9th Circuit divided on tribal convictions in domestic violence cases

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

The use of tribal convictions in domestic violence cases could be headed to the U.S. Supreme Court after a group of judges expressed sharply divided opinions on the subject on Monday.

Federal law, under 18 U.S.C. § 117, recognizes the use of "Indian tribal court proceedings" in order to punish repeat offenders. The 8th Circuit Court of Appeals and the 10th Circuit Court of Appeals have upheld the provision in separate decisions.

The 9th Circuit Court of Appeals, on the other hand, refused to allow convictions in the courts of the Northern Cheyenne Tribe to be used against an Indian defendant. In a September 2014 decision, a three-judge panel said Michael Bryant Jr. wasn't provided with an attorney in those cases -- a violation of his rights under the Sixth Amendment to the U.S. Constitution.

"We agree that Bryant’s prior tribal court domestic abuse convictions would have violated the Sixth Amendment had they been obtained in state or federal court," Judge Richard Paez wrote for the majority.

Indianz.Com SoundCloud: 9th Circuit Court of Appeals Oral Arguments in US v. Bryant

The decision was unanimous. But Judge Paul J. Watford wrote separately and suggested that the issue was far from settled due to the splits with the other circuits.

Citing the uncertainty, the Department of Justice asked the 9th Circuit to rehear the case before a larger en banc panel of judges. The National Congress of American Indians supported the petition, noting the high rates of violence against Native American women.

"The issue in this case is one of exceptional importance," NCAI wrote in its brief. "Domestic violence against American Indians and Alaska Natives has long been a serious problem. Recognizing that gaps in federal law impeded efforts to deal with this problem effectively, Congress passed 18 U.S.C. § 117 in 2006."

The 9th Circuit, however, will not be rehearing the case. A majority of the the judges on the court did not agree to grant the en banc petition.

"No part of the decision in Bryant is intended to express contempt for tribal courts," Paez wrote yesterday in reaffirming the September 2014 ruling.

"Nor does our decision frustrate the purpose of § 117(a) simply because it conditions the use of prior tribal court misdemeanor convictions that result in imprisonment on the provision of counsel," Paez continued. "Rather, it is consistent with Congress’s dual interest in respecting tribal courts and ensuring due process for tribal court defendants."

The flag of the Northern Cheyenne Tribe of Montana. Photo from Facebook

At the same time, Paez acknowledged the "sharp division" on the 9th Circuit regarding the issue. Some eight judges of the court in fact signed two separate dissents yesterday that explained why the en banc petition should have been granted.

"There are many, many men like Michael Bryant. And there are even more victims of men like Michael Bryant," Judge John B. Owens wrote in one of the dissents that was joined by seven of his colleagues. "American Indian and Alaska Native women are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general."

"Tailored to the unique problems and scenarios that American Indian and Alaska Native Tribes face, § 117(a) provides felony-level punishment for serial domestic violence offenders, and it represents the first true effort to remove these recidivists from the communities that they repeatedly terrorize," he added.

Judge Diarmuid O'Scannlain authored the second dissent, also joined by seven colleagues. He said the 9th Circuit's "legal errors" need to be corrected by an en banc panel.

"Why did the court toss aside the reasoning of our sister circuits and turn up its nose at completely valid tribal court proceedings?" O'Scannlain asked.

The highly visible split on the 9th Circuit indicates "Supreme Court review may be unavoidable," Paez noted yesterday. It will now be up to the Obama administration to ask the high court to hear the case.

The 9th Circuit covers a wide swath of Indian Country -- more than 200 tribes in California, Arizona, Montana, Nevada, Oregon and Washington. The 8th Circuit and the 10th Circuit cover an equally large number of reservations so Supreme Court review would resolve a significant issue across the nation.

Turtle Talk has posted documents from the case, US v. Bryant.

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)

Related Stories:
Supreme Court won't accept tribal domestic violence case (3/19)
Supreme Court won't hear Indian domestic violence case (02/21)
Two Indian domestic violence cases before Supreme Court (12/12)
10th Circuit allows use of tribal court conviction in federal court (7/27)
8th Circuit accepts tribal court convictions for federal prosecution (7/7)

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