Garcia:  Tribal justice is not a 'quirk'

Posted: February 09, 2007

by: Joe Garcia

On Feb. 1, the Wall Street Journal published a front page article, "Native Americans on Trial Often Go Without Counsel," highlighting one effect of the dramatic underfunding of tribal criminal justice systems. While we applaud the Wall Street Journal for raising this important issue, several aspects of the article lacked context and require a response.

First and foremost, the headline of the article is misleading. Most tribal courts provide counsel for indigent defendants and many tribes use their own tribal revenues to provide these services. The article cited one example from Tohono O'odham where the tribe lacked the resources to provide counsel for multiple co-defendants, to draw the conclusion that Native people often go on trial unrepresented, when in fact these types of prosecutions are rare.

Second, the article suggests that it is "a little-known quirk of federal law" that tribes "are considered sovereign nations." To the millions of Indian people and hundreds of tribal governments who have functioned as autonomous sovereigns since time immemorial, our governments are much more than a "quirk of federal law." The sovereignty of our governments has been recognized by the federal government since its founding and is acknowledged in hundreds of treaties, the U.S. Constitution, countless statutes and executive orders. Any discussion of tribal justice systems must acknowledge and embrace tribal jurisdiction.

The article wrongly suggests that Indian people lack one of the guarantees of their basic civil rights. Because our sovereignty predates the U.S. Constitution, the provisions of the Bill of Rights do not apply to tribal governments. Tribes were recognized as foreign sovereigns outside the authority of the federal government when the Bill of Rights was developed. But to say that "the Constitution acts as a floor ... that no state can go below" and that no such floor exists for Indian people is simply not correct and reveals a profound misunderstanding of Indian law.

The U.S. Congress passed the Indian Civil Rights Act in 1968, which guarantees many basic civil rights to tribal citizens. Even more importantly, tribes have their own systems of laws and constitutions that provide protections to their citizens in accordance with our traditions. Together, these federal and tribal laws require that justice be meted out fairly and the rights of individuals protected.

The Rosebud Sioux Tribe, for example, includes a provision in its Constitution that provides for indigent criminal defense. Similarly, the Navajo Nation, the largest tribe in the country, has codified a Navajo Bill of Rights in its code that guarantees, among other things, a right to counsel. The Navajo Nation is one of many tribes that budgets for indigent legal services despite receiving virtually no federal funding to cover the costs.

The chief problem is that too often, the laws that protect the rights of Indian people cannot be effectively enforced for lack of funding. It is no accident that the Wall Street Journal could find an example from the Tohono O'odham Nation. After the attacks of Sept. 11, 2001, the federal government clamped down on illegal immigration in the urban areas of the Mexican border. As a result, the Tohono O'odham reservation saw a huge increase in illegal immigration, drug smuggling and related crime. The Tohono O'odham Nation has repeatedly and assertively asked for additional federal resources to help them govern the 80 miles of international border the reservation shares with Mexico. Yet, Indian tribes are not eligible to directly receive any of the billions that the federal government distributes to state governments to help them patrol the borders and combat drug-trafficking. So Tohono O'odham, and many other tribes, are forced to allocate their scarce resources among many competing priorities.

Although this is not a problem unique to Indian country, the Wall Street Journal provided no comparison to the challenges other court systems in the United States face trying to provide indigent counsel in their courts. In recent years articles have been published that document the breakdown of the indigent defense system in Boston, Virginia, New York and other jurisdictions, but there was no mention of this in the Wall Street Journal article.

For tribal governments, the problem of scarce resources is compounded by the federal government's failure to meet its law enforcement responsibility on tribal lands. The federal government has assumed jurisdiction over major felony crimes committed on Indian reservations and has limited the sentencing authority of tribal courts to one year. The defendant profiled in the Wall Street Journal article was caught smuggling nearly 200 pounds of marijuana across an international border, but the U.S. Attorney would not prosecute, forcing the Tohono O'odham Nation to try him in tribal court. Tribal court systems are routinely overburdened by serious crimes that should be prosecuted in federal court.

While the Wall Street Journal focused on the lack of resources for indigent defense, we know that virtually all aspects of the justice system in Indian country are in need of additional resources. The challenges of improving tribal justice systems are broader than providing counsel to indigent defendants and include better funding for jails, police investigation, prosecution, courtrooms and severely overcrowded jails. Problems and solutions need to be developed with a view to ensuring justice is done at all stages of tribal systems.

Improving tribal justice systems has been a top priority for the National Congress of American Indians and Indian tribes for years. We must continue our internal efforts to make sure justice is done, and also to let our voices be heard that greater funding is needed. The Wall Street Journal article helps to demonstrate that need. However, we hope journalists and Congress will keep in mind the entirety of tribal justice systems, the deep history that grounds our sovereignty, and the many sources of law — federal and tribal — that protect our people.

Joe Garcia is president of National Congress of American Indians in Washington, D.C.