Court decision is a victory for tribal sovereignty
Published June 15, 2016
WASHINGTON – The United States Supreme Court ruled in favor of tribal courts on Monday, June 13, 2016, in United States v. Bryant (US v Bryant, 15-420) and thus confirmed that tribal court misdemeanor convictions made without counsel in domestic violence cases can be used in federal and state court for repeat defenders.
“We deeply appreciate this confirmation of tribal legal rights and jurisdiction,” said Fawn Sharp, President of the Quinault Indian Nation and of the Affiliated Tribes of Northwest Indians, and Vice President of the National Congress of American Indians. “People need to know that tribal governments consider the issue of violence against women or anyone else on our reservations a top priority issue,” she said.
“Over the years, our Indian women have suffered ten times the overall murder rate. More than one-third of our tribal women have been raped. It is critically important for tribes to have the unquestioned authority to make arrests and conduct the prosecutions necessary to stop these egregious injustices, whether they are perpetrated by tribal members or not,” she said, adding that most such crimes and misdemeanors are committed by non-Indian men against Indian women on reservations.
The VAWA Reauthorization Act, which had been signed into law by President Barack Obama in March of 2013 included tribal language which enabled tribal courts to prosecute crimes against women, including domestic violence, sexual assault and trafficking. The new law provided protections for gays and lesbians as well as Native American women on tribal lands who are attacked or abused by non-tribal residents.
Upon signing that bill into law, President Obama had said to tribes, “This is a country where everybody should be able to pursue their own measure of happiness and live their lives free from fear. That’s got to be our priority. That’s what today is about. This is your day. This is the day of the advocates, the day of the survivors. This is your victory,” he said.
The Bryant case began in 2011 when defendant Michael Bryant, Jr. was convicted for assaults on two women. Bryant had pled guilty to charges of domestic abuse in at least five previous cases in tribal court. Based on Bryant’s extensive criminal tribal court record, he was found eligible by the U.S. Attorney for “Habitual Offender” status and was indicted in federal district court on the Northern Cheyenne Reservation in Montana. After he was sentenced to 46 months on each count in federal prison, he appealed to the Ninth Circuit to have his federal indictment dismissed on the grounds that, in essence, his tribal court convictions should not be counted against him because he pled guilty without a lawyer. Bryant had also argued that using his prior misdemeanor convictions to prove “habitual offender” status under VAWA violated the Fifth and Sixth Amendments under the US Constitution.
In September 2014, the Ninth Circuit Court of Appeals in Portland, Oregon, agreed with Bryant and reversed his indictment.
The US Department of Justice appealed the Ninth Circuit decision to the Supreme Court, which heard arguments on April 19, 2016. Making the U.S. government’s case, Elizabeth Prelogar, assistant to the Solicitor General, stated, “The Ninth Circuit was wrong to strike down the statute as applied to offenders like [Michael Bryant] who have abused and battered their intimate partners again and again, but whose tribal court misdemeanor convictions were uncounseled and resulted in a sentence of imprisonment. The Ninth Circuit’s constitutional analysis disconnects the validity of the underlying prior conviction from the permissibility of relying on those convictions to prove the defendant’s recidivist status if he commits additional criminal conduct. And that runs counter to this Court’s precedents.”
“I think it is important to recognize that [Bryant] had it entirely within his power to not have a Federal court consider these prior tribal court convictions. If he didn’t want that to occur, then what he should have done is stop abusing his domestic partners. But because he didn’t learn from those prior tribal convictions, because he kept battering women in Indian Country and contributed to that epidemic of domestic violence, I don’t think he should be heard to complain that he’s being prosecuted under [the law]. Arguing that tribal court convictions should be treated as if they don’t exist for the purposes of prosecution under federal law, Bryant would have a negative impact on tribal courts seeking to protect Native women from repeat offenders and escalating violence,” said Prelogar.
On Monday, the Supreme Court unanimously agreed, ruling that the Indian Civil Rights Act (ICRA) supports the reliability of tribal court convictions. The ruling stated that there was no denial of due process in the Bryant case, no violation of the defendant’s rights and no denial of the right to counsel. The Supreme Court ruling also concurred with the Justice Department’s arguments that under ICRA defendants have the right to hire their own attorneys in tribal court but are not guaranteed that one will be retained by the court for them.
“We have long held, the Bill of Rights, including the Sixth Amendment, does not govern tribal-court proceedings,” said Justice Ruth Ginsburg.
“Justice Ginsburg’s well reasoned majority opinion is a victory for Native women and the Tribal Governments who seek to protect them. Native women suffer from the highest rates of abuse and assault in the United States. Today’s opinion affirms the inherent right of Tribal Nations to protect their women,” commented Mary Kathryn Nagle, an attorney with Pipestem Law.
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