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Native Americans On Trial Often Without Counsel

Wall Street Journal - Gary Fields Feb 1, 2007

DEFENSE RESERVATIONS
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 public defender.

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.

Stretched Resources

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 arrest.

"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 answer."

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.

Double Jeopardy

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 charges.

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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