|Native Americans On Trial Often Without Counsel
Wall Street Journal - Gary Fields
Feb 1, 2007
Native Americans on Trial Often Go Without Counsel
Quirk of Federal Law Leaves a Justice Gap In Tribal Court System
By GARY FIELDS
February 1, 2007; Page A1
SELLS, Ariz. -- As Joseph Juan's May 2005 trial at the Tohono O'Odham
Nation Tribal Court began, prosecutor Lisa Stronawski fired off questions,
asking potential jurors about their views on drug laws.
At the defense table, there was no lawyer representing Mr. Juan. The
55-year-old tribe member, who faced charges of possession of marijuana
with intent to deliver for sale and conspiracy, couldn't afford a lawyer
and didn't have one. For most of the trial, his voice, normally a low
mumble, went unheard.
The right of defendants to legal counsel is guaranteed by the Constitution.
But due to a little-known quirk in federal law, Native Americans aren't
assured this protection. That's because under U.S. law, Indian tribes
are considered sovereign nations, and are not subject to all privileges
afforded by the Bill of Rights.
The country's 560 tribes are largely responsible for funding government
services such as schools, police, and hospitals, as well as courts.
The tribes have jurisdiction over crimes committed on reservations by
the nation's 2.4 million American Indian and Alaska Natives.
Many of these tribal courts, like their federal and state counterparts,
have their own prosecutors, tribe-appointed judges and jail facilities.
Court proceedings can be judge or jury trials. There are 275 such courts
in the U.S., each governed by the laws of an individual tribe or village.
According to the U.S. Justice Department, more than 9,200 Native Americans
convicted in tribal courts are locked up in tribal facilities or local
jails off tribal lands.
Mostly absent from this parallel justice system are public defenders
-- a luxury that many poor tribes say they cannot afford. The defense
gap means that accused criminals often end up representing themselves.
As a result, many plead guilty and risk exposing themselves to additional
charges at the federal and state levels. In some instances, they may
be subject to double jeopardy -- two trials, sentences and punishments
for the same crime.
"The Constitution acts as a floor beneath you that no state can
go below. For Native Americans, that floor doesn't exist," says
Zig Popko, an Arizona State University law professor and a former federal
The Indian Civil Rights Act, passed in 1968, gave individual tribe
members some protections, such as the right to a speedy trial and the
right to a trial by jury. But it did not provide the right to counsel
for defendants too poor to hire attorneys.
Each year, the federal government spends nearly $400 million to subsidize
tribal justice systems. The money goes to equipping and training police
officers, constructing jails and providing grants to courts, prosecutors
and victims programs. Of the total, less than $1 million is made available
to tribal public defender offices.
Many tribes never see "a single penny for indigent defense,"
from the government, says Nick Fontana, director of the defense advocate
office for the Pascua Yaqui nation in Arizona. In the decade that the
office has existed, he says, the tribe has borne all operational costs.
Over the years, various congressional bills have sought to address
the problem of tribal defense funding. Last year, Arizona Sen. John
McCain, then chair of the Indian Affairs Committee, held a hearing to
argue for more government assistance. The issue has yet to gain traction.
Some tribes, such as the Pascua Yaqui Nation outside Tucson and the
Tohono O'Odham Nation, have programs to help provide attorneys for the
indigent. But stretched resources mean many defendants still go without.
Mr. Fontana says problems usually arise when a group of people face
"We represent them first-come, first-serve," he says. "It's
brutal. We have to tell people all the time that we can't represent
them because we are representing someone else connected to the case.
All I can do is hand them a list of advocates and attorneys who can
practice in court here and tell them, 'You will have to pay for it yourself.
Good luck.' "
Such limitations left Joseph Juan to defend himself. Mr. Juan was one
of four people accused of hauling marijuana across the San Miguel border
between Arizona and Mexico in 2005. Arrested by border-patrol officers,
he was charged with conspiracy and possession with intent to distribute
the 198 pounds found in the truck he was driving.
Mr. Juan didn't act quickly enough to secure an attorney. Although
his tribe does have a defense advocate office, a co-defendant sought
counsel first, soaking up scant available resources.
The courthouse in Sells, the tribal capital, is about 60 miles southwest
of Tucson in a remote area of the state. The main route there, Highway
86, is a narrow, two-lane road marked with 48 memorial crosses erected
for members killed along the 21 miles that stretch from the beginning
of the Tohono O'Odham boundary to Sells. It is an area where high winds
blow constantly, creating dust storms that can lower the visibility
to just beyond the hood of a car.
At his trial here, Mr. Juan faced Ms. Stronawski, a tribal-court prosecutor
and a University of Pennsylvania law-school graduate. She had five witnesses,
including three federal border-patrol agents, a tribal police officer
and an Arizona state-police lab examiner. Her supervisor, also an attorney,
joined her in the proceedings. Mr. Juan was alone.
"As I recall, he didn't have any family" present, says Ms.
Stronawski. "I'm sitting there with my Ivy League law degree, halfway
through an advanced law degree.... And my boss, who has been a prosecutor
15 years is sitting next to me. How can that possibly be fair?"
Mr. Juan wasn't available for comment.
Despite being asked repeatedly by the judge whether he had problems
with any of the evidence in the case, Mr. Juan only raised two objections
during his trial. One was to dispute the time of day an incriminating
picture provided by the prosecution had been taken. According to tapes
of the proceedings, Mr. Juan spoke just over two minutes in his defense,
including an 80-second opening statement. He was convicted and sentenced
to two years in a tribal jail.
Gaps in the Case
Ms. Stronawski, now a defense attorney with the Pinal County, Ariz.,
public defender, acknowledges there were gaps in her case against Mr.
Juan that she might have exploited as a defense counsel. "In the
end I felt he had as fair a trial as could be. I don't feel like I railroaded
him," she says. "But going into a courtroom against a defendant
without counsel is a hollow case."
Tribal-court judges say they try to compensate for the paucity of public
defenders by interacting more with defendants.
"I'll ask them certain questions that would elicit something that
would help their defense that they wouldn't think of," says Potawatomi
Tribal Court Judge Phil Lujan, who also serves as circuit judge for
several other tribes. Normally, says Judge Lujan, it would be the defense
attorney's job, but "99.9% of them do not have attorneys."
A jurisdictional quagmire is partly to blame. The federal government
has responsibility for prosecuting major crimes committed by Native
Americans on tribal land, such as murder, rape, robbery and arson. But
federal prosecutors regularly decline the cases. Instead, they are left
to tribal courts where defense offices are limited and judges are restricted
in the length of sentences they can hand down.
Cheryl Stein, a Washington, D.C., defense lawyer who is helping Mr.
Fontana with research in several of his cases, listened to the taped
transcripts of Mr. Juan's trial. She says the judge asking Mr. Juan
whether he objected to certain evidence or jury instructions is akin
to a "doctor asking a patient whether he objects to the interpretation
of the X-ray. He has absolutely no basis on which to make an intelligent
Indian casino operations have enriched some tribes, letting them provide
all the services of an independent government, including criminal defense
counsel. A few even pay out tens of thousands of dollars annually to
each member. But most tribes are not so well off.
Consider, for example, the Tohono O'Odham Nation in Arizona, where
Mr. Juan was arrested. With 2.8 million acres of tribal land and 28,000
members, the area is larger than Connecticut and second only to the
Navajo nation in land mass. Although the tribe runs three casinos that
fund many of the services provided by the tribal government, more than
40% of the members live below poverty level, according to the U.S. Census.
The tribes' quasisovereign status allows defendants to be tried again
in state or federal court for the same crime -- without the double-jeopardy
protections provided by the Constitution. Defendants who enter guilty
pleas in tribal court don't always realize that they are opening themselves
up to federal or state charges for the same crime.
Billy Joe Lara, a member of the Turtle Mountain Band of Chippewa, faced
this situation when he was arrested for public drunkenness in 2001 by
Bureau of Indian Affairs officers at the Spirit Lake Nation Reservation
in North Dakota. While being detained, he punched one of the federal
officers. Without an attorney, he pleaded guilty the following day in
tribal court to that and two other charges. He was sentenced to more
than 160 days in a tribal jail.
Two months later, Mr. Lara was indicted on a federal charge of assaulting
a federal law enforcement officer. In that case, under federal jurisdiction,
he was granted the right to defense counsel. But his attorney, Alexander
Reichert, says that the prior guilty plea, entered without any counsel,
put his client at a disadvantage. "He just walked in and laid it
out in the guilty plea," Mr. Reichert said. "He admitted all
the details necessary to bring a federal case against him."
Mr. Lara, who had already spent three months in a tribal jail for the
first conviction, went to trial and was also convicted in federal court.
He was sentenced to another 10 months in federal prison for his punch.
Mr. Reichert fought the case to the Supreme Court, arguing that his
client was charged twice for the same crime. Mr. Lara lost his challenge
in 2004 when the high court sided with the government in its 7-to-2
ruling which said the case didn't constitute double jeopardy.
The opinion, written by Justice Stephen Breyer, essentially stated
that tribal nations are separate, sovereign governments. Thus, when
a defendant commits a crime that violates the laws of two sovereigns
-- in this case the tribe and the federal government -- both can bring
In the meantime, Mr. Fontana says he routinely asks area lawyers to
assume cases his office cannot take. "I beg defense lawyers,"
he says. "But some of them have caller ID and they're avoiding
taking my calls now."
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