This fact creates a jurisdictional problem because tribal courts do not have criminal jurisdiction over crimes committed within the tribe's jurisdiction by non-Indians. S. 47 and H.R. 11 , the Violence Against Women Reauthorization Act (VAWA Reauthorization) are nearly identical to S. 1925 and have been introduced in the 113 th Congress. The following chart sets forth which governments have jurisdiction over crimes in Indian country. Therefore, the tribes' special domestic violence criminal jurisdiction would be limited to domestic and dating violence occurring within a tribe's jurisdiction by a non-Indian against an Indian when the non-Indian lives or works in the tribe's Indian country or the non-Indian is married to, or in an intimate relationship with, a tribal member or other Indian residing within the tribe's jurisdiction. Required Rights for Non-Indian Defendants

Additionally, the VAWA Reauthorization would purport to give tribes criminal jurisdiction over domestic violence committed by non-Indians if the tribes provide to the defendant "all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise special domestic violence criminal jurisdiction over the defendant." For example, in Duro v. Reina , the Supreme Court held that Indian tribes had lost the inherent authority to try nonmember Indians. Congress passed an amendment to the Indian Civil Rights Act to provide tribes with jurisdiction to try nonmember Indians. In Oliphant v. Suquamish Indian Tribe , the Supreme Court implicitly recognized that prior to "submitting to the overriding sovereignty of the United States" Indian tribes possessed the power to try non-Indians. It could be argued that because nonmember Indians and non-Indians are both outsiders to the tribe, there appears to be no reason to distinguish Congress's authority to relax restrictions on the tribes' inherent sovereignty to try nonmember Indians from its authority to relax restrictions on the tribes' authority to try non-Indians. Although the Supreme Court stated in Lara that Congress has authority to relax restrictions on the tribes' inherent authority so that they may try nonmember Indians, it is not clear whether today's Court would reach the same result. Therefore, it is not clear whether the Court considering a tribal court conviction under the VAWA Reauthorization would find that Congress has the authority to expand the inherent sovereignty of tribes to try non-Indian defendants. If Congress does not have authority to subject citizens to inherent tribal criminal authority, it is possible that the courts would uphold tribal authority to try defendants involved in non-Indian on Indian domestic and dating violence as a delegation of federal authority. Implications of Delegated versus Inherent Tribal Sovereignty

The dichotomy between delegated and inherent power of tribes has important constitutional implications. If Congress is deemed to have delegated to the tribes Congress's own power to prosecute crimes, the whole panoply of protections accorded criminal defendants in the Bill of Rights will apply. If, on the other hand, Congress is permitted to recognize the tribes' inherent sovereignty, so that the tribes are exercising their own powers, the Constitution will not apply. Instead, criminal defendants must rely on statutory protections under the Indian Civil Rights Act or those protected under tribal law. Although the protections found in federal statutory and constitutional sources are similar, there are several important distinctions between them. S. 47 and H.R. Usually, the federal government has exclusive jurisdiction to try such non-Indian perpetrators. Through a series of cases and federal statutes, Indian tribes exercise their inherent sovereignty over member Indians and nonmember Indians.
Domestic and dating violence in Indian country are reportedly at epidemic proportions. However, there is a practical jurisdictional issue when the violence involves a non-Indian perpetrator and an Indian victim. Indian tribes only have criminal jurisdiction over crimes involving Indian perpetrators and victims within their jurisdictions. Most states only have jurisdiction over crimes involving a non-Indian perpetrator and a non-Indian victim within Indian country located in the state. Although the federal government has jurisdiction over crime committed by non-Indians against Indians in Indian country, offenses such as domestic and dating violence tend to be prosecuted with less frequency than other crimes. This creates a practical jurisdictional problem.
S. 47 and H.R. 11, the Violence Against Women Reauthorization Act, would recognize and affirm participating tribes' inherent sovereign authority to exercise special domestic violence jurisdiction over domestic violence involving non-Indian perpetrators and Indian victims occurring within the tribe's jurisdiction. It is not clear whether Congress has the authority to restore the tribes' inherent sovereignty over nonmembers, or whether such authority would have to be a delegation of federal authority. The tribal jurisdiction provisions of S. 47 and H.R. 11 are nearly identical to the tribal jurisdiction provisions of S. 1925, which passed the Senate in the 112th Congress.
In a series of cases, the Supreme Court outlined the contours of tribal criminal jurisdiction. In United States v. Wheeler, the Court held that tribes have inherent sovereign authority to try their own members. In Oliphant v. Suquamish Indian Tribe, the Court held the tribes had lost inherent sovereignty to try non-Indians. The Court in Duro v. Reina determined that the tribes had also lost the inherent authority to try nonmember Indians. In response to Duro, Congress passed an amendment to the Indian Civil Rights Act that recognized the inherent tribal power (not federal delegated power) to try nonmember Indians. S. 47 and H.R. 11 would apparently supersede the Oliphant ruling and "recognize and affirm the inherent power" of the tribes to try non-Indians for domestic violence offenses.
The Supreme Court stated in United States v. Lara that Congress has authority to relax the restrictions on a tribe's inherent sovereignty to allow it to exercise inherent authority to try nonmember Indians. However, given changes on the Court, and, as Justice Thomas stated, the "schizophrenic" nature of Indian policy and the confused state of Indian law, it is not clear that today's Supreme Court would hold that Congress has authority to expand the tribes' inherent sovereignty. It may be that Congress can only delegate federal power to the tribes to try non-Indians.
The dichotomy between delegated and inherent power of tribes has important constitutional implications. If Congress is deemed to delegate its own power to the tribes to prosecute crimes, all the protections accorded criminal defendants in the Bill of Rights will apply. If, on the other hand, Congress is permitted to recognize the tribes' inherent sovereignty, criminal defendants would have to rely on statutory protections under the Indian Civil Rights Act or tribal law. Although the protections found in these statutory and constitutional sources are similar, there are several important distinctions between them.