Opinion: How non-Indians can challenge tribal court jurisdiction

Paul J. Larkin, Jr., a conservative commentator for The Heritage Foundation, explains how a non-Indian might challenge the tribal jurisdiction provisions of S.47, a bill to reauthorize the Violence Against Women Act:
Yesterday the House gave up any effort to pass its own version of the Violence Against Women Act (VAWA) and accepted the Senate bill, which now goes to the President for his signature. In so doing the House decided not to revise the Senate provision expanding Indian tribal court jurisdiction over non-Indians charged with certain domestic violence crimes.

Tom Gede, a Commissioner on the Indian Law and Order Commission, has noted that there may be due process objections to the trial of non-Indians in tribal court, because, as Justice Anthony Kennedy has noted, it wrests constitutional protections from a U.S. citizen and turns him over to a foreign sovereign. The result is that, once the President signs the bill, lawyers, not legislators, will step in to raise those defects in federal court.

One likely scenario is this: A non-Indian held in custody on a domestic violence charge will petition a federal district court for a writ of habeas corpus. He will argue that the tribal court cannot constitutionally exercise jurisdiction over a non-Indian and that the tribes lack authority to try him and confine him pending trial. (The defendant also may raise the First Amendment and due process claims that others have noted.)

The tribe undoubtedly will argue that, because it always enjoyed inherent authority to prosecute non-Indians for crimes, Congress did not “delegate” new authority to them; Congress merely “recognized” the tribes’ inherent authority.

Get the Story:
Paul J. Larkin, Jr: Send in the Lawyers: The House Passes the Senate’s Violence Against Women Act (The Heritage Foundation 3/1)

Join the Conversation
Related Stories:
Kevin Abourezk: Native women in Nebraska celebrate VAWA bill (3/1)
Tribes praise passage of VAWA with tribal jurisdiction provision (3/1)
President Obama to sign VAWA with tribal jurisdiction provision (3/1)
Rep. Markwayne Mullin, Cherokee citizen, voted against VAWA (3/1)
Turtle Talk: Tribes must provide counsel to indigent defendants (3/1)
Opinion: Republican lawmakers take side of non-Indian abusers (3/1)
Tribal provisions in Violence Against Women Act endure battle (2/28)
House set to vote on VAWA with tribal jurisdiction provisions (2/27)
Louise Erdrich: Native women left at mercy of their predators (2/27)
Rep. Cole plans to introduce tribal amendment to VAWA bill (2/26)
MPR: Debating tribal jurisdiction provisions in VAWA update (2/26)
Opinion: Republicans sacrifice protections for Indian women (2/26)
Opinion: Flawed tribal jurisdiction provisions in House VAWA (2/26)
House to consider VAWA with different jurisdiction provisions (2/25)
NCAI denounces Sen. Grassley for 'fear mongering' on tribes (2/25)
Editorial: Congress must renew Violence Against Women Act (2/25)
Top GOP lawmaker doesn't think non-Indians will get fair trial (2/22)
GOP lawmakers introduce Violence Against Indian Women Act (2/21)
Tribal jurisdiction provisions of VAWA face questions in House (2/20)
Editorial: Close tribal jurisdiction loophole with VAWA update (2/19)
Rep. Tom Cole defends tribal jurisdiction provisions in VAWA (2/18)
Editorial: Congress must renew Violence Against Women Act (2/18)
NCAI President Keel calls on Congress to protect Indian women (2/15)
PRI: Professor Sarah Deer discusses tribal jurisdiction in VAWA (2/15)
Republican blames VAWA vote on tribal jurisdiction provisions (2/14)
Opinion: Tribal jurisdiction provision violates U.S. Constitution (2/14)
Tribes hail passage of VAWA with tribal jurisdiction provision (2/13)
Senate keeps tribal jurisdiction provisions in VAWA measure (2/12)
Senate set for vote on VAWA with tribal jurisdiction provisions (2/11)
Editorial: Reauthorize VAWA with tribal jurisdiction provisions (2/11)
Column: Failing to respond to violence against Native women (2/11)
Senate rejects alternative to VAWA without tribal jurisdiction (2/8)
Senate set to vote on VAWA with tribal jurisdiction provision (2/7)
White House backs tribal jurisdiction provisions in VAWA bill (2/5)
Frontline: Closing a loophole in VAWA to help Native women (2/5)
Ryan Dreveskracht: Tribal provisions of VAWA up for debate (2/5)
Opinion: The Violence Against Women Act is on life support (01/28)
Matt Remle: Violence against women, violence against earth (1/25)
Haley Elkins: Media goes silent on the failure to pass VAWA (1/24)
NCAI calls on Congress to pass Violence Against Women Act (01/24)