GM 13-042

Legal Services Corporation Seeks Input on Expanded Tribal Criminal Authority and Effect on Criminal Defendants' Right to Counsel

The Legal Services Corporation (LSC) is asking for information on how tribes are addressing their expanded criminal authority under both the Tribal Law and Order Act of 2010 (TLOA) and the Violence Against Women Reauthorization Act (VAWA). The LSC is a non-profit agency established by Congress to provide legal services to low-income individuals through grants to local legal aid groups. While the LSC generally only provides aid for civil cases, Congress previously allowed LSC to aid defendants charged with misdemeanors or lesser offenses in tribal courts as well. A provision in the TLOA expanded LSC’s authority to provide aid to defendants in all criminal cases in tribal courts. This aid may help tribes defer the cost of providing legal representation required for certain types of criminal prosecutions under authority recognized in the TLOA and VAWA.

The LSC’s expanded authority comes along with new tribal authorities to impose longer jail sentences under the TLOA, and to prosecute certain non-Indians under VAWA for certain domestic and dating violence offenses involving an Indian and occurring on Indian land. Part of the criteria that tribes must meet to exercise these authorities is to ensure that criminal defendants have the right to “effective assistance of counsel at least equal to that guaranteed by the U.S. Constitution,” and to provide, at the tribe’s expense, a licensed defense attorney to defendants if they are too poor to pay for a lawyer.

Aid through the LSC and its grantees can be used to provide such counsel. Tribal entities such as tribal public defenders or similar offices qualify for LSC grants to use this funding, or tribes may appoint an LSC grantee to represent a criminal defendant in a tribal court proceeding. For example, in 2011, the LSC served over 23,000 Native American clients, a figure which is expected to rise with new tribal authorities. Accordingly, the LSC is requesting information from tribes and others with expertise in areas including criminal proceedings in tribal courts, the effects of TLOA and VAWA on tribes, and appointing counsel for defendants in tribal courts. This information will be used for upcoming rulemaking by the LSC to implement its expanded authority.

LSC is asking six basic questions of respondents:
1. If they represent criminal defendants in tribal courts, and if they have a policy to decline representation if not;
2. If they anticipate representing criminal defendants in tribal courts in the future and their proposed policies—if any—for taking or declining representation;
3. If they have seen an increase in the requests for assistance in criminal matters before tribal courts as a result of the TLOA and VAWA;
4. If they have actually increased the number of representations in tribal courts as a result of the TLOA and VAWA;
5. If they have actually been appointed by a tribal court to represent a criminal defendant as a result of the TLOA and VAWA; and
6. Any other information about changes in tribal courts that will affect them and the use of LSC funds.

Funds from LSC may enable a tribe to provide defense representation to criminal defendants that it would otherwise be unable to provide, and could therefore help tribes meet the requirements for exercising expanded jurisdiction under TLOA and VAWA. Although many tribes may not yet be exercising enhanced sentencing authority under the TLOA or special domestic violence criminal jurisdiction under VAWA, tribes may be developing new laws and procedures to exercise these authorities in the future. Thus, in order for LSC to understand the future needs associated with the exercise of these tribal authorities, it is very important for tribes, tribal courts, tribal prosecutors, tribal defenders, and others with experience with criminal proceedings in tribal court to respond to LSC’s request for information, even if they do not currently receive LSC funding. Please forward this memorandum to any parties who could respond with tribal experience.

The LSC must receive comments by August 23, 2013, preferably via e-mail to For more information from LSC, please contact Atitaya Rok at (202) 295-1500. A copy of this notice is attached to this memorandum, and is available at

If we may be of further assistance regarding the Legal Services Corporation’s request for information on tribal criminal authority, please contact us at the information below.