For non-Native Americans to receive a fair trial in tribal courts, defendants must face a jury of their peers.
For that to happen, the United States government must provide the muscle behind a tribal jury summons.
The Violence Against Women Act recently expanded tribal authority to try non-Natives in tribal courts in domestic violence cases.
Before VAWA expanded that authority, tribes could try tribal members.
Tribes would send out jury summonses to individuals who voted in tribal elections.
To be eligible to vote in tribal elections, you must be a member of the tribe.
So, any tribal member would face a jury of his or her peers — other tribal members.
Now, in order to try non-Natives, tribes must ensure defendants receive the same protections under tribal law that U.S. citizens receive under U.S. law.
Both the Muscogee (Creek) Nation and the Cherokee Nation have most of the protections in place.
The next step is to ensure a jury of the defendant’s peers.
The federal government has given tribes civil contempt authority over non-Natives. That means that non-Natives could be fined by tribes if they do not answer a tribal jury summons.
Most non-Natives are going to have a problem with that.
They may not recognize tribal authority unless they can clearly tell the U.S. government will provide the hammer if tribes are ignored.
For non-Natives to receive a fair trial, the federal government must first provide the teeth to tribal authority.