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Supreme Court case prompts spirited defense of tribal judiciary systems

Tuesday, April 19, 2016

The judicial branch of the Gila River Indian Community includes a tribal court, a probation department, a diversion program and other services to carry out justice on the reservation in Arizona. Photo by GRIC

As the U.S. Supreme Court took up its fourth Indian law case on Tuesday, an Arizona tribe was defending its judiciary from what it believes was an unfair attack.

The Gila River Indian Community was not involved in US v. Bryant and did not sign onto any briefs in the case. But the tribe delivered a strongly-worded letter last week to one group that did, accusing the National Association of Criminal Defense Lawyers and other attorneys of painting a misleading picture of the legal system on the reservation.

According to the tribe's Office of the General Counsel, the brief omitted key facts about a handful of criminal and even civil cases that originated on the reservation. The tribe happened to have prevailed in all of those cases, including one in which an attorney who drafted the brief participated, the letter states.

The tribe's attorneys also accused the brief's authors of misstating the outcomes of some significant Indian Civil Rights Act cases in an attempt to raise doubts about the effectiveness of courts in Indian Country. Another portion even cast aspersions on the way the tribe funds its judicial system, the letter said.

"If you and the groups you represent are truly interested in supporting criminal justice systems in Indian Country, instead of making continual attacks on Indian tribes, please consider more productive avenues," tribal attorneys Linus Everling and Thomas L. Murphy wrote in the April 15 letter, a copy of which was posted by Turtle Talk.

The harsh critique underscores the high stakes involved when cases like US v. Bryant reach the Supreme Court. The justices often rely on briefs submitted not just by the parties but by outside groups that claim particular expertise in Indian law.

Chief Justice John G. Roberts in fact brought up the criticized brief by name during the oral argument on Tuesday morning. He clearly read it and understood that it cited cases in which criminal defendants claimed they were treated unfairly by tribal courts.

"I thought the National Association of Criminal Defense Lawyers had discussion of a few prosecutions where those claims were raised," Roberts said.

A tribal government building on the Gila River Indian Community in Arizona. Photo from Facebook

Even though the Gila River Indian Community wasn't there to defend its record, Elizabeth B. Prelogar of the Solicitor General's Office at the Department of Justice came back with what appeared to be a strong response to the inquiry. She said federal law offers at least one avenue for defendants to challenge tribal judicial systems.

"I think that the presumption should be that tribal courts are applying complying with the Indian Civil Rights Act, and I think that the studies that have comprehensively looked at this bear that out and show that there isn't any rampant unfairness occurring in those criminal prosecutions," Prelogar told Roberts.

The Gila River letter indeed notes that several defendants have invoked the habeas corpus provision of the Indian Civil Rights Act. The law allows tribes to be sued in federal court for allegations of unfair detention.

"We cannot understand how the brief can conclude that the community 'has trouble complying with ICRA' given that the community has prevailed up to this point in every ICRA habeas case filed in the district of Arizona," the letter reads.

Gila River also took issue with the characterization of the 9th Circuit Court of Appeals decision in Miranda v. Anchondo. The brief implied that tribes were violating the Indian Civil Rights Act by "stacking" multiple one-year sentences on criminal defendants.

The 9th Circuit's amended decision in fact affirmed the power of tribes to impose multiple one-year sentences for "each discrete criminal violation" but the group's brief did not make the Supreme Court fully aware of that holding. The case involved the Pascua Yaqui Tribe, whose judicial system has complied with even stronger fairness and due process requirements imposed by Congress through the Tribal Law and Order Act of 2010 and the Violence Against Women Act of 2013.

Additionally, the brief made repeated reference to Alvarez v. Tracy, another significant Indian Civil Rights Act case that did involve Gila River's judicial system. It claimed that Fortino Alvarez's trial was "illustrative" of problems associated with denying defendants counsel in tribal courts. Alvarez is a tribal member.

Yet the tribe prevailed against claims by Alvarez that he was treated unfairly. The 9th Circuit concluded the tribe's procedures were consistent with the Indian Civil Rights Act, something that wasn't spelled out in the brief either.

"ICRA is a limitation on tribal sovereignty and many of the abuses documented in the hearings leading up to ICRA were in courts established by the United States government," the Gila River letter reads. "If your proposed solution to this perceived problem is greater federal control over Indian tribes, the only reasonable conclusion one can reach is that the NACDL is opposed to tribal sovereignty and tribal self-determination."

The decision in US v. Bryant is expected before the end of the Supreme Court's current term in June. It's the fourth, and so far the last, Indian law case on the docket and it was heard by just eight members due to the passing of Justice Antonin Scalia in February.

The outcome will determine whether tribal convictions can be used in federal court against offenders who repeatedly abuse Indian women even if the offender wasn't provided with an attorney.

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)