[House Report 116-648]
[From the U.S. Government Publishing Office]


116th Congress     }                                  {        Report
                        HOUSE OF REPRESENTATIVES
 2d Session        }                                  {        116-648

======================================================================



 
          JUSTICE FOR NATIVE SURVIVORS OF SEXUAL VIOLENCE ACT

                                _______
                                

 December 15, 2020.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Grijalva, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 3977]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 3977) to amend the Indian Civil Rights Act of 
1968 to extend the jurisdiction of tribal courts to cover 
crimes involving sexual violence, and for other purposes, 
having considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                          Purpose of the Bill

    The purpose of H.R. 3977 is to amend the Indian Civil 
Rights Act of 1968 to extend the jurisdiction of tribal courts 
to cover crimes involving sexual violence.

                  Background and Need for Legislation

    H.R. 3977 amends the Indian Civil Rights Act of 1968 to 
extend the jurisdiction of tribal courts to cover crimes of 
sexual violence. Even though American Indian and Alaska Native 
(AI/AN) women experience murder rates at 10 times the national 
average, many offenders continue to go unpunished. The 2013 
reauthorization of the Violence Against Women Act (VAWA) 
notably expanded tribal court jurisdiction to cover crimes of 
domestic violence. However, tribal nations still lack the 
authority to prosecute crimes of sexual violence, threatened 
domestic violence, violence against children, or violence 
committed against law enforcement personnel enforcing special 
domestic violence criminal jurisdiction. Currently, the only 
prosecutorial avenue available to tribal nations for these 
related crimes exists in the federal court system. Through this 
bill, a tribal court's power to prosecute offenses of sexual 
assault, sex trafficking, and stalking will be restored, 
regardless of the perpetrator's non-tribal status.

                            Committee Action

    H.R. 3977 was introduced on July 25, 2019, by 
Representative Deb Haaland (D-NM). The bill was referred solely 
to the Committee on Natural Resources, and within the Committee 
to the Subcommittee for Indigenous Peoples of the United 
States. On December 5, 2019, the Natural Resources Committee 
met to consider the bill. The Subcommittee was discharged by 
unanimous consent. Representative Louie Gohmert (R-TX) offered 
an amendment designated Gohmert #1. The amendment was not 
agreed to by a roll call vote of 11 yeas and 18 nays, as 
follows:



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    Ranking Member Rob Bishop (R-UT) offered an amendment 
designated Bishop #3. The amendment was not agreed to by voice 
vote. No additional amendments were offered, and the bill was 
adopted and ordered favorably reported to the House of 
Representatives by a roll call vote of 22 yeas, 7 nays, and 1 
present, as follows:



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                                Hearings

    For the purposes of section 103(i) of H. Res. 6 of the 
116th Congress--the following hearing was used to develop or 
consider H.R. 3977: oversight hearing by the Subcommittee for 
Indigenous Peoples of the United States titled ``Unmasking the 
Hidden Crisis of Murdered and Missing Indigenous Women (MMIW): 
Exploring Solutions to End the Cycle of Violence'' held on 
March 14, 2019.\1\
---------------------------------------------------------------------------
    \1\Unmasking the Hidden Crisis of Murdered and Missing Indigenous 
Women (MMIW): Exploring Solutions to End the Cycle of Violence: Hearing 
Before the Subcomm. for Indigenous Peoples of the U.S. of the H. Comm. 
on Nat. Res., 116th Cong. (2019), https://www.govinfo.gov/content/pkg/
CHRG-116hhrg35582/pdf/CHRG-116hhrg35582.pdf.
---------------------------------------------------------------------------

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

      Compliance With House Rule XIII and Congressional Budget Act

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, March 5, 2020.
Hon. Raul M. Grijalva,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3977, the Justice 
for Native Survivors of Sexual Violence Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jon Sperl.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.




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    Under current law, federal law enforcement officials 
prosecute a range of crimes on tribal land that involve 
domestic violence, sexual violence, sex trafficking, and 
related crimes. In a subset of those cases related to domestic 
and dating violence, tribal governments are concurrently 
authorized under federal law to prosecute defendants, provided 
that the alleged victim or defendant is a member of the tribe 
or that the defendant resides in or works in Indian country.
    H.R. 3977 would expand the scope of crimes that tribal 
governments may prosecute on tribal land to include sexual 
violence, sex trafficking, stalking, and other related conduct 
that constitutes a crime under a tribe's own laws. The bill 
also would authorize tribal governments to exercise 
jurisdiction over a non-Indian defendant regardless of whether 
the defendant resides on the tribes' land; is employed on the 
tribes' land; or is a spouse, dating partner, or intimate 
partner of an Indian who resides on the tribes' land.
    CBO expects that, under the legislation, some tribal 
governments would expand law enforcement efforts within their 
jurisdictions to combat additional types of crime and would 
prosecute more criminal cases.
    Tribal law enforcement agencies receive funding from 
several sources, including federal grants administered by the 
Bureau of Indian Affairs (BIA) and the Department of Justice 
(DOJ). Although H.R. 3977 would not authorize additional 
funding to support activities authorized in the bill, CBO 
expects tribal law enforcement agencies would rely on these 
grants to cover any additional costs they incur. Those grants 
are provided annually and are subject to the availability of 
appropriated funds.
    Using information provided by BIA and DOJ, CBO expects that 
federal agencies would incur some additional administrative 
costs related to providing technical assistance to tribes that 
undertake expanded law enforcement efforts. However, CBO 
estimates that those costs would not be significant over the 
2020-2025 period.
    The CBO staff contact for this estimate is Jon Sperl. The 
estimate was reviewed by H.Samuel Papenfuss, Deputy Director of 
Budget Analysis.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goals and 
objectives of this bill are to amend the Indian Civil Rights 
Act of 1968 to extend the jurisdiction of tribal courts to 
cover crimes involving sexual violence.

                           Earmark Statement

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                 Unfunded Mandates Reform Act Statement

    This bill contains no unfunded mandates.

                           Existing Programs

    This bill does not establish or reauthorize a program of 
the federal government known to be duplicative of another 
program.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

               Preemption of State, Local, or Tribal Law

    Any preemptive effect of this bill over state, local, or 
tribal law is intended to be consistent with the bill's 
purposes and text and the Supremacy Clause of Article VI of the 
U.S. Constitution.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                        CIVIL RIGHTS ACT OF 1968


                          (Public Law 90-284)

     AN ACT To prescribe penalties for certain acts of violence or 
                 intimidation, and for other purposes.



           *       *       *       *       *       *       *
TITLE II--RIGHTS OF INDIANS

           *       *       *       *       *       *       *



SEC. 204. TRIBAL JURISDICTION OVER CRIMES OF [DOMESTIC VIOLENCE]  
                    DOMESTIC, DATING, OR SEXUAL VIOLENCE, SEX 
                    TRAFFICKING, OR STALKING.

  (a) Definitions.--In this section:
          (1) Dating violence.--The term ``dating violence'' 
        [means violence] includes any violation of the criminal 
        law of the Indian tribe that has jurisdiction over the 
        Indian country where the violation occurs that is 
        committed by a person who is or has been in a social 
        relationship of a romantic or intimate nature with the 
        victim, as determined by the length of the 
        relationship, the type of relationship, and the 
        frequency of interaction between the persons involved 
        in the relationship.
          (2) Domestic violence.--The term ``domestic 
        violence'' [means violence] includes any violation of 
        the criminal law of the Indian tribe that has 
        jurisdiction over the Indian country where the 
        violation occurs that is committed by a current or 
        former spouse or intimate partner of the victim, by a 
        person with whom the victim shares a child in common, 
        by a person who is cohabitating with or has cohabitated 
        with the victim as a spouse or intimate partner, or by 
        a person similarly situated to a spouse of the victim 
        under the domestic- or family- violence laws of [an 
        Indian tribe that has jurisdiction over the Indian 
        country where the violence occurs] that Indian tribe.
          (3) Indian country.--The term ``Indian country'' has 
        the meaning given the term in section 1151 of title 18, 
        United States Code.
          (4) Participating tribe.--The term ``participating 
        tribe'' means an Indian tribe that elects to exercise 
        special [domestic violence] tribal criminal 
        jurisdiction over the Indian country of that Indian 
        tribe.
          (5) Protection order.--The term ``protection 
        order''--
                  (A) means any injunction, restraining order, 
                or other order issued by a civil or criminal 
                court for the purpose of preventing violent or 
                threatening acts or harassment against, sexual 
                violence against, contact or communication 
                with, or physical proximity to, another person; 
                and
                  (B) includes any temporary or final order 
                issued by a civil or criminal court, whether 
                obtained by filing an independent action or as 
                a pendent lite order in another proceeding, if 
                the civil or criminal order was issued in 
                response to a complaint, petition, or motion 
                filed by or on behalf of a person seeking 
                protection.
          (6) Related conduct.--The term ``related conduct'' 
        means conduct alleged to have been committed by a 
        defendant that--
                  (A) is a violation of the criminal law of the 
                Indian tribe that has jurisdiction over the 
                Indian country where the underlying offense 
                occurred; and
                  (B) occurs in connection with the exercise of 
                special tribal criminal jurisdiction by that 
                Indian tribe.
          (7) Sex trafficking.--
                  (A) In general.--The term ``sex trafficking'' 
                means conduct--
                          (i) consisting of--
                                  (I) recruiting, enticing, 
                                harboring, transporting, 
                                providing, obtaining, 
                                advertising, maintaining, 
                                patronizing, or soliciting by 
                                any means a person; or
                                  (II) benefiting, financially 
                                or by receiving anything of 
                                value, from participation in a 
                                venture that has engaged in an 
                                act described in subclause (I); 
                                and
                          (ii) carried out with the knowledge, 
                        or, except where the act constituting 
                        the violation of clause (i) is 
                        advertising, in reckless disregard of 
                        the fact, that--
                                  (I) means of force, threats 
                                of force, fraud, coercion, or 
                                any combination of such means 
                                will be used to cause the 
                                person to engage in a 
                                commercial sex act; or
                                  (II) the person has not 
                                attained the age of 18 years 
                                and will be caused to engage in 
                                a commercial sex act.
                  (B) Definitions.--In this paragraph, the 
                terms ``coercion'' and ``commercial sex act'' 
                have the meanings given the terms in section 
                1591(e) of title 18, United States Code.
          (8) Sexual violence.--The term ``sexual violence'' 
        means any nonconsensual sexual act or contact 
        proscribed by Federal, tribal, or State law, including 
        in any case in which the victim lacks the capacity to 
        consent to the act.
          [(6)] (9) Special [domestic violence] tribal criminal 
        jurisdiction.--The term ``special [domestic violence] 
        tribal criminal jurisdiction'' means the criminal 
        jurisdiction that a participating tribe may exercise 
        under this section but could not otherwise exercise.
          [(7)] (10) Spouse or intimate partner.--The term 
        ``spouse or intimate partner'' has the meaning given 
        the term in section 2266 of title 18, United States 
        Code.
          (11) Stalking.--The term ``stalking'' means engaging 
        in a course of conduct directed at a specific person 
        that would cause a reasonable person--
                  (A) to fear for his or her safety or the 
                safety of others; or
                  (B) to suffer substantial emotional distress.
  (b) Nature of the Criminal Jurisdiction.--
          (1) In general.--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] tribal criminal jurisdiction over 
        all persons.
          (2) Concurrent jurisdiction.--The exercise of special 
        [domestic violence] tribal criminal jurisdiction by a 
        participating tribe shall be concurrent with the 
        jurisdiction of the United States, of a State, or of 
        both.
          (3) Applicability.--Nothing in this section--
                  (A) creates or eliminates any Federal or 
                State criminal jurisdiction over Indian 
                country; or
                  (B) affects the authority of the United 
                States or any State government that has been 
                delegated authority by the United States to 
                investigate and prosecute a criminal violation 
                in Indian country.
          [(4) Exceptions.--
                  [(A) Victim and defendant are both non-
                indians.--
                          [(i) In general.--A participating]
          (4) Exception for non-indian victim and defendant.--
                  (A) In general.--A participating tribe may 
                not exercise special [domestic violence] tribal 
                criminal jurisdiction over an alleged offense 
                if neither the defendant nor the alleged victim 
                is an Indian.
                          [(ii) Definition of victim.--In this 
                        subparagraph]
                  (B) Definition of victim.--In this paragraph 
                and with respect to a criminal proceeding in 
                which a participating tribe exercises special 
                [domestic violence] tribal criminal 
                jurisdiction based on a violation of a 
                protection order, the term ``victim'' means a 
                person specifically protected by a protection 
                order that the defendant allegedly violated.
                  [(B) Defendant lacks ties to the indian 
                tribe.--A participating tribe may exercise 
                special domestic violence criminal jurisdiction 
                over a defendant only if the defendant--
                          [(i) resides in the Indian country of 
                        the participating tribe;
                          [(ii) is employed in the Indian 
                        country of the participating tribe; or
                          [(iii) is a spouse, intimate partner, 
                        or dating partner of--
                                  [(I) a member of the 
                                participating tribe; or
                                  [(II) an Indian who resides 
                                in the Indian country of the 
                                participating tribe.]
  (c) Criminal Conduct.--A participating tribe may exercise 
special [domestic violence] tribal criminal jurisdiction over a 
defendant for criminal conduct that falls into one or more of 
the following categories:
          (1) Domestic [violence and dating], dating, and 
        sexual violence.--An act of domestic violence [or 
        dating violence], dating violence, or sexual violence 
        that occurs in the Indian country of the participating 
        tribe.
          (2) Violations of protection orders.--An act that--
                  (A) occurs in the Indian country of the 
                participating tribe; and
                  (B) violates the portion of a protection 
                order that--
                          (i) prohibits or provides protection 
                        against violent or threatening acts or 
                        harassment against, sexual violence 
                        against, contact or communication with, 
                        or physical proximity to, another 
                        person;
                          (ii) was issued against the 
                        defendant;
                          (iii) is enforceable by the 
                        participating tribe; and
                          (iv) is consistent with section 
                        2265(b) of title 18, United States 
                        Code.
          (3) Stalking.--An act of stalking that occurs in the 
        Indian country of the participating tribe.
          (4) Sex trafficking.--An act of sex trafficking that 
        occurs in the Indian country of the participating 
        tribe.
          (5) Related conduct.--An act of related conduct that 
        occurs in the Indian country of the participating 
        tribe.
  (d) Rights of Defendants.--In a criminal proceeding in which 
a participating tribe exercises special [domestic violence] 
tribal criminal jurisdiction, the participating tribe shall 
provide to the defendant--
          (1) all applicable rights under this Act;
          (2) if a term of imprisonment of any length may be 
        imposed, all rights described in section 202(c);
          (3) the right to a trial by an impartial jury that is 
        drawn from sources that--
                  (A) reflect a fair cross section of the 
                community; and
                  (B) do not systematically exclude any 
                distinctive group in the community, including 
                non-Indians; and
          (4) all other rights whose protection is necessary 
        under the Constitution of the United States in order 
        for Congress to recognize and affirm the inherent power 
        of the participating tribe to exercise special 
        [domestic violence] tribal criminal jurisdiction over 
        the defendant.
  (e) Petitions To Stay Detention.--
          (1) In general.--A person who has filed a petition 
        for a writ of habeas corpus in a court of the United 
        States under section 203 may petition that court to 
        stay further detention of that person by the 
        participating tribe.
          (2) Grant of stay.--A court shall grant a stay 
        described in paragraph (1) if the court--
                  (A) finds that there is a substantial 
                likelihood that the habeas corpus petition will 
                be granted; and
                  (B) after giving each alleged victim in the 
                matter an opportunity to be heard, finds by 
                clear and convincing evidence that under 
                conditions imposed by the court, the petitioner 
                is not likely to flee or pose a danger to any 
                person or the community if released.
          (3) Notice.--An Indian tribe that has ordered the 
        detention of any person has a duty to timely notify 
        such person of his rights and privileges under this 
        subsection and under section 203.
  (f) Grants to Tribal Governments.--The Attorney General may 
award grants to the governments of Indian tribes (or to 
authorized designees of those governments)--
          (1) to strengthen tribal criminal justice systems to 
        assist Indian tribes in exercising [special domestic 
        violence] special tribal criminal jurisdiction, 
        including--
                  (A) law enforcement (including the capacity 
                of law enforcement or court personnel to enter 
                information into and obtain information from 
                national crime information databases);
                  (B) prosecution;
                  (C) trial and appellate courts;
                  (D) probation systems;
                  (E) detention and correctional facilities;
                  (F) alternative rehabilitation centers;
                  (G) culturally appropriate services and 
                assistance for victims and their families; and
                  (H) criminal codes and rules of criminal 
                procedure, appellate procedure, and evidence;
          (2) to provide indigent criminal defendants with the 
        effective assistance of licensed defense counsel, at no 
        cost to the defendant, in criminal proceedings in which 
        a participating tribe [prosecutes a crime of domestic 
        violence or dating violence or a criminal violation of 
        a protection order;] prosecutes--
                  (A) a crime of domestic violence; 
                  (B) a crime of dating violence; 
                  (C) a crime of sexual violence; 
                  (D) a criminal violation of a protection 
                order; 
                  (E) a crime of stalking; 
                  (F) a crime of sex trafficking; or 
                  (G) a crime of related conduct; 
          (3) to ensure that, in criminal proceedings in which 
        a participating tribe exercises [special domestic 
        violence] special tribal criminal jurisdiction, jurors 
        are summoned, selected, and instructed in a manner 
        consistent with all applicable requirements; and
          (4) to accord victims of domestic violence, dating 
        violence, sexual violence, stalking, sex trafficking, 
        and violations of protection orders rights that are 
        similar to the rights of a crime victim described in 
        section 3771(a) of title 18, United States Code, 
        consistent with tribal law and custom.
  (g) Supplement, Not Supplant.--Amounts made available under 
this section shall supplement and not supplant any other 
Federal, State, tribal, or local government amounts made 
available to carry out activities described in this section.
  (h) Authorization of Appropriations.--There are authorized to 
be appropriated $5,000,000 for each of fiscal years 2014 
through 2018 to carry out subsection (f) and to provide 
training, technical assistance, data collection, and evaluation 
of the criminal justice systems of participating tribes.

           *       *       *       *       *       *       *


                            ADDITIONAL VIEWS

    H.R. 3977 is not ripe for consideration by the full House. 
The bill raises serious Constitutional concerns, and if this 
legislation is struck down by the Supreme Court, then predators 
who will have been convicted and incarcerated under the 
authorities conferred in this bill may be set free. That is not 
justice and certainly cannot be what the sponsor intends.
    The Justice Department appears to share these concerns. In 
a Senate Indian Affairs Committee hearing on S. 288, the Senate 
companion to this bill, the Department expressed a desire to 
take a ``measured approach'' and to ``work with the Committee 
to ensure that the legislation will weather judicial 
challenges.''\1\ This is quite an understatement of the 
Constitutional issues at stake.
---------------------------------------------------------------------------
    \1\Statement of Tracy Toulou, Director, Office of Tribal Justice, 
U.S. Department of Justice, Before the Senate Committee on Indian 
Affairs Hearing on S. 288 and other bills, June 19, 2019.
---------------------------------------------------------------------------
    There are alternative approaches to address violent crime 
in Indian Country, ones that fully respect tribes as the 
primary administrators of justice on their lands. However, 
Members of the Committee were deprived of an opportunity to 
evaluate them because no hearing was held on this bill. Indeed, 
the need for a hearing was underscored in the markup of H.R. 
3977, where several Democrat Members were completely unaware of 
the existence of a long-settled legal doctrine--that the 
Constitution does not apply to Indian Country--at the heart of 
the controversy.
    H.R. 3977, which amends the Indian Civil Rights Act of 1968 
(ICRA),\2\ builds on provisions in the 2013 Violence Against 
Women Act (VAWA) reauthorization act that gave tribes power to 
punish non-Indians.\3\ Under this authority, tribes may opt to 
exercise special criminal jurisdiction over all persons, 
including non-Indian offenders, who violate certain tribal 
laws. Previously, tribes could exercise criminal jurisdiction 
over Indians only.
---------------------------------------------------------------------------
    \2\Sec. 204 of Public Law 90-284 (25 U.S.C. 1304).
    \3\Sec. 904 of Public Law 113-4 (127 Stat. 120).
---------------------------------------------------------------------------
    Critically, the nature of the special criminal jurisdiction 
in H.R. 3977 is declared to be ``inherent,'' not federally 
delegated. In other words, an offender will be arrested, 
charged, tried, and incarcerated under tribal law, not federal 
law and there is no direct right of appeal to a federal 
court.\4\ The only rights a defendant in tribal court possesses 
are those enacted in law by Congress, as the Bill of Rights and 
the 14th Amendment are not applicable to tribes.\5\ And 
currently, the only statutory rights one possesses in tribal 
court are those listed in ICRA. While these rights are similar 
to (but not the same as) the Bill of Rights, ICRA has been held 
by the Supreme Court to be unenforceable in federal court.\6\ 
In simpler terms, a person who enters Indian Country may lose 
his civil rights.
---------------------------------------------------------------------------
    \4\``Questions and Answers on Proposed Federal Legislation to Help 
Tribal Communities Combat Violence Against Native Women,'' U.S. 
Department of Justice submission of legislative proposal to the 
President of the U.S. Senate, July 21, 2011. [H.R. 3977 amends the 
legislation, enacted in law, which the referenced document explains]
    \5\See Duro v. Reina, 495 U.S. 676, 693 (1990); Santa Clara Pueblo 
v. Martinez, 436 U.S. 49, 56 (1978); Talton v. Mayes, 163 U.S. 376, 384 
(1896).
    \6\Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
---------------------------------------------------------------------------
    The Supreme Court has held that tribes do not possess 
inherent power over non-Indians.\7\ The Court has further 
expressed doubt about the power of Congress to grant tribes 
inherent powers over non-Indians:
---------------------------------------------------------------------------
    \7\Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

          Retained criminal jurisdiction [of tribes] over 
        members is accepted by our precedents and justified by 
        the voluntary character of tribal membership and the 
        concomitant right of participation in a tribal 
        government, the authority of which rests on consent . . 
        . With respect to such internal laws and usages, the 
        tribes are left with broad freedom not enjoyed by any 
        other governmental authority in this country . . . This 
        is all the more reason to reject an extension of tribal 
        authority over those who have not given the consent of 
        the governed that provides a fundamental basis for 
        power within our constitutional system. [emphasis 
        added].\8\
---------------------------------------------------------------------------
    \8\Duro v. Reina, 495 U.S. 676, 694 (1990).

    Thus, H.R. 3977 violates two core principles of American 
government: that a person is endowed with natural rights that 
are protected by the Constitution and that government must be 
at the consent of the governed.
    Most House Republicans voted to oppose the unconstitutional 
``inherent tribal powers'' scheme in 2013 when the VAWA 
reauthorization bill was considered.\9\ Nothing has changed 
between then and now. The Constitution is still the 
Constitution, and it must not be eliminated anywhere in the 
United States, including in Indian Country. Any proposals to 
modify the civil rights of a defendant in any criminal court 
subject to United States jurisdiction should be carefully 
weighed--not rammed through Committee on short notice, with no 
opportunity for the kind of thoughtful analysis from expert 
witnesses that a hearing affords.
---------------------------------------------------------------------------
    \9\See votes on McMorris-Rodgers Amendment to and Final Passage of 
S. 47, VAWA reauthorization act, 113th Congress, February 28, 2013.
---------------------------------------------------------------------------
    Tribes should have the tools to prosecute those who prey on 
vulnerable Indians in Indian Country. Congress can easily 
delegate the power to them, and to provide the necessary 
funding for vigorous enforcement of laws to protect Indian 
women, children, and tribal officers. A hearing, had it been 
held, would have allowed Members to view comparisons of how 
``inherent'' versus ``delegated'' powers may work in practice, 
and which is more effective in protecting Indian women in 
Indian Country. No person needs to have his or her Bill of 
Rights and Fourteenth Amendment rights denied as the price for 
resolving violence in Indian Country. We can--and must--apply 
the Constitution to tribal courts to make this system workable. 
And it will work.
    In the Committee meeting to consider H.R. 3977, two 
amendments to cure the defects in the bill were offered by 
Congressman Gohmert and Ranking Republican Bishop. Both 
amendments were borrowed from provisions in Title VIII of S. 
2920 (Ernst), the Senate VAWA reauthorization bill, and both 
were voted down by the Democrats.
    The amendment offered by Congressman Gohmert was simple: it 
would apply the Bill of Rights and 14th Amendment to tribal 
courts, and to make these protections enforceable in federal 
court. It seems awkward to be required to justify such an 
amendment. U.S. citizens have civil rights, and these rights 
should not be denied. Period. But it's even more awkward to 
explain why Democrats oppose the Bill of Rights and 14th 
Amendment. If the Gohmert amendment had been adopted, any 
Constitutional challenge to the special tribal criminal 
jurisdiction under H.R. 3977 would be moot.
    The other amendment offered by Ranking Member Bishop would 
have required the Secretary of the Interior, in consultation 
with the Attorney General, to submit to appropriate 
Congressional committees comprehensive reports on tribal 
implementation of the bill as well as recommendations to 
Congress to improve tribal special criminal jurisdiction. 
Considering Congress is subsidizing the costs of tribes to 
exercise their special jurisdiction, it is perfectly reasonable 
for the United States to audit how tribes conduct their justice 
systems. Unfortunately, Democrats oppose meaningful Committee 
oversight of how tribes--using taxpayer funds--arrest, try, and 
punish offenders in Indian Country, and the amendment was not 
adopted.
    While the Constitutional issues described above generally 
discuss the effects of the bill on non-Indians, odds are that a 
Constitutional challenge to this bill will be filed by an 
Indian to strike down the special tribal criminal jurisdiction 
it provides. The reason is a peculiar aspect of the law which 
received no discussion in the House debates on VAWA in 2013 or 
the Committee markup of H.R. 3977.
    VAWA and H.R. 3977 do not force a tribe to exercise 
jurisdiction over all persons. Tribes have the option to 
exercise it. A ``participating tribe'' that opts to exercise 
special criminal jurisdiction over all persons including non-
Indians must provide defendants specific rights in addition to 
those currently established in ICRA. A tribe that does not 
choose to exercise this special criminal jurisdiction will be 
able to prosecute only Indians, without any requirement to 
afford the additional rights provided by H.R. 3977 to 
defendants.
    A challenge to special tribal criminal jurisdiction (over 
all persons) may come from an Indian defendant who is being 
prosecuted by a tribe that has decided not to be a 
``participating tribe.'' This will likely be the majority of 
tribes. The argument the defendant may raise is that Congress 
has created two separate tiers of rights that will apply to a 
particular case depending on whether the tribe has decided to 
prosecute (1) just Indians, or (2) Indians and non-Indians 
alike. In other words, under H.R. 3977, if a tribe chooses to 
prosecute non-Indians, it is mandated to afford ``all persons'' 
the higher tier of rights. On the other hand, if the tribe 
chooses to prosecute only Indians, and leaves the non-Indians 
alone, then it's okay to afford Indian defendants a lower tier 
of rights.
    The single factor that dictates which tier of rights 
applies is whether the tribe has decided to prosecute non-
Indians. That is a race-based factor. Clearly, Congress is 
requiring extra protections only if the liberty of non-Indians 
is potentially at stake. Curiously, the lower tier of rights 
Indians receive is a product of the Obama Administration, which 
proposed this scheme in the first place in the 2013 VAWA 
reauthorization.
    For these many reasons, we urge our colleagues to address 
the Constitutional issues in this bill before tainted 
prosecutions are brought under it.

                                   Rob Bishop (UT).
                                   Louie Gohmert.
                                   Paul A. Gosar.
                                   Russ Fulcher.

                                  
                                  [all]