Confidential
Draft Report
“Enforcement
of the Indian Civil Rights Act of 1968”
May 1990
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specifically addressed the question
of whether the tribe could impose language requirements on nonmember
attorneys: Although
a tribal court is required by the Indian Bill of Rights to allow
representation by a professional attorney it does not follow that the
court cannot impose certain regulations or qualifications on the
appearance of such an attorney. In formulating such regulations,
however, a tribe should be careful that it does not so restrict an
attorney's appearance that his representation is effectively
nullified. For example, although the tribe may conduct
proceedings in the tribal language (assuming that the defendant speaks
the language or is furnished an interpreter) it probably could not
require that the attorney demonstrate a knowledge of the language
before his allowed to make an appearance. Because of the extreme
rarity of attorneys with a knowledge of an Indian language, such a
requirement would effectively bar all professional attorneys from
appearing in tribal court. A reviewing federal court would almost
certainly conclude that such a requirement is unreasonable and
violative of the defendant's right to counsel. [55]
In its Statement for the Commission, the Tribe cited two cases to support its policy on use of counsel. In the __________ [55] Model Code for Administration of Justice by Courts of Indian Offenses, 40 Fed. Reg. 16,689, 16,696 (1975). |
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