Understanding why the Violence Against Women Act is constitutionally flawed

GOP House Schedules Vote on Bill That Will Strip Constitutional Rights from Americans Tried by Indian Tribes

(CNSNews.com) - The House Republican leadership has scheduled a floor vote on Thursday on a Senate version of the Violence Against Women Act that, if enacted, would strip constitutional rights from Americans prosecuted by Indian tribes for alleged acts of domestic violence.

The bill was sponsored by Democratic Sen. Patrick Leahy of Vermont, and opposed by the conservative bloc in the Republican Senate Conference--as well as by Senate Minority Leader Mitch McConnell of Kentucky and Sen. Orrin Hatch of Utah, the senior Republican on the Senate Judiciary Committee.

Senate conservatives Ted Cruz of Texas, Mike Lee of Utah, Tim Scott of South Carolina, Rand Paul of Kentucky, Marco Rubio of Florida, Jeff Sessions of Alabama, Chuck Grassley of Iowa, Jim Inhofe and Tom Coburn of Oklahoma, and Ron Johnson of Wisconsin all voted against it.

According to the Congressional Research Service, the language in this Senate bill, if enacted, means that "the Constitution will not apply" to Americans tried by Indian tribes for alleged acts of domestic violence. These Americans, according to the CRS, will not have recourse to the Bill of Rights.

Republican Sen. John Cornyn of Texas, who also voted against the bill, and who co-sponsored an unsuccessful amendment that would have fixed the constitutional problem regarding Indian tribes, explained the issue in Senate floor debate.

"The problem with the underlying bill is simple: It denies constitutional rights to certain American citizens," said Cornyn. "I am stunned that some of my colleagues are okay with this. I am stunned that some self-proclaimed civil liberties organizations apparently have no objection to a flagrant violation of the U.S. Constitution. They believe somehow that Congress could legislate away constitutional rights. It cannot. The Constitution is the fundamental law of the land and no act of Congress can violate the Constitution and stand. Constitutional rights should not and are not negotiable. They are not bargaining chips in a Washington parlor game. They are permanent, and they are sacrosanct."

"Senator Leahy's bill, the underlying bill, would let certain U.S. citizens be prosecuted for domestic violence in Native American tribal courts without their full constitutional rights and without an ability to pursue an appeal in the federal court system," said Cornyn. "Once again, we all understand this. Congress cannot legislate away constitutional rights. This bill, if passed in its current form, would purport to do that."

The problematic language in the Leahy bill that the Republican leadership is bringing up for a vote in the House on Thursday grants the Indian tribes "inherent power" in domestic violence cases "over all persons"--including Americans who are not members of the tribe.

The bill says: "Notwithstanding any other provision of law, in addition to all powers of self-government recognized and affirmed by sections 201 and 203, the powers of self-government of a participating tribe include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons."

A Congressional Research Service analysis of the tribal provisions in the Violence Against Women Act explained that Congress could have used alternative language to give Indian tribes the power to try non-members in domestic violence cases, while not stripping the non-tribe-member U.S. citizen of his or her constitutional rights. However, CRS said, a bill that recognized the "inherent" power of Indian tribes to try these cases would strip Americans of constitutional rights.

"The dichotomy between delegated and inherent power of tribes has important constitutional implications," said the CRS report. "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," said CRS, "criminal defendants must rely on statutory protections under the Indian Civil Rights Act or tribal law. Although the protections found in these statutory and constitutional sources are similar, there are several important distinctions between them. Most importantly, if inherent sovereignty is recognized and only statutory protections are triggered, 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."