An overlooked House vote on tribal justice

AN OVERLOOKED HOUSE VOTE ON TRIBAL JUSTICE…. I mentioned briefly yesterday afternoon that Rep. Steve King (R-Iowa) voted last week against a measure to make it easier “for Native American tribal courts to prosecute non-natives who commit rape and other crimes on tribal lands.” King wasn’t alone — while the bill passed the House easily with bipartisan support, more Republicans opposed it than supported it. It was approved, 326 to 92.

What was up with those 92, all of whom were Republicans? I talked to a Hill staffer about this overnight, who explained what transpired. The staffer emailed me this, and I’m republishing the account with permission:

One real small correction in the bit you quoted — tribal courts have no criminal jurisdiction over non-Indians (they have criminal jurisdiction over tribe members and, for reasons I’ll leave to your imagination, over Indians belonging to other tribes, but not over non-Indians). And the tribal justice bill most definitely does not provide or create any new criminal jurisdiction over non Indians. In fact, in response to concern from Republican members on this exact issue, a specific provision was added during Senate process making totally explicit that the bill does not expand tribal jurisdiction to reach non-Indians and the Chairman of the House Natural Resources committee engaged in a colloquy on this very issue with Dan Lungren during floor debate. (Mr. Lungren ultimately supported the bill.)

The basis for the Mr. King’s rejection of the bill (along with many other House Republicans) is hard to determine. It’s a law-and-order bill, the centerpiece of which is to increase the authority of tribal courts to impose longer sentences on tribal offenders (current law limits Indian tribes to one year sentences per offense; the bill increases to 3 years per offense and 9 years max). The fact that there is a cap may itself be jarring, since tribes are separate sovereigns; on the other hand, tribal governments are not subject to the Bill of Rights and tribes — unlike the states or the federal government — can incarcerate people without providing them a lawyer, so it is a complex balance. The bill also enhances procedural protections for defendants in tribal courts — requiring tribes to provide counsel for indigent defendants who face more than one year incarceration and requiring the proceedings be recorded/transcribed and that court rules and tribal criminal codes be publically available. But 92 House Republicans voting AGAINST longer criminal sentences is certainly an unusual thing.

The bill also enhances drug interdiction efforts, re-authorizes a range of programs to address root causes of crime (including drug and alcohol treatment, summer youth and juvenile delinquency programs, and others), ensures that tribal courts can get medical testimony needed from IHS for sex assault cases, facilitates tribal access to federal criminal information databases, eases the way for increased hiring and better training of BIA officers and tribal police, and creates a very significant tribal law and order commission that will conduct a two year study of public safety and criminal justice issues in Indian Country and report back to Congress.

The bill was unanimously passed out of the Senate, but faced more significant challenges in the House (an unusual state of affairs right there). House Republicans made essentially no substantive objections but simply complained about the process used to move quickly through the House (it was taken up directly on the floor after returning from the Senate, which ensured that the bill did not have to go through the senate two times). There was lots of chatter that the opposition was simply designed to obstruct the effort — and deny House democrats of the political benefits of achieving this accomplishment for tribal constituencies — but it’s of course hard to know what lies in people’s hearts.

It went largely overlooked last week, but it seems like an important measure. I’m glad President Obama will sign it into law, and I can only hope those 92 opponents are prepared to explain to tribal communities what possessed them to vote the way they did.