Tracing the Right to Counsel in the VAWA Reauthorization Act

Matthew L.M. Fletcher

Been asked this so here goes. Does the new statute require tribes to guarantee counsel to indigent defendants in special tribal domestic violence prosecutions of non-Indians? Yes, the answer is (as Yoda would say) (and assuming President Obama doesn’t veto).

Here is the new statute, of which section 904(d) reads:

In a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction, the participating tribe shall provide to the defendant—
(1) all applicable rights under this Act;
(2) if a term of imprisonment of any length may be imposed, all rights described in section 202(c);

The section 202(c) to which VAWA references is the current version of the Indian Civil Rights Act requiring tribes that choose to assert expanded sentencing authority to provide counsel to indigent defendants (25 U.S.C. § 1302):

(c) Rights of defendants

In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall—
(1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and
(2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
(3) require that the judge presiding over the criminal proceeding—

(A) has sufficient legal training to preside over criminal proceedings; and
(B) is licensed to practice law by any jurisdiction in the United States;
(4) prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and
(5) maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.

3 thoughts on “Tracing the Right to Counsel in the VAWA Reauthorization Act”

  1. Phil February 28, 2013 / 5:34 pm

    Here’s a thought. Indigent defendants have the right to counsel “licensed to practice alw by any jurisdiction in the United States” with appropriate credentialing and standards of competency.

    Is a tribal government a “jurisdiction in the United States?” If so, can the tribe provide counsel who is a member in good standing of the tribal bar, even if the tribe doesn’t require, for instance, the attorney graduate from an ABA accredited law school? Suppose, like Canada, the tribe allows some form of legal apprenticeship in lieu of certain coursework. I’m not so sure the law requires an attorney who would necessarily be eligible for membership in a state or federal bar.

  2. Phil March 1, 2013 / 9:33 am

    I will pose these as questions.
    Is it true that stranger perpitrators are not covered by VAWA?

    Section 904 (d)(3)(B) states that juries “do not systematically exclude any distinctive group in the community, including non-Indians..”
    Is it true that a tribal court can only call tribal members to jury duty? They have no authority to call non members and non members would not be required to serve.

  3. Matthew L.M. Fletcher March 1, 2013 / 9:37 am

    Lots of tribes, if not a majority, include nonmembers in the jury pool. And yes they have authority to call nonmembers at any time. Whether they show depends on whether the tribe can impose a penalty on them for not showing up. Think of all the tribal government employees who are nonmembers, just for one example.

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