New Student Scholarship on Right to Counsel in Tribal Justice Systems

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

Albuquerque Journal Op-ed on U.S. v. Bryant by Barbara Creel and John LaVelle

Link to “High Court Denies Rights of Natives” here.


Most disturbing is the court’s disregard of the racial inequity left in the wake of Bryant. Federal prosecutors are now licensed to target Indians – and only Indians – who faced prosecution without assistance of counsel in tribal court proceedings. This is because ICRA allows tribal courts to imprison Indians without the benefit of counsel but does not impact non-Indians, who are entitled to court-appointed counsel in state, federal, and now tribal court, thanks to a recent amendment to ICRA.

Justice Ruth Bader Ginsburg, who wrote Bryant, denigrates Indian people’s civil rights, citing the need to protect Native women from domestic violence. But Department of Justice statistics show most domestic violence perpetrators in Indian country are non-Indians, and the Bryant decision leaves intact their constitutional rights, including the right to appointed counsel.

Navajo SCT Denies Habeas Relief in Juvenile Right to Counsel Case

Here is the opinion in In re M.C.

The court’s syllabus:

The Court denies a petition for writ of habeas corpus, holding that 9 NNC 1310(A), which provides for a child’s right to assistance of counsel at “all proceedings alleging the delinquency of a child” does not attach at a detention hearing that must be held within 24 hours of detention, on the basis that detention hearings address further detention, not the merits of the charges, to which young men and women are able to speak for themselves.