Samuel Macomber has published “Disparate Defense in Tribal Courts: The Unequal Rights to Counsel as a Barrier to Expansion of Tribal Court Criminal Jurisdiction” in the Cornell Law Review. Full article PDF here.

An excerpt:

Michael Bryant, Jr. was a defendant in the Northern Cheyenne Tribal Court.¹ 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.² Meanwhile, Frank Jaimez was a defendant in the Pascua Yaqui Tribe of Arizona Tribal Court.³ 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.⁴

Bryant appeared without counsel while Jaimez received a court-appointed attorney. Why? Because Bryant is Indian, and Jaimez is not.⁵ Indians do not have the same right to counsel in tribal court as non-Indians do.⁶ Moreover, Bryant was prosecuted in tribal court because tribes have “inherent power” to “exercise criminal jurisdiction over all Indians.”⁷ 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.⁸ 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.⁹