Native Unit Defends Clients in the Passamaquoddy Tribal Court

Submitted by dave mallon on Wed, 07/25/2012 - 07:15
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Under a federal grant I am providing free criminal representation to adult and juvenile defendants – only in the Passamaquoddy Tribal Court at Indian Township and Pleasant Point. I am now part of the regular appointment rotation, along with several local private attorneys.  The court appoints attorneys only when there is a chance that a jail sentence will be imposed. However, Pine Tree Legal can help defendants who are not eligible for court appointed counsel. Such cases might include first offenses and minor offenses. Those cases can have serious consequences even though no jail time is involved. Any person who is charged with an offense in the Tribal Court can request assistance from Pine Tree Legal Assistance. However, they will still need to meet the income eligibility guidelines that apply to all of our cases.

In Pine Tree’s representation of criminal defendants in Tribal Court, some interesting questions have come up:

Courthouse Drug Tests by the Pleasant Point Police

During at least one court session this year, several people who voluntarily appeared for court hearings were tested for drugs and flunked. Some people have been jailed as the result of these tests.  Pine Tree Legal has objected to “fish-in-a-barrel” drug testing at the court. It is humiliating and it creates an "underclass" of tribal citizens who admittedly struggle with drug problems. It may also violate due process under the Indian Civil Rights Act. Besides, is it fair to impose drug tests when people voluntarily show up for their court dates? If they do not show up for court, warrants will be issued. The tribal prosecutor has agreed to review these concerns.

Violation of Bail Conditions

Another issue is whether the Tribe can or should charge defendants for separate crimes when they violate a bail condition (such as no possession of alcohol). Is the Tribe bound by the State law that makes a bail violation a separate crime? Or are bail issues within the Tribal Court’s exclusive jurisdiction under the Maine Implementing Act? It seems to be unfair and questionable social policy for a Tribe to charge its members with a series of misdemeanors for minor bail violations. The underlying offense may have been another bail violation. In some cases, the only crime other than a bail violation may have been in the distant past.

Other issues related to bail conditions:

Where was the crime committed?

Another question about new criminal charges for bail violations based on drug tests:  Is the prosecutor required to prove that the drugs were used on the Reservation?  The Tribal Court does not have jurisdiction over crimes that are not committed on the Reservation.

Burden of Proof

Is a drug test by itself enough evidence to prove criminal "possession" of a drug beyond a reasonable doubt?  Courts in several states have said no. Some others have said yes. Our research so far has not found anything in Passamaquoddy or Maine law that defines possession in a way that could reasonably include the mere presence of traces of a drug in one's body. The basic idea of criminal "possession" is that it is tied to the current or future use of a substance, not something that was consumed in the past.

These issues are not being raised as “technicalities” to help guilty people avoid the law. They are being raised because Pleasant Point and other tribal communities have difficult problems with drug and alcohol abuse. It is appropriate to ask whether the current practices of the police and the court are the best ways to address those serious community problems in the continued representation of criminal defendant clients.

EDITOR’S NOTE: The Native Unit is helping criminal defendants only in Passamaquoddy Tribal courts. This is because of as special grant. Otherwise, Pine Tree and the Native Unit do not have the resources to help people charged with crimes in other courts at this time.