In a historic victory for tribal jurisprudence, the United States Supreme Court today ruled that prior uncounseled tribal court convictions used in subsequent criminal cases does not violate the Constitution when the proceedings were in compliance with the Indian Civil Rights Act. The unanimous decision in U.S. v. Bryant, which was delivered by Justice Ruth Bader Ginsburg, reversed a Ninth Circuit Court decision which held that using uncounseled tribal court convictions was “unconstitutionally impermissible.”
In plain English, today’s decision makes it possible for federal prosecutors to establish “habitual offender” status in domestic violence cases for enhanced sentencing under federal statute.
Noting that this case “is illustrative of the domestic violence problem existing in Indian country,” Justice Ginsburg pointed out that Native women suffer the highest rates of domestic violence in the country, along with high rates of recidivism by their abusers.
“States are unable or unwilling to fill the enforcement gap. Most States lack jurisdiction over crimes committed in Indian country against Indian victims,” wrote Ginsburg. “…Even when capable of exercising jurisdiction, however, States have not devoted their limited criminal justice resources to crimes committed in Indian country.” It is a disparity, she said, which must be addressed by the federal government.
This case arose when Michael Bryant Jr., who was convicted in federal court for assaults on two women, appealed his conviction in the Ninth Circuit on the basis that he didn’t have a lawyer in the cases that resulted in his tribal court convictions. Bryant was found eligible by the U.S. Attorney for “habitual offender” status and was sentenced to 46 months on each count in federal prison.
Bryant is an enrolled member of the Northern Cheyenne Tribe, having pled guilty to charges of domestic abuse in at least five cases in tribal court. Bryant’s lawyers argued that using his prior misdemeanor convictions to prove “habitual offender” status under the Violence Against Women Act (VAWA) violated the Fifth and Sixth Amendment under the Constitution.
In an 8-0 decision, the court ruled that the Sixth Amendment does not apply because, “[as] separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.”
Further, in addressing Bryant’s Fifth Amendment challenge, Ginsburg indicated that the Indian Civil Rights Act (ICRA) also requires tribes to ensure due process of law and accords defendants legal rights and protections “resembling those contained in the Bill of Rights and the Fourteenth Amendment.” As well, she noted that ICRA also makes federal review available to those incarcerated in tribal court, a procedural safeguard already approved by Congress and now affirmed by the Supreme Court.
“Today the Supreme Court affirmed the inherent sovereignty of Tribal Nations to protect their women and children from repeat domestic violence offenders,” said Mary Kathryn Nagle (Cherokee Nation), attorney for the National Indigenous Women’s Resource Center. “Justice Ginsburg’s well-reasoned opinion confirms that a tribe’s exercise of its inherent sovereignty in no way ‘violates’ the Constitution because the tribe’s power existed before, during, and after the United States’ Constitution came into existence.”
“We’re in shock, but very pleased that we have a unanimous decision in favor of the tribes and tribal sovereignty and it will protect the victims of domestic violence in Indian country?of which there are far too many,” said John Echohawk, co-founder of the Native American Rights Fund, which launched the Tribal Supreme Court Project in 2001. “This decision is also important because it recognizes the legitimacy of tribal courts, which is what we are also seeking in Dollar General in regards to tribal civil jurisdiction. We continue to wait on that decision.”
Tim Purdon, a former U.S. attorney for the District of North Dakota who is now co-chair of the American Indian Law and Policy Group at Robins Kaplan LLP, said today’s decision also reaffirms the Eighth Circuit decision in U.S. v. Cavanaugh and will now provide prosecutors with important statutory tools in fighting domestic violence in Indian country.
“The Bryant decision makes the rule in Cavanaugh applicable to all of Indian country and allows U.S. Attorney’s Offices nationwide to use all of a federal defendant’s tribal court domestic violence convictions to establish the federal court domestic violence defendant as a ‘habitual offender’ eligible for enhanced sentences under 18 USC Sec 117,” said Purdon. “[It’s] a victory for Native women and a victory in the fight to reduce domestic violence in reservation communities.
“It means that U.S. Attorneys with responsibilities for public safety in Indian country can make full use of the Habitual Domestic Violence Offender statute to protect American Indian women from those who would commit serial acts of domestic violence against them.”