“Native Americans on Trial Often Go Without Legal Counsel”
The headline quoted above is from a page one article in the February 1
”’Wall Street Journal.”’ It will be of interest to those trying to
establish a sovereign native Hawaiian entity similar to those that
govern native American mainland tribes.
The article points out that, due to a quirk in federal law, Native
Americans do not have all the protections of the amendments to the
U.S. Constitution generally known as the Bill of Rights. In particular
they do not have the right to legal counsel in criminal cases. And they
can be subject to double jeopardy–subject to trial and conviction twice
for the same crime, first in the tribal courts and then in the federal
or state courts.
This is because the tribal entities are considered under U.S. law to
be sovereign nations with the right under the 1934 Indian
Reorganization Act to conduct their own legal proceedings in their own
courts, with their own laws, prosecutors, judges, and jails. And
although the federal government provides over $400 million a year to
support these tribal justice systems, less than $1 million is used by
the tribes to provide for Public Defenders. So poor tribal members
most often end up representing themselves in court, without the help
of a lawyer.
And without the benefit of legal counsel, they often plead guilty in
the tribal courts without realizing that by doing so they are
subjecting themselves to an uphill battle if charges for the same
offense are then brought in state or federal court.
Here again, as with the lack of a right to legal counsel, tribal
members lack the protection against double jeopardy provided to other
U.S. Citizens by the Constitution. The U.S. Supreme Court ruled in
2004 that since tribal nations are separate sovereign governments, if
A person commits a crime that violates the laws of two sovereigns–the
tribe and the federal government–both sovereigns can prosecute the
As the Native Hawaiian Reorganization Act–the Akaka Bill–works its
way through Congress, those supporting it could solve the lack of
counsel problem by amending the Bill to ensure that a right to counsel
is included. On the double jeopardy issue, however, the only solution
would seem to be complete secession from the United States and the
State of Hawaii.
”’Tom MacDonald, retired president of a major trust and investment company, serves on the Board of Scholars at the Grassroot Institute of Hawaii and has written for the Community Newspaper Syndicate.”’