By Meghan Finnerty | Cronkite News
WASHINGTON _ It was 50 years ago this week that the Supreme Court handed down its decision in Miranda v. Arizona that made the now-familiar Miranda warning – “you have the right to remain silent” – the law of the land.
But not all the land.
| Miranda warning “You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney one will be provided for you. Do you understand the rights I have just read to you? With that in mind, would you like to speak with me?” |
Police on tribal lands are not required to give Miranda warnings in many cases, although they can give the warning and many said they do, either out of habit or because their own tribe’s law requires it.
But tribal law experts said that not only is the warning not required, it’s often not necessary in the context of the tribal justice system which they said is a less-adversarial system than state and federal courts.
“Tribal courts don’t need Miranda, tribal police don’t need Miranda, because Miranda is there to protect the people from the police and I don’t see that’s what’s happening in tribes,” said Melissa Tatum, a University of Arizona law professor who works with tribal law.
The Miranda warning is familiar to anyone who has watched a cop show on TV in the last 50 years. It’s the statement police read to suspects advising them of their right to remain silent and their right to an attorney, and warning them that anything they say to police “can and will be used against you in a court of law.”
The case stemmed from the 1963 arrest in Phoenix of Ernesto Miranda, who was questioned by police for two hours on charges of rape and kidnapping before giving a written confession that was used against him at trial over his lawyer’s objections.
The Arizona Supreme Court upheld his conviction, saying he had not specifically asked for an attorney. But the U.S. Supreme Court overturned the conviction, saying statements elicited from defendants who have not been told of their rights violated the Fifth Amendment protection against self-incrimination.
But under the Indian Civil Rights Act, tribes are only required to provide an attorney for a defendant facing charges could bring a year or more in jail.
There does not appear to be any list of which of the 566 federally recognized tribes give Miranda warnings and which don’t. When contacted, several national Native American organizations and experts said it was the first time they had ever been asked the question – but all were certain that some don’t.
Alfred Urbina, attorney general of the Pascua Yaqui Tribe, said police in his Arizona tribe do give the warning to suspects. But he said smaller tribes may not have the budget to guarantee an attorney to needy defendants – a guarantee they would be required to meet under Miranda.