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Mr. GRASSLEY. Madam President, the Coburn amendment strikes the provisions of the underlying bill that expand the authority of Indian tribal courts to try nonIndians.
As I have stated, there are a number of constitutional questions that the Congressional Research Service has identified with the language that the Coburn amendment would strike. Some arise with respect to the expansion of tribal court jurisdiction. Others are associated with the constitutional rights that would be provided to nonIndian defendants who would face proceedings in Indian tribal courts.
It is not at all clear under the Constitution that Indian tribes possess any inherent authority that the bill purports to recognize. It is also not clear that Congress can constitutionally delegate to tribal courts the authority to try nonIndians. Additionally, tribal courts may not be able to secure basic constitutional rights to criminal defendants.
The jury pool is racially restricted and does not provide the defendant a jury of his peers. Unlike a State, a tribe is not a sovereign entity. Therefore, a tribal proceeding can violate double jeopardy if the Federal government, which would retain concurrent jurisdiction under the bill, also decided to pursue the case.
We recognize that rates of domestic violence are too high in Indian country. The Federal government has a responsibility to address these crimes, whether committed by Indians or by others. It does not follow that the approach taken in this bill is the right one.
We should not engage in a political exercise over tribal sovereignty that has nothing to do with protecting Indian women. We also should not provide an illusion of a remedy that in the end could well be struck down by a court on constitutional grounds.
Instead, we should take clearly constitutional action that will enable the Federal government to better fulfill its responsibilities to women in Indian country given the practical issues that make that difficult currently.
I will support the Coburn amendment.
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