February 14, 2013
Is the Violence Against Women Act Unconstitutional?
The Senate this week reauthorized the Violence Against Women Act and added a provision authorizing Native American Indian tribal courts to try non-Indians for acts of violence against Native American tribal members. The provision, Section 904 of the Senate-passed VAWA, caught the attention of some on the right, who claim it's unconstitutional.
The Heritage Foundation outlined the argument in a post today. According to the post, congressional extension of tribal jurisdiction to non-Indians violates the Appointments Clause and the life-tenure provision in Article III. The reason, according to the post, is simple: tribal judges aren't appointed pursuant to the Appointments Clause, and they don't meet the requirements of Article III. They therefore can't mete out punishment against non-Indians.
To unpack this, it helps to understand the debate between congressionally delegated power to tribes versus inherent power of tribes. Advocates of the congressionally-delegated view say that tribes operate pursuant to congressional delegation, and therefore the full force of the Constitution applies. Advocates of the inherent power view say that tribes have inherent sovereignty and authority on their lands, and that they operate pursuant to their own rules and any overriding congressional requirements.
The Supreme Court has weighed in, but barely. It ruled in Oliphant v. Suquamish Indian Tribe that tribal courts lacked inherent authority over non-Indians, but it suggested that Congress could extend their authority to reach non-Indians. In United States v. Lara, the Court ruled that Congress has authority to relax the restrictions on a tribe's inherent sovereignty to allow it to exercise inherent authority to try non-member Indians.
The Heritage Foundation piece takes the congressionally-delegated-power view. This means, as the piece argues, that the Constitution applies with full force over the tribal courts, and that if they exercise jurisdiction over non-Indians, they, like regular Article III courts, have to meet constitutional requirements. (You might ask why the piece didn't argue that they similarly have to meet due process requirements. The reason: Congress extended due process protections in the earlier Indian Civil Rights Act and in the VAWA itself.)
The Senate took the inherent-authority view. Thus Section 904 of the VAWA says, "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." (Emphasis added.)
Which view is right? Well, the Court has suggested in both Oliphant and Lara that the inherent-authority view is correct. But that view might not get five Justices on the current Court. So we're not sure how the Court would rule.
The Congressional Research Service has a terrific report on the issue here.
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