The House has proposed its own reauthorization of the Violence Against Women Act (VAWA). It is an improvement over the Senate bill, but it, too, suffers from constitutional problems.
1) It grants tribal judges authority to enter a final judgment of conviction in certain criminal cases even though tribal judges are not appointed by the President, the head of a department, or a court of law, as Article II requires; and
2) It grants tribal courts that authority even though tribal judges lack the life tenure and salary protection required by Article III.
The House bill can be challenged on the same grounds. None of the parties with appointment power specified in Article II would appoint or could remove a tribal judge; that authority would still reside with each tribe. Moreover, the House bill does not vest tribal judges with life tenure or protect their salaries. The House bill therefore suffers from the same defects as the Senate bill.
The House tried to remedy those flaws, but its efforts fall short. The House bill would require the Attorney General to certify that tribes can protect the constitutional rights of non-Indian defendants before tribal courts may exercise criminal jurisdiction over non-Indians. The problem is that the House bill mistakenly assumes that the only relevant constitutional protections are found in the Bill of Rights and the 14th Amendment. Articles II and III, however, also are constitutional protections, so the Attorney General cannot make the necessary certification. Congress cannot waive those protections any more than it could waive the Article I protections against ex post facto legislation or bills of attainder.
Moreover, the certification would be directed to the tribe itself, not the tribal judges assigned to hear these cases, so the remedy is misdirected. Finally, competence to apply the rules of evidence and procedure does not guarantee the judicial independence that Article III deems necessary to ensure a fair trial.
The House bill allows a defendant to remove a case to federal district court if there has been a violation of his or her constitutional rights. That, too, is insufficient. Many disputes would not raise constitutional issues at all; the only question would be entirely factual: Did the defendant assault the victim?
Tribal judges lack the Article III protections necessary for judicial independence and so could be subject to local pressures to convict an “obviously guilty” defendant. In any event, there would certainly be the appearance that such a result could occur.
As previously discussed, two remedies for these problems would be to use federal or state courts to resolve such disputes rather than tribal courts. There are two other options: Give every defendant (1) an automatic right to remove a case to federal district court, or (2) a right to a trial de novo before a federal district judge after conviction in tribal court.
Option 1 lets each defendant decide where to be tried. Option 2 gives each defendant two opportunities for acquittal. An acquittal in tribal court would be final, but the accused could start over from scratch before a district judge if convicted.
Any of these four remedies would resolve the constitutional flaws in the Senate and House bills. They may not satisfy the tribes, but the law is not designed to do so.