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Home Archive Volume 63 Volume 63, Issue 1 COMMENT: Elementary Unfairness: Federal Recidivism Statutes and the Gap in Indigent American Indian Defendants' Sixth Amendment Right to Counsel
COMMENT: Elementary Unfairness: Federal Recidivism Statutes and the Gap in Indigent American Indian Defendants' Sixth Amendment Right to Counsel

By Thais-Lyn Trayer | 63 Am. U. L. Rev. 219 (2013)

Indigent American Indian defendants suffer from a gap in federal laws that denies them full Sixth Amendment right-to-counsel protections. Indian defendants are not automatically guaranteed representation by a lawyer in tribal court. Constitutional difficulties arise when these uncounseled convictions are later used to support prosecution of repeat offender crimes in federal court. Supporters of this practice, most recently upheld in United States v. Cavanaugh, point to the status of tribal nations as inherently
sovereign and beyond the reach of the Bill of Rights. This Comment argues that federal courts should nevertheless approach prosecution of recidivist crimes by Indian defendants as if the Sixth Amendment applies.

Different treatment of Indian defendants in federal court is based on a misunderstanding of criminal law, whereby defendants are given fewer procedural protections when prior convictions are considered sentencing factors, rather than elements of crimes. To avoid these semantics, courts should return to the Supreme Court’s original intent underlying the right to counsel: ensuring a conviction’s reliability. This approach is more appropriate for considering judgments from sovereign Indian nations. Furthermore, it resolves inadequacies of the 2010 Tribal Law and Order Act’s partial Sixth Amendment grant. By returning to a reliability analysis, federal courts can ensure indigent American Indians are not the only U.S. citizens subject to federal criminal prosecutions supported by uncounseled convictions simply because they are too poor to afford counsel.

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