Congress passed the Violence Against Women Act (VAWA)  in 1994 in part to authorize various federally funded anti-violence programs. Last year, Congress passed a VAWA reauthorization bill. A provision in the statute, Section 904, grants Indian tribal courts concurrent jurisdiction over certain criminal charges of domestic abuse filed against non-Indians. While Congress was justifiably concerned about spousal abuse and other forms of domestic violence on Indian reservations, that provision is likely unconstitutional because it grants tribal courts authority that can be exercised only by parties appointed in compliance with the Appointments Clause of Article II and that satisfies the requirements of the Judicial Power and Good Behavior Clauses of Article III. The selection of tribal court judges violates Articles II and III because tribes appoint judges for terms that the tribes themselves select. Congress could have avoided the problems that this statute raises, but it failed to do so. In all likelihood, those problems now will be litigated in the courts, where that provision should be struck down.
Article II Problems
Under the Appointments Clause, the President can appoint all “Officers of the United States”—i.e., any person who exercises the power of the federal government—with the advice and consent of the Senate. Congress also can delegate the appointment of “Inferior Officers” to “the President alone, the Courts of Law, or the Heads of Departments.” That clause serves several functions: (1) It identifies who is responsible for making an appointment; (2) it protects that party against outside interference; (3) it makes sure that only individuals who have been properly vetted can exercise federal power; and (4) it ensures (by implication) that federal officials can be removed for misconduct or incompetence.
Vesting criminal jurisdiction in tribal courts cannot be squared with the Appointments Clause. A judgment ordering a person to be imprisoned is a classic example of the type of government power that only a person properly appointed under Article II can exercise. A tribal court lacks inherent criminal jurisdiction over non-Indian offenders and may exercise that power only if Congress supplies it. In so doing, however, Congress makes the tribal court judge an “officer of the United States” for Article II purposes, which requires that the judge be properly appointed before he or she can exercise that authority. Yet no such appointment mechanism currently exists with respect to tribal court judges. Neither the President nor any other federal officer is involved in the appointment or removal of a tribal court judge, which the tribes do themselves.
Congress also cannot grant tribes or their leaders appointment authority, because neither one is designated in Article II as a permissible recipient of that power. While the Supreme Court has ruled on a few occasions that Congress may limit the President’s removal power, the Court has never held that the President, a court, and a department head all can be ousted from the appointment and removal process entirely. Yet, under the VAWA reauthorization act, no federal official would be legally or politically accountable for intentional misconduct, negligent defaults, or even simple mistakes by tribal court judges—the exact scenario that the Framers designed Article II to prevent.
Article III Problems
Section 904 of VAWA suffers from another flaw. Article III requires that federal judges enjoy life tenure and salary protection in order to ensure that they can exercise judgment without fear of retaliation for displeasing Congress or the President. Only courts enjoying those protections can exercise the “judicial Power,” and there can be no more classic exercise of that power than the entry of a judgment ordering an offender imprisoned following his conviction for a crime. Tribal court judges lack these Article III guarantees, and the new statute does not provide them. On its face, therefore, the VAWA reauthorization act is problematic.
There are exceptions to that rule, but none of them would apply here. For example, military courts-martial are not subject to Article III requirements, but tribal courts are not courts-martial. Congress can establish non–Article III courts for the District of Columbia, but the District is a unique federal enclave, geographically and structurally, that does not encompass tribal court jurisdiction. Congress can allow administrative agencies to adjudicate disputes without staffing them with Article III judges. Tribal courts are not administrative agencies, however, and even if they were, administrative agencies do not and could not adjudicate criminal cases.
Lastly, when legislating for a “[t]erritory” of the United States, Congress may create criminal courts that lack Article III guarantees. A “reservation,” however, is not a “territory.” The federal government created reservations for tribes to live separately, subject only to federal and tribal governance. Under “the accepted meaning of the term,” a “reservation” is a “distinct tract” of land that is set aside or “reserved” by the United States for the “occupancy” and use of a tribe under a treaty, statute, or executive order. Congress cannot retroactively transform a “reservation” into a “territory” because Congress’s decision to accept a territory into “this Union” as a new state is final and unalterable. Once that designation has been made, Congress no longer can treat the state as a territory.
Moreover, under the Equal Footing Doctrine, each new state receives the same rights that existing states enjoy, one of which is territorial integrity against dismemberment by Congress. Congress therefore cannot escape Article III requirements by treating “reservations” as “territories” after the fact.
Congress is right to be concerned about spousal abuse and other forms of domestic violence on Indian reservations; this issue, however, should have been addressed in a manner that satisfied Articles II and III. For instance, Congress could have:
- Granted Article III courts jurisdiction over domestic violence offenses committed on reservations,
- Granted state courts jurisdiction over such crimes, or
- Required that tribal judges be appointed in compliance with Articles II and III.
Instead, Congress chose a path that violates those provisions. The result, sadly, is that the tribal courts provision in the new law will not help to address the domestic violence problem on Indian reservations because it is likely to be struck down as unconstitutional.
—Paul J. Larkin, Jr., is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.