Part 1 - Q&A with Tribal Law Professor Bruce Duthu regarding VAWA

On Mar. 7, 2013, President Obama signed the Violence Against Women Reauthorization Act of 2013 into law, which included increased legal protection for Native American women and other victims who were previously left exposed by gaps in VAWA.

Professor Bruce Duthu is an internationally recognized scholar on Native American issues, including tribal sovereignty and federal recognition of Indian tribes. The courses he has taught at Vermont Law School include Criminal Law, Comparative Law of Indigenous Peoples, Federal Indian Law, Products Liability, and Torts.

Over the next few days, I'll post the transcript of the interview by posting one question and response per day.

JS: What is significant about the renewal of the Violence Against Women Act, or to be more specific, the new policy allowing Native American Tribes to prosecute non-Natives for Domestic Violence crimes that occur on Native land? 

BD: A significant reason why the legislation is so momentous is this is the first time that Congress is acknowledging that Tribes, in the exercise of their sovereign powers, can prosecute individuals who are not members of the tribe or, in fact, native people. 

The reason that’s so significant is that when we acknowledge Indian Tribes are not subject to the limitations or constraints of the U.S. Constitution, you have this scenario. You have U.S. citizens who could be facing criminal trials before tribunals, which are not subject to the full constraints of the U.S. Constitution. That is the principle reason why there was such vigorous opposition to this reauthorization. 

Moving forward, it is likely to be the principle objection that the individual defendant, the first person who’s going to be prosecuted under these provisions, is likely to make, that is, he is going to challenge Congress’ power to subject a U.S. citizen to a tribunal, in this case a tribal court, that is not subject to the full panoply of protections under the Bill of Rights. Whether he wins that argument or not will be up to the U.S. Supreme Court in terms of their view on Congressional power in Indian Affairs. That power is located in Article I of the Constitution. It says, “Congress regulates commerce with foreign nations, sovereign states and the Indian tribes.” Under that provision, the Supreme Court has granted a fairly wide berth for Congress to do pretty much what it wants to do in Indian affairs. 

There are a number of justices, notably Justice Kennedy, who has for years has expressed great reservation about whether or not Congress’ admittedly vast powers in Indian affairs go this far. So the case is momentous because of the power that it recognizes belonging to Indian tribes and the potential Constitutional claim that it raises as to whether Congress has this much authority to submit U.S. Citizens who are not members to criminal tribunals and we’ll see how the Courts respond to that.