Virtually none of the U.S. Constitution’s guarantees or prohibitions applies to the actions of Indian tribal governments when those governments are exercising their inherent or retained powers. For this reason, among others, Congress in 1968 passed the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1303, which imposes on tribal governments most though not all of the guarantees found in the Bill of Rights and 14th Amendment. After almost 45 years, however, it remains uncertain whether or to what extent ICRA’s statutory guarantees must parallel the interpretations given to the respective constitutional guarantees on which they are based.
Among ICRA’s original provisions is a command that “[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person in a criminal proceeding the right . . . at his own expense to have the assistance of counsel for his defense . . . .” This, of course, is an analog to the 6th Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence,” which the U.S. Supreme Court has interpreted as requiring “reasonably effective assistance,” Strickland v. Washington, 466 U.S. 668, 687 (1984), by “an advocate who is . . . a member of the bar,” i.e., a licensed attorney. Wheat v. United States, 486 U.S. 153, 159 (1988).
In the recent case of Jackson v. Tracy, No. CV 11–00448–PHX–FJM, 2012 WL 3704698 (D. Ariz. Aug. 28, 2012), a federal district court has held that ICRA’s assistance-of-counsel guarantee requires neither that one’s advocate be a licensed attorney nor that the advocate be held to the standard of a reasonably effective attorney.
The question arose after a defendant, represented by a retained non-attorney or “lay counselor,” was convicted in tribal court of multiple criminal counts. The tribal appeals court, ruling against the defendant on direct appeal, noted that “[l]ay counselors are permitted to practice in tribal courts” and that “individuals who choose to employ them for representation must assume the risk of deficiencies in the performance” and “implied[ly] . . . waive . . . the right to representation by an attorney.”
The federal district court, collaterally assessing the convictions by means of a habeas petition under ICRA, likewise found no basis for deeming the defendant’s representation objectively ineffective. The defendant conceded that the ICRA provision guarantees only a right to retain counsel at one’s expense, while the 6th Amendment guarantees that counsel, if necessary, will be appointed at public expense. But the defendant argued that this difference does not dictate that standards of effectiveness should also differ, particularly since within the 6th Amendment the performance standard for retained counsel and appointed counsel, as set forth in Strickland, is the same.
The district court rejected this argument—an outcome that may be correct, at least in part—but it did so, unfortunately, without the best possible reasoning. The court simply invoked cases that had noted or had held (unremarkably) that the 6th Amendment does not directly apply to tribes, seemingly with the hope that readers would equate this with the proposition that the standard of the 6th Amendment does not or could not apply to tribes through ICRA. Yet those cases said little if anything about what standard should in fact be applied to tribal criminal proceedings under ICRA.
A much stronger argument arises from ICRA itself, or more specifically a set of recent amendments to ICRA. In the Tribal Law and Order Act of 2010, Congress expanded the criminal sentencing authority of tribal courts, allowing terms of imprisonment and fines substantially greater than those allowed under the original version of ICRA. See 25 U.S.C. § 1302(b). In order to impose these enhanced punishments, however, a tribal criminal trial must comply with enhanced procedural guarantees, one of which is that a tribe must “provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution . . . .” Id. § 1302(c)(1).
The obvious if not necessary implication from this new requirement is that the assistance-of-counsel guarantee under the original ICRA—the guarantee that the federal district court in Jackson was interpreting—did not impose the 6th Amendment’s standard as defined in Strickland and related cases. Nor does ICRA, even for post-amendment cases, impose the 6th Amendment’s standard as long as the tribal criminal proceeding will not result in an enhanced sentence under 25 U.S.C. § 1302(b).
This understanding not only follows from the internal logic of the statute, it also potentially furthers the objective of tribal self-determination by allowing tribal courts themselves to craft standards that take into account cultural, economic, and institutional considerations uniquely associated with their tribes and tribal legal systems. Moreover, insofar as tribal courts have been held to lack inherent criminal jurisdiction over non-Indians, there is much less risk that any given defendant will be totally unaware of these considerations and the possibility that a different legal standard may be applied.
Of course, once this statutory basis for differential assistance-of-counsel standards is established, courts still face potentially complicated questions about how much or in what ways the ICRA standard ought to differ from that of the 6th Amendment. The federal district court in Jackson, as noted, held that ICRA does not require a licensed attorney and, from there, concluded that the standard of performance for a lay advocate ought not to be that of trained attorneys. Rather, stated the court, “in a system that permits representation of criminal defendants by non-lawyers with no legal training, [a non-lawyer’s] performance should be compared, if at all, to the standards for other non-lawyers appearing in tribal court.” Whether one believes that the district court was correct in those two determinations is, of course, a matter that will depend on one’s conception of tribal legal systems, on a more detailed explanation of what a non-lawyer performance standard might look like, on a consideration of the defendant and the defendant’s alleged criminal conduct, and on any number of other factors that can vary on a court-by-court and case-by-case basis.