The Indian Civil Rights Act has been a dismal failure, if one considers its original intent; to protect tribal members and others subject to tribal jurisdiction from arbitrary and capricious acts by the tribal governing body and individual tribal officials. That is, unless a tribe has adopted the rights set out in the ICRA as substantive tribal law with remedies beyond the restrictive “habeas corpus” Federal Court relief. Some tribes have adopted the substantive rights in the ICRA but extend civil remedies beyond the restrictive “habeas corpus” and even allow for monetary damages (only where the tribe is covered by insurance or other such indemnification). Those tribes are in the minority. Unfortunately many tribes still hide behind the tribe’s sovereign immunity as they commit arbitrary rights violations upon their own membership and others.
On point is the recent (pre-2010 ICRA amendments) case of Romero v. Goodrich (10th Cir. Ct. of Appeals), an appeal from a New Mexico Federal District Court denial of habeas corpus relief under the ICRA. Romero was tried in tribal court on 12 counts, all arising from the same incident. Romero was not shown the charges against him until the day of trial, the arresting officer acted as both prosecutor, and at times, defense counsel. Romero’s requests for legal counsel were denied several times. He never waived his rights. The court sentenced Romero to eight years incarceration in a federal corrections facility. After Romero challenged his incarceration by filing a Federal Petition for habeas corpus the tribal court commuted his sentence, but not before he served substantial time. While in federal detention in Colorado he got into an altercation with guards. He was tried and convicted of assault on a federal officer and sentenced to a federal term in prison. He is still in prison. But for the tribal sentence, issued in violation of the ICRA, Romero would not have been in the facility in Colorado.
I’ve heard many arguments concerning the sacrosanct nature of “traditional” tribal court systems and I believe that such courts deserve deference in what they do, and the traditional punishments or “restorative justice” they utilize. However, once these courts use the non-traditional punishment of multiyear prison sentences they have stepped into the arena of American Jurisprudence and other rights should apply.
Congress obviously recognized the problem when it considered the 2010 Amendments to the ICRA (Tribal Law and Order Act). The 2010 amendments to the ICRA now require Tribal Courts to comply with higher standards if they are going to sentence someone beyond 1 year. These are, “the right to effective assistance of counsel at least equal to that guaranteed by the U.S. Constitution at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards…”, “require that the judge presiding over the criminal proceeding has sufficient legal training to preside over criminal proceedings and is licensed to practice law by any jurisdiction in the United States.”
Tribal courts should review cases where defendants have been sentenced to multiple year terms previous to the 2010 Amendments. The convictions and sentences that don’t comport with these standards should be vacated. There is no legal obligation to do this, but it certainly would be morally right to do and to not do so results in “stacking” of injustice upon injustice on their own members, in some cases.
Harold Monteau is a Chippewa Cree Lawyer and was a Visiting Professor at the Southwest Indian Law Clinic at the University of New Mexico. He supervised student authors of parts of Mr. Romero’s brief.