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View Diary: Republican Senator: Native American Jury Will Not Try White People Fairly? Racist? (VIDEO) (117 comments)

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  •  Well, if you commit a crime on a reservation (2+ / 0-)
    Recommended by:
    Magick Maven, O112358

    you are tried under US law unless both you and your victim are tribal members and the appropriate punishment is quite minor.

    Reservation sovereignty is pretty limited.  If we're going to rely on that I think we should start by letting them establish their own cigarette taxes and gambling laws before we move on to criminal law for non-members.

    What do you do if a tribe starts pronouncing death sentences on people its leadership don't like?

    •  that would of course be unconstitutional (0+ / 0-)

      since tribes are still subject to the US Consitituion

      Hay hombres que luchan un dia, y son buenos Hay otros que luchan un año, y son mejores Hay quienes luchan muchos años, y son muy buenos. Pero hay los que luchan toda la vida. Esos son los imprescendibles.

      by Mindful Nature on Tue Feb 26, 2013 at 08:08:07 AM PST

      [ Parent ]

    •  no (1+ / 0-)
      Recommended by:
      O112358

      After Oliphant and Duro v Reina, Congress amended a section of the Indian Civil Rights Act  to include the power  of tribal courts to exercise criminal jurisdiction over all Indians and not just tribal members.

      You are correct that the tribes only have jurisdiction over relatively minor crimes.

      I agree the States need to stay out of a Tribe's sovereign right to regulate cigarettes and gambling. They should stay the fuck out.

        And your remark about

      What do you do if a tribe starts pronouncing death sentences on people its leadership don't like?
      is just too stupid to answer.

      ~*-:¦:-jennybravo-:¦:-*~

      by jennybravo on Tue Feb 26, 2013 at 06:17:02 PM PST

      [ Parent ]

      •  Are you sure? (0+ / 0-)
        Congress amended a section of the Indian Civil Rights Act  to include the power  of tribal courts to exercise criminal jurisdiction over all Indians and not just tribal members.
        I don't see how that can possible be Constitutional.

        Consider... an African American member of the Zulu tribe, a white French American descended from the ancient Gaul tribe, a registered member of the Iroquois Nation, and a registered member of the Snoqualmie Nation all commit the same crime on the Snoqualmie reservation.

        I can see the argument that the Snoqualmie agreed to Snoqualmie tribal jurisdiction by registering as a Snoqualmie.

        But I can't see any Constitutional justification for treating the Iroquois any different from the African American or the French American.

        And your remark about
        What do you do if a tribe starts pronouncing death sentences on people its leadership don't like?
        is just too stupid to answer.
        Oh?  And why?  After all, many tribal court systems would not satisfy Constitutional requirements.  https://www.bja.gov/...
        Some tribal courts resemble Western-style courts in that written laws and court procedures are applied. Others use traditional Native means of resolving disputes, such as peacemaking, elders' councils, and sentencing circles.
        Want to guess how long a rape conviction handed down by an "elders' council" would last in a Federal Appeals Court if tribal courts have to follow the US Constitution?
        •  Yes, I am sure (0+ / 0-)
          Author
          ALEX TALLCHIEF SKIBINE *
          Excerpt
          I. INTRODUCTION

          On May 29, 1990, the U.S. Supreme Court issued its opinion in Duro v. Reina. 1 In this decision, the Court held that Indian tribes could not prosecute nonmember Indians for crimes committed on their reservations because it would be inconsistent with the tribes' status as domestic dependent nations to allow them to assert criminal jurisdiction over nonmember Indians without congressional authorization. The decision was an extension of the Court's 1978 decision in Oliphant v. Suquamish Indian Tribe, 2 in which the Court had ruled that Indian tribes did not have the inherent sovereignty to assume criminal jurisdiction over non-Indians on their reservations.

          Within a few months of the Duro decision, Congress responded by amending the Indian Civil Rights Act 3 and its definition of the "powers of self-government" to expressly "recognize" and "reaffirm" the inherent power of Indian tribes to exercise criminal jurisdiction over all "Indians" on their reservations. 4 The legislation defines "Indians" as those individuals recognized as "Indians" for purposes of being subjected to federal jurisdiction under certain federal criminal laws. 5 As explained more fully below, for the Duro legislation to be constitutional, however, the term "Indians" must be limited to include only those Indians who are members of some Indian tribe. 6 Although the original legislation had contained a sunset provision of September 30, 1991, Congress that year removed the expiration date, making the changes permanent law. 7

          https://litigation-essentials.lexisnexis.com/...

          Oh?  And why?  After all, many tribal court systems would not satisfy Constitutional requirements.  https://www.bja.gov/....

             

          Some tribal courts resemble Western-style courts in that written laws and court procedures are applied. Others use traditional Native means of resolving disputes, such as peacemaking, elders' councils, and sentencing circles.

          Want to guess how long a rape conviction handed down by an "elders' council" would last in a Federal Appeals Court if tribal courts have to follow the US Constitution?

          There is no tribal jurisdiction over rape charges in the Act. The only jurisdiction is over cases of domestic violence.  And under the provisions of the Act, the tribal courts would have to meet all Constitutional  protections and tribal courts that do not have systems in place to meet these requirements will not have jurisdiction until the do.

          ~*-:¦:-jennybravo-:¦:-*~

          by jennybravo on Wed Feb 27, 2013 at 12:24:35 AM PST

          [ Parent ]

          •  Thanks for the cite (0+ / 0-)

            I would uprate but for some reason I don't have the box to do that showing on my screen.

            Do you know if tribal jurisdiction over non-member Indians has been challenged under equal protection grounds?  

            And under the provisions of the Act, the tribal courts would have to meet all Constitutional  protections and tribal courts that do not have systems in place to meet these requirements will not have jurisdiction until the do.
            That certainly seems better.

            Who will make the judgement?  Do you know if one of the requirements will be to have jury pools that draw from all residents rather than just enrolled members of the tribe and for judges to be chosen on a non-racial basis?

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