Page 220 - Ad Hoc Report June 2018
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Attorneys experienced in representing Native people emphasized the importance of establishing a rapport with members of the client’s family.827 An experienced CJA attorney who practices in Indian country noted, “It is difficult to put on a voucher, ‘making client and his family understand I am not a part of the system and I am there to help them.’” 828 Time spent with the family is an invest- ment in establishing a trusting relationship with the client, 829 but many judges do not view it as compensable.
Another challenge is that these cases are not investigated by federal law enforcement like traditional federal cases:
[T]ribal law enforcement and other tribal officials lack training and the results of their investigation and documentation leave much to be desired. This requires more work in investigation of witnesses, scenes and doc- uments than is normally required. This requires a far greater use of out- side experts and investigators than in a normal case. It also requires more attorney time for simple tasks that in other cases are taken for granted.830
This need for more investigation than in the “normal case” is complicated fur- ther by a shortage of qualified investigators with experience working with tribal com- munities.831 All these challenges mean that “reservation cases are resource intensive, i.e., expensive.”832 Given the obstacles confronting CJA panel attorneys receiving funding for cases generally, the current structure puts Native American defendants at greater risk of receiving an underfunded, and consequently, less effective defense.
Professor Barbara Creel of University of New Mexico School of Law recom- mended the following to ensure adequate representation for Native Americans:
1) Parity with the federal prosecution efforts in Indian Country, includ-
ing additional defenders and other personnel, programs and resources; 2) Training in Indian law, including specialized training in the intersections with criminal and constitutional law involved in representing Native American Defendants, and; 3) Cultural literacy in the issues that arise in working
with Tribal Peoples and the Tribal Nations, and; 4) employment of Native American personnel in all aspects of the federal defender organizations.833
Professor Creel makes two additional recommendations. The first is “the
827 DanielScott,CJADist.Rep.,D.Minn.,PublicHearing—Minneapolis,Minn.,Panel5,Writ.Test.,at2. 828 AlexanderReichert,CJADist.Rep.,D.N.D.,PublicHearing—Minneapolis,Minn.,Panel5,Writ.Test.,at3. 829 DanielScott,CJADist.Rep.,D.Minn.,PublicHearing—Minneapolis,Minn.,Panel5,Writ.Test.,at2–3. 830 AlexanderReichert,CJADist.Rep.,D.N.D.,PublicHearing—Minneapolis,Minn.,Panel5,Writ.Test.,at3. 831 TheresaDuncan,CJAPanelAtty.,D.N.M.,PublicHearing—SantaFe,N.M.,Panel4,Writ.Test.,at2. 832 DanielScott,CJADist.Rep.,D.Minn.,PublicHearing—Minneapolis,Minn.,Panel5,Writ.Test.,at3. 833 ProfessorBarbaraCreel,Law&IndigenousPeopleProgram,U.ofNewMexico,Public Hearing—Santa Fe, N.M., Panel 4, Writ. Test., at 1.
No recommendation presented herein represents T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T the policy of the Judicial Conference of the United States unless approved by the Conference itself.

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