Yesterday, the Supreme Court issued a decision in United States v. Bryant, resolving a circuit split to hold that tribal-court convictions for domestic violence may be used as predicate offenses for the federal felony offense of "domestic assault in Indian country by a habitual offender," even where the defendant did not have counsel or the right to counsel in the tribal court proceeding. This enhances the effectiveness of tribal and federal law enforcement efforts to combat domestic violence.
Responding to the epidemic of domestic violence against American Indian women, Congress in 2005 enacted a felony offense of "domestic assault in Indian country by a habitual offender." 18 U. S. C. § 117(a). Under this law, tribal-court convictions for domestic violence crimes may serve as predicates for the new federal felony offense. The Court yesterday addressed the question of whether tribal-court convictions may be used as predicate offenses even if the defendant did not have counsel, or the right to counsel, in the tribal court proceedings. The right to counsel in tribal court proceedings is governed by the Indian Civil Rights Act of 1968 (ICRA), which guarantees to tribal-court defendants rights similar, but not identical, to those in the United States Constitution. Notably, ICRA provides indigent defendants with a right to appointed counsel only for sentences exceeding one year—similar, but not coextensive with the Sixth Amendment right to counsel.
With multiple convictions for domestic assault in the Northern Cheyenne Tribal Court, Respondent Michael Bryant, Jr., was charged with two counts of "domestic assault by a habitual offender," in violation of §117(a). Represented by counsel, he argued that the right to counsel under the Sixth Amendment to the U.S. Constitution precluded use of his prior, uncounseled, tribal-court misdemeanor convictions to satisfy the predicate-offense requirement. However, the prior tribal-court convictions complied with the right-to-counsel provisions of ICRA, and were therefore valid when entered. The Supreme Court held that “Bryant’s tribal-court convictions did not violate the Sixth Amendment when obtained [because it did not apply to those proceedings], and they retain their validity when invoked in a §117(a) prosecution.”
This is a major victory for efforts to combat domestic violence in Indian country. Though the Court’s decision turned on a straightforward application of ICRA, the Court observed the severity of the problem, citing, among others, a study from the Centers for Disease Control finding that as many as 46% of American Indian and Alaska Native women have been victims of physical violence by an intimate partner, and noting the high rate of recidivism for offenders. The jurisdictional complexities of prosecution in Indian country and the challenges of mustering law enforcement resources for those prosecutions have long stood as obstacles to effectively combatting the problem. The Court’s decision is progress.
With Dollar General Corp. v. Mississippi Band of Choctaw Indians still pending, it may be tempting to view yesterday’s decision as indicative of respect for tribal court procedure and signaling that the Court will find for the Tribe in that case. The Court’s decision does not necessarily justify such optimism. The Bryant decision involves a straightforward application of ICRA, and is not based on any finding regarding the jurisdiction or competency of tribal courts in general. It is noteworthy that Justice Thomas repeats in his separate concurrence, not joined by any other Justices, his previously-stated skepticism of the Court “treating all Indian tribes as an undifferentiated mass” in its Indian law jurisprudence.