Although questions remain as area Indian tribes prepare to prosecute non-Natives in tribal courts, one question has been answered.
The federal government already gives tribal courts the authority to hold a non-Native in civil contempt for not answering a summons or not answering a call to jury duty, according to federal statutes.
But how to follow the letter of law set forth by the Violence Against Women Act is the question that remains to be answered for two local tribes.
VAWA calls for the tribes to provide a jury that represents a fair cross-section of the community.
At present, the Cherokee Nation and the Muskogee (Creek) Nation pull juries from a pool of people who are all eligible to vote in tribal elections, effectively creating all-Native juries.
However, revision of each tribe’s criminal code could solve the problem easily, because the federal government already gives tribal courts “civil contempt” authority, meaning failure to answer a summons or appear for jury duty by a non-Native could be punishable by a fine or more.
The Cherokee Nation Attorney General’s Office is working toward getting the special jurisdiction started, officials said.
Senior Assistant Attorney General Sara Hill said in a written statement, “We really are early in the process of implementing the expanded jurisdiction provisions of the VAWA.”
Hill added that the Cherokee Nation is “up to the challenge.”
“It may take some creativity and collaboration between tribes and federal officials, but the Cherokee Nation is excited to help set new precedent in Indian Country,” she said in the statement.
Some tribes already use non-Indian jurors.
According to the Navajo Nation’s rules of criminal procedure, the court clerk mails juror questionnaires every six months to establish a pool of both Navajo and non-Navajo jurors.
“Any person residing within the territorial jurisdiction of the Navajo Nation” may be called to jury duty, the rules say.
Some tribes can also use employment by the tribe as a reason to be called for jury duty.
The Tulalip Tribes’ Law and Order Code calls for jury pools to include non-Native residents of the reservation or non-Natives who have been employed by the tribe for at least a year.
The Violence Against Women Act, which gives special jurisdiction to the tribes who choose to participate, doesn’t take effect until March 2015. However, tribes may choose to participate in a pilot program sponsored by the Department of Justice and start sooner.
Justice Department documents say the pilot program will allow tribes to start prosecuting non-Native abusers sooner as long as the tribe’s criminal justice system fully protects defendants’ rights under federal law and the tribe asks to participate.
If the Creek or Cherokee nations ask to participate, the department will set the start date for them.
The requirements set out for tribes are already being met by the Muscogee (Creek) Nation and the Cherokee Nation, with the exception of including non-Indians in jury pools.
Officials said those requirements already being met by both tribes include:
• Provision of free attorneys for indigent defendants.
• Tribal judges who are also licensed to practice law.
• Publicly available tribal criminal laws and rules.
• Recorded criminal proceedings.
• Effective assistance of counsel for defendants.
Congress authorized up to $25 million for tribal grants in fiscal years 2014 to 2018, but the money has not yet been appropriated.
Additional funding sources for the tribes may be available through other federal agencies, according to the Justice Department.
Reach Wendy Burton at (918) 684-2926 or email@example.com.