The right to counsel in Native American tribal courts Essay

Published: 2020-04-22 08:24:05
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Congresss goal with respect to American Indians has always been at cross purposes and requires a delicate balancing act. The drive to preserve Indian heritage and the drive to assimilate or civilize the native American represent the conflicting interests Congress attempts to balance. This most obvious in the area of criminal law where congress has to apply the Federal laws which may often times conflict with tribal laws. Vincent Milanis article The right to counsel in Native American tribal courts: tribal sovereignty and congressional control provides some valuable insight into the efforts made by congress in reconciling these conflicting interests and their consequences for the enforcement of criminal laws on native American lands.

Milani takes a concise look at tribal history and the manner in which the indigenous American native resolved disputes. The author contrasts this approach against the steps taken by Congress to establish a criminal justice system in the United States that is both equitable and respectful of fundamental human rights. Milani also takes the time to demonstrate how preservation of tribal culture and customs together with the right to self-determination have been preserved as well as compromised to assimilate the native Americans within the Federal system of justice.
Milani explains the difficulties for Congress in achieving these conflicting goals.

The primary problem arises out of age old tribal traditions of resolving their disputes in a manner which is primarily contrary to the Constitutional mandates for a fair and public trial. (Milani, 1994) Milani writes: Historically, these methods have varied greatly among the tribes and they have contrasted significantly with the federal judicial system in the United States. (Milani, 1994)

To start with Milani notes that tribal justice involved different cultures with different approaches to conflict management. For instance, tribes were governed by tribal councils or they were controlled by military soldier or hunter regimes who were duty bound to manage conflicts. (Milani, 1994) Other tribes were permitted to allow their priests, prophets, religious elders as well as wise men to act as peace makers. (Milani, 1994) Even family or clan members could resolve disputes and in some circumstances a legal authority comprised of law men could resolve come issues. (Milani, 1994)

Milani offers this background information as a means of demonstrating the difficulties for Congress in preserving cultural heritage within the native American lands and reconciling that goal with comity within the Federal system. Complicating matters the Indians did not subscribe to a uniform type of criminal justice until late into the 19th century when the Bureau of Indian Affairs (BIA) founded the Courts of Indian Offences (CFR). (Milani, 1994) The CFR was established in response to the Federal Governments plans for: ¦assimilation, and their purpose was to promote acculturation on the reservations to help civilize the Indians. (Milani, 1994)

The problem for law enforcement is in recognizing and respecting the jurisdiction of tribal courts and laws which are distinct from Federal law and outside of its jurisdiction. (Milani, 1994) Making matters worse was the implementation of the Indian Reorganization Act 1934 which represented a major shift in Federal policy from assimilation to self-determination. (Milane, 1994) The result was a placement of more authority in tribal rule and less authority in the BIA and a means by which tribal courts could legitimately replace the CFR system. (Milani, 1994) This is significant since the tribal judiciary are accountable to the tribal courts allowing tribes to establish their own criminal justice system. Milani points out that today Indian reservations contain close to 150 tribal courts as opposed to just 9 CFRs. (Milani, 1994)

In understanding and appreciating the limited jurisdiction of law enforcement within native American lands it is necessary to understand the jurisdiction of tribal courts and criminal law. Milanis explanation is rather insightful and informative. Tribal courts have retained a procedure and practice that essentially mirrors the historic dispute resolution mechanism which distinguishes it from the formalities of the State and Federal system of justice. (Milani, 1994) Moreover, the Federal government indorses this practice by providing for statutory funding of tribal courts under the Indian Tribal Justice Act 1993. (Milani, 1994)

In the final analysis, Indians have sustained inherent powers of limited sovereignty which has never been extinguished. (Milani, 1994) By this method of organization the tribal courts exercise jurisdiction over crimes committed on tribal lands by one native over another. (Milani, 1994) However, major crimes fall under Federal laws although the penalties are limited in respect of native American convictions. (Milani, 1994) Be that as it may, the tribal courts will not have jurisdiction over crimes committed in tribal territories by non-Indians. (Milani, 1994)

The greatest difficulty for law enforcement is the establishing jurisdiction over crimes allegedly committed in tribal territory. To start with it is necessary to determine whether or not the crime was committed by a non-Indian. This would necessarily involve a taxing background search which would consume time and money. In the end, should the suspect be determined to have been Indian time and money would have been thrown away at great expense to the criminal justice system. In this way, Milanis article is of great interest to those who advocate against delayed justice.

It is therefore entirely unnecessary to permit such disparaging application of criminal laws within a criminal justice jurisdiction. The most viable solution would be the introduction of a blanket jurisdiction as in state and county boundaries. Given Congress desire to preserve Indian culture and to implement some measure of criminal accountability it should adapt a different course. For instance, if a crime is committed within tribal jurisdiction, unless it violates Federal law, it should be for the jurisdiction of that tribe whether or not the suspect is Indian.

Milani, Vincent. (1994) The right to counsel in Native American tribal courts: tribal sovereignty and congressional control. American Criminal Law Review Vol. 31, 1279-1299

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