January/February 2003, Page 45

No Right to Counsel in Tribal Prosecutions
By

It will probably surprise you to know that a defendant in this country can still face a criminal charge, with loss of liberty, without the right to counsel. Gideon’s requirement of counsel does not extend to Indian reservations. Indigent Indians facing prosecution, alone among all Americans, have no right to counsel.

The Constitution affords the Indian tribes the status of domestic dependent nations. The Supreme Court has always afforded this phrase a special meaning, treating tribes, and tribal governments, as not only as independent sovereigns, but as unique political nations within the nation. Certain protections of the Constitution do not extend to the Indian tribes.

What the Constitution does not do, Congress can. This is because Congress is sovereign over the tribe. In 1968, five years after Gideon, the Indian Civil Rights Act (“ICRA”) was passed. The ICRA extends almost all of the Bill of Rights protections to the Indians. In terms of criminal justice, tribes are empowered with misdemeanor jurisdiction. (Felonies fall under either federal or state jurisdiction.) Indians facing tribal prosecution can face a year in jail, and with the possibility of consecutive counts, the possibility of many years. Under ICRA, Indians are afforded due process, and can have counsel represent them. However, if they cannot attain counsel, they are not afforded the right to have a lawyer. For indigent Indians, Gideon and the Sixth Amendment right to counsel stops at the reservation.

The reasons given that Gideon is not extended to the reservation are the usual and the unusual.

To take the unusual first, Congress and the courts believe that Gideon may interfere with the unique culture, history and purpose of tribal governments. As the Supreme Court has repeatedly stressed, many of the tribes, in enforcing their laws, have a different purpose, and follow different norms, than the Anglo-American tradition. The usual reason is the concerns for costs and the difficulty in arranging for such representation given the circumstances, including poverty and distances involved, of the reservations. Yet, this very same difference, however, did not stop Congress and the courts from guaranteeing counsel if an Indian can pay for the representation. Many of these arguments were not valid when argued in Gideon and are not valid in the tribal context. It is shocking that indigent Indian defendants can face convictions, and years in jail on consecutive counts, all without a lawyer.

This is an issue that is pressing and growing. The poverty, lack of jobs and education, drug and alcohol abuse, and despair on many reservations have unsurprisingly resulted in a substantial rise of crime. Some reservations have taken the step of establishing defender offices, although too often being a lawyer is not required, in which case a tribal advocate (with rudimentary training) suffices poorly, if at all. Even in these circumstances, the systems are overwhelmed.

This travesty of due process must be addressed. Gideon must be enforced on the reservation. The Supreme Court must address this constitutionally, and Congress must address it legislatively. The Court regards Indian tribes as dependant nations, but nations evolve with due process. There must be a recognition that the critical right of representation afforded to most Americans now should be extended to all Americans. Equal protection and due process should so require, even trump Indian tribal government in this aspect. Indian tribes will not be threatened by giving indigent Indians the right to counsel. The right is always afforded, by statute, if an Indian can afford to hire a lawyer. The argument that the tribes can not afford it, or that such lawyers are too hard to find, are arguments that were made in Gideon and found wanting.

Congress also bears a responsibility to extend the protections of the Constitution. Congress, of course, should pay heed to what the tribes want, and defer to Indian self-determination. Such a deference is not a blanket, however, and Congress must not use the excuse of it being too expensive or not practical to do what is right. If the tribes need funds, then Congress, very much like they did with the Criminal Justice Act, can increase funding. Just as the tribes need increased police for public safety, indigent defendants need the right to counsel, to make sure justice and due process is followed. This is especially warranted given the close relationship between Congress, the tribes and federal jurisdiction under the Major Crimes Act.

Tribal government is recognized and understood as playing a crucial role in Indian cultural life. Tribal due process, however, can leave a lot to be desired. It should be the goal of the tribes to afford due process to all its members, especially those that face the criminal sanction of a conviction. The rights of Indian indigent defendants to be able to defend themselves with the assistance of counsel in considered fundamental and critical outside the reservations. It should likewise be considered on the reservations. Gideon’s legacy should have no reservations.

Jon Sands is an Assistant Federal Public Defender in Phoenix, AZ. (602) 382-2742 E-mail: jon_sands@fd.org


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