Native Americans on Trial Often Go Without Counsel

[question everything]

The Wall Street Journal

Native Americans on Trial Often Go Without Counsel
Quirk of Federal Law Leaves a Justice Gap In Tribal Court System
By GARY FIELDS
February 1, 2007; Page A1

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The right of defendants to legal counsel is guaranteed by the Constitution. But due to a little-known quirk in federal law, Native Americans aren't assured this protection. That's because under U.S. law, Indian tribes are considered sovereign nations, and are not subject to all privileges afforded by the Bill of Rights.

The country's 560 tribes are largely responsible for funding government services such as schools, police, and hospitals, as well as courts. The tribes have jurisdiction over crimes committed on reservations by the nation's 2.4 million American Indian and Alaska Natives. Many of these tribal courts, like their federal and state counterparts, have their own prosecutors, tribe-appointed judges and jail facilities. Court proceedings can be judge or jury trials. There are 275 such courts in the U.S., each governed by the laws of an individual tribe or village. According to the U.S. Justice Department, more than 9,200 Native Americans convicted in tribal courts are locked up in tribal facilities or local jails off tribal lands.

Mostly absent from this parallel justice system are public defenders -- a luxury that many poor tribes say they cannot afford. The defense gap means that accused criminals often end up representing themselves. As a result, many plead guilty and risk exposing themselves to additional charges at the federal and state levels. In some instances, they may be subject to double jeopardy -- two trials, sentences and punishments for the same crime.

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The Indian Civil Rights Act, passed in 1968, gave individual tribe members some protections, such as the right to a speedy trial and the right to a trial by jury. But it did not provide the right to counsel for defendants too poor to hire attorneys. Each year, the federal government spends nearly $400 million to subsidize tribal justice systems. The money goes to equipping and training police officers, constructing jails and providing grants to courts, prosecutors and victims programs. Of the total, less than $1 million is made available to tribal public defender offices.

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Over the years, various congressional bills have sought to address the problem of tribal defense funding. Last year, Arizona Sen. John McCain, then chair of the Indian Affairs Committee, held a hearing to argue for more government assistance. The issue has yet to gain traction.

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