Honoring An Indian's Right to Counsel

 Nooksack Tribal Court

Nooksack Tribal Court

The U.S. Supreme Court's ruling in U.S. v. Bryant and chicanery at places like Nooksack have cast a bright light on an Indian's right to counsel---both criminal and civil---in Indian Country.

As the Nooksack Court of Appeals has proclaimed, an Indian's "right to representation is crucial." Roberts v. Kelly, 12 NICS App. 33 (Nooksack Ct. App. 2014). Indeed, as the U.S. Supreme Court explains, "the right to be heard, in many cases, would be to little avail if it did not comprehend the right to be heard by counsel."  Id. (quoting Goldberg v. Kelly, 397 U.S. 254, 270 (1970)).

Still, as we see in Bryant, there is no guaranteed right to criminal counsel in Tribal Courts.  That right may eventually attach throughout Indian Country via federal laws like the TLOA and VAWA Reauthorization Act, but there is no such 6th Amendment-like right to counsel in Tribal Courts.

Bryant has been rightly criticized by tribal legal scholars insofar as uncounseled convictions obtained in tribal courts can be used to "single out Indians for conviction and imprisonment"--not to mention unduly long sentences--in federal court.  They "mourn" for Indians "the tragic loss of the most basic constitutional protection against unjust prosecution by the federal government."

That end result of Bryant should be unacceptable to tribes.  Tribes can be both tough on reservation crime, especially DV, while protecting an Indian from unjust prosecution or excessive imprisonment. Those two values-based tribal correctional goals are not mutually exclusive.

On the civil side, many tribal codes assure tribal court litigants the right to counsel of their choosing and at their own expense. More generally, no government should, as a matter of due process, deny civil litigants that right.  Turner v. Rogers, 131 S.Ct. 2507, 2518 (2011).

Unfortunately, the ploy du jour of "tribal" attorneys in intra-tribal disputes is to cause the denial of an Indian or Indian cohort's right to civil counsel. Whether through capricious tribal business licensure enforcement, civil suits, or disbarment or banishment actions against opposing counsel, the desired outcome is the same: deprivation of the right to Indian civil representation.

This result should also be unacceptable to tribes---all tribes. That is because such gamesmanship, and resulting Indian civil and human rights violations, jeopardizes the sovereignty of all tribes.

For the last 35 years, the U.S. Supreme Court has consistently expressed great skepticism about the integrity of Tribal Courts. Bryant, which was decided narrowly on ICRA grounds, did little to change that reality; consider the even more recent 4-4 split in Dollar General.

Until tribal governments guarantee and honor an individual's right to counsel---both criminal and civil---tribal courts will be viewed and treated as second-class courts. Let's counsel for counsel.

Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with office in Seattle and Yakima, Washington and Bend, Oregon.  Gabe descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation.