Following are excerpts from a letter sent by the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders to the House of Representatives, dated May 3, 2012. Footnotes are indicated in italics.

The entire letter can be viewed here: http://democrats.judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/NACDL-NAFD120503.pdf

++++++++++++++++++++++++++++++++++++++

National Association of Criminal Defense Lawyers
1660 L Street N.W. 12th Floor
Washington, DC 20036

National Association of Federal Defenders
P.O. Box 22223
Nashville, TN 37202

May 3, 2012

The Honorable Lamar Smith
Chairman
Committee on the Judiciary
2138 Rayburn House Office Building
Washington, DC 20515

The Honorable James F. Sensenbrenner, Jr.
Chairman
Subcommittee on Crime, Terrorism and Homeland Security
2138 Rayburn House Office Building
Washington, DC 20515

The Honorable John Conyers
Ranking Member
Committee on the Judiciary
2138 Rayburn House Office Building
Washington, DC 20515

The Honorable Bobby C. Scott
Ranking Member
Subcommittee on Crime, Terrorism and Homeland Security
2138 Rayburn House Office Building
Washington, DC 20515

Re: H.R. 4970, the “Violence Against Women Reauthorization Act of 2012”

Dear Representatives:

We understand that the Judiciary Committee is going to mark up H.R. 4970, the “Violence Against Women Reauthorization Act of 2012” on May 8, 2012. We support the efforts of this Committee to address the problem of domestic violence, but write to express concerns regarding certain provisions that would expand or alter the criminal code in ways that raise troubling questions of constitutionality and fairness and/or are unnecessary. (See pages 1-8). We support efforts to continue to address domestic violence problems in Indian Country through the substantial mechanisms provided in the Tribal Law and Order Act, including increased federal investigation and prosecution of such crimes, as opposed to expanding tribal jurisdiction over non-Indians in the unprecedented and constitutionally dubious manner proposed in S. 1925, the Senate version of VAWA Reauthorization. (See pages 8-16)….

IV. Section 1004(c) Would Unconstitutionally Require Tribal Court Convictions to be Used to Double the Maximum Punishment for a Federal Domestic Violence or Stalking Offense.

Section 1004(c) would require that tribal court convictions be used to double the maximum term of imprisonment for defendants charged with a federal domestic violence or stalking offense. We oppose this provision because, as explained in Part V of this letter, tribal court convictions are likely to have been obtained without counsel and other federal constitutional rights. The Ninth Circuit has held that a guilty plea entered in tribal court by a defendant unrepresented by a lawyer, even though it complied with ICRA, is “constitutionally infirm” and may not be admitted in a federal prosecution.25 Being subjected in tribal court to conviction and imprisonment without representation and other basic rights is injustice enough; using such a conviction to double the maximum punishment for a federal offense would violate the Constitution.

25 United States v. Ant, 882 F.2d 1389 (9th Cir. 1989).
26 Pub. L. No. 11-211, tit. II, § 202(b)(4) (July 29, 2010).
27 Id. § 213(a).

V. Domestic Violence in Indian Country Should Be Addressed By Giving the Significant Measures Enacted in TLOA a Chance to Work Rather Than Through the Unprecedented and Constitutionally Dubious Step of Subjecting Non-Indian Citizens to Prosecution and Punishment in Tribal Court Without the Same Constitutional Rights to Which They Would Be Entitled in Any Other Court in the Nation.
We support H.R. 4970’s exclusion of the deeply troubling expansion of tribal court jurisdiction contained in Section 904 of the Senate version of this legislation and, for the reasons stated below, we urge the House to reject such a provision should it be proposed as an amendment to H.R. 4970 or when these bills are sent to conference.

A. TLOA’s measures to combat domestic violence in Indian Country are just now getting underway.Not two years ago, Congress passed the Tribal Law and Order Act (TLOA), a comprehensive bill that empowered tribal governments to better combat violent crime in Indian Country. The Act also required the federal government to provide more resources to fighting violent crime in Indian Country and to work closely with tribes in addressing this problem. The unacceptably high rate of domestic violence in Indian Country was one of the driving forces behind passage of TLOA, which provided as one of its stated goals to “combat sexual and domestic violence against American Indian and Alaska Native women.”26 To address these issues, the Act, among other things:

• authorized the Attorney General to appoint “qualified tribal prosecutors and other qualified attorneys to assist in prosecuting Federal offenses committed in Indian country”27
• authorized each United States Attorney with Indian-country jurisdiction to appoint Special United States Attorneys “to prosecute crimes in Indian country as necessary to improve the administration of justice”

28 Id. § 213(b)(1).
29 Id. § 213(b)(1).
30 Id. § 262.
31 Id. § 221.
32 Id. § 222.
33 Id. § 211(b).
34 See, e.g., Felicia Fonseca, Feds Highlight Efforts to Curb Reservation Crime, Tribal Law & Order Resource Center, National Criminal Justice Association, May 2, 2012; DOJ News: Justice and Interior Departments Launch National Criminal Justice Training Initiative in Cherokee Nation, Department of Justice, Office of Public Affairs, Mar. 12, 2012.
35 In August 2011, the Department of Justice and Department of the Interior submitted to Congress a lengthy report entitled “Tribal Law and Order Act (TOLA) Long Term Plan to Build and Enhance Tribal

• required each United States Attorney with Indian-country jurisdiction to appoint a “tribal liaison” to communicate with tribes regarding law enforcement concerns29

• provided for specialized training of Indian-country law enforcement officers “to properly interview victims of domestic and sexual violence and to collect, preserve, and present evidence to Federal and tribal prosecutors to increase the conviction rate for domestic and sexual violence offenses for purposes of addressing and preventing domestic and sexual violent offenses.”30

• authorized the federal government to exercise concurrent federal jurisdiction in reservations subject to the criminal jurisdiction of states31

• authorized the Attorney General to provide technical and other assistance to State, tribal and local governments that enter into cooperative law-enforcement agreements with tribes32

• created an Office of Tribal Justice in the Department of Justice and an Office of Justice Services in the Bureau of Indian Affairs, giving both offices responsibility for monitoring and supporting the delivery of effective law enforcement in Indian country33

Of course, it takes some reasonable amount of time to implement these measures. According to recent news articles, the Justice Department is working hard to implement TLOA right now.34 The numerous reports required by TLOA to evaluate its effect and implementation, as well as the fairness and effectiveness of tribal criminal justice systems, have yet to be completed. It is plainly too soon to conclude that the substantial changes that are being implemented as a result of TLOA have failed,35 or that tribal courts are willing and able to Justice Systems.” The Report required substantial coordination among various federal agencies, tribes, and the public. Implementation of the plan is just beginning.

36 It has been two years since Congress appropriated funds for the Tribal Civil and Criminal Legal Assistance Program, 25 U.S.C. 3651, et. seq., which is designed to strengthen and improve representation of indigent defendants.
37 See Judge William C. Canby, Jr., American Indian Law, (5th ed.), pp. 172-78 (hereinafter “American Indian Law”); CRS Report at 2. respect the rights of criminal defendants prosecuted in their courts, and that Congress should therefore pursue the unprecedented path of extending tribal jurisdiction to non-Indian citizens.

B. There is no jurisdictional gap that needs to be filled to permit the federal prosecution of non-Indians for acts of domestic violence committed against Indians in Indian Country, or to permit tribal officers from arresting suspected offenders.
Many proponents of S. 1925 have claimed that there is a jurisdictional gap that precludes the prosecution of non-Indians for acts of domestic violence against Indians in Indian Country. This assertion fails to recognize the arsenal of tools that currently exists within the federal government to combat this problem. The federal government already has jurisdiction over crimes committed by non-Indians in Indian Country under the General Crimes Act, also known as the Federal Enclaves Act, 18 U.S.C. § 1152. This law gives the federal government jurisdiction to prosecute federal crimes, both misdemeanors and felonies, committed in Indian Country by non-Indians against Indians.37 Such federal crimes include, for example, assault (18 U.S.C. § 113), domestic violence (18 U.S.C. § 2261), possession of a gun by any person “who has been convicted in any court of a misdemeanor crime of domestic violence” (18 U.S.C. §922(g)(9)), domestic violence by an habitual offender (18 U.S.C. § 117), stalking (18 U.S.C. § 2261A), murder, (18 U.S.C. § 1111), manslaughter (18 U.S.C. 1112), attempted murder or manslaughter, (18 USC § 1113), aggravated sexual abuse (18 U.S.C. § 2241), sexual abuse (18 U.S.C. § 2242), sexual abuse of a minor or ward (18 U.S.C. § 2243), and abusive sexual contact (19 U.S.C. § 2244). Moreover, the federal government is not limited to these federal criminal statutes. Through the Assimilative Crimes Act, 18 U.S.C. § 13, the federal government’s arsenal is virtually limitless as it can “borrow” state criminal law and prosecute non-Indians, in federal court, for state crimes.

Some also have questioned the ability of tribal officers to intervene in a potentially explosive domestic violence situation and arrest the suspected offender. This concern, which arises with violent crimes anywhere, already has been addressed through the use of “cross-deputized” tribal officers, who have received special training from federal, state or local governments and have the authority to arrest on behalf of the other jurisdiction. Such “cross-deputized” tribal officers have the authority to intervene in domestic violence situations and arrest as necessary, regardless of the defendant’s status.

Finally, it is important to recognize and reaffirm the tribes’ inherent sovereign authority to deal with such offenders in Indian Country through the traditional sanction of banishment.

C. S. 1925’s expansion of “inherent” tribal authority to prosecute non-Indians is unprecedented and constitutionally dubious.

In its 1978 decision in Oliphant v. Suquamish Indian Tribe, the Supreme Court held that Indian tribal courts do not have inherent criminal jurisdiction to try and punish non-Indians.38 In 1990 and 1993, the Court twice held that tribes have no inherent power to prosecute Indians who are not members of the tribe and that “such power . . . could only have come to the Tribe by delegation from Congress, subject to the constraints of the Constitution.” 39 Congress responded by “recogniz[ing] and affirm[ing]” the “inherent” power of a tribe to prosecute non-member Indians, rather than by delegating such power subject to the constraints of the Constitution. A five-member majority of the Court, including only two members on the current Court, held in United States v. Lara, that Congress could “relax restrictions” on tribes’ “inherent legal authority” to permit them to prosecute non-member Indians.40 The Court has never, however, held that tribes have inherent authority to prosecute non-Indians, or that a tribe may prosecute any citizen who has not consented to be governed by the tribe without full constitutional protections. Indeed, the Court in Lara specifically reserved the issue of whether the law at issue there violated the Constitution’s Due Process Clause by permitting a tribe to prosecute a non-member Indian without full constitutional safeguards.

38 435 U.S. 191, 195, 210 (1978).
39 See Duro v. Reina, 495 U.S. 676, 686 (1990); South Dakota v. Bourland, 508 U.S. 679, 695 n.15 (1993).
40 United States v. Lara, 541 U.S. 193, 196 (2004).
41 Lara, 541 U.S. at 205, 208-09 (“Other defendants in tribal proceedings remain free to raise that claim should they wish to do so.”).
42 Id. at 212-13 (Kennedy, J., concurring).
43 Id. at 214-26 (Thomas, J., concurring).
44 Id. at 227-31 (Souter & Scalia, JJ., dissenting).

In his concurrence in Lara, Justice Kennedy took issue with the majority’s “surprising holding” that Congress could permit tribes to exercise “inherent tribal authority” over any citizen other than its own members, explaining that the Constitution “is based on a theory of original, and continuing, consent of the governed,” whose “consent” rests on the understanding that they will be governed by a Nation and a State to which the citizen owes duties and against which the citizen has rights. The tribes’ inherent authority to prosecute their own members is justified by the members’ consent to be governed by the tribe, but this rationale does not extend to citizens who have not consented to be governed by the tribe, but rather have consented to be governed by a Nation and a State that owe them constitutional rights.42 In his concurrence, Justice Thomas expressed doubt that Congress has authority to relax restrictions on tribes’ inherent authority to prosecute non-members.43 Justices Souter and Scalia reiterated in dissent that “inherent” tribal power to prosecute non-members does not exist, and that such power could only be “delegated” by Congress.44
According to the Congressional Research Service, it is not clear that today’s Supreme Court would agree that Congress may declare that tribes have inherent authority to prosecute non-Indian citizens of the United States.45 As the CRS explains, Congress may “not have authority to subject citizens to inherent tribal criminal authority,” though “it is possible that the courts would uphold tribal authority to try [non-Indian] defendants as a delegation of federal authority.”46 Delegating federal authority would require the tribes to accord defendants full constitutional rights, whereas authority that arises from a tribe’s sovereign authority need not comply with the Constitution.47

45 See Tribal Criminal Jurisdiction over Non-Indians in the Violence Against Women Act (VAWA) Reauthorization and the SAVE Native Women Act, April 18, 2012 (hereafter “CRS Report”).
46 Id. at 6-7.
47 Id. at 7.
48 S. 1925, Sec. 904.

D. S. 1925 does not guarantee that non-Indians prosecuted in tribal court would be provided full constitutional rights.
Many proponents of S. 1925 assert that the bill guarantees full constitutional rights to non-Indians who would be prosecuted in tribal court under its special domestic violence criminal jurisdiction. This is not accurate because (1) the bill does not delegate federal authority to prosecute non-Indians along with the duty to provide constitutional rights, and does not state that non-Indians would be provided full constitutional rights; (2) the statutory rights set forth in ICRA, TLOA and S. 1925 fall short of full constitutional rights; and (3) the reality is that many tribes still are not complying with ICRA, much less the higher standards of TLOA, and that the writ of habeas corpus, upon which S. 1925 also relies, has been ineffective in enforcing these rights.
1. S. 1925 does not purport to guarantee the same constitutional rights to non-Indians prosecuted in tribal court as those provided defendants in state and federal court.

S. 1925, rather than delegating federal authority along with the duty to accord full constitutional protections, states that it “recognizes and affirms” the “inherent power” of the tribes to prosecute non-Indians, which means that the tribes need not comply with the Constitution. Moreover, S. 1925 does not state that tribal courts exercising special domestic violence jurisdiction must provide full constitutional rights. It states that the tribes shall provide (1) all rights under ICRA; (2) the right to a jury that reflects a fair cross section of “the community” and does not systematically exclude any distinctive group “in the community;” and (3) “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 criminal jurisdiction over the defendant.”48
As the CRS notes, it is not clear what this latter phrase means, resulting in two possible interpretations: (1) that tribes would be required to guarantee all the rights contained in the Bill of Rights except for a grand jury, or (2) that tribes would merely be required to provide the rights set forth in ICRA and TLOA, “which exclude several protections under the U.S. Constitution.” It would have been a simple matter to say that tribes are required to provide all rights contained in the Bill of Rights, but S. 1925 does not.

49 CRS Report at 4, 7.
50 Nevada v. Hicks, 533 U.S. 353, 383-84 (2001) (internal citations and punctuation omitted).
51 CRS Report at 7.
52 Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963) (internal quotation marks omitted).
53 Pascua Yaqui Public Defender, Directory of Tribal Justice Systems Contacts in Arizona (2007).
54 Id. The Akin-Chin, Colorado River, Fort Mohave, Gila River, Hopi, Hualapai, Navajo, Pascua Yaqui, Salt River Pima/Maricopa, San Carlos Apache, Tohono O’Odham, White Mountain Apache, and Yavapai Apache have established tribal departments which provide indigent defense. The Fort McDowell Yavapai and Havasupai tribes contract with private attorneys to provide representation to indigent tribal members. The Cocopah, Fort Yuma Quechan, Kaibab Paiute, Tonto Apache, and Yavapai-Prescott tribes do not provide legal counsel for indigent tribal members facing charges in tribal court.
55 Navajo Court Policy Policy on Appointment of Counsel and Indigency.

2. The rights described in ICRA, TLOA, and S. 1925 fall short of full constitutional rights.

The rights to due process of law and equal protection of the laws are fundamental to the fairness of any criminal proceeding. While ICRA has long provided that Indian tribes shall not deny these rights, as the Supreme Court has observed, “there is a definite trend by tribal courts toward the view that they have leeway in interpreting the ICRA’s due process and equal protection clauses and need not follow the U.S. Supreme Court precedents jot-for-jot.” 50 “[T]he terms ‘due process’ and ‘equal protection’ are construed with regard to the ‘historical, governmental and cultural values of an Indian tribe.’ As such, these rights can function much differently than they do in federal courts.”51 Indeed, as shown in subsection 3, these provisions are often not honored.
The right to the effective assistance of counsel is fundamental as well. As the Supreme Court observed in Gideon v. Wainwright almost fifty years ago, “[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.”52 TLOA for the first time requires “effective assistance of counsel at least equal to that guaranteed by the United States Constitution,” and a “licensed” attorney. However, qualified counsel is not in fact available to most defendants in tribal court. In Arizona, for example, twenty of the State’s twenty-two tribes operate tribal courts,53 but only fifteen provide legal representation for indigent criminal defendants.54 Only the Navajo Nation expressly guarantees the right to appointed counsel,55 but because only a small handful of attorneys are available to represent defendants in the numerous and far-flung Navajo courts, only a small portion of defendants receive representation. Many tribes allow non-lawyer “advocates” to represent criminal defendants, and the requirements for non-lawyer “advocates” practicing in a tribal court vary. To practice in the Navajo courts, a person must pass a bar exam. To practice in the Colorado River Indian Tribes, a person must merely purchase a business license. In the Gila River Indian Community, an “advocate” need only be a member of the tribe and have some knowledge of tribal codes to represent criminal defendants in tribal court.

56 See Jackson v. Tracey, No. CV-11-448-PHX-FJM (ECV) (D. Ariz.), Docket #20-5 at 19 (¶ 10).
57 CRS Report at 12.
58 S. 1925, Sec. 904 (emphasis supplied).
59 25 U.S.C. § 1302(a)(6), (8), (10).
60 25 U.S.C. § 1302(c).
61 25 U.S.C. § 1303.

The right to trial by an “impartial jury” is fundamental as well. This Sixth Amendment right has a “long historical pedigree” that “relied on a body of one’s peers to protect them against unrestrained and arbitrary government power.”57 ICRA and TLOA do not provide a right to an “impartial jury,” but rather a “right, upon request, to a trial by jury of not less than six persons.” S. 1925 attempts to fix the problem with respect to non-Indians by requiring a participating tribe to provide the right to an “impartial jury” drawn from sources that “reflect a fair cross section of the community” and that “do not systematically exclude any distinctive group in the community, including non-Indians.”58 But a tribal community by definition consists only of tribal members and not non-Indians. The ability of a tribal court to assemble a jury of one’s peers to try a non-Indian may not be possible, at least not without extensive changes to the structure of the tribe and the way it defines its community and jury pool.

3. The tribes do not yet comply with ICRA, much less the higher standards of TLOA.

To date, neither ICRA nor TLOA have been effective in guaranteeing fair treatment to Indian defendants in tribal courts. In ICRA, Congress counterbalanced the lack of appointed counsel with a cap on the sentences that tribal courts could impose, and prohibited Indian tribes from, among other things, (1) depriving any person within its jurisdiction of liberty or property without due process of law; (2) denying any such person equal protection of the laws; (3) denying an accused notice of the nature and cause of the accusation; (4) denying an accused compulsory process for obtaining witnesses in his favor; and (5) denying an accused a trial by jury of at least six persons “upon request.”
In TLOA, Congress authorized tribes to sentence above the one-year cap, but only on condition that they (1) afford the defendant “the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution;” (2) provide the defendant with the assistance of an attorney licensed by a jurisdiction that “effectively ensures the competence and professional responsibility of its licensed attorneys;” (3) require the presiding judge to be licensed to practice law and have “sufficient legal training to preside over criminal proceedings;” (4) make their criminal laws and rules publicly available before charging the defendant; and (5) maintain a recording of the trial proceeding.60
All of these requirements are purportedly enforceable through a petition for a writ of habeas corpus in federal court.61

Two of this letter’s signatories have experience in tribal-court criminal litigation in Arizona and New Mexico, and one was a tribe’s Chief Public Defender for six years and currently serves as a tribal judge pro tem. Their experience indicates that tribes still do not respect the restrictions imposed by ICRA, let alone the higher standards set out in TLOA. They report that, even today, some tribes refuse to make the code of laws publicly available, even to tribal members. Tribes impose fines that they know indigent defendants cannot pay and then hold them in contempt for failure to pay. Many tribes have no rules for discovery by defendants of the evidence against them or for disclosure of exculpatory evidence. Most tribes do not provide indigent defendants with funds for experts that are necessary to defend themselves. Moreover, many tribes have effectively eviscerated ICRA’s one-year cap through the practice of “sentence stacking,” i.e., charging defendants with several counts based on the same criminal act, trying them without a lawyer, and imposing sentences in excess of the one-year cap.

62 See Spears v. Red Lake Band of Chippewa Indians, 363 F. Supp. 2d 1176 (D. Minn. 2005) (holding this practice to be unlawful); Miranda v. Anchondo, — F.3d —, 2012 WL 360767 (9th Cir. Feb. 6, 2012) (holding this practice to be lawful).

Here are several specific examples from recent years:
• In 2012 (after the effective date of TLOA), a law-trained tribal judge refused to allow defense counsel to have access to any copy of the tribal criminal code.
• In 2011 (after the effective date of TLOA), a defendant in tribal court was forced to go to trial without legal counsel. He was convicted and sentenced to 2,460 days in detention.
• In 2008, a tribal defendant was tried without a lawyer or a jury, and sentenced to two and a half years in prison, 250% of the ICRA “maximum.”
• In 2009, a tribal public defender was threatened with termination if he filed a habeas corpus petition in federal court on behalf of a client.
• In 2009, a tribe refused to provide its public defender with the names of tribal inmates who were being detained pre-trial.
• In 2012, a seriously mentally ill defendant was in pre-trial detention for more than one year because the tribe refused to pay for a mental health evaluation to determine whether or not he was competent to stand trial.
• In 2003, a tribe informed defense counsel that it would draw jurors only from the tribal council, and since only men were permitted to serve on the tribal council, no women would be eligible to serve on the jury.
• In 2004, a former tribal chairman testified for a defendant. Thereafter, this witness, who had lived on the tribe’s land all of his life, was banished from tribal land, losing his ability to work and to reside with his family on the reservation.
• In 2002-04, when a tribal judge left the bench to report for military duty, a case over which the judge was presiding made no progress until more than a year later when the judge returned. During this entire time, the defendant remained suspended from his employment.
• In 2003, a tribe appointed a former tribal chairman as the judge in a case involving an individual whom the former chairman had fired for the same conduct at issue in the case over which he was presiding.

Proponents of S. 1925 argue that even if tribal courts violate a defendant’s rights under ICRA, the right to a federal habeas corpus petition provides an effective “safety net.” The above examples, all of which occurred while there was a statutory right to federal habeas, show that federal habeas relief is not an effective remedy in practice. There are many reasons why habeas corpus provides a woefully insufficient remedy, including:
• People living on reservations typically have few resources and limited education, and are thus unlikely to understand what habeas corpus relief means or how to pursue it. This problem is not solved even for represented defendants, as many tribal defenders and all non-lawyer tribal “advocates” cannot practice in federal court because they are not licensed by a state or because the tribe’s charter forbids it. Even those who are not precluded from practicing in federal court may fear retaliation from the tribe if they help an inmate file a habeas petition. Indeed, as noted above, one tribal public defender was threatened with termination if he helped a defendant file a petition.

• Defendants must “exhaust” their legal remedies in tribal court before they can proceed with a habeas corpus petition in federal court. Many tribes do not have functioning appellate courts, but may claim that they do because their codes provide for appellate courts, creating an illusory “remedy” that the inmate must “exhaust.” Even when the tribe has a functioning appellate court, the process can take months or even years, such that by the time the inmate “exhausts” his tribal remedies, he has served his sentence, mooting the habeas petition.

• Even under the best of circumstances, habeas corpus is an “after-the-fact” remedy. It can address only one case at a time and provide relief to only a single individual. It cannot undo the unlawful incarceration or related havoc wreaked on a defendant and his or her family, it cannot prevent such problems for occurring again in the future, and it cannot correct systemic problems.

In short, regardless of what Congress might put on paper, many tribes have been unable or unwilling to provide adequate protections to the rights of criminal defendants prosecuted in their courts, and the “remedy” of a federal habeas corpus petition has been largely illusory. Congress should seek to ensure that tribal justice systems are equipped to protect the rights of defendants before subjecting a new category of citizens, who have not consented to be governed by the tribes, to deprivation of their constitutional rights in tribal court. H.R. 4970 gets it right here, S. 1925 does not, and the House should reject any attempt to include these provisions in the final legislation.

Conclusion
In raising these concerns, we do not intend to dispute that the concerns at which H.R. 4970 is directed are serious. We firmly believe, however, that the rights of individual citizens are equally weighty, and deserve equal consideration. We believe that the concerns at which H.R. 4970 is directed can be addressed without unconstitutionally or unnecessarily expanding crimes and punishment in federal court, and without subjecting a new category of citizens to deprivation of constitutional rights in tribal court.

Respectfully,
______________________________________________
Lisa Monet Wayne
President
National Association of Criminal Defense Lawyers
______________________________________________
Tova Indritz
Co-Chair, Native American Justice Committee
National Association of Criminal Defense Lawyers
______________________________________________
Jon M. Sands
Past President and Member of the Board of Directors
National Association of Federal Defenders
______________________________________________
Nicholas A. Fontana
State Representative, Former Tribal Judge Pro Tem, Former Tribal Public Defender
Law Office Of Nicholas Fontana, PLLC
Tucson, AZ

Cc: Members of the United States House of Representatives