objected to H.R. 4970 it because it is a “watered down” version of the Senate version (S. 1925) which had provisions which would recognize inherent tribal jurisdiction to protect women from the violence inflicted upon them by non-Indian persons. The Senate version also had provisions offering enhanced protection and confidentiality for illegal immigrants reporting domestic violence. The Bills will now go to Conference Committee where the members of the House and Senate Committees having jurisdiction over the bill will attempt to reconcile the differences. The White House has threatened to veto the bill if the Tribal Jurisdiction and Immigrant Women provisions are not restored.
Some Senate Republicans, particularly Senator Kyl (R-AZ) and Kay Bailey Hutchinson (R-TX), had objected to the Tribal Court Jurisdiction provisions in S. 1925 and condemned the provisions as “unconstitutional” because the law “proposed granting Indian Tribes the jurisdiction to arrest, prosecute and imprison non-Indians under tribal law” and to do so was “contravening 200 years of American legal tradition” by “subjecting individuals to the criminal jurisdiction of a government from which they are excluded on account of Race”. The same arguments were reiterated when the House passed its version of VAWA (H.R. 4970) which stripped out the tribal jurisdiction provisions. The Republican objections reiterated many anti-tribal sovereignty sentiments of members of Congress and various arguments made by state governments and attorneys general.
Congress and Congressional Committees routinely turn to the Congressional Research Service in the Library of Congress for legal analysis/opinions on proposed legislation. As I expected I did find a Legislative Counsel opinion from the Congressional Research Service (CRS): Tribal Criminal Jurisdiction over Non-Indians in the Violence Against Women Act Reauthorization and the Save Native Women Act (April 18, 2012). The CRS website states “CRS is well-known for analysis that is authoritative, confidential, objective and nonpartisan. Its highest priority is to ensure that Congress has 24/7 access to the nation’s best thinking.” The report was written by two Legislative Attorneys with a combined total of seven years experience, one being a former attorney in the Interior Solicitors Office.
The CRS report on S. 1925 (VAWA) strains to give the appearance of bi-partisanship and neutrality, but it is littered with judgmental presumptions that what Congress would be doing by passing S. 1925 would amount to “extension, expansion, giving, granting” tribal courts jurisdiction over non-members. The report argues against Congressional authority to “recognize or confirm” the inherent power of Tribes to exercise such jurisdiction. The report also reflects bias held by states and some courts with regard to the inferior nature of tribal courts and tribal court processes. The CRS certainly appears to have sided with Senators Kyle and Hutchinson’s position as well as many states’ anti-tribal jurisdiction stance. Quite frankly, the CRS analysis carries the states’ water in saying that Congress cannot recognize and affirm the tribes’ jurisdiction over non-Indians. In its final analysis the CRS comes down on the side that Congress may only delegate “federal” jurisdiction over non-Indians to tribes along with the full protection of the Bill of Rights for non-Indian defendants. The CRS argues that recognition or affirmation of such jurisdiction as inherent retained jurisdiction would subject non-Indian defendants to less protections than are in the Bill of Rights and to do so may be unconstitutional. The report does not attempt to reconcile why Congress can subject Tribal Members and non-member Indians to only those protections in the Indian Civil Rights Act but would have to give non-Indians the Constitutional protections in the Bill of Rights. The CRS cites the inability of the non-Indian to participate (vote) in tribal government as the basis on which S. 1925 may be unconstitutional. CRS also makes the presumption that non-Indians could not serve on juries, an assertion that may not be generally true. The CRS report, while it is by no means a binding opinion, unfortunately can find its way into legislative history and, subsequently, into court opinions and has certainly been used to characterize the Tribal Jurisdiction provision in VAWA as unconstitutional.
The report also sets out the importance of the delegation versus recognition distinction. The report states that Congress may not be able, constitutionally, to simply recognize such inherent tribal jurisdiction, because it would subject non-Indian defendants to a Tribal Court where he would only be afforded the protections in the Indian Civil Rights Act. The CRS states that to do this to a class of U.S. citizens would violate constitutional due process and equal protection. The CRS suggests that Congress can avoid this constitutional infirmity by “giving” or delegating federal jurisdiction to the tribes over these types of crimes. However, because Congress would be delegating federal jurisdiction it must come with the full panoply of U.S. Constitutional Rights. The report suggests that Congress’ plenary authority is limited by whether the person who is subject to Congress’ plenary power in Indian Country and Indian Affairs is a non-Indian. This is a rather restrictive view of Congress’s power and is not supported in any Congressional Act or Supreme Court Opinion. CRS only legal basis is what CRS thinks “this” Supreme Court might do. You may find that reasoning, as I assure you this author did, a bit gratuitous. The obvious oxymoron created by saying that Congress has limited or constrained plenary power will not be lost by most readers. Neither will the obvious oxymoron of saying that Congress can only “give or grant” inherent tribal jurisdiction to Indian Tribes by a delegation. You don’t grant something that is inherent.
The CRS Report clearly suggests that Congress has the authority to relax restrictions on the tribes inherent jurisdiction as it did after the Supreme Court’s decision in Duro v. Reina (1990). In Duro the Court found that prosecution of a non-member Indian was “inconsistent with the Tribe’s dependent status. The Duro Court relied heavily upon Oliphant v. Suquamish Tribe (1978) wherein the Supreme Court decided that the Suquamish Tribe “By submitting to the overriding sovereignty of the United States, Indian Tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress”. In the wake of Duro decision, Congress, rather than delegating federal authority to the tribes as the Duro Court suggested, passed an amendment to the ICRA which recognized and affirmed in each tribe the inherent tribal power (not delegated power) to prosecute non-member Indians”. The Supreme Court upheld this congressional affirmation of inherent tribal jurisdiction in United States V. Lara (2004). The CRS report fails to reconcile why Congress’ affirmation of tribal jurisdiction over non-member Indians (Duro Jurisdiction) was acceptable to the Supreme Court in Lara while the same affirmation in VAWA won’t be acceptable to the Supreme Court. The CRS appears to focus on issue of the race of the person rather than the plenary power of Congress over Indian Country and Indian Affairs.
The Constitution, laws and treaties of the United States recognize three sovereigns, tribal, state and federal. Because the Tribal Sovereigns pre-date the Constitution they retain certain inherent rights that were never taken away by voluntary cession or by act of Congress. They cannot constitutionally be taken away by act of the Supreme Court. This violates the separation of powers in the Constitution, especially if the Supreme Court treads on Congress’ plenary authority to legislate for Indian Affairs and Indian Country.
The CRS Report does not acknowledge the dilemma that the Supreme Court will have in striking down VAWAs’ affirmation of inherent tribal jurisdiction over non-Indian defendants since Congress will have obviously found that such tribal jurisdiction is being exercised in a manner acceptable to Congress, the standard the Court articulated in Oliphant. In any court challenge to the constitutionality of VAWA, the Supreme Court may be forced to reconcile its intrusion on the Congress’ separate powers in Oliphant with its decision in Lara wherein it found that Congress had the plenary power to “recognize and affirm inherent jurisdiction” of Tribes over non-member Indians. Some scholars have criticized the Oliphant decision as an intrusion by the Supreme Court on Congress’ plenary power to legislate on Indian Affairs since Congress had never legislated to take away the Suquamish Tribe’s inherent jurisdiction over non-Indians and the tribe had never voluntarily given up such jurisdiction. This thinking is supported by the Supreme Court’s decision in United State v. Wheeler (1978), a post-Oliphant decision, wherein the Court found that Congress had never acted to take away the Tribe’s jurisdiction to try tribal member Indians.
The CRS Report suffers a fatal breakdown as it can articulate no legal rule that says that Congress’ plenary authority over Indian Affairs and Indian Country can be constrained legitimately by intrusion upon such Congressional plenary authority by the Supreme Court. Perhaps it is time that Congress addresses the obvious constitutional infirmity of the Oliphant decision and the line of cases stemming from it. If the Supreme Court can legislate from the bench, especially in an area that has been recognized to be plenary in the Congress, is there any end to what else it can legislate, in any subject area? The Supreme Court decision in Oliphant was and is an aberration in its intrusion upon Congressional powers and in its creation of the absurd confusion that Justice Thomas called “schizophrenic” in U.S. Indian Policy (see Lara), a schizophrenia created by the Court.
Harold Monteau is a Chippewa-Cree Attorney and Indian Business Consultant who resides in Albuquerque, New Mexico. He is the former Chairman of the National Indian Gaming Commission and an advocate for Indian Small Business owners. He can be contacted at firstname.lastname@example.org.