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Am. Indian L. Rev.


Part I of this article is a history and analysis of the federal constitutional right to effective assistance of counsel. It explains how federal ineffective assistance of counsel jurisprudence has developed almost exclusively in the context of federal habeas review of state court convictions and rendered most federal ineffective assistance of counsel claims unviable. Part II explains the right to counsel in tribal court and the habeas corpus remedy available to tribal prisoners under ICRA. Part III identifies issues that will need to be addressed now that Congress has created a statutory ineffective assistance of counsel claim for tribal prisoners tied to the federal constitutional standard and subject to federal habeas review under ICRA. I conclude that by creating a right to effective assistance of counsel for TLOA and VAWA 2013 tribal court defendants and specifying that it must be "at least equal to that guaranteed by the U.S. Constitution," Congress has unequivocally bound federal court habeas review of tribal prisoners' ineffective assistance of counsel claims to the Strickland analysis.28 at change, I submit, will make most tribal prisoner ineffective assistance of counsel claims a foregone conclusion, as is the case for Strickland claims brought by state prisoners in federal habeas review. To resolve any ambiguities on this point, I propose that Congress take the next logical step and require federal courts to extend tribal court dispositions of tribal prisoners' claims the same high level of deference federal courts are currently required to extend to state court determinations on habeas review. Absent this safeguard, ICRA's new right to effective assistance of counsel can easily and unwittingly become a vehicle for unwarranted heightened scrutiny and micromanagement of tribal court proceedings by federal courts.