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Tribal Courts

Practicing law in Indian Country is a unique experience. I once had a tribal judge deny a motion to suppress in a possession of marijuana case because she thought my client did in fact possess the marijuana. I also did a change of plea once where the judge asked my client if he wished to change his plea, and after my client said “yes,” the judge said “okay, done” and called the next case.

Tribal criminal codes are equally interesting. Where I’ve practiced, murder, possession of marijuana, and running a pyramid scheme are all punishable by a maximum of one year in custody. However, one year is not necessarily the max in tribal jurisdictions, as judges can and do stack counts, and the federal government often steps in for serious crimes. Usually, there is no written case law, nor are there any rules of criminal procedure. Depending on which attorney the judge finds more persuasive, either Arizona state case law and rules or federal District of Arizona case law and rules might apply. It could even be a mix.

Another important thing about tribal practice is that circumstances change quickly. Blink and there will suddenly be a victim’s bill of rights. When someone “gets away” with something, the law that allowed it seems to get changed right away. Judges also change constantly. Even the larger communities are relatively small in population, and pretty much everyone knows each other. I remember a trial where I got a prospective juror struck for cause because she was the victim’s mom. Communities are so close-knit that political and personal pressure are often very noticeable in court.

On top of all that, some of the less-popular constitutional safeguards we have courtesy of the US Supreme Court (at least to law-and-order types), like the right to counsel free of charge, don’t fully apply. The Indian Civil Rights Act may sound a little bit like our Bill of Rights, but in practice it can be very different. It’s important to know which rights are the same, which are different, and which don’t exist at all. If there isn’t a case on the subject, anything could happen.

I enjoy handling the occasional tribal case. There are some great judges and some wonderful attorneys practicing Indian law in Arizona. However, for many of the reasons I’ve mentioned, it can be extremely frustrating. What’s interesting to me is that, for those same reasons, I bet the average US citizen would probably prefer a system like what I’ve described to what most US jurisdictions have. I think the average American is impatient with how slowly things move in US courts. They resent out-of-touch judges and want the guilty to be jailed, not shielded by the Constitution. They want results.

I haven’t heard anyone suggest that we try to be more like tribal courts. It reminds me of when some of my friends argue for strict gun control or socialized healthcare. They always mention how well those things work in Britain or France, not Mexico or Cuba. I don’t mean to say that tribal courts are terrible. I definitely don’t think that. I just think people should consider looking at how their proposals work everywhere they’re being applied, not just places that are currently fashionable to admire.

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