Constitutional Rights in Question

By LYLE MARSHALL, Citizen

What constitutional protections exist to protect persons accused of crimes?

  1. Fourth Amendment protection against unreasonable search and seizure.
  2. Fifth Amendment guarantee that no one can be deprived of “life, liberty, and property without due process of law” ; and protects against double jeopardy.
  3. Sixth Amendment guarantees the right to a jury trial; a public trial; the right to confront witnesses; and the right to counsel.
  4. Eighth Amendment prohibits excessive bail and fines; cruel and unusual punishment.
  5. All of the above.

The answer is 5, all of the above.  The Supreme Court held that the right to privacy “was implied” in the 1st, 3rd, 4th, 5th, and 9th Amendments as well. The Fourth amendment was interpreted to mean that evidence collected by an illegal search will be ruled inadmissible by the court at trial.  Searching a house or a person’s property without a search warrant, or a car or a person’s body without probable cause constitutes an illegal search. Finally, every person is deemed to be “innocent until proven guilty”, and guilt of committing a crime must be proven “beyond reasonable doubt.”

So my question is this, how does a family lose their home, i.e., get evicted from their HUD home after 24 years of residence, and with only one year left to pay before they owned it outright, for criminal activity when no one has been convicted of a crime?

In HVIHA v. Hunsucker, the attorney for HVIHA argued successfully that a criminal conviction wasn’t required because tribal law didn’t require it and, moreover, that proof beyond reasonable doubt wasn’t required in an eviction proceeding, even when it involved determining whether a crime had been committed.  The burden of proof in a civil proceeding only requires proof by preponderance of evidence as provided in our civil code.  The Plaintiff HVIHA submitted two affidavits, from two tribal police officers, attesting that they had made an arrest, which HVIHA argued was enough to prove preponderance of evidence that criminal activity had occurred, and that eviction was in accordance with HVIHA’s policies.

But an arrest isn’t proof of criminal activity, it isn’t even a formal charge of a crime.  A person is only formally charged with a crime when the District Attorney files a criminal complaint.  Even after a criminal complaint is filed a person is deemed innocent.  In this case the person arrested wasn’t the homebuyer but an adult family member and guest.  According to the HVIHA attorney, renters and homebuyers can be evicted if criminal activity is committed by non-resident guests. That means that if a tribal police officer just happens to stop and frisk an extended family member, friend, neighbor, or even a stranger on HUD leased property, the yard as well as the house, the renter or home buyer is subject to eviction, even though they have committed no alleged crime whatsoever. In this case, an arrest was made almost 14 months ago, and the person charged hasn’t even been arraigned.

For those of you who are renting or buying a HUD home know that the Court has said that all that is needed to be evicted are two affidavits signed by tribal police officers.  The police officers didn’t even appear in court to testify or be cross-examined and, because the burden of proof is preponderance (probability; likelihood), the court accepted the statements contained in the affidavits as fact. This would be impossible in a criminal proceeding.

I’ve spoken to Council members who’ve said that they didn’t consider “burden of proof” for proving criminal activity when they approved the proposed amendments to the Tribe’s eviction ordinance.  Is the Council going to protect Tribal members’ constitutional rights and require a criminal conviction before taking a family’s home in an HVIHA eviction proceeding?  Governments amend laws when implementation produces unanticipated or negative results.  If not, the Membership can amend by petition and referendum election to ensure that their constitutional rights to “life, liberty, and property” are guaranteed.  I disagree with the war on drugs because it is a war on the poor and considered a complete failure nationally.  Our people need alternatives, opportunity, and professional services to address the curse of addiction.

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