Violence Against Women Reauthorization Act of 2013by Former Representative Doc Hastings
Posted on 2013-02-28
HASTINGS of Washington. Madam Speaker, during my service in
Congress representing Central Washington, I have always voted to renew
the Violence Against Women Act. As a husband, a father, and a
grandfather, I strongly believe that providing protection for all women
against domestic violence is a duty and a priority. Yet I am deeply
dismayed by the manner in which the current reauthorization of this
legislation (S. 47), which has long been a simple grant program, has
been hijacked in order to pursue unrelated political agendas in very
harsh politicized terms.
To be blunt, the bill is simply unconstitutional.
The Indian tribal provisions of S. 47 are the first time in the history of our country that Congress will give tribes criminal jurisdiction over non-Indians. The provisions, found in sections 904 and 905, declare that a tribe's power of self-government includes the ``inherent'' power of that tribe to exercise jurisdiction over all persons, including non-Indians.
As I've said, these provisions are unconstitutional and contradict over two centuries of law.
There are three fundamental principles underlying how Congress may deal with Indian tribes. First, the Indian Commerce Clause, supplemented by the treaty making powers in the Constitution, give Congress what the Supreme Court has said is ``plenary'' power over Indian affairs. Second, tribes are defined by the Indian status of their members. Third, when tribes were brought under the jurisdiction of the United States through actc, treaties, and Executive Orders, they have been recognized for the purpose of self-government over their internal affairs and members. Congress may recognize, or terminate, tribes.
With these principles in mind, it is clear that the Indian tribal provisions of the Senate bill are unconstitutional. The measures put a non-Indian American citizen--on American soil--under the criminal jurisdiction of a political entity to which the individual, because of his [[Page H795]] race, may not consent. It violates the founding principle of this Republic, which is a government only at the consent of the governed.
The bill overturns all precedents set by Congress and the Supreme Court through its extension of a unique, self-governing power over internal affairs of a race of people, into a territorial government over everyone. The Supreme Court has long held that because tribes are not parties to the Constitution, the Constitution, including the Bill of Rights, do not apply to tribes.
In tribal court, an individual only has something called the Indian Civil Rights Act. This provides a set of similar--but not identical-- rights as the Bill of Rights. They may be amended or repealed by mere Act of Congress. Even if the rights were meaningful, however, the Supreme Court in 1978 said these statutory rights are unenforceable in federal court.
Does S. 47 provide a defendant with the right to appeal a tribal judgment and conviction in federal court? No, it does not.
Section 904 of S. 47 openly allows discrimination against an individual based on race, sex, age, or if he's an Indian, who he's related to. Where the person's an American citizen, can be expelled from their home and may not have any right to appeal a claim in an impartial federal court.
As a result, enactment of Section 904 will be the first time that Congress has purposefully removed a U.S. citizen's constitutional rights while on American soil so that a political entity defined according to ethnic ancestry may arrest, try, and punish the citizen.
If these arguments do not sound familiar to all, it will be to those who have studied the pertinent case law and Supreme Court precedent from the 18th century to present.
Beginning in modern times with Oliphant v. Suquamish Indian Tribe, the Supreme Court held that tribes lack inherent jurisdiction over non- Indians. Congress cannot recognize and affirm an inherent--that is to say a pre-existing and continuing--power in a tribe when the Supreme Court ruled the tribe never had it.
There's Duro v. Reina, in which the High Court held that Indian tribes lack jurisdiction over non-member Indians.
In the 19th century, the Supreme Court in United States v. Kagama declared there are only two sovereigns in the geographical limits of the United States, and tribes are not one of them.
Case law, statutes, treaties, and historic dealings with Indian tribes support the sole purpose of federal Indian law and policy: to permit a racially defined group of people who were here first to continue their unique way of life according to their own customs, without interference from others.
This is an honorable and morally correct policy, one which I respect and uphold. This is why I cosponsored legislation to exempt tribes from a federal law permitting compulsory union work places on the reservation, and supported exempting tribes from the Department of the Interior's onerous hydraulic fracturing rule, a rule that could devastate the economies of historically impoverished tribes.
For further clarification, let us examine the work of the distinguished former Democrat Chairman of the Subcommittee on Indian Affairs, the late Lloyd Meeds of Washington.
Chairman Meeds wrote that tribal powers ``have over and again been labeled self-government and not sovereignty. It is one thing for the Congress to permit tribal Indians to govern themselves and not be subject to Federal constitutional limitations and general Federal supervision. It is quite another thing for Congress to permit Indian tribes to function as general governmental entities not subject to Federal constitutional limitations or general Federal supervisions.'' (Separate Dissenting Views of Congressman Lloyd Meeds, D-Washington, Vice Chairman of the American Indian Policy Review Commission, Final Report, p. 579.) ``[T]he American people have not surrendered to Indians the power of general government; Indians are given only a power of self-government. They have the power to regulate only their members and the property of their members. They have some governmental powers because and to the extent that such powers are appropriate to the Federal policy of allowing Indian peoples to control their own affairs. But there is no Federal policy of allowing Indian peoples to control the liberty and property of non-members. Tribal powers of self-government are limited by their purpose.'' (Ibid, p. 585).
Our Nation has appropriately recognized Indian tribes' right of self- government. Tribal self-government over Indians and their internal affairs is important and should be respected. Yet self-government does not and should not permit Indian tribal actions to trump the Constitution or violate individual rights of non-Indians.
With the precedent being set under S. 47, tribes will return to Congress for more, expanded power over non-Indians. There would be no reason to deny granting such power, especially if the Constitution continues to be viewed as an obstacle to addressing crime.
It is important to be clear about the scope of a tribe's criminal jurisdiction granted under S. 47. It affects non-Indians who live, work, or travel on 56 million acres of U.S. soil that happen to be called Indian Country. In other words, the bill makes 56 million acres of land in our nation ``Constitution-Free Zones'' where Due Process and Equal Protection rights--as interpreted and enforced in U.S. courts--do not exist.
What are these areas? There is a misconception that Indian Country is just tribal trust land. In fact, the term Indian Country has a precise meaning under Title 18 of the U.S. Code.
Indian Country includes not just land under tribal jurisdiction, but all private lands and rights-of-way within the limits of every Indian reservation under non-Indian jurisdiction. Homes, farms, schools, businesses. Interstate highways, state roads, and secondary roads. All private, non-Indian lands in Indian Country under the Senate bill are Constitution-Free Zones.
There are incorporated non-Indian cities and towns in many reservations and Indian Country, like Wapato and Toppenish on the Yakama Reservation in my district. Take the Puyallup Indian Reservation in Washington state encompassing parts of Tacoma and Fife. With one of the busiest highways in the nation, Interstate 5, crossing the reservation, the ancient reservation is inhabited primarily by non- Indians living and working and going to school on mostly non-Indian land under the civil and criminal jurisdiction of the State. Under the Senate bill, this region is Indian Country on which the tribe may exercise criminal jurisdiction with no Due Process and Equal Protection rights guaranteed to the people living there.
Under a land claim settlement, taxpayers paid $162 million to the tribe in exchange for the tribe ceding most authority over its reservation. However, the ``notwithstanding any other provision of law'' language in the Senate bill trumps and overrides the land claim agreement.
Take the Coachella Valley in the State of California, with a number of checker-boarded Indian reservations containing non-Indian populations. Tribes in this Valley will get criminal jurisdiction over residents in towns and cities such as Palm Springs for offenses described in Section 904 of the Senate bill. In tribal court, the residents of the Coachella Valley will not have their Due Process and Equal Protection rights.
Take the Oneida Reservation in New York that encompasses about 300,000 acres, 99 percent of which is non-Indian land with non-Indian towns and farms. Under the Senate bill, the tribe will have full powers to arrest, prosecute, and jail residents of Madison and Oneida counties for the offenses described in this bill, with no Due Process or Equal Protection rights guaranteed by the Constitution.
The validity of sections 904 and 905 of S. 47 will eventually come before the Supreme Court. When this happens, it won't be a question of whether these provisions are struck down, but how many other tribal powers will be rolled back, and how many domestic violence offenders will be set free because of the misguided legislation before us.
Some will say that critics of the Senate bill are interested only in the rights of criminal defendants. Then answer these questions: If Congress can justify stripping a citizen of their constitutional rights when accused of a crime, why can't it be justified for other classes of crime, like theft, felony assault, and murder? Why limit the suspension of the Constitution to Indian Country as defined under this bill? Why not create new Indian reservations so there are more Constitution-Free Zones where the Bill of Rights is not an impediment to law and order? While the House Substitute would delegate criminal jurisdiction to an Indian tribe over non-Indians, it at least guarantees that enforceable constitutional protections are built in so that it might pass muster in Court.
The timing of the consideration of S. 47 is interesting. While proponents say that people have nothing to fear in tribal court, there is at least one tribe in the State of Oklahoma embroiled in litigation over its denial of tribal citizenship to the descendants of the African slaves the tribe's 19th-century members owned. There are also entire families of Indians in California dis-enrolled by their tribe in a dispute over large cash per capita dividends from the tribe's casino, who cannot get a federal court to review their Equal Protection claims.
These cases are merely the latest example of several tribes wielding sovereign immunity to escape any liability for alleged harm caused by possibly depriving individuals--including their own members and ex- members--their constitutional rights.
On the one hand, Indian tribes want criminal jurisdiction over individuals like the Freedmen of the Five Civilized Tribes or the dis- enrolled [[Page H796]] Pechangas. On the other hand, they want to forbid these individuals from participating in the tribes' government.
S. 47 makes more U.S. citizens like the disenfranchised Indians in California and the Freedmen of the Five Civilized Tribes. It gives tribes the power to put people in jail while denying them a voice in the making of the laws that govern them.
The tribal jurisdictional provisions must be rejected.
Because of the historic policy change the House is poised to make today, it is necessary to elaborate on why the tribal provisions of S. 47 are unconstitutional and contrary to all precedent, if not common sense, in the United States' administration of federal Indian relations.
Inherent Sovereignty For moral and public policy reasons, Congress rightfully recognizes Indian tribes as possessing powers of self-government over their internal affairs and members. Not being parties to the Constitution, Congress has tolerated--perhaps far too long--the power of a tribe to deprive its members' civil rights guaranteed in our country's supreme law. Because of this, Congress has enacted hundreds of laws since 1789 to protect Indians' unique status encroachment by states. At the same time, Congress has never--until today--allowed a tribe to claim power over a non-Indian.
The scope and nature of a tribe's jurisdiction was delineated in Kagama: ``Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the Government of the United States or of the States of the Union. There exist within the broad domain of sovereignty but these two.'' (United States v. Kagama, 118 U.S. 375, 379 (1886)).
Tribal self-government is therefore not a general government power equivalent to that of a state, but a federal policy governed by Congress for the promotion of Indian self-determination and to preserve and advance their way of life.
Tribal Jurisdiction over Individuals The reason why the tribal provisions of S. 47 should, I believe, be struck down is best described by the Supreme Court.
``The effort by Indian tribal courts to exercise criminal jurisdiction over non-Indians, however, is a relatively new phenomenon. And where the effort has been made in the past, it has been held that the jurisdiction did not exist.'' Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
``A tribe's additional authority comes from the consent of its members, and so, in the criminal sphere, membership marks the bounds of tribal authority.'' (Duro v. Reina, 495 U.S. 676 (1990)).
``Retained criminal jurisdiction [of tribes] over members is accepted by our precedents and justified by the voluntary character of tribal membership and the concomitant right of participation in a tribal government, the authority of which rests on consent . . . With respect to such internal laws and usages, the tribes are left with broad freedom not enjoyed by any other governmental authority in this country . . . This is all the more reason to reject an extension of tribal authority over those who have not given the consent of the governed that provides a fundamental basis for power within our constitutional system.'' (Ibid).
Proponents of Section 904 of S. 47 argue that tribal jurisdiction over non-Indians who cannot participate in tribal government is reasonable because it covers only a narrow class of domestic violence crimes, and it includes measures designed to protect a defendant's rights. These do nothing, however, to address the fact this scheme violates the Constitution. As pointed out in dissenting views filed in the Senate last year on these Indian tribal provisions (S. 1925 in the 112th Congress), ``While the present bill's jurisdiction is limited to domestic-violence offenses, once such an extension of jurisdiction were established, there would be no principled reason not to extend it to other offenses as well.'' In seeking to repeal Oliphant, advocates of the Senate language repeatedly rejected offers to increase law enforcement resources in Indian Country, including law enforcement personnel, funding, training, certification, cross-deputizing, and other tools for tribes, U.S. Attorneys, and State law enforcement agencies to arrest and prosecute men who harm Indian women in Indian Country. When the Supreme Court strikes down this bill, how will Indian women be protected given the rejection of law enforcement resources? This begs a question: since there has been a pressing need to address terrible domestic violence across Indian Country for many years, why did no Member of Congress or U.S. President propose to reverse Oliphant for 33 years? The first such proposal came in 2011, right after the House Democrats lost their majority in a landslide to Republicans, and a year before a presidential election where a political message often called the ``War on Women'' was developed? Is the proposed reversal of Oliphant a serious attempt to help Indian women who have been victimized? If it were, then Congress would not have let 35 years go by without proposing a jurisdictional change, including spans of time when advocates were in control of the White House and the Congress.
It is abundantly clear the unconstitutional Oliphant reversal is not aimed at helping vulnerable Indian women. It is a political means to an ideological end, one that will ultimately backfire when it is struck down by the High Court, leaving Indian women unprotected because the advocates had rejected offers of increased federal and tribal law enforcement resources in Indian Country.
United States v. Lara Advocates for inherent tribal power over non-Indians argue the Senate bill is permissible under the United States v. Lara. This reflects a common misunderstanding of Lara.
This case concerned an Act of Congress to reverse Duro v. Reina. In the so-called Duro ``fix'', Congress gave tribes jurisdiction over non- member Indians (i.e. Indian individuals not members of the tribes exercising jurisdiction over them). In Lara, the question before the Court was whether Billy Jo Lara, an Indian man convicted by both a tribal court and a federal court for the same crime, had been twice put in jeopardy. Resolving this hinged on another question, the only one the Court considered: did the tribe's jurisdiction over Lara (authorized by the Duro ``fix'') result from the recognition of ``inherent authority'' or from a federal delegation of power? A majority of the Court held that the Duro ``fix'' law stemmed from an Act of Congress to recognize the inherent power of the tribe, not to delegate a federal power. As a result, Lara was not put twice in jeopardy because the tribe that convicted him did so as a separate sovereign, not as an agent of the federal government.
Contrary to what tribal advocates have been arguing, the Supreme Court did not find the tribe's jurisdiction over Lara to be constitutional. Why? Because the Court declared it was not facing ``a question dealing with potential constitutional efforts to legislate far more radical changes in tribal status.'' (Majority opinion, U.S. v. Lara) The Court was not considering ``the question whether the Constitution's Due Process or Equal Protection Clauses prohibit tribes from prosecuting a nonmember citizen of the United States'' (Ibid).
The reason why was because, as Anthony Kennedy's separate concurring opinion stresses, ``The proper occasion to test the legitimacy of the tribe's authority, that is, whether Congress had the power to do what it sought to do, was in the first, tribal proceeding. There, however, Lara made no objection to the tribe's authority to try him.'' (Kennedy concurring opinion). In other words, Billy Jo Lara waived any right to challenge the constitutionality of the tribe's criminal jurisdiction over him, a non-member Indian. The Court was reviewing only whether the federal government put him twice in jeopardy.
Kennedy goes out of his way to cast doubt on the constitutionality of Congress recognizing tribal jurisdiction over non-Indians and over non- member Indians. ``[lit should not be doubted that what Congress has attempted to do is subject American citizens to the authority of an extraconstitutional sovereign to which they had not previously been subject.'' (Kennedy concurring opinion).
Those who say the Supreme Court holding in Lara have probably not read it. Perhaps fittingly, Justice Kennedy was the lone dissent in the Ninth Circuit Court of Appeals decision in Oliphant, a dissent ultimately vindicated by the U.S. Supreme Court that Kennedy would years later join.
In conclusion, S. 47 denies basic rights, is unconstitutional and will be tied up in court challenges for years.