Training Tribal Lay Advocates at Sitting Bull CollegeNov 8th, 2015 | By W.L. Shelley | Category: 27-2: American Indian Law, Advice for Educators
Considering the unique legal and historical context of tribal legal systems, it is somewhat surprising that only three tribal colleges or universities (TCUs) in the United States offer lay advocate certificates or degrees. Sitting Bull College (SBC) is one of these institutions. Established in 2011, the college’s Associate of Applied Science (A.A.S.) lay advocate/ paralegal program was devised as a necessary complement to the newly restructured Associate of Science (A.S.) criminal justice program.
SBC’s mission statement reads: “Guided by Lakota/ Dakota culture, values, and language, the college is committed to building intellectual capital through academic, career and technical education, and promoting economic and social development.” In accordance with these principles, all courses under the SBC criminal justice umbrella relate to Native American, and more specifically, Lakota/Dakota culture and legal processes. In many cases, the concepts, principles, and methods that the program addresses are universally applicable to Anglo-American and tribal criminal justice systems. However, there are significant differences between the requirements of tribal law and custom, and local, state, and federal law. Accordingly, legal provisions and principles specific to tribal contexts are emphasized and explored. In addition, the program seeks to examine in detail the legal applications relevant to Native culture and sensibilities, such as the Indian Child Welfare Act, the Indian Civil Rights Act, and the Major Crimes Act. Many courses specifically examine the Standing Rock Tribal Code.
Three primary factors served as the impetus for creating SBC’s lay advocate/paralegal program. First, federal courts have consistently found that under the doctrine of tribal sovereignty, the U.S. Constitution and its Bill of Rights’ procedural guarantees are not binding on tribal governments (Talton v. Mayes, 1896). To address this issue, the U.S. Congress passed the Indian Civil Rights Act (1968) to ensure certain rights to people subject to tribal jurisdictions. However, many tribal governments protested that the economic burden of supplying counsel to criminal defendants at tribal expense would encumber the administration of justice in tribal courts. Consequently, the Indian Civil Rights Act specifically prohibits any “Indian tribe in exercising powers of self-government” from denying “any person in a criminal preceding the right … at his own expense to have the assistance of counsel for his defense [italics added]” (S.R. 25 U.S.C. § 1302, 1968).
Although the Standing Rock tribe’s legal code does provide for a tribal public defender who is bound to “without charge, represent persons accused of crimes in Tribal Court,” in practice it would be impossible for the tribal public defender—even with the help of the two current lay advocate assistants—to represent every criminal defendant who comes before the tribal criminal court, not to mention civil court (S.R. S.T.C.O.J. § 1-513, 2015).
The cultural implications of this issue are equally significant. Lakota/Dakota custom allowed for a tribal member involved in a dispute to be represented at council by a peer. Therefore the provision that gives a lay advocate the power to represent the interests of a tribal member in a legal dispute also conforms to tribal tradition (W.P. Zuger, personal communication, March 9, 2011). Accordingly, the stated mission of the lay advocate/paralegal program is to respect this tradition and to conform to constitutional, legal, and procedural standards by providing the necessary skills, knowledge, and ethical foundation to prepare graduates to practice as lay advocates in tribal courts.
The second precipitating factor in creating the lay advocate/paralegal program is contained in section 1- 601(b) of the Standing Rock Sioux Tribe Code of Justice (2015), which specifically states that graduates of the SBC lay advocate program “shall be admitted to practice” as lay advocates in the tribal court. The inclusion of SBC as a provider of lay advocate training indicates that tribal officials deemed the program a necessary and expected part of the services the college provides to the community. Moreover, under the training regimens that existed at the time the program was created, most advocates in the Standing Rock courts received a maximum of 40 hours of instruction in courses ranging up to two weeks in duration. As a result, the prevailing opinion among court officials was that extant programs generally lacked the breadth, depth, and intensity of the training needed to effectively represent tribal constituents. SBC saw a genuine need for additional and better trained advocates in the Standing Rock Court.
SBC’s 65-hour lay advocate/paralegal program shares two course outcomes with the college’s 70-hour criminal justice program. The first is that students will gain a working knowledge of the constitutional and legal foundations of American law. The second is that students will gain an understanding of the powers and limitations of Indian law based on federal law and legal precedent. The respective third outcomes differentiate program content and intent. Whereas the A.S. criminal justice program seeks to foster a basic understanding of deviant behavior, the A.A.S. lay advocate/ paralegal program seeks to give students a foundation in both civil and criminal law that is sufficient to gain entry-level employment as a lay advocate or paralegal.
There are several courses that are offered in both programs, including Introduction to Criminal Justice, Interviewing and Interrogation, Indian Law, Criminal Procedure, Introduction to American Courts, Criminal Law, Criminal Evidence, and Ethics in Criminal Justice. Additional core requirements for the A.S. criminal justice program include Survey of Forensic Sciences and Criminology, as well as a choice of one elective that corresponds to the student’s individual interests and future career path. Additional core requirements for the A.A.S. lay advocate/paralegal program include Composition II; Family Law; Will, Probate, and Property Law; Legal Research, Writing, and Case Analysis; Contracts and Torts; and Trial Techniques.
A course in Indian law serves as the cultural cornerstone for both the A.S. and A.A.S. programs. The course explores the cultural roots of social control and dispute resolution within Lakota/Dakota culture, and throughout Indian Country in general, while also exploring the similarities and significant differences between the American criminal justice system and the historical development of the often complex interrelationships between state, federal, and tribal law. It should also be noted that adjunct instructors in both programs, who almost exclusively have been career practitioners in Lakota/Dakota courts, are uniquely and inherently qualified to discuss aspects of Lakota/Dakota legal process from an intimately experiential perspective.
SBC’s lay advocate/paralegal program helps devise meaningful solutions to problems that have plagued American Indian communities, while embracing the traditional values and customs of Native cultures. Due to the high poverty rates throughout Indian Country, access to low-cost legal assistance is of value to the Standing Rock community, as is the creation of new employment opportunities for program graduates. The availability of greater numbers of qualified lay advocates expands access to legal counsel for criminal defendants and civil litigants, particularly in custody and juvenile cases. A greater number of available advocates also helps attenuate the burdensome workload of tribal public defenders. Finally, SBC’s lay advocate/paralegal program draws students from other reservations to the college, since the training is transferable, with minor adjustments, to any tribal court. Accordingly, the program has the potential to provide grassroots level legal expertise to other tribal communities.
Program statistics demonstrate both A.S. and A.A.S. program graduates contribute to building intellectual capital and promote economic and social development by living and working in Lakota/Dakota communities and serving in various public safety capacities. A.S. program graduates have taken positions with the Standing Rock tribal police, the probation and parole department, and the corrections department. Others have found employment with child protective services, tribal security, and in private business.
Alternatively, some graduates have used their associate degrees as a foundation for pursuing further education. For example, two graduates have earned degrees from the Lakota Language Education Action Program with the intention of working as Lakota language teachers. Two others are pursuing bachelor’s degrees in general studies, and another in Native American studies.
SBC’s lay advocate/paralegal program has great promise. Recent graduates have found employment with the Standing Rock tribe in lay advocacy and court administration. These placements attest not only to the need for qualified practitioners in tribal communities, but also to the viability of the program to produce competent and productive professionals. Ultimately, however, these modest achievements demonstrate the challenges of establishing such a program. While daunting, the lay advocate/paralegal program can help forge strong relationships between the college and the criminal justice community.
W.L. Shelley, Ph.D., is director of the Criminal Justice Department at Sitting Bull College.
Indian Civil Rights Act, 25 United States Code §§ 1301-03 (1968).
Standing Rock Sioux Tribe Code of Justice, Title I, § 1-513, 2015.
Standing Rock Sioux Tribe Code of Justice, Title I, § 1-601(b), 2015.
Talton v. Mayes, 163 U.S. 376 (1896).