The Violence Against Women Act, which President Barack Obama signed into law n March 7, allows some domestic violence cases against non-Native Americans to be tried in tribal courts.
That means some of those defendants could be represented by tribally licensed attorneys with different qualifications, which they may not want.
To become an attorney in the United States, aspiring lawyers must attend law school and pass their state's bar exam, a test given to all law students measuring their proficiency in the practice of law.
On the Navajo Nation, aspiring attorneys can go one of two ways Ð graduate from a traditional law school, or graduate from a two-year certification program at a community college or state school. If they choose the latter option, they are called "advocates," though their role is nearly identical to an attorney's.
Either way, candidates must pass the Navajo Nation bar exam before they can practice in tribal courts.
Still, some within the Navajo Nation justice system are questioning whether law school should be required, or at least recommended, for all lawyers working in the tribe's courts.
While tribally licensed attorneys are readily available, some argue that because many of them did not go to law school, they will not be in demand for these cases. Those who did go to law school will be in high
"We're already seriously understaffed," said Kathy Bowman, director of the Navajo Nation Office of the Public Defender.
Bowman argues that the system is not equipped for the cases that are about to hit it. Others disagree, however, and argue that this is something the courts have been ready for, and are prepared to take on.
Mary Modrich-Alvarado, a Navajo Nation Bar Association board member graduated from law school, and she believes the majority of the "several hundred" Navajo Nation Bar Association members did the same.
However, the association did not provide any numbers reflecting what portion of their members had gone through law school.
Regardless of the number of qualified attorneys, the act, which broadly addresses domestic-violence situations, is expected to improve the chances that Native American victims of domestic violence will have their day in court.
Prior, domestic violence crimes committed by non-Native Americans against Native Americans were prosecuted in federal court, though with little efficiency.
Federal prosecutors declined to file charges for more than 50 percent of the cases they received in regards to violence on reservations, according to a 2010 report from the U.S. Government Accountability Office. About 46 percent of the assault cases they received were declined, and 67 percent of sexual abuse cases were declined.
"It's a decision that needed to be made," said Melissa Tatum, director of Indigenous Peoples Law and Policy Program at the University of Arizona James E. Rogers College of Law. "The feds just don't have the resources."
Federal prosecutors are better equipped for larger, more complicated cases, rather than a slew of local cases that often require knowledge of tribal law, Tatum said.
While physical and sexual abuse are not "run of the mill" issues, Tatum said, the cases need to stay in the area where defendants and plaintiffs alive. As the system is now, those involved, including the witnesses, have a hard time traveling to federal courts in the larger cities -- many of the cities quite far from the reservations.
As for the concerns about whether the tribally licensed attorneys can best represent their clients without a law-school degree, that should not be an issue, Tatum said.
"I do understand the initial feeling that a state-licensed attorney might be more qualified," Tatum said. "The Navajo Nation has one of the most rigorous bar exams."
Tatum argued that tribally licensed attorneys may even be more apt to win cases in the tribal courts simply because they better know tribal laws, whereas state-licensed attorneys may be citing irrelevant material.
"They can do as much harm," she said of state-licensed attorneys. "What's important is to have attorneys that are experienced in criminal cases."
Jenny Kane can be reached at email@example.com; 505-564-4636. Follow her on Twitter @Jenny_Kane