Abstract
In both TLOA and VAWA 2013 proceedings, these additional protections include requirements that tribes appoint counsel at public expense to indigent defendants, ensure defendants receive effective assistance of counsel as defined by the federal constitution, provide law-licensed judges, make tribal criminal laws and rules publicly available, and create a record of tribal court proceedings.9 In addition, tribal courts seeking to exercise VAWA 2013 jurisdiction must provide defendants an impartial jury, as defined by the federal constitutional standard, and "all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise special domestic violence criminal jurisdiction over the defendant. Tribal court defendants have had an explicit federal statutory right to assistance of counsel since 1968 when Congress enacted ICRA.12 But prior to the TLOA of 2010 and VAWA 2013 amendments, ICRA did not require tribes to provide indigents with appointed counsel or provide tribal court defendants with the right to effective assistance of counsel.13 Not only does ICRA now require tribes to ensure defendants subject to TLOA's enhanced sentencing and VAWA 2013 expanded jurisdiction provisions have the right to effective assistance of counsel, but it also explicitly tethers the substance of that right to the federal constitutional ineffective assistance of counsel standard.14 This article analyzes this new federal statutory right to effective assistance of counsel commensurate with the U.S. Constitution in tribal court proceedings and explores how that right will be defined and enforced. The first is required by title 28, the federal habeas corpus statute authorizing federal court review of state court conviction.17 Title 28 limits federal court jurisdiction over state prisoner claims to challenges brought under federal law and precludes federal court review of any state prisoner claim that was not first presented to the state courts.18 And, importantly, Title 28 further requires federal courts to extend considerable deference to previous determinations made by state courts in resolving state prisoners' claims.19 The second layer of deference is built into Strickland's two-pronged ineffective assistance of counsel test, which requires courts to determine (1) whether counsel's performance was deficient and, if so, (2) whether counsel's deficient performance prejudiced the defendant.20 Whether counsel's performance was deficient turns on whether her conduct and choices were objectively reasonable under the circumstances.21 Under Strickland, this "objectively reasonable" inquiry requires almost complete deference to any choice by counsel that can fairly be characterized as tactical or strategic.22 The result is that federal courts considering state prisoner Strickland claims under Title 28 must employ a "double deference" review.23 Like state prisoners, tribal prisoners can seek post-conviction review of their convictions in federal court through habeas corpus petitions. TLOA imported Strickland's constitutional effective assistance of counsel standard into ICRA.24 In doing so, tribal court convictions were made subject to Sixth Amendment-style ineffective assistance of counsel challenges in federal court through habeas review.25 Although tribal prisoners, like state prisoners, have a statutory right to federal post-conviction review through a writ of habeas corpus, the law governing petitions brought by tribal prisoners is very different from that governing petitions brought by state prisoners.