DOJ Proposes Legislation to Combat Violence against Indian Women

Philip H. Tinker July 21, 2011 / 4:40 pm

COMMENT ON PROPOSED LEGISLATION TO DECREASE THE INCIDENCE OF VIOLENT CRIMES AGAINST INDIAN WOMEN
This proposed legislation would “recognize and affirm” the inherent sovereign power of Indian tribes to prosecute non-Indian domestic violence offenders against Indian women in Indian country. This legislation chooses to “affirm” inherent tribal sovereignty over such prosecutions rather than to authorize Indian tribes to exercise delegated federal authority in order to, among other things, avoid any double jeopardy issues with concurrent federal and tribal prosecutions.
With the famous “Duro Fix,” Congress passed legislation stating that tribal “powers of self-government” include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.” 25 U.S.C. 1301. This legislation was necessary to statutorily override the U.S. Supreme Court’s ruling in Duro v. Reina, 495 U.S. 676 (1990), that Indian tribes only had criminal jurisdiction over their own members, and not over members of other tribes. In U.S. v. Lara, 541 U.S. 193 (2004), the Court recognized that Congress does have the power to “recognize” inherent tribal sovereignty, thereby overruling the federal common-law decisions relating to the powers of Indian tribes. Under Lara and the precedent set by the Duro Fix, Congress can remove jurisdictional limitations imposed on Indian tribes by the federal courts, and courts will recognize that tribal powers that are consistent with this Congressional recognition are an exercise of inherent tribal sovereign authority rather than an exercise of delegated federal power.
With this proposed legislation, Congress would recognize and affirm tribal authority to “exercise special domestic violence criminal jurisdiction over all persons, subject to the limitations set forth in this subchapter.” As I read this section, it implies that Indian tribes only have the inherent sovereign authority to prosecute domestic violence perpetrated by non-Indians if the prosecution fits within the restrictive statutory parameters, including the “Rights of Defendants” protections contained in 1304(e) (which incorporates by reference the procedural protections of the Indian Civil Rights Act (“ICRA”) and the Tribal Law and Order Act (“TLOA”)).
This is a limited view of tribal sovereignty, and one which differs markedly from the approach adopted by Congress with the Duro Fix. With the Duro Fix, Congress recognized and affirmed a broad, general tribal criminal jurisdiction over all Indians. This inherent sovereignty was not made contingent on the tribe’s adherence to the protective provisions of the ICRA. To be sure, tribes do have to comply with the ICRA when exercising criminal jurisdiction. However, when tribes exercise jurisdiction over non-member Indians, the ICRA functions as an external congressional limitation on the (congressionally-recognized) inherent sovereign authority of Indian tribes. In contrast, under this proposed legislation, compliance with the ICRA provisions is a necessary component of the tribe’s sovereign authority.
It is conceivable that this difference in approach could have unintended consequences. For instance, if a tribe violates an ICRA right while prosecuting an Indian defendant, the defendant’s remedy will be a habeas corpus action. Under traditional habeas corpus doctrine, a defendant is entitled to relief only if he was “actually prejudiced.” See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Thus, a defendant who suffered a technical but ultimately harmless violation of his ICRA rights would generally not be entitled have his conviction overturned. However, under the proposed legislation, the tribe’s jurisdiction over non-Indian defendants is contingent on compliance with the ICRA and other procedural protections. It could be that a minor, technical ICRA violation would eviscerate the tribe’s jurisdiction over the non-Indian defendant, and the harmless error doctrine may not apply in these circumstances.
In any event, making the extent of tribal sovereignty over non-Indian defendants expressly contingent on the availability of procedural protections is not consistent with historical notions of tribal sovereignty. The protections embodied in the ICRA are not inherent limitations on tribal authority; rather, they are express congressional prohibitions on the exercise of tribal sovereignty. Congress is authorized under the Indian Commerce Clause, as interpreted by the Supreme Court, to impose such requirements on tribal governments. But the ICRA is an external limitation on tribal sovereignty, not an internal component of tribal sovereign authority.
Rather than conflating the recognition of tribal authority contained in sections (b) and (c) of this legislation with the procedural protections in section (e), legislation authorizing tribal criminal jurisdiction over non-member perpetrators of domestic violence should follow the model of the Duro Fix by recognizing in appropriately broad terms inherent tribal criminal jurisdiction over such crimes. Then, in a wholly separate provision, this legislation should, in the manner of the ICRA and the TLOA, impose such procedural safeguards as are appropriate.
Philip H. Tinker, 7/21/11

PHTinker@Gmail.com

Ronnie Sellers July 21, 2011 / 12:09 pm

It is a long over looked crime. The traditional ancestors saw to the care and protection of the women, elders and children. The men were real men and were not cowards that would beat on women. Alcohol is a big reason that men do such horrible things to the women. Alcohol is another problem that needs to be controlled and brought to the fore front. It is hurting the people. Both men and women.
Philip H. Tinker July 21, 2011 / 4:40 pm

COMMENT ON PROPOSED LEGISLATION TO DECREASE THE INCIDENCE OF VIOLENT CRIMES AGAINST INDIAN WOMEN
This proposed legislation would “recognize and affirm” the inherent sovereign power of Indian tribes to prosecute non-Indian domestic violence offenders against Indian women in Indian country. This legislation chooses to “affirm” inherent tribal sovereignty over such prosecutions rather than to authorize Indian tribes to exercise delegated federal authority in order to, among other things, avoid any double jeopardy issues with concurrent federal and tribal prosecutions.
With the famous “Duro Fix,” Congress passed legislation stating that tribal “powers of self-government” include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.” 25 U.S.C. 1301. This legislation was necessary to statutorily override the U.S. Supreme Court’s ruling in Duro v. Reina, 495 U.S. 676 (1990), that Indian tribes only had criminal jurisdiction over their own members, and not over members of other tribes. In U.S. v. Lara, 541 U.S. 193 (2004), the Court recognized that Congress does have the power to “recognize” inherent tribal sovereignty, thereby overruling the federal common-law decisions relating to the powers of Indian tribes. Under Lara and the precedent set by the Duro Fix, Congress can remove jurisdictional limitations imposed on Indian tribes by the federal courts, and courts will recognize that tribal powers that are consistent with this Congressional recognition are an exercise of inherent tribal sovereign authority rather than an exercise of delegated federal power.
With this proposed legislation, Congress would recognize and affirm tribal authority to “exercise special domestic violence criminal jurisdiction over all persons, subject to the limitations set forth in this subchapter.” As I read this section, it implies that Indian tribes only have the inherent sovereign authority to prosecute domestic violence perpetrated by non-Indians if the prosecution fits within the restrictive statutory parameters, including the “Rights of Defendants” protections contained in 1304(e) (which incorporates by reference the procedural protections of the Indian Civil Rights Act (“ICRA”) and the Tribal Law and Order Act (“TLOA”)).
This is a limited view of tribal sovereignty, and one which differs markedly from the approach adopted by Congress with the Duro Fix. With the Duro Fix, Congress recognized and affirmed a broad, general tribal criminal jurisdiction over all Indians. This inherent sovereignty was not made contingent on the tribe’s adherence to the protective provisions of the ICRA. To be sure, tribes do have to comply with the ICRA when exercising criminal jurisdiction. However, when tribes exercise jurisdiction over non-member Indians, the ICRA functions as an external congressional limitation on the (congressionally-recognized) inherent sovereign authority of Indian tribes. In contrast, under this proposed legislation, compliance with the ICRA provisions is a necessary component of the tribe’s sovereign authority.
It is conceivable that this difference in approach could have unintended consequences. For instance, if a tribe violates an ICRA right while prosecuting an Indian defendant, the defendant’s remedy will be a habeas corpus action. Under traditional habeas corpus doctrine, a defendant is entitled to relief only if he was “actually prejudiced.” See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Thus, a defendant who suffered a technical but ultimately harmless violation of his ICRA rights would generally not be entitled have his conviction overturned. However, under the proposed legislation, the tribe’s jurisdiction over non-Indian defendants is contingent on compliance with the ICRA and other procedural protections. It could be that a minor, technical ICRA violation would eviscerate the tribe’s jurisdiction over the non-Indian defendant, and the harmless error doctrine may not apply in these circumstances.
In any event, making the extent of tribal sovereignty over non-Indian defendants expressly contingent on the availability of procedural protections is not consistent with historical notions of tribal sovereignty. The protections embodied in the ICRA are not inherent limitations on tribal authority; rather, they are express congressional prohibitions on the exercise of tribal sovereignty. Congress is authorized under the Indian Commerce Clause, as interpreted by the Supreme Court, to impose such requirements on tribal governments. But the ICRA is an external limitation on tribal sovereignty, not an internal component of tribal sovereign authority.
Rather than conflating the recognition of tribal authority contained in sections (b) and (c) of this legislation with the procedural protections in section (e), legislation authorizing tribal criminal jurisdiction over non-member perpetrators of domestic violence should follow the model of the Duro Fix by recognizing in appropriately broad terms inherent tribal criminal jurisdiction over such crimes. Then, in a wholly separate provision, this legislation should, in the manner of the ICRA and the TLOA, impose such procedural safeguards as are appropriate.
Philip H. Tinker, 7/21/11

PHTinker@Gmail.com

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DOJ Proposes Legislation to Combat Violence against Indian Women

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