Noah Feldman: Supreme Court puts more Indian people in federal prison

A sign at the Northern Cheyenne Tribe's court in Montana. Photo by Northern Cheyenne Tribe

Law professor Noah Feldman analyzes the U.S. Supreme Court decision in US v. Bryant, an Indian Country domestic violence case, arguing that the unanimous ruling will only lead to more Indian defendants ending up in the federal prisons system:
Like the rest of the Constitution, that amendment applies on tribal lands only insofar as it is implemented by the Indian Civil Rights Act of 1968.

Unlike the Sixth Amendment, the Indian civil rights law doesn’t require tribes to provide lawyers for indigent defendants charged with crimes punishable by less than a year in prison. As a result, defendants can be convicted of a misdemeanor – including misdemeanor domestic violence -- in tribal court without ever having the benefit of a lawyer.

That’s problematic for the federal three-strikes law. Two of the strikes can be misdemeanor domestic-violence convictions in tribal court, which may not have involved a legal defense.

The result is that somebody can be convicted of a federal crime based on prior convictions that didn’t satisfy federal constitutional standards.

That wouldn’t be permitted off the reservation. The Supreme Court has held that a conviction obtained in state or federal court without the advice of counsel can’t be used in a future federal trial to “support guilt or innocence of a federal offense.”

Get the Story:
Noah Feldman: Supreme Court Makes Hash of U.S. Tribal Law (Bloomberg View 6/15)

Another Opinion:
Opinion analysis by Amy Howe: No constitutional violation from use of tribal-court convictions as predicate offenses (SCOTUSBlog 6/13)

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)

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