lame duck

Lame Duck Update: VAWA Does Violence to the U.S. Constitution

While House Republicans and President Obama continue their behind the scenes negotiations to avert the “fiscal cliff,” backroom negotiations continue on other year-end legislative “priorities.” One of these is the reauthorization of the so-called Violence Against Women Act (VAWA).

The Senate version of VAWA (S. 1925) greatly expands the scope and focus of a 1994 law. As Heritage’s David Muhlhausen and Independent Women’s Forum’s Christina Villegas pointed out in their report last summer:

The bill engages in mission creep by expanding VAWA to men and prisoners, despite the lack of scientifically rigorous evaluations to determine the effectiveness of existing VAWA programs; the bill expands upon the already duplicative grant programs authorized by VAWA; and without precedent , the bill surrenders the rights of Americans who are not American Indians to racially exclusive tribal courts.

It is the last provision that has stirred the most controversy. The House passed its reauthorization of VAWA (HR 4970) back in May without extending the criminal jurisdiction of tribal courts. Congressman Jim Sensenbrenner summarized the concerns of many conservatives when he stated, “Making an issue of whether a non-Indian can be prosecuted in a tribal court…brings huge constitutional issues because the Bill of Rights does not apply in tribal courts.”

Proponents of the Senate bill, such as Laurel Bellows of the American Bar Association, argue that Native American women are not adequately protected. He says, “non-Native Americans cannot be arrested for raping, beating or stalking Native Americans on their own land.”  The imagery is powerful, but it’s an emotion-driven picture that distorts the already dubious constitutional value of his stance.

Muhlhausen and Villegas explain:

American Indian tribes operate racially exclusive governments on their territories and lands. They have their own sovereign powers and operate separately from federal, state, and local governments under which all other Americans live. Additionally, American Indians operate and run their own tribal courts, which to date have limited jurisdiction. That jurisdiction is limited to members of Indian tribes.

By law, tribal courts cannot prosecute major crimes committed by non-Native Americans on reservations.  Instead, an individual would be charged by the federal government and prosecuted by the local U.S. Attorney’s Office in federal magistrate court.

As such, proponents of the law must argue that the federal government, which it seeks to perpetually empower, will not prosecute crimes committed by non-Native Americans on tribal lands.  If that is truly a problem, they should address that breakdown, not seek to empower tribal courts to apply their own laws and customs (outside the purview and protections of the Constitution) to American citizens.

To be clear, this pretzel logic is dangerous.

The fact remains that tribal courts lack experience in providing the statutory rights guaranteed to criminal defendants and that American citizens are born with certain inalienable rights that are protected in the U.S. Constitution. The Senate version of VAWA threatens to undermine those rights and sets a very dangerous precedent. Under no circumstance should conservatives, constitutionalists, or any American relinquish their objections to this bill.

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Rep Sensenbrenner: huge constitutional issues b/c Bill of Rights does not apply in tribal courts #VAWA

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