Paul J Larkin and Joseph Luppino-Esposito of the Heritage Foundation have published “The Violence Against Women Act, Federal Criminal Jurisdiction, and Indian Tribal Courts” in the BYU Journal of Public Law.

From the conclusion:

Congress is right to be concerned about spousal abuse and other forms of domestic violence on Indian reservations. But Congress needs to address this problem in a manner that does not leave the solution subject to invalidation under Articles II and III. Congress could vest the federal courts with jurisdiction over such offenses, or Congress could allow the states to prosecute these crimes in state courts. Either approach would avoid the separation-of-powers problems discussed above. The one avenue that seems closed to Congress, however, is precisely the one that the Senate has chosen. However Congress decides to address the domestic-violence problem in Indian reservations, that action must be done in accordance with Articles II and III in a manner that deals with this public policy problem in a constitutional manner. The Senate VAWA bill would not help address the domestic-violence problem on Indian reservations because an unconstitutional remedy is no remedy at all.

Such an odd argument, I think, in that it comes to us completely divorced from the history of Indian country criminal jurisdiction. I take the gist of this argument to be that Congress has no authority to “grant” criminal jurisdiction over non-Indians to tribal courts (a more accurate way to read VAWA’s new provisions is to say Congress has “recognized” inherent tribal jurisdiction, as I will show below) because Article II and Article III don’t allow it for various reasons. This is apparently because allowing federal courts habeas review over tribal courts necessarily means those tribal courts are somehow improperly vested as Article III courts, and tribal judges are somehow appointed improperly as Article II judges. If that were the case, then the Indian Civil Rights Act’s allowance of federal habeas review of tribal court convictions would amount to vesting tribal courts as Article III courts and tribal judges as Article II appointments, necessarily making 25 U.S.C. § 1303 unconstitutional. If section 1303 is unconstitutional, then the Supreme Court never had jurisdiction to hear Oliphant v. Suquamish Indian Tribe, which was expressly heard under section 1303. Under the Heritage Foundation theory, Oliphant is a dead letter. Since federal courts cannot review tribal court convictions under this theory, and Congress cannot “grant” jurisdiction to either federal or tribal courts under this theory, then nothing at all stops tribes from fully prosecuting non-Indians. Even with Oliphant as good law, section 1303 is no longer viable and no one can seek habeas review of tribal court convictions anymore. The pre-1968 regime comes back into play.

Or, one could read the VAWA and ICRA statutes as anyone with any background in this area does — that in treaty times and forever thereafter Congress recognized inherent tribal jurisdiction over all people within its jurisdiction subject to limitations placed on tribal governments by the Supreme Court and Congress (and the tribes themselves). This reading fits easily within the constitutional avoidance theory that federal statutes should be read, if they can be, in such as a manner as to avoid the constitutional questions. VAWA and ICRA can be read in such a manner if one recognizes, as the Supreme Court long has, that Indian tribes possess inherent authority. The Heritage folks simply refuse to accept the law — in footnote 179 they write: “Only an act of Congress can enable tribes to exercise criminal jurisdiction over non-Indians….” That’s the law exactly backwards. To quote United States v. Wheeler, 435 U.S. 313, 322 (1978) (“The powers of Indian tribes are, in general, “inherent powers of a limited sovereignty which has never been extinguished.” F. Cohen, Handbook of Federal Indian Law 122 (1945) (emphasis in original)). Instead of confronting illusory Article II and III problems, the courts may simply follow the law as it has been well-established.