NCSC helping tribal courts master jury management

Native American women like Taryn Minthorn, whose former boyfriend assaulted her in front of her children, have always been victims of a hole in the justice system. The boyfriend is not an American Indian, and tribal courts lacked authority to prosecute non-Indians for crimes committed on tribal lands against Native Americans until the Violence Against Women Reauthorization Act of 2013 was enacted.

The law, which allows tribal courts to prosecute non-Indians for domestic violence offenses, also allows defendants to request jury trials. But before 2013, not all tribal courts conducted jury trials – and some still don’t -- so a handful of tribes in the West and Midwest reached out to Paula Hannaford-Agor, director of NCSC’s Center for Jury Studies, to help brainstorm issues related to conducting jury trials for domestic violence cases.

Today, 26 tribes nationwide are exercising their rights under the 2013 law to seek felony convictions against non-Indians, but there remains a lot of uncertainty in tribal courts about how to conduct jury trials. NCSC recently started working on a project for the National Congress of American Indians, a group founded in 1944 that protects treaty and sovereign rights for Native Americans and works to improve their quality of life. (NCSC has worked with tribal court leaders in the past, but this is the first work it has done for this group.)

The work, which is to be completed by Sept. 30, involves:

• Submitting a report that summarizes how tribal courts have implemented jury trials in these domestic violence cases.
• Writing a brochure that summarizes jury service and expectations for jurors.
• Producing a script for a future juror orientation video.
• Providing one-on-one technical assistance to as many as 10 tribes that conduct jury trials; and
• Conducting a webinar on failure-to-appear rates.

“Intellectually, this is a really interesting project to work on,” Hannaford-Agor said. “Because tribal courts operate in different ways from state courts and because Native Americans have different rights under the law, this work challenges the assumptions we make about our courts and communities.”

One of the differences, she said, involves tribal courts’ emphasis on seeking healing and rehabilitation for defendants more so than incarceration. That will influence how she writes the script.

Another difference involves a provision in the 2013 law that says the jury pools in these cases must reflect diversity within the community, and that means including non-Indians. Hannaford-Agor in the past has helped tribal court leaders come up with groups of non-Indians that fit that bill, including the spouses of Native Americans, tenants who live on reservations, and people who work at tribal casinos. She said finding non-Indians who are part of Native American communities becomes more difficult in places like eastern Oklahoma, where tribal lands are not always part of geographically defined reservations.

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