concurring in part and dissenting in part.
I concur in the majority’s holdings in sections II and III.A of its opinion that the Fifth Amendment does not require suppression of Doherty’s confession and that the offense-specific nature of the Sixth Amendment right to counsel does not bar application of that Amendment under the circumstances of this case. Unlike the majority, however, I would find that even though the Sixth Amendment does not apply to Indian tribes, the Sixth Amendment right to counsel does apply to the federal government and restricts the actions of federal law enforcement agents following arraignment in a tribal criminal prosecution. Doherty’s tribal court arraignment was an adversary criminal judicial proceeding that triggered the Sixth Amendment right to counsel with respect to the federal government. Since federal law enforcement agents initiated questioning without counsel present after Doherty’s Sixth Amendment right attached and he had requested counsel, the resulting confession should be suppressed.
* * *
The sole Sixth Amendment issue in this case is whether or not the Sixth Amendment right to counsel attaches against the federal government at the time of an Indian tribal court arraignment. Curiously, the majority opinion fails to address this issue directly. In sections III.B and III.C of its opinion, the majority concludes, respectively, (i) that the Sixth Amendment does not apply to questioning by tribal officials and (ii) that, as a matter of statutory interpretation, the Indian Civil Rights Act does not require tribal courts to suppress confessions obtained by tribal officials in violation of that Act. Apparently based on these premises, the majority concludes in section III.D of its opinion that the Sixth Amendment right to counsel did not attach with respect to the federal government at the time of Doherty’s tribal court arraignment. That conclusion, however, does not follow from the majority’s premises and is incorrect.
Sections III.B and III.C of the majority’s opinion address a factual situation that is not before this court: introduction in a tribal court proceeding of a confession obtained by *784Indian tribal officials. The case actually before us involves introduction in a federal criminal proceeding of a confession obtained by federal law enforcement agents. The majority opinion fails to analyze this scenario, and provides no support, either logical or precedential, for the ultimate conclusion that it draws from its irrelevant premises.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” The plain language of the Amendment bars the federal government from infringing defendants’ right to counsel “[i]n all criminal prosecutions”— including tribal prosecutions. This right to counsel attaches “at ... the initiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion)) (emphasis added). Federal agents initiated questioning after Doherty had been arraigned in tribal court and had requested counsel at that proceeding. That questioning violated the Sixth Amendment.
The question of whether or not the Sixth Amendment right to counsel constrains tribal officials has no bearing on this appeal. Although the Supreme Court found in Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896), that the Fifth Amendment does not constrain Indian tribes, that opinion predates the doctrine of “selective incorporation.” Under that doctrine, the Court has held that selected provisions of the Bill of Rights — including the Sixth Amendment right to counsel — are included within the Fourteenth Amendment concept of Due Process and thus constrain state governments. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 343-45, 83 S.Ct. 792, 796-97, 9 L.Ed.2d 799 (1963). Neither the Supreme Court nor this Court has ruled whether or not the doctrine of selective incorporation makes provisions of the Bill of Rights applicable to Indian tribes. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) involved a challenge brought under the Fourteenth Amendment’s Equal Protection Clause and did not directly address the selective incorporation question.
Whether or not selective incorporation applies to Indian tribes, there is no question that the Sixth Amendment constrains the actions of federal law enforcement officers. “The line of authority growing out of Taitón, while exempting Indian tribes from constitutional provisions addressed specifically to State or Federal Governments, of course, does not relieve State and Federal Governments of their obligations to individual Indians under these provisions.” Santa Clara Pueblo, 436 U.S. at 56 n. 7, 98 S.Ct. at 1676 n. 7; see also Duro v. Reina, 495 U.S. 676, 692, 110 S.Ct. 2053, 2063, 109 L.Ed.2d 693 (1990) (“Indians like other citizens are embraced within our Nation’s great solicitude that its citizens be protected ... from unwarranted intrusions on their personal liberty.” (citation and internal quotation marks omitted)).
The Indian Civil Rights Act is also irrelevant to the determination of this case. The question of constitutional interpretation that we face is independent of any statutory construction. As the majority notes in the final paragraph of its opinion, when the Sixth Amendment right to counsel has not attached, no statute can alter that fact. By the same token, once the Sixth Amendment right to counsel has attached, no statute can eviscerate that right. The constitutional issue in this case is thus unaffected by whether or not the Indian Civil Rights Act requires Indian tribes to apply the exclusionary rule and would remain the same even if Congress were to amend or even repeal that Act. Although I have serious concerns about the majority’s interpretation of the Indian Civil Rights Act, that portion of the majority opinion is clearly dicta and therefore requires no further response here.
The majority’s reliance on extradition hearing cases is also misplaced. All of the extradition eases that the majority cites hold that extradition hearings are not adversarial judicial proceedings that trigger the Sixth Amendment. Doherty, however, was arraigned prior to the questioning at issue— which clearly triggers the Sixth Amendment. See, e.g., Gouveia, supra. The extradition hearing eases demonstrate that a statutory right to counsel has no bearing on whether *785or not there is a constitutional right to counsel. These cases further demonstrate the irrelevance of the majority’s discussion of the Indian Civil Rights Act.
The essence of the majority’s holding is that the Bill of Rights does not constrain the behavior of federal officials interceding in Indian tribal proceedings. That holding invites flagrant federal abuse of Indian criminal defendants. Under the majority’s holding, for example, there would be no constitutional violation if federal agents beat a confession out of an Indian defendant and then turned over the confession to tribal prosecutors. That interpretation of the Constitution is simply incorrect. Moreover, although not relevant to the constitutional issue, it is worth noting that such behavior by federal agents, at least if performed on their own initiative rather than at the request of a tribe, would also appear not to violate the Indian Civil Rights Act. That Act provides only that “{ri\o Indian tribe in exercising powers of self-government shall [infringe various rights].” 25 U.S.C. § 1302 (emphasis added).
For all of the foregoing reasons, I would find that Doherty was questioned in violation of his Sixth Amendment right to counsel and that the resulting confession must be suppressed. I therefore dissent from the majority’s contrary holding.