, Muskogee, OK

Local News

March 10, 2013

SUNDAY EXTRA: Domestic violence law poses problem for tribes

Getting fair jury for non-Natives in tribal courts could be complicated

— Under a new federal law, non-tribal members must be ensured a fair trial if they are prosecuted in tribal courts for domestic violence.

The federal Violence Against Women Act, which was signed into law Thursday, expands tribal jurisdiction over non-Natives accused of domestic violence in certain areas.

Under VAWA, tribal courts must meet certain requirements, including offering defendants a jury of their peers.

Cherokee Nation and Muscogee (Creek) Nation officials said they don’t know yet as to how they will be able to compel non-Native jurors to answer a jury summons.

Defense attorney D.D. Hayes said tribal courts can give non-Natives a fair trial — but the tribes’ jury pools could be a problem.

Hayes, who practices in federal courts, said he never had tried a case in tribal courts but that he knows many of the attorneys and justices who do.

“I’m not all that concerned about the judges,” he said. “In fact, Bart Fite (a judge in the Cherokee Nation) also practices here in Muskogee as a judge. There’s no doubt for me that non-Natives can get a fair trial by the judges in tribal courts.”

However, he said, “If juries will be comprised of only Native Americans when a non-Native is on trial, well, I don’t know how they can satisfy the law’s requirement.”

Todd Hembree, the attorney general of the Cherokee Nation, said he’s confident its court system can provide a fair trial for any defendant.

“Our tribal citizens are more than capable of conducting a fair trial regardless of who the defendants are,” he said. “There have been literally thousands of instances where Natives have been tried by non-Natives, and they have received fair trials also. We have faith in our tribal citizens to make those decisions solely based on the facts that are presented, regardless of who the defendants are.”

Hembree said the tribe is discussing what will need to be done to bring jury selection in line with the requirements of VAWA, which calls for:

• The right to a trial by an impartial jury, which is drawn from a fair cross section of the community and cannot exclude non-tribal members.

• Defendants to have protection under all other rights in the U.S. Constitution.

Hembree said the tribe is looking at all legislation, particularly regarding jurisdiction, and how the Cherokee Nation forms a jury pool.

VAWA requires tribal courts to be in line with U.S. court standards, defendants’ rights and procedures.

Tribes will only be able to prosecute non-Native defendants if they live in or are employed in “Indian Country,” lands designated as Indian land.

Defendants also must be an intimate partner, spouse or dating partner of a member of an Indian tribe.

Tribal courts can prosecute non-Natives only for domestic violence against tribal members.

Tribes can also enforce protective orders against non-Natives in certain instances under VAWA.

The Cherokee Nation courts are already almost identical to U.S. courts, Hembree said.

Muscogee (Creek) Nation Prosecutor Shelly Harrison said the Creek Nation’s court system is also in line with federal courts, except for the number of jurors and who they are.

Creek and Cherokee courts use six jurors and two alternates rather than the 12 jurors and two alternates used by U.S. courts.

The Constitution does not specify a number of jurors required, nor does VAWA’s special jurisdiction provision.

Harrison said the rights of defendants in tribal courts are the same as those in U.S. courts.

“Their right to confront their accusers is the same. A lot of that was already the same under the Tribal Law and Order Act,” she said. “Most of those changes required by that act were already made in the Creek Nation.”

The Tribal Law and Order Act, signed into federal law in 2010, clarified the responsibilities of federal, state, tribal and local governments with respect to crimes committed in Indian Country.

It increased the length of sentences that tribal courts can impose, from one to three years, providing tribes met certain requirements.

It also requires judges to meet certain educational and experience standards and courts to provide indigent defense attorneys. The Creek and Cherokee courts do that already.

Harrison and Hembree said tribal courts are as cautious of protecting defendants’ rights as U.S. courts are.

However, Harrison said lawmakers may not have thought out the jury issue very well.

“It’s good in theory. I understand why that’s in there, but I don’t know that they really considered the logistics of it,” she said. “There’s no decision on how we handle that yet. There will have to be some discussion about that.”

Both Creek and Cherokee Nation jury pools are drawn from registered tribal voters.

Where is the tribal jurisdiction effective?

Officials said the tribal jurisdiction does not apply to every county designated as Cherokee Nation or Muscogee (Creek) Nation across the board.

The domestic violence crime must have been committed in what the federal government defines as Indian Country — which is all land within the limits of any Indian reservation, all “dependent Indian communities” and all Indian allotments.

Hembree said it’s not simple to define Indian Country.

But it does not mean that any resident of the 14 counties in the Cherokee Nation can be tried in tribal court for domestic violence, he said.

“Indian Country is a more inclusive definition than just trust property such as where all the casinos are,” he said. “The majority of your housing additions will be on trust land, but that is not always the case. There are numerous cases of housing additions that are not on tribal trust land, but we would still have jurisdiction.”

Hembree said the Greasy Community in south Adair County is an example of a dependent Indian community.

“However, there is no line-in-the-sand definition, and obviously, any defendant could raise that issue, then the court will decide,” he said.

Harrison said the Creek Nation Casino on 32nd Street in Muskogee would certainly fall under the special jurisdiction, as does certain Native American housing areas, such as one in Eufaula.

Reach Wendy Burton at (918) 684-2926 or

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