Supreme Court Brief interviews Creel

If tribal courts provided competent counsel to indigent Indian defendants, Creel said, Then I would say, \u27Prosecute all day long.\u27 But [federal prosecutors] are trying to short-circuit that. They\u27re saying because we have this epidemic, let\u27s make it easier for everyone involved. That\u27s against constitutional values and tribal values. Creel asks the justices to hold that all persons facing incarceration must have the same protections in place. That wouldn\u27t apply the Constitution to tribes but it would disallow federal prosecutors from using uncounseled convictions

Testimony on H.R. 1924, the Tribal Law and Order Act of 2009 Before the Subcommittee on Crime, Terrorism and Homeland Security United States House of Representatives, 111th Congress, 1st Session (December 10, 2009)

Professor Creel testifies that incarceration alone cannot address the problem of crime in Indian Country and advocates for additional funding and greater access to effective substance abuse treatment programs, education and job training, and culturally-based re-entry programs. Creel\u27s testimony also emphasizes that Native American defendants in tribal court should be afforded the right to counsel, including the right of court appointed counsel, and due process of law. Tribal Law and Order Act 2009: Hearing on H.R. 1924 Before the Subcomm. on Crime, Terrorism and Homeland Security, 111th Cong. (2009) (statement of Barbara Creel, Assistant Professor of Law, University of New Mexico School of Law)

Tribal Court Convictions and the Federal Sentencing Guidelines: Respect for Tribal Courts and Tribal People in Federal Sentencing

This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendants criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an \u27upward departure\u27 to increase the Native defendant\u27s overall federal sentence. Washburn\u27s proposal seeks to gain \u27respect\u27 for tribal courts, based upon a premise that tribal convictions must be afforded the same weight and treatment as federal and state criminal convictions under the Federal Sentencing Guidelines. This Article explores the idea of respect for tribal courts and convictions in the context of their history and connection to tribal peoples and communities. Ultimately, this Article concludes that respectful treatment would not tolerate placing a tribal defendant in such a powerless position within the federal sentencing hierarchy. A proposal that would negatively impact only Native American defendants in a foreign justice system in the name of respect warrants critical review. As an Assistant Federal Public Defender, I had the opportunity to view the application of federal criminal laws from the front and the back end of the criminal justice system, from trial to post-conviction. As a Native woman, I have seen the impact of crime, justice, and federal sentencing on tribal people, families, and whole communities. It is from this perspective that I focus the lens of respect on the work of tribal courts and criminal justice in Indian Country, and ultimately oppose any amendment in federal sentencing to count tribal court convictions to increase federal sentences for Native criminal defendants. A review of the historical diminishment of tribal authority over crime and punishment on the reservation, as well as the disparate impact of crime and punishment on Native peoples, leads to a rejection of counting tribal court convictions in federal sentencing. This Article proposes an alternative view that both respects Native American individuals caught in the criminal justice system and elevates tribal sovereignty

The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it presents for Indians and tribal sovereignty. While an Indian has the right to defense counsel in federal criminal court proceedings, he does not in tribal court. This distinction makes a grave difference for access to justice for Americans Indians not only in tribal court, but also in state and federal courts. The Article provides in-depth analysis, background, and context necessary to understand the right to counsel under the ICRA and the U.S. Constitution. Addressing serious civil rights violations that negatively impact individual Indians and a tribe\u27s right to formulate due process, this Article ultimately supports an unqualified right to defense counsel in tribal courts. Defense counsel is an indispensable element of the adversary system without which justice would not still be done. Tribes, however, were forced to embrace a splintered system of justice that required the adversary system but prohibited an adequate defense. The legacy of colonialism and the imposition of this fractured adversary system has had a devastating impact on the formation of tribal courts. This legacy requires tribal and congressional leaders to rethink the issue of defense counsel to ensure justice and fairness in tribal courts today. The Article concludes that tribes should endeavor to provide counsel to all indigent defendants appearing in tribal courts and calls upon Congress to fund the provision of counsel to reverse the legacy of colonialism and avoid serious human rights abuses

High Court Denies Rights of Natives

June 13 of this year marked a milestone in constitutional law. Fifty years earlier, in 1966, the Supreme Court decided Miranda v. Arizona, requiring officers to notify individuals in police custody of their “Miranda rights,” including their right to a court-appointed lawyer if unable to afford one. In United States v. Bryant, this nation’s highest court condoned the use of prior “uncounseled” tribal court convictions to charge and convict an Indian as a federal habitual domestic violence offender. Justice Ruth Bader Ginsburg, who wrote Bryant, denigrates Indian people’s civil rights, citing the need to protect Native women from domestic violence. But Department of Justice statistics show most domestic violence perpetrators in Indian country are non-Indians, and the Bryant decision leaves intact their constitutional rights, including the right to appointed counsel

Brief for Barbara L. Creel and the Tribal Defender Network, US v. Bryant

Although Congress intended to protect women in Indian Country from domestic abuse, they condoned the use of prior “uncounseled” tribal court convictions to charge and convict an Indian as a federal habitual domestic violence offender. Justice Ruth Bader Ginsburg, who wrote Bryant, denigrates Indian people’s civil rights, citing the need to protect Native women from domestic violence. But Department of Justice statistics show most domestic violence perpetrators in Indian country are non-Indians, and the Bryant decision leaves intact their constitutional rights, including the right to appointed counsel

Brief for National Association of Criminal Defense Lawyers as Amici Curiae, Fortino Alvarez v. Randy Tracy

Amici’s brief is relevant because it squarely address the central issue of whether a tribal exhaustion rule ought to apply in habeas proceedings filed under 25 U.S.C. § 1303, and if so, what standards and exceptions apply to allow federal review of a tribal order of detention. Amici offer substantial experience in the field of federal habeas corpus, and criminal law in Indian country. The brief is desirable because it will provide the Court the benefit of the research, legal analysis and experience amici bring to this important issue. The NACDL includes a Native American Justice Committee that is concerned with the rights of Native Americans who are accused of crimes, and has testified before the U.S. Congress and Indian tribal government bodies on those issues. Barbara Creel, a former Assistant Federal Defender has testified before Congress and the Indian Law and Order Commission on the right to counsel for Native Americans accused of crime in tribal court and on the access to the writ of habeas corpus under ICRA. SILC has also successfully litigated numerous federal habeas corpus petitions under 25 U.S.C. § 1303, and has a unique understanding of the individual rights of defendants vis- a-vis their tribe. Amici offer a special expertise in Indian law, sovereignty, and civil rights

Brief for Southwest Indian Law Clinic as Amici Curiae, United States v. Smith

Prior cases, have assumed, without analysis that the ACA applies to Indian Country. This review of the ACA failed to consider and incorporate clearly established Indian law principles and foundational tenets of criminal law in the analysis of its applicability to Indians and Indian Country. Most importantly, the precedent and the Court below failed to understand the racial component involved in the analysis. These failures to understand the principles of Indian law and criminal law, have rendered haphazard and incoherent decisions. Amici seek to bring clarity to the complex jurisdictional interplay and provide a practical framework for the proper analysis in applying the ACA and determining whether jurisdiction exists for purposes of prosecuting conduct occurring in Indian Country. Williams v. United States, 327 U.S. 711 (1946) involved a non-Indian defendant’s rape of an Indian victim -- and thus, the Court did not reach the application of the ACA to Indian defendants under the ICCA. There can be no such application consistent with clearly establish principles of federal Indian law and jurisdiction

Cohen\u27s Handbook of Federal Indian Law

Cohen\u27s Handbook of Federal Indian Law is an encyclopedic treatise written by experts in the field, and provides general overviews to relevant information as well as in-depth study of specific areas within this complex area of federal law. This is an updated and revised edition of what has been referred to as the bible of federal Indian law. This publication focuses on the relationship between tribes, the states and the federal government within the context of civil and criminal jurisdiction, as well as areas of resource management and government structure. This compact publication is the only comprehensive treatise explicating one of the most difficult areas of federal law. Used by judges as well as practitioners, this publication provides the tools to understand the law and to find relevant cases, statutes, regulations, and opinions critical to answering legal questions about federal Indian law. This updated edition remains the definitive guide to federal Indian law.https://digitalrepository.unm.edu/law_facbookdisplay/1064/thumbnail.jp

Partial Meal Replacement Plan and Quality of the Diet at 1 Year: Action for Health in Diabetes (Look AHEAD) Trial

Little is known about diet quality with a reduced-energy, low-fat, partial meal replacement (PMR) plan, especially in individuals with type 2 diabetes. The Action for Health in Diabetes (Look AHEAD) trial implemented a PMR plan in the intensive lifestyle intervention (ILI)