The Right to Counsel in Native American Tribal Courts: Tribal Sovereignty and Congressional Control
Milani, Vincent C., American Criminal Law Review
I. 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
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.
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. …