Four senators, Jim Risch (R-ID), Rand Paul (R-KY), Mike Lee (R-UT), and Ted Cruz (R-TX) previously suggested that any effort to prevent violence against women exceeds the federal government’s power under the Constitution. Earlier this week, Sen. Ron Johnson (R-WI) joined their club of senators who think legislation reauthorizing the Violence Against Women Act is unconstitutional:
Some Republicans have objected to new provisions in the law, including one allowing tribal courts for the first time to prosecute men who aren’t American Indians when they’re accused of abusing an American Indian woman on a reservation. . . .
[JOHNSON]: “the Senate has approved a piece of legislation that sounds nice, but which is fatally flawed. By including an unconstitutional expansion of tribal authority and introducing a bill before the Congressional Budget Office could review it to estimate its cost, Senate Democrats made it impossible for me to support a bill covering an issue I would like to address.”
In fairness to Johnson, his objection is much narrower than the one raised by senators like Paul and Cruz, and applies only the provision of the VAWA renewal that would permit tribal prosecutions against non-members of the prosecuting tribe. Nevertheless, Johnson is simply wrong about the Constitution.
It is true that the Supreme Court held back in the 1970s that tribal courts do not have criminal jurisdiction over non-Native Americans, but that decision concluded that “Indian tribes . . . give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress.” More recently, the Court’s 2004 decision in United States v. Lara recognized that Congress “does possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction over nonmember Indians.” The reasoning of that decision would also apply to a law expanding tribal jurisdiction further to include non-Native Americans who engage in violence against women on reservations.
So Johnson is wrong about the Constitution, and his opposition to protecting Native American women is downright cruel. Eighty percent of Native American rape survivors were attacked by non-Indians, and a 2010 report by the General Accounting Office determined that federal prosecutors “declined to prosecute 46 percent of assault matters and 67 percent of sexual abuse and related matters.” As a result, many reservations are virtually law free zones for serial rapists who prey upon Native American women without consequence.