|
|
This is only a preview of the paper
Click here to register and get the full text.
Existing members click here to login
|
|
|
Indian law is indeed a unique area of federal law. Compared to federal law, Indian law differs greatly, but most notably within the Indian Civil Rights Act of 1968. ... However, this right, as well as others, is not afforded to Indians in the Indian Bill of Civil Rights. Furthermore, Indians do not have the luxury to request a jury trial for actions brought in civil Tribal court because the Indian Civil Rights Act affords the right to a jury trial in only criminal cases.
This paper will identify the differences between Federal law and Indian law, present rationales for these differences and assess the validity of these differences in two main areas: 1) The lack of a right to assistance of counsel for indigent criminal defendants under Tribal Law in Tribal Court; and 2) The lack of a right to a jury trial in civil cases arising under Tribal Law in Tribal Court. ... No Right to Assistance of Counsel for Indigent Criminal Defendants Under Tribal Law in Tribal Court.
The first major difference in Indian law with federal law is the lack of a right to free legal representation in criminal cases brought under tribal law in tribal court. ... Wainwright “that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. ... Constitution, the Indian Civil Rights Act [IRCA hereinafter] states that “[n]o Indian tribe in exercising powers of self-government shall--…(6) deny to any person in a criminal proceeding the right to a speedy and public trial,…and at his own expense to have the assistance of counsel for his defense. ... Unlike the federal constitution, the IRCA is clear that the right to counsel in tribal criminal proceedings is only allowed for those who can pay for it. ... Sutton that “[a]lthough an individual citizen’s right to appointed counsel is protected under the Sixth and Fourteenth Amendments in criminal actions brought by the United States and the individual states thereof, Indians on the reservation do not have such protection under the federal constitution when criminal action is brought under tribal law in tribal court. ... 2d 1389 (1989)
Generally, the purpose of the 1968 IRCA Act was to give some constitutional rights to Indians since federal courts have refused to impose constitutional standards on Indian tribal governments, because such standards apply only to State or Federal governmental action, and Indian tribes are not States within the meaning of the Fourteenth Amendment. ... The rationale for not including all federally protected rights is that the Indian tribes are quasi-sovereign nations, with the power to adopt their own constitutions and enact their own laws Tom, 533 F. ... Another rationale for not including these rights was that many important prohibitions in the Federal Bill of Rights are limitations on the power of the Federal or State governments. Therefore since Indian tribes are not part of either the Federal or State governments, these prohibitions are inapplicable. ... Historically, the court systems we see in the United States today have not existed on Indian reservations until the late 19th century when the Bureau of Indian Affairs established the Courts of Indian Offenses as a result of the assimilation policy.
Approximate Word count = 2562
Approximate Pages = 10.2
(250 words per page double spaced)
|
|
|
|
|
|