NATIVE AMERICANS ON TRIAL OFTEN GO WITHOUT COUNSEL

Quirk Of Federal Law Leaves A Justice Gap In Tribal Court System

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."