There is a human rights crisis in Indian Country. This crisis— one of many—is the result of an almost-universal lack of legal representation of Native people when they appear as defendants in tribal courts.
This is not hyperbole. It is a literal assertion.
I am an attorney and for the last year I have been practicing almost exclusively in tribal courts. I am admitted to practice in 10 of New Mexico’s 19 Pueblo Courts, in addition to state and federal courts. Much of my practice has been focused on criminal defense of Native defendants in tribal courts, interspersed with civil defense of tribal members subject to suit by predatory lenders, and in various family law matters—custody and the like. In the course of this work, I have had daily business with tribal judges, tribal police officers, the Bureau of Indian Affairs, tribal court clerks, tribal officials, tribal governors, tribal council members, predatory lenders seeking to enforce grossly inequitable financial instruments via court order, lawyers of various stripes, state and federal bureaucrats, and of course clients— virtually all of whom are Native. It has been an eye-opening experience.
The problem is that Native defendants do not have a knowledgeable advocate representing their interests in adversarial proceedings where incarceration and civil penalties are at stake.
In many instances, tribal members who find themselves in tribal court are the only Natives who are party to the proceedings. It is common that the judge and both attorneys are non-Native. In a criminal proceeding, the prosecuting officer is very often non-Native. When the plaintiff is a predatory lender seeking a judgment against a Native defendant, they are virtually certain to be non-Native. When a Native parent who has fallen behind on child support is subject to collection and incarceration by the State, the enforcement attorney is reliably non- Native. And, of course when a tribal member is convicted of a crime, any jail time is typically served in a state or federal detention center housing mostly non-Natives and staffed by non- Natives.
This is not to say that tribal courts are the problem. Almost without exception, the tribal judges I have appeared in front of, Native and non-Native alike, have done their best to ensure that defendants have their rights protected. Tribal court personnel, on the whole, are professional and conscientious. The problem is that Native defendants do not have a knowledgeable advocate representing their interests in adversarial proceedings where incarceration and civil penalties are at stake.
All of this happens every day in tribal courts across the United States in some form or another. It happens largely because Native people who are prosecuted by a tribe or sued in tribal court face prosecutors and suit alone. Loss in a civil suit can mean garnishment of small income that can push a Native family further into poverty. Conviction and incarceration devastates Native families, with the defendant suffering not just the penalty itself, but also loss of a job, likely default on any financial obligation, growing arrears of child support payments, and separation from loved ones.
The reality is that most criminal defendants in tribal court avoid jail and are much more likely to receive fair treatment when they have defense representation. Tribal members facing suit by predatory lenders often have their debts cancelled and negative credit reports removed when they have representation. Those who are not able to walk away from their debt are regularly negotiated into affordable payment plans that fit their financial circumstances. But this only happens on a regular basis when a defendant has defense representation.
Native defendants must have affordable advocates, lay or attorney, when they face civil or criminal proceedings in tribal courts. Even better, the advocates should be Native. Tribal colleges can help with this by developing new, and strengthening existing, advocate training and pre-law programs. Advocate programs can provide legal training for lay people who can then serve, and public defenders who can provide much-needed civil defense. Pre-law programs can help Native students develop a set of skills to prepare them for law school. At least some of these future Indian lawyers will return to work in tribal courts.
The alternative is the unnecessary continuation of a senseless and tragic human rights crisis.
Chris Vigil, J.D., is an attorney from New Mexico who specializes in federal Indian law, tribal law, and water law.