This Day in Legal History—September 28, 1918

On September 28, 1918, outside of the French village of Marcoing, British Private Henry Tandley of the 5th Duke of Wellington Regiment came across an escaping wounded German soldier. The encounter took place near the end of the British capture of the village, and thus the military situation, though winding down, was still very much rife with hostilities. The soldier was presumably armed and posed a potential threat to Private Tandley and his fellow infantrymen.

Private Tandley was presented at that moment with a serious ethical question: shoot preemptively in self-defense, not knowing the capability of the German soldier or the extent to which other German soldiers were present, or spare the soldier’s life and let him return to his unit, either to survive or to die in the arms of his own comrades. Private Tandley did not then know that an armistice with Germany would come within a matter of weeks, nor did he know whether the soldier had a wife and children to whom he might return after the war. He knew nothing of this German soldier other than that he was another human being who was injured.

Private Tandley decided to spare the soldier’s life, and the soldier continued on his way, apparently nodding to Tandley in appreciation.

This story is presented in here because, if Tandley’s account is correct, his decision to spare the life of this German soldier changed the course of the 20th century, with vast consequences not only for the law but also for every other aspect of culture and society across much of the world.

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Legal Anomalies in Federal Indian Law, Part I—Equal Protection

Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. Such anomalies or aberrations, though frequently noted, have seldom if ever been systematically delineated in cases or in legal scholarship. The purpose of this and succeeding blog posts is to identify and examine several of these anomalies, the hope being that readers will gain a better sense of the unique topography of Federal Indian Law and at least some of the reasons that have brought it about.

Examined in this first post will be one such apparent anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. This issue goes to the heart of Federal Indian Law, which is largely embodied as statutes in Title 25 of the U.S. Code (denominated “Indians”) and implemented through rules and regulations in Title 25 of the Code of Federal Regulations (also denominated “Indians”). To the extent that the classification of “Indian” ordinarily if not always includes a component of race, ethnicity, ancestry, or perhaps national origin, its use in the federal Code and Regulations—including its derivative use in judicial opinions—would seem presumptively to run afoul of constitutional as well as statutory proscriptions against discrimination on the basis of race, ethnicity, ancestry, and the like. After all, were one to encounter a Title of the U.S. Code designated “African Americans” or “Latinos” or “Germans,” an eyebrow, if not two, would almost certainly be raised in response.

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Effective Assistance of Counsel and Tribal Courts—A Different Standard?

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.

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