Tribal Criminal Jurisdiction over Non-Indians in S. 1925, the Violence Against Women Act (VAWA) Reauthorization

Jane M. Smith
Legislative Attorney

Richard M. Thompson II
Legislative Attorney

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 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. 1925, the Violence Against Women Reauthorization Act, which passed the Senate, 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 authority to restore the tribes’ inherent sovereignty over non-members, or whether such authority would have to be a delegation of federal authority. By contrast, the Violence Against Women Reauthorization Act of 2012 (H.R. 4970) does not provide for tribal jurisdiction over non-Indians for domestic and dating violence. Accordingly, this report focuses on the tribal jurisdiction provisions of S. 1925.

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 non-member 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 non-member Indians. S. 1925 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, the Constitution will not apply. Instead, criminal defendants must 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. Most importantly, if inherent sovereignty is recognized and only statutory protections are triggered, defendants may be subjected to double jeopardy for the same act; may not be able to exercise fully their right to counsel; may have no right to prosecution by a grand jury indictment; may not have access to a representative jury of their peers; and may have limited federal appellate review of their cases.


Date of Report: June 4, 2012
Number of Pages: 19
Order Number: R42488
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.

Federal Contracting and Subcontracting with Small Businesses: Issues in the 112th Congress

Kate M. Manuel
Legislative Attorney

Erika K. Lunder
Legislative Attorney

Congress has generally broad authority to impose requirements upon the federal procurement process, or the process whereby agencies obtain goods and services from the private sector. One of the many ways in which Congress has exercised this authority is by enacting measures intended to promote contracting and subcontracting with “small businesses” by federal agencies. Among other things, these measures (1) declare a congressional policy of ensuring that a “fair proportion” of federal contract and subcontract dollars are awarded to small businesses; (2) establish government-wide and agency-specific goals for the percentage of contract and/or subcontract dollars awarded to small businesses; (3) require or authorize agencies to conduct competitions in which only small businesses may compete (i.e., set-asides), or make noncompetitive awards to them in circumstances when such awards could not be made to other businesses; and (4) task the Small Business Administration (SBA) and officers of the procuring agencies with reviewing and helping to restructure proposed procurements so as to maximize opportunities for small business participation. A companion report, CRS Report R42391, Legal Authorities Governing Federal Contracting and Subcontracting with Small Businesses, by Kate M. Manuel and Erika K. Lunder, provides an overview of these statutes, the regulations implementing them, and the various judicial and other tribunals that construe them.

This report describes and analyzes measures that Members of the 112th Congress have enacted or proposed in response to particular issues pertaining to small business contracting and subcontracting. The majority of such measures appear to address (1) the standards under which firms’ size is measured, including the establishment of size standards for “early stage” small businesses and “mid-sized” firms (H.R. 585, H.R. 1812, H.R. 3184, H.R. 3987, H.R. 4121, H.R. 4310, S. 1590); (2) government-wide or agency-specific goals for contracting and subcontracting with small businesses (H.R. 2424, H.R. 2921, H.R. 2949, H.R. 3184, H.R. 3438, H.R. 3779, H.R. 3850, H.R. 4048, H.R. 4310, H.R. 5829, S. 180, S. 1110, S. 1154, S. 1334, S. 3213); and (3) eligibility for the set-aside programs for particular types of small businesses (e.g., HUBZone small businesses) (H.R. 598, H.R. 2131, H.R. 2416, H.R. 2424, H.R. 2921, H.R. 3754, H.R. 5729, S. 236, S. 633, S. 976, S. 1334, S. 1756, S. 1874, S. 2157).

Other measures address federal contractors’ obligations vis-à-vis small business subcontractors (H.R. 2424, H.R. 3893, H.R. 4310, S. 370, S. 1334); limitations on the amount of work that may be subcontracted under contracts awarded under the authority of the Small Business Act (H.R. 3893, H.R. 4310); expedited payment of small business contractors (S. 1736); increases to the maximum surety bond amount that SBA may guarantee (H.R. 12, H.R. 2424, H.R. 4310, S. 1334, S. 1549, S. 1660, S. 2187); bundling and consolidation of requirements into contracts unsuitable for award to small businesses (H.R. 2424, H.R. 4081, H.R. 4310, S. 1334); and agency “insourcing” of functions performed by small businesses (H.R. 3851, H.R. 3893, H.R. 3980, H.R. 4310). Yet other measures address the responsibilities of SBA Procurement Center Representatives and agency Offices of Small and Disadvantaged Business Utilization (H.R. 3851, H.R. 3980, H.R. 4310); the circumstances in which agencies may set aside contracts for small businesses or make non-competitive awards to them (H.R. 240, H.R. 4118, H.R. 4203, S. 129, S. 2172); the use of small businesses when making “small purchases” (H.R. 2424, S. 1334); mentorprotégé programs wherein large businesses provide financial and other assistance to small businesses (P.L. 112-81, H.R. 3985, H.R. 4310); the deterrence and punishment of fraud in small business contracting programs (H.R. 3184, H.R. 4206, H.R. 4310, S. 633, S. 914, S. 1184); and contracting or subcontracting with small businesses by particular agencies (P.L. 112-74, P.L. 112- 81, H.R. 4310, S. 1546). .


Date of Report: June 6, 2012
Number of Pages: 40
Order Number: R42390
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.

SBA Surety Bond Guarantee Program

Robert Jay Dilger
Senior Specialist in American National Government

The Small Business Administration’s (SBA’s) Surety Bond Guarantee Program is designed to increase small businesses’ access to federal, state, and local government contracting, as well as private sector contracts, by guaranteeing bid, performance, and payment bonds for individual contracts of $2 million or less for small businesses that cannot obtain surety bonds through regular commercial channels. The SBA’s guarantee ranges from 70% to 90% of the surety’s loss if a default occurs. In FY2011, the SBA guaranteed 8,638 bid and final surety bonds with a total contract value of about $3.6 billion.

A surety bond is a three-party instrument between a surety (someone who agrees to be responsible for the debt or obligation of another), a contractor, and a project owner. The agreement binds the contractor to comply with the terms and conditions of a contract. If the contractor is unable to successfully perform the contract, the surety assumes the contractor’s responsibilities and ensures that the project is completed. Surety bonds are viewed as a means to encourage project owners to contract with small businesses that may not have the credit history or prior experience of larger businesses and are considered to be at greater risk of failing to comply with the contract’s terms and conditions.

P.L. 111-5, the American Recovery and Reinvestment Act of 2009 (ARRA), temporarily increased, from February 17, 2009, through September 30, 2010, the program’s bond limit to $5 million, and up to $10 million if a federal contracting officer certifies in writing that a guarantee in excess of $5 million is necessary. There have been several efforts during the 112th Congress to increase the program’s $2 million bond limit.

S. 1334, the Expanding Opportunities for Main Street Act of 2011, and its companion bill in the House, H.R. 2424, would reinstate and make permanent ARRA’s higher limits. S. 1660, the American Jobs Act of 2011, and its companion bill in the House, H.R. 12, would provide $3 million to temporarily increase the program’s bond limit to $5 million from $2 million until the end of FY2012. H.R. 4310, the National Defense Authorization Act for Fiscal Year 2013, which the House passed on May 18, 2012, would increase the program’s bond limit to $6.5 million, and up to $10 million if a federal contracting officer certifies that such a guarantee is necessary.

Advocates of raising the program’s bond limit argue that doing so would make it easier for small businesses to take advantage of contracting opportunities and bring the limit more in line with the limits of other small business programs, such as the 8(a) Minority Small Business and Capital Ownership Development Program and the Historically Underutilized Business Zone (HUBZone) Program. Opponents argue that raising the limit could lead to higher amounts being guaranteed by the SBA and, as a result, an increase in the risk of program losses.

This report examines the SBA’s Surety Bond Guarantee Program’s origin and development, including the decision to supplement the original Prior Approval Program with the Preferred Surety Bond Guarantee Program that provides a lower guarantee rate (70%) than the Prior Approval Program (80% or 90%) in exchange for allowing the preferred sureties to issue SBAguaranteed surety bonds without the SBA’s prior approval. It also examines the program’s eligibility standards and requirements, provides several performance statistics, and concludes with a discussion of proposals to increase the program’s $2 million bond limit and to merge the Prior Approval Program and the Preferred Surety Bond Guarantee Program while retaining the Preferred Program’s more flexible operating requirements.


Date of Report: June 5, 2012
Number of Pages: 31
Order Number: R42037
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.

The U.S. Postal Service: Common Questions About Post Office Closures

Kevin R. Kosar
Analyst in American National Government

In recent years, the U.S. Postal Service (USPS) has announced initiatives to close up to 4,380 USPS retail facilities in rural, suburban, and urban areas. In May 2012, the agency may have changed course. The USPS issued a plan to “preserve” rural post offices, in great part by reducing their operating hours. In the same instance, the agency noted it was reviewing the status of 13,000 rural post offices, some of which might be closed. Thus, how many post offices may be closed remains unclear.

More than a dozen bills in the 112th Congress carry provisions that address post offices and the public’s access to retail postal services, including H.R. 2309, H.R. 2692, S. 1668, and S. 1789.

This report addresses common questions about the closure of post offices. Questions answered include (1) What is a post office? (2) How many post offices are there? (3) How many post offices might the USPS close? (4) What authority does the USPS have to close post offices? (5) What is the current post office closure process? (6) What is the role of the Postal Regulatory Commission in post office closures? (7) When might the post office closure process begin? (8) How many USPS employees may lose their jobs? and (9) What current legislation carries provisions related to post offices?

Colloquially, the term “post office” often is employed to refer to any place where stamps are sold and postal services are provided by USPS employees. However, the USPS differentiates among several categories of postal facilities, including post offices, post office branches and stations, community post offices, and contract postal units. At the end of FY2011, the USPS had 35,119 retail postal facilities.

Congress has given the USPS considerable discretion to decide how many post offices to erect and where to place them. Congress also requires the USPS to provide the public with access to retail postal services (e.g., sales of postage, parcel acceptance, etc.).

Both federal law and the USPS’s rules prescribe a post office closure process, which takes at least 120 days. The USPS must notify the affected public and hold a 60-day comment period prior to closing a post office. Should the USPS decide to close a post office, the public has 30 days to appeal the decision to the Postal Regulatory Commission. Sixty days after it has made a closure decision, the USPS may shut down a post office.

H.R. 2309, H.R. 2692, S. 1668, and S. 1789 are very different from one another. Among their other provisions, H.R. 2309 would reduce the number of post offices; H.R. 2692 would alter the post office closure process; S. 1668 would forbid any closure that would create more than 10 miles’ distance between any two post offices; and S. 1789 would alter the post office closure process and greatly reduce the USPS’s authority to close post offices.


Date of Report: June 13, 2012
Number of Pages: 15
Order Number: R41950
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.

Membership of the 112th Congress: A Profile

Jennifer E. Manning
Information Research Specialist

This report presents a profile of the membership of the 112th Congress (2011-2012). Statistical information is included on selected characteristics of Members, including data on party affiliation, average age, occupation, education, length of congressional service, religious affiliation, gender, ethnicity, foreign births, and military service.

Currently, in the House of Representatives there are 242 Republicans, 197 Democrats (including 5 Delegates and the Resident Commissioner), and 2 vacant seats. The Senate has 47 Republicans, 51 Democrats, and 2 Independents, who caucus with the Democrats.

The average age of Members of the House at the beginning of the 112th Congress was 56.7 years; and of Senators, 62.2 years. The overwhelming majority of Members have a college education. The dominant professions of Members are public service/politics, business, and law. Protestants collectively constitute the majority religious affiliation of Members. Roman Catholics account for the largest single religious denomination, and numerous other affiliations are represented.

The average length of service for Representatives at the beginning of the 112th Congress was 9.8 years (4.9 terms); for Senators, 11.4 years (1.9 terms).

Ninety-three women serve in the 112th Congress: 76 in the House, including 3 Delegates, and 17 in the Senate. There are 43 African American Members of the House (a record number) and none in the Senate. This House number includes 2 Delegates. There are 31 Hispanic or Latino Members serving: 29 in the House, including 1 Delegate and the Resident Commissioner, and 2 in the Senate. Twelve Members (eight Representatives, two Delegates, and two Senators) are Asian or Native Hawaiian/other Pacific Islander. The only American Indian (Native American) serves in the House.

The portions of this report covering political party affiliation, gender, ethnicity, and vacant seats will be updated as events warrant. The remainder of the report will not be updated.


Date of Report: June 14, 2012
Number of Pages: 11
Order Number: R41647
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.