Abstract

The handling of Indian criminal affairs is replete with instances of inequality of treatment between Indians and non-Indians. Many of the discrepancies present serious constitutional questions, and until the defects are cured, a substantial number of American citizens will be denied their constitutional rights. United States v. Hosay is a case in point. 

Daniel Hosay and two other Apache Indians were indicted in Tucson in the United States District Court for the District of Arizona; they were charged with violating 18 United States Code section 1153 (Supp. II, 1966), "Aiding and Abetting an Assault, with a Dangerous and Deadly Weapon," as defined in and with punishment as provided by Arizona Revised Statutes Annotated section 13-249 (Supp. 1967). The fact that these defendants were Apache Indians changed what should have been a routine operation of the judicial process into a jurisdictional maze. Since Indians who are tried in federal or state courts are entitled to the same protections as other citizens, several weaknesses were inherent in the indictment. First, the grand jury which handed down the indictment was empaneled in an unconstitutional manner, and in violation of the Jury Selection and Service Act of 1968. Second, there existed an equal protection problem since, by enacting 18 United States Code section 1153 (Supp. II, 1966), Congress has in some instances burdened the Indian who commits assault with a dangerous weapon with a penalty twice as severe as would be given a non-Indian committing the same crime. 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.

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