NCJ Number
65656
Journal
Arizona Law Review Volume: 10 Dated: (1968) Pages: 691-705
Date Published
1968
Length
15 pages
Annotation
THE UNEQUAL TREATMENT OF INDIANS CHARGED WITH MAJOR CRIMES ON A RESERVATION COMPARED TO THE TREATMENT OF NON-INDIANS COMMITING THE SAME TYPE OF CRIME ON A RESERVATION IS ARGUED, AND REMEDIES ARE SUGGESTED.
Abstract
DANIEL HOSAY AND TWO OTHER APACHE INDIANS WERE INDICTED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA. THEY WERE CHARGED WITH VIOLATING 18 UNITED STATES CODE SECTION 1153, 'AIDING AND ABETTING AN ASSAULT WITH A DANGEROUS AND DEADLY WEAPON,' AS DEFINED IN ARIZONA STATUTES. SINCE THE DEFENDANTS WERE APACHE INDIANS A NORMALLY ROUTINE JUDICIAL PROCESS WAS CHANGED INTO A JURISDICTIONAL MAZE. FIRST, THE GRAND JURY WAS EMPANELED IN AN UNCONSTITUTIONAL MANNER IN VIOLATION OF THE JURY SELECTION AND SERVICE ACT OF 1968 WHICH REQUIRES THAT THE JURY BE A FAIR CROSS REPRESENTATION OF THE JURISDICTION'S POPULATION. HOWEVER, ARIZONA'S PIMA COUNTY INDIAN POPULATION IS UNDEREPRESENTED IN THE JURY ROLLS AND THUS THE JURY WAS NOT REPRESENTATIVE. SECOND, AN EQUAL PROTECTION CIRCUMSTANCE AROSE SINCE, BY ENACTING 18 UNITED STATES CODE SECTION 1153, CONGRESS HAS, IN SOME INSTANCES, BURDENED THE INDIAN WHO COMMITS ASSAULT WITH A DANGEROUS WEAPON WITH A PENALTY TWICE AS SEVERE AS THAT GIVEN A NON-INDIAN COMMITTING THE SAME CRIME. SECTION 1153, COMMONLY KNOWN AS THE 'MAJOR CRIMES ACT' PRESCRIBES THAT CERTAIN OFFENSES COMMITTED BY AN INDIAN AGAINST AN INDIAN ARE UNDER FEDERAL JURISDICTION. A DIFFERENT PENALTY WOULD BE INVOLVED IF THE CRIME FELL UNDER STATE JURISDICTION. FURTHER, SECTION 1153 DEFINES ASSAULT WITH A DANGEROUS WEAPON DIFFERENTLY FOR INDIANS THAN FOR NON-INDIANS; AT TIMES, THE DEFINITION FOR THE FORMER REQUIRES LESS PROOF FOR CONVICTION. A REMEDY WOULD BE TO MAKE SECTION 1153 APPLICABLE TO ALL PERSONS WHO COMMIT ANY OF THE CRIMES SPECIFIED THEREIN AGAINST ANYONE WITHIN INDIAN COUNTRY, WHILE AT THE SAME TIME ENSURING THAT ALL OF THESE CRIMES ARE DEFINED AND PUNISHED PURSUANT TO THE LAW OF THE STATE IN WHICH THE CRIME WAS COMMITTED. THIS WOULD ENSURE THAT THE RACE OF THE OFFENDER OR VICTIM WOULD NOT BIAS THE CRIMINAL JUSTICE PROCESS. IN ADDITION, THERE WOULD BE A UNIFORMITY OF JURISDICTION FOR ALL PERSONS COMMITTING MAJOR OFFENSES IN INDIAN COUNTRY. FOOTNOTES ARE PROVIDED. (AUTHOR ABSTRACT MODIFIED--RCB)