On June 13, 2016 in its decision on U.S. v. Bryant, the Supreme Court held that uncounseled tribal court convictions that are compliant with the Indian Civil Rights Act (ICRA), are predicate offenses under the Indian Country domestic assault habitual offender statute. 18 U.S.C. §117(a). Section 117(a) was enacted in response to the deplorably high rates of domestic violence against Native American women. It provides that any person who commits domestic assault in Indian Country and has two prior domestic violence convictions in federal, state, or tribal court can be subject to federal fines, prison, or both.
Defendant, Michael Bryant, a Northern Cheyenne tribal member, argued that federal prosecution under 117(a) using prior uncounseled tribal court convictions carrying prison sentences as predicate offenses flied in the face of the Sixth Amendment right to counsel. However, the defendant did not challenge the reliability of the tribal court convictions themselves, conceding that the uncounseled charges could be used if the tribal courts imposed a fine instead of a prison sentence. Essentially, Bryant argued that if he was to be prosecuted for a federal crime, then constitutional protections should apply, and the uncounseled tribal court convictions cannot be used against him.
The Supreme Court disagreed. In the Supreme Court's view, Bryant was being punished for recently committed assaults, and not his previous crimes. Thus, Bryant was represented by a lawyer in this case in comport with the Sixth Amendment. The uncounseled tribal convictions were valid (i.e., ICRA compliant) and thus were able to serve as predicate offenses for 117(a) prosecution.
So, why is this a win-lose situation?
WIN: Bryant seems to be the target of 117(a), a habitual domestic assault offender. Bryant has over 100 convictions in tribal court, with at least 5 for domestic abuse. The affirmation of his previous tribal court domestic assault convictions serves 117(a)'s intent to protect Native American women. Native women are raped or sexually assaulted at 2.5 times of U.S. women in general and as many as 46% experience physical violence by an intimate partner.
LOSE: Who is most likely to appear uncounseled in tribal courts? Indians. This is due to limited tribal criminal jurisdiction and lack of funding for and/or prioritization by Tribal Nations to provide defense counsel. At the end of the day, the Supreme Court's decision can be viewed as one that forfeits constitutional protections for Native American defendants.
Heather Torres (San Ildefonso Pueblo, Navajo) is a rising 3L enrolled in the Critical Race Studies specialization at the University of California, Los Angeles School of Law. Heather is an Executive Editor for the Indigenous Peoples' Journal of Law, Culture & Resistance at UCLA. She is a recipient of the 2016 Procopio Native American Internship.
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