February 21, 2013

Grassley: Indians can't be fair

As we saw in Republicans Fear VAWA's Tribal Jurisdiction, Republicans don't think Indians are the same as everyone else. Now, one conservative has said what they're all thinking.

Top GOP Senator: Native American Juries Are Incapable Of Trying White People Fairly

By Scott KeyesRepublicans have offered a number of reasons why they oppose the Violence Against Women Act. Some think it’s unconstitutional. Others argue that it’s just a meaningless bill with a patriotic title.

On Wednesday, Sen. Chuck Grassley (R-IA) added a new one: Native Americans supposedly aren’t capable of holding fair trials.

Last week, Grassley was one of just 22 senators—all Republican men—who voted against reauthorizing VAWA. During a town hall meeting in Indianola on Wednesday, a woman asked him to explain his vote. Grassley responded that the legislation is unconstitutional, a belief shared by at least five of his colleagues.

Since the Constitution guarantees citizens the right to a trial among a jury of peers, Grassley reasoned that white men would be deprived of their rights if those who were accused of violence against Native American women had to appear in a tribal court. “On an Indian reservation, it’s going to be made up of Indians, right?” Grassley said. “So the non-Indian doesn’t get a fair trial.”
It's the modern-day equivalent of the savage/uncivilized stereotype.

Is tribal jurisdiction unconstitutional?

When I posted this on Facebook, it led to a brief discussion with a couple of Native friends:Perhaps, if that is the case--Indians should not be allowed to serve on Jury Duty. Tribal, county or federal.Conservatives probably would say that only white male property owners should serve on juries. Which is the way it was until recent times.It is a problem. If tribes can't bring non-Indians onto their juries, and I don't see how they could compel attendance by non-Indians, the defendant has a ready-made appeal issue, and the appellate courts will likely strike down the conviction.It sounds like a problem, yes. But if you commit a crime in Mexico, does Mexico have to bring in American jurors to give you a fair trial? Hmm.It's really not the same thing.So you disagree with what most Indians are fighting for in this case: tribal jurisdiction over non-Natives when they commit violence against Native women?

If you're a non-Native who dislikes the idea of Indians trying you for crimes, why are you living on a reservation? Aren't you submitting yourself to tribal governance in various ways? I'm not sure why tribal jurisdiction in violent crimes should be any different.Sounds to me like what is being said is that I, as a tribal member, an American Citizen, am not capable of being objective, understanding law, or using sound judgement if placed on a jury.Some answers to the question of tribal "fairness":

Grassley on VAWA: 'The Non-Indian Doesn't Get a Fair Trial'Grassley may not be aware of a couple things that should be considered in the discussion.

A recently released report by the National Congress of American Indians Policy Research Center titled Policy Insight Brief titled, Statistics on Violence Against Native Women that states according to the 2010 U.S. Census “46 percent of people living on reservations in 2010 were non-Native.” Almost half the reservation population would essentially lead to diversity on juries. The figure is as a whole in the United States, and there may be areas where this number is drastically lower, but that is where the Sixth Amendment comes in.

According to the Sixth Amendment, juries are to be drawn from the “State and district wherein the crime shall have been committed,” according to thinkprogress.org. “Also, Supreme Court decisions establish that criminal defendants also have aright to a jury which is ‘drawn from a fair cross section of the community’ where the trial court convenes to hear the case.”
I'm pretty sure the question of whether tribal courts are fair was decided decades ago. And legal experts took that into account before drafting VAWA's tribal provisions. I'd be amazed if it were any other way.

NCAI responds

Another posting seems to confirm this:

NCAI Responds to Senator Grassley’s Video Comments on VAWA Tribal Provisions–“Fear Mongering” Must EndIn the letter to Senator Grassley, NCAI’s Task Force on Violence Against Women outlined the details of the tribal provisions as outlined in the Senate bill, S.47, and addresses the concerns over the comments:

“This statement is an inaccurate portrayal on two levels. From a legislative approach, it ignores the clear language in the Senate-passed bill, drafted by the Department of Justice, which mandates that fair and impartial juries be made available in these cases and that all juries not exclude any cross-section of the community, including non-Indians. This clear language shows that to the degree you had any constitutional concerns about the fairness of the jury selection process, proponents of the bill, along with the Department of Justice, have had the same concerns and address it with this language. Further, this language is directly in line with the general rule that jury pools will be selected in a manner that represent a fair cross-section of the community in which the crime was committed and the court convenes. In some instances, off the reservation, this might mean an Indian defendant is tried by a predominantly all-white jury. The law recognizes that this may be the case, but places confidence that each citizen’s dedication to his or her civic duties will prevail over any bias or unjust motivations.

This leads to the second concern, that this statement generally mischaracterizes tribal peoples as unable to administer justice in a fair and balanced manner like their non-Indian counterparts. In other words, it presupposes that simply because there is a non-Indian in a tribal court, and an all-Indian jury or predominantly Indian jury, the court proceedings would inevitably result in an unfair trial. Or, more simply, Indian jurors would not be able to look objectively at the facts of the case, the testimony of the witnesses, and the brevity of the outcome on the defendant’s liberty, and make fair and impartial judgments on the matter.

As you know Senator, the United States is an extremely diverse land, and every tribal citizen is also a citizen of the United States that is familiar with our courts of justice, tribal and non-tribal alike, as well as our Nation’s overall founding principles of liberty. Our school systems teach the same history lessons, and our laws and understandings of justice generally mirror the state and federal system. As Indian people, we raise our children to be honorable and respectful in their actions, and to state that a tribal juror, carrying out his or her civic duties to their respective tribal government, would in some way lack the capacity to administer justice in a manner equitable to a non-Indian juror is simply offensive and not true. Many, if not all, Indian tribes refer to themselves in their own language as ‘People’–not Indians. This concept of our underlying humanity has always been strong in tribal cultures, and tribal citizens are very capable of objective review of any matter in tribal court.

For these reasons, we respectfully ask that you retract these damaging statements and acknowledge that tribal jurors are U.S. citizens as well, and fully capable of administering justice in a fair and balanced manner. Thank you for your time and consideration of this very sensitive issue.”
In short, case closed.

For more on violence against women, see Women March on Valentine's Day and Mounties Abuse Native Women.


dmarks said...

Grassley's knee-jerk reaction looks like wanting rapists to be able to escape justice... and implies that Native women tend to lie in their claims regarding this.

Anonymous said...

Unfortunately violence was and IS the method meted out to natives whom dis America, so why not just take non-natives to the center of town and beat the hell out of them? No court or cop is gonna honor native rights. Never have, never will!

Anonymous said...

Rapists are actually fairly tautological in their justifications: "No woman could resist this, therefore I'm not a rapist."

False accusations no doubt do occur (and were a part of the ritual surrounding KKK lynchings), but I could say you stole a million dollars from me and spent it all on cocaine and hookers. I have no evidence of that (since it never happened), but I could sa it. But that doesn't mean that actual larceny and drug abuse don't exist.