Connie Black Bear-Brushbreaker, a member of the Rosebud Sioux Tribe of South Dakota, performs an honor song for Native women at the U.S. Supreme Court on December 7, 2015. Also pictured is Chief Arvol Looking Horse. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Law | National

Supreme Court upholds use of tribal convictions in federal system

Monday, June 13, 2016

The U.S. Supreme Court issued another Indian law decision on Monday, confirming that tribal convictions can be used against repeat domestic violence offenders.

The ruling in US v. Bryant was unanimous. It resolves a split that had arisen in the lower courts and it ensures that Native women in all states can be protected by a federal law that was written to address high rates of violence in tribal communities.

The decision from Justice Ruth Bader Ginsburg in fact laid out the statistics familiar in Indian Country. Native women are 2.5 times more likely to be sexually assaulted than other women and nearly half have suffered physical violence by an intimate partner, she noted, citing federal data on the issue.

"States are unable or unwilling to fill the enforcement gap," Ginsburg wrote. "Most states lack jurisdiction over crimes committed in Indian country against Indian victims."

Indianz.Com SoundCloud: U.S. Supreme Court Oral Argument in United States v. Bryant

By recognizing tribal convictions, Congress has offered some measure of justice for Native women, she continued. A provision, known as 18 U.S.C. § 117, treats offenders as "habitual" if they have two or more convictions in federal, state of tribal courts.

But a split arose when the 9th Circuit Court of Appeals concluded that the use of tribal convictions violated a defendant's right to an attorney under the Sixth Amendment to the U.S. Constitution. That holding conflicted with the 8th Circuit Court of Appeals and the 10th Circuit Court of Appeals, leaving Native women in a large number of states -- including California and Washington -- without the same protections as their counterparts.

The Supreme Court's decision resolves that split in favor of a view advanced by Native women, their advocates and the Obama administration. Since tribes are "separate sovereigns" that fall outside of the U.S. Constitution, their court systems are not bound by those same requirements, Ginsburg wrote for the majority.

"The Bill of Rights, including the Sixth Amendment right to counsel, therefore, does not apply in tribal-court proceedings," the decision stated.

A sign at the Northern Cheyenne Tribe's court. Photo: Northern Cheyenne Tribe

At the same time, the court noted that Congress "accorded a range of procedural safeguards to tribal-court defendants" under the Indian Civil Rights Act. Newer laws, including the Tribal Law and Order Act of 2010 and the Violence Against Women Act of 2013, expand on that premise by recognizing expanded tribal sentencing and jurisdiction over non-Indians, provided that tribal courts protect the rights of defendants.

"As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of §117(a), faced at most a year’s imprisonment per offense—a sentence insufficient to deter repeated and escalating abuse," Ginsburg wrote of the federal law at issue in the case. "To ratchet up the punishment of serial offenders, Congress created the federal felony offense of domestic assault in Indian country by a habitual offender."

But while the decision was unanimous, Justice Clarence Thomas once again took pains to separate himself from the Supreme Court's Indian law precedents. As he did last week in an unrelated case where "inherent" tribal sovereignty was discussed at length, he said the decision rests on the legal "fiction" that Congress has "plenary" authority over Indian affairs.

"Indian tribes have varied origins, discrete treaties with the United States, and different patterns of assimilation and conquest," Thomas wrote in an opinion that was labeled as a concurrence. "In light of the tribes’ distinct histories, it strains credulity to assume that all tribes necessarily retained the sovereign prerogative of prosecuting their own members. And by treating all tribes as possessing an identical quantum of sovereignty, the Court’s precedents have made it all but impossible to understand the ultimate source of each tribe’s sovereignty and whether it endures."

"Congress’ purported plenary power over Indian tribes rests on even shakier foundations. No enumerated power— not Congress’ power to 'regulate Commerce . . . with Indian Tribes,' not the Senate’s role in approving treaties, nor anything else—gives Congress such sweeping authority,' Thomas continued.

Oral arguments were heard on April 19 so the Supreme Court's decision came after 55 days. That falls in line with rulings in other Indian law cases from the current term: 55 days for Menominee Indian Tribe of Wisconsin v. US, a contract support costs dispute, and 62 days for Nebraska v. Parker, a reservation diminishment case affecting the Omaha Tribe.

In contrast, the justices have yet to issue a decision in Dollar General Corporation v. Mississippi Band of Choctaw Indians, the oldest case on the docket. Oral arguments were heard on December 7, 2015.

Additional opinions are expected to be issued on Thursday so it's possible a ruling could come this week.

Supreme Court Decision:
US v. Bryant (June 13, 2016)

Supreme Court Documents:
Oral Argument Transcript | Docket Sheet No. 15-420: US v. Bryant | Question Presented

8th Circuit Decisions:
US v Harlan (February 16, 2016)
US v. Cavanaugh (July 6, 2011)

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

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