As the Violence Against Women Reauthorization Act (VAWA) debate raged during the last days of 2012, the National Congress of American Indians issued a Call to Action, urging Indian Country to support “compromise language to address Republican concerns that the tribal jurisdiction over non-tribal defendants is unconstitutional.” Notwithstanding NCAI’s support of a Republican-advanced H.R. 6625, a standoff over the House and Senate versions of the VAWA resulted in the legislation expiring.
At issue in the debate was the provision of S. 1925 that allowed tribes to exercise limited criminal jurisdiction over certain non-Indians who assault Native American women on Indian reservations. In short, House Republicans could not accept the proposition that tribal governments would again have criminal authority to prosecute non-Indians who abuse or assault Native women in Indian Country.
But today it appears that the 113th Congress intends to get a VAWA deal done. Senator Patrick Leahy quickly reintroduced S. 1925 as S. 47, and House Representatives Gwen Moore and John Conyers also introduced H.R. 11 – which tracks the Senate version word-for-word. But even Conyers himself is pessimistic that H.R. 11 has any chance of passing the House in its current form. Talk of a compromise House bill is already emerging on Capitol Hill.
As NCAI urges, “good faith efforts to find common ground and a path forward must not be dismissed.” This is particularly true where, as here, the common ground quite literally concerns the life and death of Native women. While Indian Country should remain united in firm support of S.47 and H.R. 11, it is expected that Representatives Tom Cole and Darrel Issa will introduce a bill similar to H.R. 6625 in hope of attracting House Republican support for a tribal jurisdictional fix. To the extent compromise is ultimately needed to finally ensure meaningful legal protection for Native women, a bill similar to H.R. 6625 looks to be the bill upon which common ground may be established.
But H.R. 6625 needed improvement. In what follows, I suggest two modifications to the bill that may make any compromise bill put forth in this Congress more workable.
First, the headline of H.R. 6625 titled the bill a “grant Indian tribes jurisdiction over crimes of domestic violence that occur in the Indian country of that tribe.” Section 204(b)(1), however, went on to state “the powers of self-government of a participating tribe include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons.” So, was it a “grant” of federal power, or a “recogni[tion] and affirm[ation]” of a tribe’s “inherent power”? The distinction is critical.
As Justice Thomas noted in his concurrence in U.S. v. Lara (2004), “[d]elegated power is the very antithesis of inherent power.” When federal power is delegated, exercise of that power must be in accordance with all the limitations imposed by the Constitution, including constitutional decisions of the Supreme Court. It would thus be deemed unconstitutional for a tribal official to exercise delegated federal power under the VAWA unless the President has appointment and removal authority over that Indian official – which, of course, he does not. Morrison v. Olson (1988).
An exercise of federal power would also be deemed unconstitutional if a non-Indian indigent criminal defendant was not afforded counsel whenever any imprisonment would be authorized. Argersinger v. Hamlin (1972). It is unclear whether H.R. 6625 would afford counsel to all indigent defendants in tribal court. The bill stated that “if a term of imprisonment of any length may be imposed, all rights described in section 202(c)” of the Indian Civil Rights Act (ICRA) shall apply. While this section 202(c) of the ICRA provides a right to counsel to all indigent criminal defendants, that right accrues only in those instances where a tribe “imposes a total term of imprisonment of more than 1 year on a defendant.” Although it is likely that H.R. 6625 made the ICRA right to counsel applicable to any “term of imprisonment,” the obscurity could easily be addressed in a future compromise bill, in anticipation of any constitutional challenge.
To be effective the VAWA cannot operate as any “grant” of federal power. It must instead recognize and affirm “inherent” tribal power to exercise special domestic violence criminal jurisdiction over all persons. The word “inherent” simply cannot go missing from the VAWA.
Second, H.R. 6625 provided that a non-Indian defendant may remove a tribally-prosecuted VAWA action to a U.S. District Court if, within 30 days after the arraignment, the defendant files a Notice of Removal. That Notice must show, by a preponderance of the evidence, that: (1) a right guaranteed under the ICRA has been violated; (2) the tribal court has failed to adequately remedy the violation; and (3) the violation is prejudicial.
Unless it “clearly appears on the face of the notice and any exhibits” that ICRA has been violated, the federal court must promptly remand the matter back to tribal court. If the defendant presents a preponderance of the evidence otherwise, an evidentiary hearing will then be held to determine if it actually was. Importantly, removal does not put the prosecution in the hands of the federal prosecutors, but only makes the federal court the forum for tribal conviction if, and only if, the defendant can adequately prove that tribal court has not complied with ICRA.
If drafted in these terms, however, a removal provision might prove realistically unworkable. Tribal courts are constantly under attack as operating in a “totally lawless fashion” – even by other judges. These unfounded attacks have resulted in court decisions that sometimes ignore binding federal law in order to skirt tribal jurisdiction over non-Indians. In this way, the “preponderance of the evidence” test used to remove tribal prosecutions in H.R. 6625 may not be sufficient to render the VAWA effective. The “clear and convincing evidence test” – the test already used in habeas petitions and applicable to state proceedings – might be a more appropriate standard. Fundamentally, tribal courts should be entitled to the same due process deference as state courts, especially in concern for domestic abusers.
It is my hope that S. 47 and H.R. 11 are passed as is – rendering this article a mere exercise in scholarly conjecture. In the case, however, that any compromise bill needs to be introduced, I suggest that the bill: (1) ensure that Congress is recognizing “the inherent power” of tribal governments, rather than “grant[ing] Indian tribes” that power; and (2) impose a “clear and convincing evidence” standard for removal from tribal to federal court.
Ryan D. Dreveskracht is an Associate Attorney at Galanda Broadman PLLC. His article, "Congress' Treatment of the Violence Against Women Act: Adding Insult to Native Women's Injury," will be featured in the next edition of the University of Miami Race and Social Justice Law Review.