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A jury of one’s peers

carlson

During the confirmation hearings for President Donald Trump’s designee as U.S. Attorney General, Alabama Senator Jeff Sessions, Senator Patrick Leahy (D-Vt) went after his colleague on his vote not to reauthorize the Violence Against Women Act.

Idaho’s member of the Judiciary Committee, Senator Mike Crapo, is a strong proponent of the Act, and was solidly for reauthorization. Issues are rarely black and white choices, though Senator Leahy tried to portray Senator Sessions as indifferent to the plight of abused women.

Sessions strongly denied the charge. In doing so he alluded to an issue that calls for more understanding and awareness, especialy by non-Native Americans who reside on Tribal lands or are married to a Native spouse.

It turns out Senator Leahy had not offered a “clean” reauthorization bill. Instead, the Vermont senator attached a new provision which troubled the Attorney General designee. Sessions had constitutional reservations about a provision that allows a non-Indian charged with abusing a Native American within the boundaries of a reservation to be tried in a Tribal Court.

Sessions believes the Constitution guarantees individuals a trial in front of a jury of one’s peers. A non-Indian standing trial for assault in front of a jury of Natives does not meet that standard.

Senator Crapo, however, accepts the provision because elsewhere the bill makes it clear this provision is restricted just to non-native assaults against natives, primarily spouses. In addition there is language providing for pilot project funding which encourages tribe’s to align their legal codes with state and federal codes and to meet other criteria spelled out in the Tribal Law and Order Act of 2010, in particular the requirement that the jury pool in a tribal court be drawn from all those living on a reservation, not just enrolled tribal members.

Of the 566 federally recognized tribes across this nation only four have met the criteria laid out in the reauthorization of the Violence Against Women Act. Three of those four reside in the northwest—-the Tulalips in western Washington and the Warm Springs Tribe and the Umatilla Tribe in eastern Oregon.

The arbiter of whether tribes have established a truly independent judiciary is the Department of Justice. This is part and parcel of Congress’ ability to exercise its plenary powers, even over treaties with tribes. Understandably, tribes who believe their sovereignty is absolute, chafe at requirements that in effect say “prove your judiciary” is an equal and independent agent in your governmental structure.

Tyrel Stevenson, for nine years a member of the Coeur d’Alene Tribe’s legal staff and the newly designated director of government affairs for the Tribe, states flatly that the vast majority of tribal judiciary are “law trained” or “law qualified.” Whether judges in the tribal courts, prosecutors, defense counsel, bailiffs, or court reporters, they all received the proper training and the attorneys all admitted to the applicable bars.

He quickly cites the legal precedents for current law applied to Native Americans in a way one wishes Senator Crapo could have done when queried about his stance.

Stevenson cites the seminal laws and their being upheld by the U.S. Supreme Court: the Winter’s Doctrine of 1902; the 1924 legislation finally conferring the right to vote on America’s first citizens; Suquamish vs. Oliphant, the case which clarified a tribe’s right to decide who is a member; the 1968 Indian Civil Rights Act which said tribes were not subject to the U.S. Constitution but that individual tribal members are; the Tribal Law and Order Act of 2010; and the Violence Against Women Act of 2013.

To date no non-Indian has gone before any Tribal Court in Idaho on a charge of domestic abuse, nor is it likely there will be such a case for some time. Thus, in a sense it is a moot point. Why in response to a series of questions regarding how expanding the jury pool on a reservation met the constitutional test of a trial by a jury of one’s peers, Senator Crapo could not provide a better explanation is a mystery only he can answer.

The time willl come when Senator Crapo will have to clarify his thinking on this issue of a right to a trial in front of one’s peers. He can duck my questions, but down the road he won’t be able to hide.

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