It just got harder to kick Indians off juries for no reason. The New York Court of Appeals has handed down an opinion that will be another arrow in the quiver of Indians hunting for a fair trial in the colonial courts.
Indians see it in reservation border towns with depressing regularity. The newspaper announces that an Indian has been convicted of a serious crime on very flimsy evidence. The newspaper mentions an all white jury. If it doesn’t, we still wonder about the jury until we can find out.
During the civil rights movement, there were mass arrests on the level that the Standing Rock Sioux and their supporters have experienced in North Dakota. Because the violation of the law was often purposeful—Rosa Parks really did refuse to give up her seat to a white man and the Sioux water protectors really did refuse to disperse when ordered—the accused would typically demand a jury trial.
Jury trials slow the system down to allow tempers to cool and jurors cannot be directly threatened in the same manner as a judge. If all else fails, juries have the power to nullify the law just because they believe it is unfair in a particular case. For the defense to win, depending on the venue, it may need the vote of just one juror.
Indians in border towns face the same issues in selecting juries that the ex-slaves faced in the Jim Crow south. Border towns have historically been hostile to Indian voter registration. Indians have historically been hostile to participating in the colonial government, so when jurors are pulled from the pool of registered voters some Indians are kept from registering, some don’t want to register, and some who do register don’t want to show up for jury duty.
So you get a few skins in the jury pool and they disappear before the jury is seated, victims of a peremptory challenge by the prosecutor. Since the very definition of peremptory challenge meant that no reason had to be given, there were plenty of all white juries.
The path to an all white jury got harder in 1986, when the U.S. Supreme Court decided Batson v. Kentucky. James Batson was a black man charged with burglary who was tried by an all white jury after the prosecutor used peremptory challenges to remove four blacks from the jury panel.
The SCOTUS said, 7-2, that while you have no right to a jury composed of people who look like you, you do have a right not to have persons chucked off the jury for no other reason than they look like you. The lone black man on the Court, Thurgood Marshall, called for an end to peremptory challenges entirely and he correctly predicted the cat and mouse game that would ensue as lawyers tried to steer around Batson.
Subsequent cases shifted the right being enforced to the juror’s right to not be excluded from jury service based on race. Batson was extended to civil cases, and the unlawful grounds were expanded from race to ethnic origin in 1991, gender in 1994, and sexual orientation in a Ninth Circuit Court of Appeals decision in 2013.
People v. Bridgeforth came down on December 22 extending the Batson ban to peremptory challenges based on color. Indians in the Spanish southwest have lived for generations with color as a proxy for indigenous blood with more indigenous blood conferring lower status among the colonists.
The rest of the country is used to playing a less formal version of the blood quantum game that puts mixed bloods in the odd position having higher status with darker skin on the rez but at the same time having the conventional color prejudice off the rez, where darker complexion causes fear and loathing among conscious and unconscious racists.
Color prejudice is most problematic for persons who are neither white nor black, commonly Indians and Hispanics carrying their indigenous genes in their complexions, but also Asians and Arabs.
There was an amicus brief filed supporting the criminal defendant Bridgeforth by Seattle University’s Fred T. Korematsu Center for Law and Equality. Korematsu was the unsuccessful plaintiff in the primary lawsuit challenging internment of Japanese-Americans in WWII and the center that bears his name has also sided with Indians trying to have the trademark of the Washington football team revoked as racially disparaging.
Finally, the opinion in Bridgeforth was written by Judge Sheila Abdus-Salaam, who appears to be neither white nor black. Those who complain nonwhite persons are ganging up to produce this result need to explain what harm it does to white people if nonwhite people get a fair trial?