The right to counsel in Native American tribal courts: tribal sovereignty and congressional control.

• Author: Milani, Vincent C.

1. INTRODUCTION 1279 II. BACKGROUND 1280 A. History of Tribal Courts 1280 B. Modern Tribal Courts 1282 1. Nature of Tribal Courts 1282 2. Tribal Court Criminal Jurisdiction 1283 3. The Right to Counsel in Tribal Courts 1284 C. Role of Federal Courts in Tribal Judicial Systems 1285 1. Federal Court Original Jurisdiction 1285 2. Non-recognition of Uncounseled Tribal Convictions 1287 III. CONGRESS AND THE RIGHT TO COUNSEL IN TRIBAL COURTS 1290 A. Tribal Sovereignty and the Plenary Power of Congress 1291 B. Should Congress Impose the Right to Counsel on Tribal Courts? 1291 1. The Balance Between Civil Rights and Tribal Sovereignty 1292 2. Inter-tribal Diversity 1295 3. Tribal Responsiveness to the Needs of Their Members 1297 IV. CONCLUSION 1299 I. INTRODUCTION

   Lavina White Horse stood in a Rosebud tribal court, faced with criminal charges to which she believed she was innocent. She felt alone, intimidated by the court, and had "no idea how to mount a legal defense." She could not afford to hire an attorney, and the court would not appoint one for her. A voice whispered behind her: "Why don't you just plead guilty and get it over with?" The voice belonged to the police officer that had arrested her. She complied.(1)

   Undoubtedly, most who read the above passage will be struck with a grave sense of injustice, and will wonder how such a situation can stil exist in the United States over thirty years after Gideon v. Wainwright(2) held that the Sixth Amendment requires courts to furnish counsel for indigent criminal defendants. However, because the Sixth Amendment to the United States Constitution does not apply to Indian tribes, Lavina White Horse's guilty plea is valid. Despite the potential for such an injustice, Congress, though it has the power, has refrained from imposing the right to counsel on Indian tribal courts.

   This Note discusses the congressional power to impose an indigent defense requirement upon tribal courts and evaluates whether Congress should do so. It begins in Part II with a discussion of tribal courts, including their history, nature, and jurisdictional role, and then describes their interaction with the federal courts. After examining the evidentiary use of unconseled tribal court convictions in federal courts, Part III discusses whether Congress should require tribal courts to provide a right to counsel. The Note concludes that tribal sovereignty, inter-tribal diversity, and the existing responsiveness of tribes to the needs of their members, militate against congressional imposition of a right to counsel, and shows how this can be justified despite the potential for civil rights abuses.

2. BACKGROUND

   To understand the importance of any congressional decision on this issue, one must be familiar with the origin and development of tribal methods of dispute resolution. Historically, these methods have varied greatly among the tribes and they have contrasted signficiantly with the federal judicial system in the United States. This section will attempt to create the necessary background by tracing the development of the tribal courts from their historical roots to their present-day manifestations--with particular attention to the right to counsel--and will outline the present interrelation between the tribal courts and the federal court system.

   1. History of Tribal Courts

      Tribal dispute mechanisms that pre-existed Anglo-American influence were as widely varied as the cultural differences among the tribes themselves.(3) Tribes could be governed by tribal councils or controlled by military soldier or hunter regimes vested with the authority to resolve disputes. Conflicts might also be settled by priests, prophets, religious elders, or by wise men who became peacemakers or mediators. In addition, particularly among smaller tribes, the family or clan was responsible for settling disputes. In some instances, legal authority would be held by "law-men," who "specialized in advocacy or in the lore of precedents."(4)

      Formalized court systems did not generally exist on most reservations until the late 1800's, when the Bureau of Indian Affairs (BIA) established the Courts of Indian Offenses, or "C.F.R. courts."(5) The creation of the C.F.R. courts was a product of the then-prevailing federal policy of assimilation, and their purpose was to promote acculturation on the reservations and to help "civilize" the Indians.(6) C.F.R. courts administer a code promulgated by the Secretary of Interior, and the judges are Indians appointed by, and responsible to, the BIA, which has exerted a heavy influence on these courts throughout their development.(7)

      The Indian Reorganization Act of 1934 (IRA) signalled a major shift in federal Indian policy from assimilation to self-determination. Along with a reduced BIA role and increased authority delegated to the tribes, the IRA paved the way for tribes to develop tribal courts and phase out the C.F.R. courts. The most significant distinction between the tribal courts and C.F.R. courts is that tribal court judges are responsible to the tribe instead of the BIA, thus allowing the tribes greater autonomy to development their own tribal judicial systems. While in the early 1900's C.F.R. courts were said to exist on roughly two-thirds of all reservations,(8) today tribal courts exist on nearly 150 reservations, compared to approximately twenty remaining C.F.R. courts.(9)

   2. Modern Tribal Courts

      The modern version of tribal courts, which arose from the historical roots discussed above, has moved more closely toward the Anglo-American concept of a court. However, their history, nature, jurisdiction, and relationship to the federal courts continue to set tribal courts apart from other American courts.

      1. Nature of Tribal Courts

         Like the traditional dispute mechanisms, the tribal courts that have emerged and developed vary among the different tribes.(10) Despite the diversity, one author has asserted that tribal courts in general fit into three categories,(11) the first two being the tribal courts and the C.F.R. courts mentioned above.(12) The third general category consists of "traditional courts," such as those of the Pueblos in the Southwest, which administer unwritten customary law and follow little formal procedure. Tribal elders commonly serve as judges in these courts, and in some Pueblo tribes, for example, wrongdoers may be merely "brought before the council to discuss the problem."(13)

         Many tribes have also established appellate courts. Some of the more developed tribal court systems, such as that of the Navajo Nation, have appellate courts which sit permanently to hear appeals.(14) Other tribes have established inter-tribal courts that hear appeals from a regional association of tribal courts,(15) and still others have appellate courts that sit only periodically.(16) Furthermore, the Indian Tribal Justice Act, passed in December 1993, now authorizes federal financial assistance for the development of tribal justice systems, including not only individual tribal courts, but also regional justice systems.(17)

      2. Tribal Court Criminal Jurisdiction

         Indian tribes have retained certain "inherent powers of a limited sovereignty which has never been extinguished."(18) As part of their retained sovereignty, tribal courts have jurisdiction over crimes committed on tribal lands by one Indian against another Indian.(19) Tribes do not, however, have the authority to try crimes committed by non-Indians, even if the crime occurs within tribal lands.(20) In addition, two other significant limitations exist on tribal authority to punish offenders. The first of these limitations is the Major Crimes Act,(21) which grants to the federal courts "exclusive" jurisdiction over certain enumerated crimes committed on tribal lands by and against Indians.(22) The second is found in section 7 of the Indian Civil Rights Act of 1968 (ICRA),(23) which limits the maximum penalty that tribal courts may impose upon criminal defendants to $5,000, one year in prison, or both.(24)

      3. The Right to Counsel in Tribal Courts

         Although Native Americans are citizens of the United States,(25) the United States Constitution does not apply to Indian tribes.(26) Accordingly, Indian tribal courts are not required by the Sixth Amendment to provide counsel for indigent defendants.(27) In addition, while most protections of the Bill of Rights have been extended to Native Americans through ICRA,(28) ICRA merely provides that no tribe shall "deny to any person in a criminal proceeding the right ... at his own expense to have the assistance of counsel."(29) Therefore, unless tribal law itself grants the right to a court-appointed professional attorney, an indigent defendant in tribal court must face trial uncounseled.

   3. Role of Federal Courts in Tribal Judicial Systems

      In 1978 the Supreme Court held that ICRA violations were not a federal question and could thus no longer be adjudicated in the federal courts.(30) To hold otherwise, the court determined, would be "at odds with the congressional goal of protecting tribal self-government."(31) Moreover, the court stated that tribal forums were capable of vindicating the rights created by ICRA,(32) and that the habeas corpus provision of ICRA(33) was as far as Congress intended to interfere in tribal affairs.(34) The result of the Martinez decision was that federal review of tribal court decisions, at least on the merits, would only be obtainable through the limited remedy of habeas corpus.(35) Despite the limited nature of this oversight, the federal court system still interacts with the tribal courts on at least two significant levels for the purpose of this discussion: the federal courts maintain significant original jurisdiction in many cases, and they control the recognition of tribal convictions in subsequent federal criminal proceedings.

      1. Federal Court Original Jurisdiction

         Federal courts have been statutorily granted jurisdiction over general crimes committed on...