David Perez on Why GOP is Wrong on Constitutionality of Tribal Court Provisions in VAWA Reauthorization

Here. An excerpt:

First, let’s be clear: Senator Grassley’s bold assertion that Native Americans cannot serve as impartial jurors is simply racist. The Sixth Amendment’s right to jury grants you the right to have a jury selected from the community in which the crime took place.  If a Native American committed an act of violence in Senator Grassley’s own Butler County, Iowa, chances are he’d face an all-White jury. That’s because Butler County is 98.95 percent White, and only 0.05 percent Native American. But I doubt Senator Grassley thinks that a Native American defendant couldn’t get a fair shake from his hometown Hawkeyes.  And there’s no reason to think that Native American jurors would act differently.

The other purportedly constitutional objection to the tribal protection provision stems from a 1978 Supreme Court case that originated right here in Washington state: Oliphant v. Suquamish Indian Tribe.  Suquamish tribal authorities arrested two men, Mark Oliphant and Daniel Belgarde, for crimes committed on Suquamish tribal lands. The defendants argued that the tribe could not charge them with any crime, no matter where it was committed, because they weren’t Indians. The Supreme Court agreed, but its reasoning is what’s most important: the Court never held that it was unconstitutional for tribal authorities to charge and try non-Indians, but rather that Congress’s “various actions and inactions in regulating criminal jurisdiction on Indian reservations demonstrated an intent to reserve jurisdiction over non-Indians for the federal courts.” Put differently, Congress just had to change its mind.

In a similar case about ten years later, Duro v. Reina, the Supreme Court determined that under existing federal law one tribe could not exercise criminal jurisdiction over an enrolled member of another tribe. So what happened? Congress simply changed its mind—and the law—to allow tribes to prosecute members of other tribes, explicitly overruling the Duro decision. Most recently, in 2004, the Supreme Court echoed this point by concluding, in United States v. Lara, that Congress has the power to “lift or relax” restrictions on tribal jurisdiction over criminal matters.

That’s what Congress is trying to do with these new VAWA provisions.  It’s not a constitutional hurdle—it’s a legislative one.  And the Senate just voted to remove that hurdle.

3 thoughts on “David Perez on Why GOP is Wrong on Constitutionality of Tribal Court Provisions in VAWA Reauthorization

  1. Lisa February 27, 2013 / 2:07 am

    This will probably be an unpopular post but here goes anyway. I have to wonder why so many native peoples of various nations honestly believe that the current administration actually cares about our needs? Time and again it has been proven that the current president is not acting in Native people’s best interests. Yet so many blindly support him and his policies. The fact is that the current president does not care. He gives lip service to it but then when push comes to shove hides behind legal loop holes as to not have to give the support need to ensure justice and fairness. One of the arguments against VAWA is that the Native people can not or won’t offer fair and just representation under the law to any non native defendant. My question is this? Why would we be required to do so? We are independent nations as such our laws are not always going to be the same as the dominate society nor should they be. We are not just American. We are members of individual nations who have the right to their own laws and justice system. If the predominate one can not give justice then our courts must. While there are many wonderful protections in the american justice system anyone breaking the law on native lands gives up those rights because guess what they are not on American soil anymore. It be no different then if they broke the law in Mexico, Canada or say Iraq or Iran. They could not and would not expect American justice to prevail there so why do they assume it will be applicable on a so called Indian Nation.
    If we can not even protect those who live on our territories maybe we should accept we have no place or rights even in our own lands. If we concede this point we might as well accept we are never going to have any real self rule or any honest justice. They will come to our casinos spend money, abuse our people, take our children, ravage our lands and then go home laughing knowing no one will call them on it.
    If we get no support from the justice department and from the president we owe them nothing in return.
    Think about the problems we are facing where we need a fair court. It wont happen in the the Americans courts and it not being allowed in our own. So when can we expect decency and honor to happen? Will we support the president while he watches our dancers and leaders via for his attentions all the while knowing he wont help us. Or Will we say live up to your word Mr. President. If he wont do that then we need to find someone who will.

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