Special domestic violence criminal jurisdiction for Indian tribes: inherent tribal sovereignty versus defendants' complete constitutional rights.

• Author: Zhang, Margaret H.

INTRODUCTION. I. TRIBAL CRIMINAL JURISDICTION IN INDIAN COUNTRY A. Historical Origins B. Oliphant: No Jurisdiction over Non-Indians C. Duro, the Duro Fix, and Lara: Jurisdiction over Nonmember Indians II. SPECIAL DOMESTIC VIOLENCE CRIMINAL JURISDICTION UNDER VAWA 2013 A. Narrowly Expanded Tribal Criminal Jurisdiction over Non-Indian Defendants B. Pilot Projects C. Nationwide Launch III. ARGUMENTS FOR AND AGAINST INHERENT TRIBAL SOVEREIGNTY TO PROSECUTE NON-INDIANS UNDER VAWA 2013 A. Why Inherent Tribal Sovereignty Matters B. No Inherent Tribal Sovereignty to Prosecute Non-Indians: Oliphant, History, and Political Representation Concerns C. Inherent Tribal Sovereignty to Prosecute Non-Indians: History, Lara, the Executive Branch, and Public Policy IV. CONGRESS'S PLENARY POWER OVER INDIAN AFFAIRS AND HOW IT COULD AFFECT SPECIAL DOMESTIC VIOLENCE CRIMINAL JURISDICTION A. The Congressional Plenary Power Doctrine. B. How the Congressional Plenary Power Doctrine Could Affect Special Domestic Violence Criminal Jurisdiction V. POTENTIAL CONSEQUENCES OF POSSIBLE SUPREME COURT HOLDINGS CONCLUSION: FROM WHAT DOES INHERENT TRIBAL SOVEREIGNTY DERIVE? INTRODUCTION

The question presented is ...

... whether Indian tribes' inherent sovereignty includes the ability, endorsed by Congress, to punish criminals who terrorize Indian victims through domestic violence or dating violence.

... whether non-Indian defendants should receive the full panoply of federal constitutional rights when being prosecuted in tribal courts for crimes of domestic violence or dating violence.

These twin "questions presented" are on the table as the nation waits to see whether courts will uphold the provisions in the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) that give Indian tribes "special domestic violence criminal jurisdiction" over non-Indian defendants. (1) Given the current tribal-federal framework, (2) answering "yes" to both questions presented is impossible. One of the two interests--inherent tribal sovereignty or non-Indian defendants' full federal constitutional rights--must be compromised.

Special domestic violence criminal jurisdiction for Indian tribes took effect nationally on March 7, 2015, (3) and it was a historic moment for the tribes. Ever since the Supreme Court's 1978 decision in Oliphant v. Suquamish Indian Tribe, tribes had been powerless to exercise criminal jurisdiction over non-Indian defendants. (4) Because the Court held that "Indian tribes do not have inherent jurisdiction to try and punish nonIndians," (5) an unfortunate gap in enforcement resulted: for crimes committed in Indian country, where states' criminal jurisdiction is limited (6) and where the federal government lacks the resources to prosecute crimes effectively, (7) non-Indian offenders regularly escaped prosecution. (8) This problem was particularly disturbing in the context of domestic violence and related crimes. For example, sixty-seven percent of the sexual abuse and related offenses committed in Indian country and charged in fiscal years 2005-2009 were left unprosecuted by the federal government. (9)

Enter VAWA 2013 and special domestic violence criminal jurisdiction for Indian tribes. Recognizing that "much of the violence against Indian women is perpetrated by non-Indian men" who "regularly go unpunished," Congress intended special domestic violence criminal jurisdiction to fill the prosecutorial enforcement gap for domestic violence offenses. (10) Codified at 13 U.S.C. [section] 1304, the new provisions recognize tribes' "inherent power . . . to exercise special domestic violence criminal jurisdiction over all persons" (11)--including non-Indians.

Although tribes and their advocates have celebrated VAWA 2013's partial override of the Oliphant decision, (12) special domestic violence criminal jurisdiction has yet to withstand constitutional scrutiny at the Supreme Court. In the debates before VAWA 2013's passage, tribal jurisdiction over non-Indians sparked controversy because legislators and commentators understood that non-Indian defendants prosecuted and tried in tribal court would not receive the full protection of the federal Constitution. (13) This constitutional question--whether the Constitution applies in full force in prosecutions brought under special domestic violence criminal jurisdiction--turns on whether the expanded tribal jurisdiction is an exercise of "inherent" tribal sovereignty or delegated federal authority. If the new jurisdiction is an exercise of inherent tribal sovereignty, then tribes are not obligated to provide non-Indian defendants with the full protection of the federal Constitution. But if the new jurisdiction is delegated federal authority, then non-Indian defendants would be entitled to the full panoply of rights under the federal Constitution--including, potentially, the right to an Article III judge appointed by the President and confirmed by the Senate under Article II of the Constitution. The bounds of inherent tribal sovereignty could thus determine whether special domestic violence criminal jurisdiction lives or dies. (14)

This Comment begins in Part I by outlining the history of tribal criminal jurisdiction in Indian country, with a focus on the law most relevant to analyzing the bounds of tribes' inherent sovereignty to adjudicate crimes over non-Indians. Part II explains VAWA 2013's special domestic violence criminal jurisdiction in more detail and summarizes how it has been implemented since the statute's enactment. Part III discusses the arguments for and against finding that tribes have inherent tribal sovereignty to exercise special domestic violence criminal jurisdiction, and why the outcome matters for both tribes and non-Indian defendants. Part IV takes an aside to note the lurking influence of the congressional plenary power doctrine, which gives Congress broad authority to legislate in the realm of Indian affairs. And Part V outlines how courts' ultimate rulings (and their underlying reasoning) would affect special domestic violence criminal jurisdiction's future. The Conclusion addresses the underlying questions: What are the bounds of tribes' inherent sovereignty? From what does that sovereignty derive? The answer will affect not just special domestic violence criminal jurisdiction under VAWA 2013, but also possible future expansions of tribal criminal jurisdiction by Congress.

1. TRIBAL CRIMINAL JURISDICTION IN INDIAN COUNTRY

   1. Historical Origins

   When analyzing the bounds of inherent tribal sovereignty, the Supreme Court often begins by looking to the earliest records of tribal-federal relations. (15) The earliest federal treaties with Indian tribes do address whether tribes could prosecute and punish non-Indian criminal offenders--but without clearly answering whether, absent a treaty, a tribe's inherent sovereign authority would have included these powers.

   The first ratified treaty between the United States and an Indian tribe was the 1778 Treaty with the Delawares. (16) The treaty forbade both the United States and the tribe from inflicting "punishments on the citizens of the other" until "a fair and impartial trial" was held before judges or juries of both the United States and the tribe. (17) Under the treaty, therefore, the Delawares lacked the independent jurisdiction to prosecute and punish non-Indians who were citizens of the United States.

   Later treaties went further and declined to give tribes any power to prosecute or punish United States citizens who "committed] a robbery or federal prosecution would be an impermissible second prosecution brought under federal auspices. (54) But because the tribal prosecution was an exercise of inherent tribal authority rather than of federal power, and because the Constitution's Double Jeopardy Clause "does not bar successive prosecutions by separate sovereigns," the Court rejected the defendant's double jeopardy claim. (55)

   The Duro-Duro fix-Lara dialogue between Congress and the Court was about tribal criminal jurisdiction over nonmember Indians. For tribal criminal jurisdiction over non-Indians, we have the two first steps of an analogous dialogue: Oliphant, (56) followed by VAWA 2013's special domestic violence criminal jurisdiction. (57) What is left--and what tribal observers are waiting for (58)--is the final step. Will the Supreme Court mimic its approach in Lara if special domestic violence criminal jurisdiction comes before the Court for review?

2. SPECIAL DOMESTIC VIOLENCE CRIMINAL JURISDICTION UNDER VAWA 2013

   1. Narrowly Expanded Tribal Criminal Jurisdiction over Non-Indian Defendants

      Before examining how and why the Supreme Court might rule, (64) it is worth examining the nuanced choices Congress made when enacting special domestic violence criminal jurisdiction. While the Duro fix was a general override of the Supreme Court's holding in Duro, special domestic violence criminal jurisdiction overrides Oliphant only partially: It applies only to certain acts involving certain people committed on certain territory. And it also applies only when accompanied by appropriate safeguards to protect defendants' rights.

      VAWA 2013 defines special domestic violence criminal jurisdiction as "criminal jurisdiction that a participating tribe may exercise under [VAWA 2013] but could not otherwise exercise." (65) A participating tribe is "an Indian tribe that elects to exercise special domestic violence criminal jurisdiction over the Indian country of that tribe." (66) Under the statute, "Indian country" has the same definition as the one used for the Major Crimes Act in 18 U.S.C. [section] 1153, and it covers reservation land, dependent Indian communities, and Indian allotments. (67) Thus, special domestic violence criminal jurisdiction is territorially limited.

      The statute also limits special domestic violence criminal jurisdiction based on defendants' and victims' personal attributes. Either the defendant or the victim...