Uncounseled tribal court guilty pleas in state and federal courts: individual rights versus tribal self-governance.

• Author: Martenson, Christiana M.

Indian tribes in the United States are separate sovereigns with inherent self-governing authority. As a result, the Bill of Rights does not directly bind the tribes, and criminal defendants in tribal courts do not enjoy the protection of the Sixth Amendment right to counsel In United States v. Ant, a defendant--without the legal assistance that a state or federal court would have provided--pied guilty to criminal charges in tribal court. Subsequently, the defendant faced federal charges arising out of the same events that led to the tribal prosecution. The Ninth Circuit in Ant barred the federal prosecutor from using the defendant's prior uncounseled tribal court guilty plea as evidence in the federal proceeding, explaining that doing so would violate the Sixth Amendment. This Note argues that Ant is no longer good law. First, Ant's legal foundation is weak, especially in light of subsequent developments in Sixth Amendment jurisprudence. Second, Ant is poor policy because excluding tribal court guilty pleas from state and federal proceedings undermines tribal self-governance. Even though governments must protect the rights of individual criminal defendants, supporting tribal authority will ultimately lead to decreased violence on Indian land and increased consistency with federal legislation.

TABLE OF CONTENTS INTRODUCTION I. TRIBAL SELF-GOVERNANCE AND THE SIXTH AMENDMENT RIGHT TO COUNSEL A. Tribal Self-Governance and Criminal Jurisdiction B. The Sixth Amendment and the Indian Civil Rights Act II. ANT, CAVANAUGH, AND SHAVANAUX A. United States v. Ant B. United States v. Cavanaugh C. United States v. Shavanaux D. Reevaluating Ant in Light of Cavanaugh and Shavanaux III. LEGAL REASONS WHY ANT IS WRONG A. Wrong the Day It Was Decided B. Wrong in Light of Subsequent Legal Developments C. Comity: Deferring to Tribal Court Judgments IV. POLICY REASONS WHY ANT IS WRONG A. Tribal Control over Crime in Indian Country B. Tribal Self-Governance and the Tribal Law and Order Act of 2010 C. What About the Rights of Tribal Defendants? CONCLUSION INTRODUCTION

On October 27, 1986, Keri Lynn Birdhat, an Indian woman, was found dead on the Northern Cheyenne Indian Reservation in Montana. (1) Seven weeks later, Northern Cheyenne tribal police arrested Francis Floyd Ant, Birdhat's uncle, and he confessed to killing Birdhat. (2) Lacking jurisdiction to charge Ant with homicide, (3) the tribe charged Ant with assault and battery. (4) Ant entered a guilty plea at his tribal court arraignment and served a six-month prison sentence. (5) He did not have the assistance of counsel during tribal court proceedings. (6)

The United States indicted Ant on January 7, 1987, charging Ant with voluntary manslaughter in connection with Birdhat's death. (7) Shortly thereafter, Ant filed a motion to suppress his tribal court guilty plea in federal court. (8) Pointing to the Sixth Amendment, Ant argued that using his uncounseled tribal court guilty plea as evidence in federal court would deprive him of his constitutional fight to counsel. (9) In response, the district court first ruled that the tribal court proceedings that resulted in Ant's guilty plea were valid. (10) The court then explained that respect for the Northern Cheyenne tribal judicial system required it to admit Ant's guilty plea as evidence. (11) On this basis, the court denied Ant's motion. (12)

Ant appealed his conviction to the U.S. Court of Appeals for the Ninth Circuit, which reversed the decision of the district court. The Ninth Circuit agreed with the district court with respect to the initial validity of Ant's tribal court guilty plea. (13) Although the Sixth Amendment requires state and federal courts to provide attorneys for indigent criminal defendants facing imprisonment, (14) neither Northern Cheyenne tribal law nor U.S. federal law required the tribal court to provide counsel to Ant. (15) Thus, Ant's tribal court guilty plea, despite Ant's lack of legal representation, was consistent with tribal law, federal law, and the Constitution. (16)

However, the Ninth Circuit departed from the district court's judgment regarding the use of Ant's tribal court guilty plea in federal court. According to the Ninth Circuit, Ant would have been entitled to counsel in the assault and battery proceeding if it had taken place in federal court rather than in tribal court. (17) Therefore, notwithstanding the initial legitimacy of Ant's un-counseled tribal court guilty plea, admitting Ant's plea as evidence in a subsequent federal proceeding would have violated the Constitution. (18)

For almost twenty-two years, no federal court seriously questioned the Ninth Circuit's decision in United States v. Ant. (19) In July 2011, however, two circuit court decisions raised significant doubts about Ant's status as good law. (20) This legal conflict, combined with evolving policy considerations, calls for reevaluation of the Ant rule.

This Note argues that federal and state courts should admit uncounseled tribal court guilty pleas as evidence of underlying conduct, even if the guilty pleas would have been unconstitutional had they been made in state or federal court. Part I provides background information about tribal sovereignty and the Sixth Amendment right to counsel. Part II explains the Ninth Circuit's argument in Ant and asserts that two recent cases--United States v. Cavanaugh and United States v. Shavanaux--indicate the precariousness of Ant's status as good law. Part III argues that Ant's legal foundation is weak, especially in light of subsequent developments in Sixth Amendment jurisprudence. Finally, Part IV contends that Ant is poor policy because excluding tribal court guilty pleas from state and federal proceedings undermines tribal self-governance.

1. TRIBAL SELF-GOVERNANCE AND THE SIXTH AMENDMENT RIGHT TO COUNSEL

   This Part introduces the concept of tribal self-governance and describes the protection of individual rights that the Sixth Amendment right to counsel provides. Section I.A explains that Indian tribes in the United States are separate sovereigns with inherent powers of self-government. Although Congress has the power to limit, modify, or terminate tribal authority, the Bill of Rights does not directly bind the tribes. Instead, as Section I.B explains, most of the protections provided by the Bill of Rights apply to the tribes through the Indian Civil Rights Act of 1968 ("ICRA"). ICRA's modified version of the Bill of Rights does not, however, provide tribal court defendants with the Sixth Amendment right to counsel.

   1. Tribal Self-Governance and Criminal Jurisdiction

      In 1831 and 1832, Chief Justice John Marshall explained the relationship between the federal government, states, and Indian tribes in two opinions that form the foundation of modern tribal self-governance. In Cherokee Nation v. Georgia, Marshall described the Cherokee Nation "as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself." (21) In Marshall's view, Indian tribes are not foreign states, but "domestic dependent nations" under the protection of the United States. (22) As such, the Cherokee Nation lacked standing as a foreign state to invoke the Supreme Court's original jurisdiction. (23) The following year, in Worcester v. Georgia, Marshall described Indian nations as "distinct, independent political communities, retaining their original natural rights." (24) Because the Cherokee Nation was a separate and independent nation, the laws of Georgia had no power over tribal members occupying tribal land. (25) According to Marshall, tribes have inherent self-governing power and exercise this authority under federal supervision with little state interference. (26)

      Subsequently, the Supreme Court established that Indian tribes, as self-governing nations, have the power to create and enforce substantive law on intratribal matters. For example, tribes have the authority to legislate tribal membership, (27) inheritance of land, (28) and domestic relations. (29) In addition, tribes have authority to enforce tribal law in tribal courts. (30)

      However, tribal self-governance has limits. Although Indian tribes are distinct political entities, the federal government has the power to restrict tribal authority, even on tribal land. (31) United States v. Kagama asserted that tribes are "not ... possessed of the full attributes of sovereignty" but are subject to the acts of Congress. (32) Similarly, Talton v. Mayes established that although the Fifth Amendment does not limit tribal sovereignty, Congress has the "dominant authority" to limit tribal exercise of self-governing authority. (33) The Supreme Court recently confirmed Congress's plenary power over the self-governance of tribes in United States v. Lara. (34) In Lara, the Court acknowledged inherent tribal sovereignty (35) but concluded that Congress possesses broad authority to modify tribal power. (36)

      Partially due to Congress's extensive power over tribal authority, criminal jurisdiction in Indian territory is complex and confusing. (37) In general, Indian tribes have the authority to exercise criminal jurisdiction over all Indians (38) for crimes committed within tribal territory. (39) However, tribes may not exercise criminal jurisdiction over non-Indians unless Congress confers such jurisdictional authority on the tribe. (40)

      At the same time, federal laws substantially intrude on tribal criminal jurisdiction. With the Indian Country Crimes Act, Congress conferred federal jurisdiction over crimes committed between Indians and non-Indians in Indian territory. (41) The Major Crimes Act likewise gives the federal government jurisdiction over "major" crimes--such as murder and arson--when they are committed by an Indian in Indian country. (42) In practice, the Major Crimes Act means that Indian tribes must rely on the federal government to prosecute tribal members who commit major criminal...