[Congressional Record Volume 159, Number 21 (Monday, February 11, 2013)]
[Senate]
[Pages S595-S596]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               VIOLENCE AGAINST WOMEN REAUTHORIZATION ACT

  Mr. CORNYN. Mr. President, I come to the floor to respond to some of 
the debate on the Violence Against Women Act reauthorization, which I 
believe misstates the law and the content of the underlying bill 
specifically as it relates to tribal court jurisdiction.
  First of all, I start from the premise that tribal courts should be 
able to prosecute domestic violence cases that occur on tribal lands 
involving tribal members. The question is, Under what procedure--what 
practice--is it appropriate for them to attain jurisdiction over 
nontribal members who commit these acts of domestic violence whom they 
wish to prosecute in tribal courts? I am not here to question the 
integrity of the tribal court system for tribe members. The only 
question on the table is whether tribal courts, under the law that 
applies to these tribal courts, is required to protect the 
constitutional rights of nontribe members whom they seek to assert 
jurisdiction over.
  In order to protect constitutional rights, the Constitution as 
interpreted by the Federal courts must be applied, and there must be an 
opportunity given to individuals who are prosecuted in these tribal 
courts who are not tribal members to appeal to a Federal court if, in 
fact, they are convicted.
  First of all, the distinguished Senator from Washington, Ms. 
Cantwell, has said there is a right of removal to Federal court in the 
underlying bill, and that is incorrect. There is no right of removal to 
Federal court in the underlying bill. However, in the amendment which I 
had contemplated offering--which the distinguished bill manager, the 
chairman of the Judiciary Committee, said is not acceptable to him--
would include a right of removal to Federal court under some 
circumstances. So I want to correct the record: There is no right of 
removal in the underlying bill to the Federal court that might 
otherwise correct an unconstitutional provision.
  Under the tribal court jurisdiction they operate under the Indian 
Civil Rights Act, which is, by definition, a statute and not the 
Constitution. So the rights provided to tribe members and nontribe 
members under the Indian Civil Rights Act are not constitutional 
rights. They don't incorporate the Bill of Rights of the U.S. 
Constitution which would be applicable to any American citizen tried in 
any State or Federal court. Since Indian or tribal courts claim to be 
sovereign and don't incorporate those constitutional rights, then 
American citizens who are not tribal members who would be tried in 
those tribal courts under the underlying bill would be 
unconstitutionally deprived of the protections of the Bill of Rights 
which they have by virtue of the U.S. Constitution.
  Secondly, the distinguished Senator from Connecticut, Mr. Blumenthal, 
argues that habeas corpus protections are sufficient to vindicate the 
constitutional rights of nontribal members, but that is not the case. 
Habeas corpus is a remedy which cannot be accessed until direct appeals 
are exhausted by definition. Since that is the case, under the 
underlying bill, the maximum length of sentence an individual can be 
given under the Leahy bill is 1 year. So what would happen is an 
American citizen, nontribe member, would be tried in a tribal court and 
would wrongfully be deprived of their constitutional rights under the 
Bill of Rights. Yet they could not vindicate those rights until such 
time as they exhausted all direct appeals, and then habeas corpus would 
be potentially available to them.
  The only problem with that is it is very unlikely that would happen 
before they would have already served their sentence under the 
underlying bill, which is a maximum of 1 year; thus, the habeas corpus 
remedy is illusory and is not real.
  I hope that helps clarify some of the misunderstandings under the 
bill and my concerns about it. We start from the premise that domestic 
violence on tribal lands is a serious problem. With the current 
situation, these crimes are not deemed sufficiently serious for U.S. 
attorneys to typically prosecute these cases. They are serious cases. 
They deserve to be prosecuted but only consistently with the U.S. 
Constitution. If the tribal courts wish to assert jurisdiction over 
nontribe members, the only way they should be allowed to do so is if 
they incorporate the protections of the Bill of Rights. That is 
something I have proposed to the distinguished chairman of the 
Judiciary Committee, which he has rejected.
  We also have to have a means for an appeal to a Federal court if a 
nontribe member is convicted in a tribal court. That is not in the 
underlying bill. It strikes me as somewhat bizarre to have a remedy 
which is in the form of my amendment which would confer on tribal 
courts the requirement that they incorporate the provisions of the Bill 
of Rights when a nontribe member is being tried in a tribal court and 
that a right to an appeal to a Federal court also be included. That 
would remove the constitutional objection to the assertion of tribal 
court jurisdiction over nontribe members, but this has been rejected 
for some reason that escapes me.
  Our only remedy is to go to the House of Representatives once this 
bill passes the Senate--and it will. Ironically, this is a bill that 
historically has passed with unanimous agreement--Democrats, 
Republicans alike. It has not been a political bill. Apparently, in a 
desire to make it a political statement and to somehow suggest that 
some people don't believe we ought to prosecute violence against women 
in tribal courts, an erroneous argument has been made by two Senators, 
whom I mentioned here, which I hope my statement has corrected. We 
don't need to go there. There is a commonsense solution, but 
unfortunately it has been rejected by the chairman of the Judiciary 
Committee. Our only recourse is to take the Senate bill and reconcile 
it with a bill that will be passed by the House of Representatives, 
which I hope will fix this provision and have it resolved in conference 
in a way that protects victims of domestic violence on tribal lands 
when perpetrated by nontribe members and when those nontribe members 
are tried in tribal courts.
  I know that sounds a little convoluted, but it is an important 
constitutional right we are talking about, and I am amazed that such a 
simple solution, which is right at hand, is being rejected in favor of 
trying to make some kind of political statement that some Members don't 
care as much as

[[Page S596]]

others do about vindicating the rights of victims of domestic violence 
on tribal lands.
  With that, I yield the floor.

                          ____________________