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.