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No Right to Counsel in Tribal Prosecutions
By Jon M. Sands
It will probably surprise you to know that a defendant in this country can still face a criminal charge, with loss of liberty, without the right to counsel. Gideon’s requirement of counsel does not extend to Indian reservations. Indigent Indians facing prosecution, alone among all Americans, have no right to counsel.
The Constitution affords the Indian tribes the status of domestic dependent nations. The Supreme Court has always afforded this phrase a special meaning, treating tribes, and tribal governments, as not only as independent sovereigns, but as unique political nations within the nation. Certain protections of the Constitution do not extend to the Indian tribes.
What the Constitution does not do, Congress can. This is because Congress is sovereign over the tribe. In 1968, five years after Gideon, the Indian Civil Rights Act (“ICRA”) was passed. The ICRA extends almost all of the Bill of Rights protections to the Indians. In terms of criminal justice, tribes are empowered with mi
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