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Volume 106

Note

Disparate Defense in Tribal Courts: The Unequal Rights to Counsel as a Barrier to Expansion of Tribal Court Criminal Jurisdiction

Samuel Macomber, J.D., Cornell Law School, 2020.

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1 Dec 2020

Michael Bryant, Jr. was a defendant in the Northern Cheyenne Tribal Court.1United States v. Bryant, 136 S. Ct. 1954, 1963 (2016). He pled guilty to committing domestic abuse in violation of the Northern Cheyenne Tribal Code and was sentenced to a term of imprisonment. Although he was indigent, Bryant was not appointed counsel.2Id. Meanwhile, Frank Jaimez was a defendant in the Pascua Yaqui Tribe of Arizona Tribal Court.3Pascua Yaqui Tribe v. Jaimez, No. CR-16-236, (Pascua Yaqui Ct. App. 2017); Pascua Yaqui Tribe, First Non-Indian Jury Trial Conviction in Indian Country Prosecuted at Tucson, Arizona’s Pascua Yaqui Tribal Court, PR NEWSWIRE: CISION (May 23, 2017 1:27 PM), https://www.prnewswire.com/news-releases/firstnon-indian-jury-trial-conviction-in-indian-country-prosecuted-at-tucsonarizonas-pascua-yaqui-tribal-court-300462521.html [https://perma.cc/YK2CJRFX]. A jury found Jaimez guilty of committing domestic violence, and he was sentenced to a term of imprisonment. Jaimez was indigent and was represented by a public defender.4Pascua Yaqui Tribe v. Jaimez, No. CR-16-236, (Pascua Yaqui Ct. App. 2017).

Bryant appeared without counsel while Jaimez received a court-appointed attorney. Why? Because Bryant is Indian, and Jaimez is not.5This Note “uses the terms ‘Native American Indian’ and ‘Indian’ interchangeably to refer to indigenous tribal people who inhabit the present-day United States. While it is true the term ‘Indian’ was never accurate, it has become a term of art from historical use in Federal Indian law, history, and statutes.” Barbara L. Creel, The Right to Counsel for Indians Accused of Crime: A Tribal and
Congressional Imperative
, 18 MICH. J. RACE & L. 317, 318 n.1 (2013).
Indians do not have the same right to counsel in tribal court as non-Indians do.6Compare Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (requiring appointed counsel for indigent criminal defendants in federal and state courts if the defendant faces any term of imprisonment), with 25 U.S.C. § 1302(c) (2018) (requiring appointed counsel for indigent Indian criminal defendants in tribal court only if a defendant faces a term of imprisonment that exceeds one year). Moreover, Bryant was prosecuted in tribal court because tribes have “inherent power” to “exercise criminal jurisdiction over all Indians.”725 U.S.C. § 1301(2); United States v. Lara, 541 U.S. 193, 210 (2004) (upholding the statute). But tribal courts do not have general criminal jurisdiction over non-Indians—Jaimez was only prosecuted by the Pascua Yaqui Tribe because U.S. Congress granted tribal courts limited criminal jurisdiction over non-Indians for certain crimes of domestic violence.8See 25 U.S.C. § 1304(c)(1), (2) (“A participating tribe may exercise special domestic violence criminal jurisdiction over a defendant for criminal conduct that falls into one or more of the following categories: (1) Domestic violence and dating violence . . . (2) Violations of protection orders.”). The Pascua Yaqui Tribe implemented exacting requirements in order to adopt that limited jurisdiction. See 25 U.S.C. § 1304(a)(4). Thus, both a tribe’s authority to prosecute and a defendant’s subsequent right to counsel can vary depending on the defendant’s Indian status.

This Note argues that modifying the right to counsel for Indians will help expand tribal court criminal jurisdiction over non-Indians. Fixing the discrepancy in representation between Bryant and Jaimez may increase U.S. Congress’s faith in tribal courts and thus encourage Congress to extend tribal jurisdiction over more non-Indian offenders. This Note arises from a deeply held belief in both the rights of the accused as presumptively innocent and the rights of tribes as sovereign nations.9This Note differs from previous scholarship in that it looks toward the future and combines the right to counsel with additional jurisdictional expansion. Cf. Creel, supra note 5, at 321 (focusing on the right to counsel); Margaret H. R Zhang, Comment, Special Domestic Violence Criminal Jurisdiction for Indian
Tribes: Inherent Tribal Sovereignty Versus Defendants’ Complete Constitutional Rights
, 164 U. PENN. L. REV. 243, 245 (2015) (focusing on special domestic violence criminal jurisdiction.

To read more, click here: Disparate Defense in Tribal Courts: The Unequal Rights to Counsel as a Barrier to Expansion of Tribal Court Criminal Jurisdiction.

References

References
1 United States v. Bryant, 136 S. Ct. 1954, 1963 (2016).
2 Id.
3 Pascua Yaqui Tribe v. Jaimez, No. CR-16-236, (Pascua Yaqui Ct. App. 2017); Pascua Yaqui Tribe, First Non-Indian Jury Trial Conviction in Indian Country Prosecuted at Tucson, Arizona’s Pascua Yaqui Tribal Court, PR NEWSWIRE: CISION (May 23, 2017 1:27 PM), https://www.prnewswire.com/news-releases/firstnon-indian-jury-trial-conviction-in-indian-country-prosecuted-at-tucsonarizonas-pascua-yaqui-tribal-court-300462521.html [https://perma.cc/YK2CJRFX].
4 Pascua Yaqui Tribe v. Jaimez, No. CR-16-236, (Pascua Yaqui Ct. App. 2017).
5 This Note “uses the terms ‘Native American Indian’ and ‘Indian’ interchangeably to refer to indigenous tribal people who inhabit the present-day United States. While it is true the term ‘Indian’ was never accurate, it has become a term of art from historical use in Federal Indian law, history, and statutes.” Barbara L. Creel, The Right to Counsel for Indians Accused of Crime: A Tribal and
Congressional Imperative
, 18 MICH. J. RACE & L. 317, 318 n.1 (2013).
6 Compare Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (requiring appointed counsel for indigent criminal defendants in federal and state courts if the defendant faces any term of imprisonment), with 25 U.S.C. § 1302(c) (2018) (requiring appointed counsel for indigent Indian criminal defendants in tribal court only if a defendant faces a term of imprisonment that exceeds one year).
7 25 U.S.C. § 1301(2); United States v. Lara, 541 U.S. 193, 210 (2004) (upholding the statute).
8 See 25 U.S.C. § 1304(c)(1), (2) (“A participating tribe may exercise special domestic violence criminal jurisdiction over a defendant for criminal conduct that falls into one or more of the following categories: (1) Domestic violence and dating violence . . . (2) Violations of protection orders.”). The Pascua Yaqui Tribe implemented exacting requirements in order to adopt that limited jurisdiction. See 25 U.S.C. § 1304(a)(4).
9 This Note differs from previous scholarship in that it looks toward the future and combines the right to counsel with additional jurisdictional expansion. Cf. Creel, supra note 5, at 321 (focusing on the right to counsel); Margaret H. R Zhang, Comment, Special Domestic Violence Criminal Jurisdiction for Indian
Tribes: Inherent Tribal Sovereignty Versus Defendants’ Complete Constitutional Rights
, 164 U. PENN. L. REV. 243, 245 (2015) (focusing on special domestic violence criminal jurisdiction.
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