Yesterday the House gave up any effort to pass its own version of the Violence Against Women Act (VAWA) and accepted the Senate bill, which now goes to the President for his signature. In so doing the House decided not to revise the Senate provision expanding Indian tribal court jurisdiction over non-Indians charged with certain domestic violence crimes.

Tom Gede, a Commissioner on the Indian Law and Order Commission, has noted that there may be due process objections to the trial of non-Indians in tribal court, because, as Justice Anthony Kennedy has noted, it wrests constitutional protections from a U.S. citizen and turns him over to a foreign sovereign. The result is that, once the President signs the bill, lawyers, not legislators, will step in to raise those defects in federal court.

One likely scenario is this: A non-Indian held in custody on a domestic violence charge will petition a federal district court for a writ of habeas corpus. He will argue that the tribal court cannot constitutionally exercise jurisdiction over a non-Indian and that the tribes lack authority to try him and confine him pending trial. (The defendant also may raise the First Amendment and due process claims that others have noted.)

The tribe undoubtedly will argue that, because it always enjoyed inherent authority to prosecute non-Indians for crimes, Congress did not “delegate” new authority to them; Congress merely “recognized” the tribes’ inherent authority.