Barbara Creel has posted “The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative,” published in the Michigan Journal of Race & Law (my law school journal!), on SSRN. Here is the abstract:
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’s 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.
Highly recommended!
Turtle Talk 
Respectfully, this article should be labeled Pre-TLOA, or qualified as to certain areas of Indian Country. Tribes are providing defense counsel & conflict counsel, at their expense, especially after TLOA. For example, the Pascua Yaqui Tribe has provided defense counsel (licensed attorneys) for more than a decade. Our Code guarantees counsel to any person facing any amount of jail time. We also employ a cadre of contracted defense counsel who have years of experience as defense attorneys, at the Tribe’s expense. In fact, at this point, the defense bar at PYT, (especially when considering private defense attorneys), easily outnumber the number of prosecutors. That could also be said for most Tribes in Arizona, although the set-ups would certainly vary.
This is great news Mr. Urbina! The article is focused on the tribes that do not so and/or cannot afford to do so. Terrific article. I strongly recommend it for the historical context and the excellent legal analysis!
Prior to the Tribal Law and Order Act which clarified the need for counsel for enhanced sentencing – Tribes routinely attempted to stack sentences on tribal convictions to give Indian defendants lengthy sentences without any counsel – retained or appointed.
Unfortunately, examples of these sentences are found in Miranda v. Nielson, in which a PYT tribal member received a two and 1/2 year sentence. According to the briefing before the Ninth Circuit, Ms. Miranda represented herself at the trial, at which she raised no objections, made no opening statement or closing argument, examined no witnesses, and presented no defenses. In Bustamante v. Nielsen, Mr. Bustamante pleaded guilty to Counts 1, 2, and 4 without counsel in the PYT tribal court.
https://turtletalk.wordpress.com/2010/11/16/prisoner-response-brief-in-miranda-v-nielson-ninth-circuit/
https://turtletalk.wordpress.com/2010/09/11/opening-brief-in-second-ninth-circuit-tribal-court-consecutive-sentencing-case/