While seemingly simple, the language — specifically its reference to the “inherent” authority of the tribal courts — would overturn an influential 1978 Supreme Court case, Oliphant v. Suquamish Indian Tribe, and legally void several constitutional protections for U.S. citizens prosecuted under the new rules, according to the CRS.
The Supreme Court has long ruled that tribes have “inherent” authority to prosecute crimes committed by American Indians but no such authority to prosecute crimes perpetrated by non-American Indians. Because the tribal lands are considered legally sovereign, prosecutions under the “inherent” authority are not bound by the Constitution or Bill of Rights.
Congress could delegate authority to prosecute crimes, requiring it be used pursuant to the Constitution.
But the CRS report says that by affirming the “inherent” tribal authority to prosecute domestic violence crimes, the Senate bill would put those prosecutions in the same category as the sovereign prosecutions of American Indians.
“If Congress is deemed to delegate its own power to the tribes to prosecute crimes, all the protections accorded criminal defendants in the Bill of Rights will apply. If, on the other hand, Congress is permitted to recognize the tribes’ inherent sovereignty, the Constitution will not apply. Instead, criminal defendants must rely on statutory protections under the Indian Civil Rights Act or tribal law,” the report says.
Under the Indian Civil Rights Act or tribal law, “defendants may be subjected to double jeopardy for the same act; may not be able to exercise fully their right to counsel; may have no right to prosecution by a grand jury indictment; may not have access to a representative jury of their peers; and may have limited federal appellate review of their cases,” the report says.
Senate Minority Whip Jon Kyl (R-Ariz.) and Senate Judiciary ranking member Chuck Grassley (R-Iowa) raised issues about the tribal provisions during the Senate debate of the bill. Calling the section “blatantly unconstitutional,” Kyl said the bill “breaks with 200 years of American legal tradition that tribes cannot exercise criminal jurisdiction over non-Indians.”
The House Republicans’ managers’ amendment would allow American Indian victims to petition a federal district court for a “protection order” against the person alleged to have committed the domestic violence. Victims rights advocates unloaded on the change, calling it not nearly enough to stop an epidemic of tribal violence.
O’Neill characterized the GOP objections as an unwillingness to “trust Native Americans to uphold the Constitution,” adding that there’s “no evidence” tribal courts would not.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.