Law | Opinion

John Lavelle: Supreme Court weighs key tribal sovereignty issue

Wednesday, February 10, 2016

A view of the U.S. Supreme Court. Photo by Indianz.Com

With the U.S. Supreme Court set to hear US v. Bryant, a case that will determine whether tribal convictions can be used in federal courts, law professor John P. Lavelle, a member of the Santee Sioux Nation, looks at some of the issues at stake:

The Supreme Court is now poised to address a key issue in the debate: whether a tribal court conviction that did not give the Indian defendant representation by a lawyer can be used to increase the sentence when the Indian is later prosecuted on a federal domestic assault charge.
The issue arises because as “domestic dependent nations,” tribes are free from the constraints of the Constitution unless Congress provides otherwise. Congress did so in 1968, passing the Indian Civil Rights Act.
Yet despite later reforms, ICRA still does not require that tribal-court defendants be given government-paid lawyers, a disparity that raises constitutional concerns when federal prosecutors argue these “uncounseled” convictions should be used against Indians later charged with other crimes.
Of course, Congress could fix this problem by funding tribal programs giving defendants adequate legal representation. Such support is part of Congress’s historic “trust responsibility” to Indian tribes.
But until Congress acts, tribal sovereignty and Indian rights remain at stake.

Get the Story:
John P. Lavelle: ‘Uncounseled’ convictions a threat to Indians (The Albuquerque Journal 2/10)

9th Circuit Decisions:
US v. Bryant (July 6, 2015)
US v. Bryant (September 30, 2014)

8th Circuit Decision:
US v. Cavanaugh (July 6, 2011)

10th Circuit Decision:
US v. Shavanaux (July 26, 2011)