Native people, whether influenced by traditional approaches to dispute resolution or by their pragmatic experience with local courts and dispute resolution or by their pragmatic experience with local courts and law enforcement, do not see justice as being done within the forum offered by the state. In search of an authoritative locale for rational dispute resolution, they find arbitrary and apparently irrational treatment in magistrate courts. Conversely, they have found in conciliation before the village council a forum where misconduct is measured against the world that the defendant immediately affects. They find a comprehensible forum in the village to solve their problems or no forum at all. Can participation in a functioning advocacy and adversary system be taught and utilized along with continued functioning of a sub-legal conciliatory system that handles de minimus matters effectively? This paper offers guidance to public defenders and legal services attorneys in representing Alaska Native clients.Alaska Public Defender AgencyThe Problem /
Public Defenders with Native Clients – Some Approaches /
The Authority of Law and the Meaning of Guilt /
Appendi

Conn, Stephen

Hippler, Arthur E.

ScholarWorks@UA

Scholarworks@UA — UAA Justice Center September 7, 1972 Notes on Representation of Native Clients Stephen Conn & Arthur E. Hippler Suggested citation Conn, Stephen; & Hippler, Arthur E. (1972). “Notes on Representation of Native Clients.” Stephen Conn Papers. Paper prepared for Alaska Public Defender Agency. Fairbanks, AK: Bush Justice Development Program, Institute of Social, Economic & Government Research, University of Alaska, Fairbanks. Summary Native people, whether influenced by traditional approaches to dispute resolution or by their pragmatic experience with local courts and dispute resolution or by their pragmatic experience with local courts and law enforcement, do not see justice as being done within the forum offered by the state. In search of an authoritative locale for rational dispute resolution, they find arbitrary and apparently irrational treatment in magistrate courts. Conversely, they have found in conciliation before the village council a forum where misconduct is measured against the world that the defendant immediately affects. They find a comprehensible forum in the village to solve their problems or no forum at all. Can participation in a functioning advocacy and adversary system be taught and utilized along with continued functioning of a sub-legal conciliatory system that handles de minimus matters effectively? This paper offers guidance to public defenders and legal services attorneys in representing Alaska Native clients. UAA is an AA/EO employer and educational institution and prohibits illegal discrimination against any individual: www.alaska.edu/titleIXcompliance/nondiscrimination. Stcp\ 1cn Conn/1\rthur J!jpplcr .. -- ,, __ Institute of Social, Econo:njc � Govcrn:ncnt Un i\'crsi ty of A.bsk.1. Dush Justice Dcvclop;ncnt Program NOTES ON REPRESE'ffATION or: NATIVE CLIE\,1S The Problem 9/7/72 M1ile court decisions and funding of two programs in Alaska, the ·Alaska . I Legal Services Program and the Public Defenders Program, hc.'lve sought to ef-fectuate the right of indigents to representation by attorneys in crirainal and civil matters, the structure of· justice as it has developed through tra­ditional procedures and transitional and modern structures has placed the issue of the attorney's role in dispute resolution iii thin an w1usual per­spective. There has been an evident attempt on the part of rural people in Alaska > particularly Native groups, to use forw;s for dispute -:::esolution of_ both minor crimi1131 ancl civil matters that are not fonr.al adversary systems. Where they are operative, they are locally authori t2.tive fonrns for concil­iation of conflicts between disputants and beh,ecn 1•:rongdoers and the vil:­lage. Counsels are not used in these systems. For those who make basic decisions about the extension of ad\'Ocates in­to rural Alaska, the problem of iTilplemcntat.ion is not sii;:ply one that can be defined by t}�e rights guaranteed to indigents through case laH and as programmatically offered by the OED Legal Services l-'rograi11 and Public De­fenders Program. It is compounded by these factors: 1. Many people do not no',,: \vant to introduce their probJ.ei:;s intoan adversary system and thereby lose control of th,::; resultin a forl.F.l with a process and goals that see,:1 irratio.:1al.2. Man)' villarcs c1o not <lcsirc to sec of:fendcis \-:ho are not re-,, (.'&Cltivists fined or taken a\•;3y to u,:b.:in jails. The vi c,;•,vointof the villc1gc council is gJ olnl only as it extcn:is to t}1e impact of these punishments up-::m the soci::il structure of the viJ.lage. This point of vie,-: h3s rc.sultcd jn positi\·e atte:;i�pts at conc:i.ljation Jll some villages-. Conversely, it has resulted in ind:i.f fcrcncc to the util i -: - 2 -zation of advocates or the magistrate court as a forlDn for dispute resolu­tion. This viewpoint is a product of more than the tra•ditional experience with dispute resolution. As a result of both inadequate care in hiring and training in magistrate system,_ as ,vell as the logistical probleffi? of providing professional advocacy ·or judicial service to the bush on a regular basis, the adversary system has never fW1ctioned for Natives in rural Alaska. To any neutral observer, an arrest and appearance before the magistrate 1 s court can rarely mean more than conviction. Assertion of rights to appeals have been little W1derstood and little used when understood ,1hen defendants are confronted with the costs of appeal in time that might be used for sub.:. sistence hunting or local work. An argued dispute has become more cumber­some than a dispute that is poorly resolved or not resolved at all. This experience with the legal system has been historically reinforced by officers of the court who have encouraged extra-legal resolution of all but the 1nost serious disputes in the village. Both villagers and officers of the court have assumed that cases that do result in complaints to the magistrates will result in convictions. Native people, then, whether influenced by traditional approaches to dispute resolution or by their pragmatic experience with local courts and law enforcement do not see justice as being done within-the fan.rm offered by the state. In search of an authoritative loc_ale for rational dispute resolution, they find arbitrary and apparently irrational treatment in m�gis­trate courts. Conversely, they have found in conciliation before the council a forum where misconduct is measured against the world that the. defendant immediately affects. They find a comprehensible forum in the village to solve their problems or no forum at all. - 3 -In nearly every society, the advocate, a non-kin person \\'ho argues one's case, has appeared only when: 1. A rational fonun for third-party dispute resolution has beenestablished.2. The complexity of life as it affects that justice system re-quires a division of labor between a judge and an advocate.I£ there is no recognized forum where reasonable men willingly bring their problems or complaints, what then is the role of an advocate? Should he help clients avoid that fonnn? Can he reconstruct that forum in his prac­tice to better suit his clients needs and that of the larger corrrnunity? Several problems then emerge from any a tte.1 pt to replace the present system with a full-blown advocacy and adversary system in the bush: 1. The entrance of attorneys does not mean that individualswill be receptive to use of the judiciat forum to resolvetheir disputes. They may continue to bring these problemsto sub-legal fonuns such as the council. They r..ay feelthey have no forum at all in which to resolve their disputes.2. The councilmen who engaged in dispute resolution may feelthat they can no longer exercise this power. The use ofderivatively, through infonnally granted power frc;;1 thejudicial and law enforcement agencies,will be less regularas cases referred to the courts result in both dismissalsand in convictions and not in convictions only ..Can participation in a functioning advocacy and adversary system be taught and utilized along with continued functioning of a sub-legal concili­atory system that handles de rninimus matters effectively? �1uch of the· bur-den for this new form of collaboration will fall upon those who practice in the bush and in their relationships with local leaders and offenders. An attorney who confronts clients who relate to rural justice as it is now implemented is faced with tasks that are unlike his brother in the city. An attorney in a private dispute may well seek to find ·who outside of the - 4 -court regularly resolves his client's dispute and may suggest that this case- , be handled in that manner. This inquiry will take place at the initial in- \terview of the client. It would not foreclose court action if the client _J believes that he would not receive a fair hearing before a local body. A public defender may seek with the acquiescence of the trooper, local policeman, magistrate and district attorney to refer the case to the council after the initial appearance before the magistrate (and in lieu of a hear-ing before the superior court) or after a finding of guilt or entrance of a �---plea tothat effect. This might be done after a suspended sentence or as a condition of probation. There is no question that villagers themselves have been satisfied- with council disposition of violent matters that might have been considered felonies had they been referred to the courts as well as a host of non-criminal matters that relate to day-to�day social intercourse, gossip, etc., that do have a real effect upon village life ac­cording to the records of meetings studied clLu-ing our field work. Public Defenders with Native Clients--Some Approaches Establishment of one's function of autonomo_us representation for the Native client may be accomplished by considering his attitudes to,�ard _ author­ity iii conversation with him. Although the approach would be different for Eskimo or for Athabascan defendants, the theme that should be enunciated is similar--that through his attorney his assertion of rights will place into question the status of that authority and the procedures under which the .directives of that authority were carried out. For the Athabascan, that authority, if legitimate· and rational } is un­challengable. Thus, the argument for participation through representation - 5 -must be that representation will test both the legitimacy and rationality of police tactics. Since the basis of judicial and police authori t.y I·;-· · empirically w1clear to the Athabascan, he may accept the logic of this . inquiry on his behalf. For the Eskimo, the basis of authority is nearly always subject to question if the risks of such a challenge do not appear to be insurmount-able. Therefore, a defendant could ·be persuaded to accept the logic of a system that promotes an internal review of the logic of police behavior and of evidence against him. The Authority of Law and the ::-.reaning of Guilt For bush defendants, their traditional attitudes, the teaching of missionaries, and· their e:\-perience with village councils and magis.tra teshave done little to e:\.-plain to them the difference betl-;een guilty feelings \_.-. and evidentiary guilt. The logic of the legal sys tern as he knows it seems to be this: If the authorities have treated you fairly, you should co­operate with them and confess your guilty feelings. If they have arrested you and gone to this much trouble, you must be �s guilty in_ their eyes as you feel in this. situation. Cooperative wrongdoers are readily reconciledwith the corrrrnunity with the imposition of a sanction or, merely, from the public admission of feelings of guilt and contrition. An individual who does not admit his guilt, especially when confronted ,-.rith written or verbal testimony that implicates him, will have the full load of authority come .down upon his head (or, the load of the legal system if the ).ocal authority can set the wheels in motion) . The right to remain silent and to question the sufficiency of the state's case through one's attorney are in..l-iercntly incomprehensible from this frame of reference, However, to bargain one's admission for a lighter V - 6 -sentence, the essence of plea bargaining, does make sense from this frame of reference. It makes sense to the \ffongdoer and it makes sense to the victim. It is rational behavior. For the practitioner, the essence of representation of a Native whose case has been ref erred o_ut of the village into the court system is knowing ) what disposition of the case has taken place prior to its referral to the · �court system. Why was this case not resolved by local authorities? Was it- -considered to be one of a series of bad acts by the defendant? l�as there an attempt to resolve it before the village council? lvbo testified before the council? Was there some underlying prejudice that motivated that hearing or that motivated the transmittal of the case to the court? Did the defendant's conduct (his refusal to answer questions, his refusal to appear) motivate the criminal complaint? What penalties are meted out for factual offenses of a similar nature in the village? How do these compare with the likely sanction in court? Did the arrest result from overenthusi­astic intervention by the state trooper in a matter that would have been handled locally had that .intervention not taken place?_ Th.is 'is the kind of 1nforrnat.ion that a Native paralegal might fruit­fully investigate for a public defender. Anned with it, he may better pre­pare witnesses for trial and cross-examine adverse witnesses, recognizing that they as well as the defendant are reinforced in their attitudes about law from the entirety of their cultural and empirical experience with dis­pute resolution in the village. The public defender would also be in a better position to suggest that the findings be incorporated into a pre­sentence report prior to the acceptance of the de;fendant's guilty plea or prior to the imposition of sentence. He may use this infonnation to persuade - 7 -the· judge to accept village opinions in sentencing the individual if they would seem to benefit his client. - 8 ._APPENDIX This fo:nna t for client interviews may have some utility for Alaska public defenders. It would be useful, for example, to pool information .about villages that regularly refer particular crimes to the magistrate. lfuo characterized these crimes? Do other villages regularly treat these matters internally? Why was your case the exception? :::::... . . .. •·· .=i DINEDEIIL'/A NAI I I IL�A DE J\GADlTAIIE Of F ICE  M EMORANDU.\li TO : FROM : ·July 12 , 1971Attorneys and Counselors-in-charge - S tephen Conn,  AttorneyDNA , Inc.P . O .  Box 967Shiprock , New Mexico 8742 0SUBJECT : An approach to a renewed perception o f  the place of the DNA advocate \vi thin the galaxy of dispute resolving mechanisms . What follows is a brief outline of  c;ues tions . that may be incorporated into the client interview that will  help the advoca te or a ttorney perceive where he s its within the galaxy of diiputes resolvers s ti l l  avai lable to his  client who _ might re�olve problems for him . Their or igins may be out of  Nava jo  social structure , oi anglo bureaucracies tha t  ·have been imposed and intergrated to a greater or  lesserextent with Navajo society � This  is not an  attempt to turnback the clock but to better unders tand what role the counse­lor or attorney is  to perform wi thin this �s s entia l ly plura­lis tic environment .  Put another way , we want to know whoshares our interes t _ in · particular pro1?ler.1s and, perhaps , i f  ·they · s � tis fy the client in ways that  we do not?A .  Did you try to resolve your problem before coming to D . N .A . ?  (how ? through whom? (person , agency ) ) An Outline : 1 .  Does this person usually help people  resolve problems like this one? Does he help with some parts of  i t ?  Has he a lready s olved par t  o f  the problem? (Ed : For example , the third party may a ttempt to reconcile husbands and wives . However ,. he may not deal with divis ion o f  property should tha t become necessary ) . listen to his side? 

Notes on Representation of Native Clients

https://scholarworks.alaska.edu:443/bitstream/11122/10733/1/7550.724.conn-hippler.1972.native-clients.pdf

Notes on Representation of Native Clients

Abstract

Similar works

Full text

Available Versions

ScholarWorks@UA