Archive for the ‘Indian Law’ Category

Double Jeopardy Is Okay…If You Are a Native American

Monday, June 1st, 2009

If you are Native American and commit a criminal offense on an Indian reservation, it can be a crime in both the Indian community and the federal system. As a result of the United States Supreme Court’s decisions on the matter, the Indian Civil Rights Act, and subsequent legislation, Indians can go to jail (technically, there are no prisons on Indian reservations) and federal prison for the same crime. They can also be fined twice for the same criminal act.

The Supreme Court’s rationale is based on their interpretation of the source of Indian governments’ powers and how they interact with the U.S. Constitution. The Supreme Court was also understandably concerned that an Indian could quickly plead out in an Indian jurisdiction to avoid federal prosecution.

This often leads to confusing and frustrating problems for a criminal defense attorney practicing Indian law. A guilty plea for your client can be used against him in federal court. Although technically criminal convictions on Indian reservations are misdemeanors punishable by no more than one year per offense, it is not uncommon for an Indian to get many years due to the fact Community prosecutors like throwing as many chargeable offenses as possible at each defendant. If your client pleads guilty, you may have gotten a fair result, but he or she could then face a federal charges. You may have just handed your client to the federal prosecutor with a confession under oath.

This occasionally leads to a dance between jurisdictions regarding who is going to charge the case. It also leads to the questionable practice of the tribe charging a person and keeping them in jail on a high bond even though the prosecutor has no intention of proceeding with the case. Instead, the prosecutor has been told that the feds are going to charge it eventually, so they just hold on to the guy. I’ve seen this happen several times. It gives the feds as much time as they need to investigate while knowing that person they want to charge isn’t going anywhere.

I’ve also had cases were theclient was charged and convicted of the same act by both jurisdictions. Something about that doesn’t sit right with me at all. To make it even worse, I’ve had cases were the client was convicted, served time, and then was put on probation by the Indian community. Then the feds decide to charge him. The client learns of the charges and stops reporting to Indian probation because he knows the feds will be waiting for him. Honestly, I can’t blame him. He did a lot of time and feels he paid the price for his crime. The feds find him a few months later and he does more time and is put on federal probation. Then the Indian community files a petition to violate him for missing his probation appointments. The Indian probation department wants to put him in jail for two more years. If that happens it is entirely possible that the feds would then violate him because he violated his federal probation by either missing appointments (because he is in tribal jail) or for not following through with tribal probation. The end result is a person being put in a cage four times for one offense.

The case history for how and why this can exist is confusing. Here is a starting point for anyone interested in reading some case law. Something needs to be done to stop this injustice.

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Posted in Indian Law, SCOTUS Cases | 2 Comments »

Tribal Probation

Monday, January 12th, 2009

If you are serving a term of probation for a conviction in the Gila River Indian Community Court, you can spend the entire term of probation in jail if you violate a single condition of your probation. That means that if you’re doing a year of probation and fail to check in or get caught drinking, you could do a year of jail. No matter how long your term of probation is, you can get the same amount of jail. By stacking counts, the courts can put defendents on probation for years. That probably means years of jail sooner or later.

When I first handled a Gila River Indian Community probation case, almost every defendant automatically got the max unless the prosecutor was willing to cut them a deal. Prosecutors loved it. They had a lot of power. Defendants and defense attorneys hated it. Luckily, things have changed. The judges still almost always sentence defendants to the maximum jail term, but at least you have a chance of convincing them to knock off a little time. My argument has always been that defendants should be given an appropriate jail sentence for the original charges, not an automatic sentence based on their performance while on probation. If it’s any other way, the court will essentially be punishing them for seeking treatment.

Because of the way the system works, I usually discourage my clients from taking probation offers. Let’s say the client has a serious drinking problem. He needs help. He desperately wants help. He’s given a choice of thirty days in jail or a year of probation. Probation would get him the services he needs, but he’s likely to relapse. When he does, the probation department will be unsympathetic. They hate it when you miss appointments. Drinking and drugs are icky. Just cut it out, okay? He’ll probably end up stuck in jail for a long time. The real choice he has to make is whether he’d like to do thirty days of jail right away or do a year of jail when he gets busted for something sometime in the future.

Although prosecutors seemed to ignore my argument that they should treat probation as a suspension of the sentence for the actual crime, amazingly, I think they’ve finally started listening to my suggestions. Now, the pleas they offer have a clause saying the defendant “shall be sentenced to” a term of jail which is suspended for an equal term of probation. Basically, the new pleas do exactly what the courts used to do automatically. If you’re caught smoking marijuana, the offer might be one year of jail suspended for one year of probation. When I first saw it, I couldn’t stop shaking my head. Seriously? I haven’t dealt with a probation violation for one of these pleas, but I imagine the prosecutors have successfully returned things to the good ol’ days. I’m sure they’re very pleased with themselves.

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Posted in Indian Law | No Comments »

Tribal Courts

Tuesday, December 23rd, 2008

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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Posted in Government Rants, Indian Law | No Comments »