Opinion: Supreme Court exposes Indian people to federal powers

A sign at the court of the Northern Cheyenne Tribe of Montana. Photo by Northern Cheyenne Tribe

Barbara L. Creel, a member of Jemez Pueblo, and John P. Lavelle, a member of the Santee Sioux Nation, submitted a brief in US v. Bryant, a domestic violence case that went before the U.S. Supreme Court. They argue that the court's June 13 decision, which allows the use of tribal convictions in the federal system even if the Indian defendant wasn't provided with an attorney, isn't a win for tribal sovereignty or indigenous women:
In United States v. Bryant, this nation’s highest court condoned the use of prior “uncounseled” tribal court convictions to charge and convict an Indian as a federal habitual domestic violence offender.

If you don’t know what “uncounseled” convictions are, that’s because they are generally unconstitutional if imprisonment is at stake. But in tribal court Native Americans are routinely tried, convicted and jailed without the assistance of counsel, something the Constitution forbids in state or federal court.

The Bryant decision creates a blatant disparity in the availability of legal protections against unfair and unjust prosecutions. While the Sixth Amendment right to counsel forbids the government from prosecuting and imprisoning non-Indians on the basis of prior uncounseled convictions obtained in state or federal court, Bryant gives federal prosecutors free rein to use uncounseled tribal court convictions to single out Indians for conviction and imprisonment.

At the core of the court’s reasoning is the fact Indian tribes, as sovereign nations predating the United States, are not restricted by the Bill of Rights and hence are not required to provide defendants with basic protections that are required in state and federal court.

Get the Story:
Barbara L. Creel And John P. Lavelle: High court denies rights of Natives (The Albuquerque Journal 6/26)

U.S. 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)

Join the Conversation
Related Stories
Tribes rest easy as Supreme Court wraps up a surprising session (6/24)
Supreme Court enters final stretch of historic yet unusual term (6/20)
Native women confront high rates of violence in Indian Country (06/17)
Vice President Biden urges early work on Violence Against Women Act (6/15)
Supreme Court decision hailed as a victory for tribal sovereignty (06/14)
Matthew Fletcher: Takeaways from Supreme Court's new decision (06/14)
Supreme Court upholds use of tribal convictions in federal system (06/13)
Supreme Court debates 'inherent' tribal sovereignty in new ruling (6/9)
Supreme Court posts audio from hearing in domestic violence case (04/25)
SCOTUSBlog: Supreme Court has few questions in Indian law case (4/20)
Supreme Court case prompts spirited defense of tribal judiciary systems (4/19)
Turtle Talk: Commentary on oral argument in Supreme Court case (4/19)
Supreme Court ready to hear fourth Indian law case on the docket (4/18)
Bill in Senate expands tribal jurisdiction over non-Indian offenders (04/14)
Mary Annette Pember: Missing and murdered Indian women go forgotten (04/14)
Native Sun News: Wheels of justice slow for Oglala Sioux woman (04/08)
Vacancy on Supreme Court already impacts high-profile cases (03/30)
Leader of Navajo Nation pushes for action on Supreme Court pick (03/22)
Chair of Sault Ste. Marie Tribe calls for action on court nominee (03/17)
Supreme Court nominee comes with some Indian law experience (03/16)
Editorial: Scales of justice often lean wrong way for Indian people (03/15)
Alaska Natives seek fair consideration of Supreme Court nominee (03/14)
Supreme Court schedules hearing in Indian Country domestic violence case (03/11)
Diane Humetewa not under consideration for Supreme Court seat (3/11)
Gyasi Ross: Nominate Diane Humetewa to serve on Supreme Court (03/09)
Joe Biden: Senate Republicans must act on pick for Supreme Court (03/04)
Aaron Payment: Tribal sovereignty hangs in the balance at Supreme Court (02/29)
Steve Russell: Looking for an unbiased justice on Supreme Court (02/29)
Steven Newcomb: Justice Scalia didn't know anything about Indian law (02/26)
Updates from Day 2 of National Congress of American Indians winter session in D.C. (02/24)
Stakes raised as Supreme Court weighs domestic violence case (2/16)
John Lavelle: Supreme Court weighs key tribal sovereignty issue (2/10)
Samuel Winder: Indian defendants face harsher criminal penalties (2/4)
Ex-US Attorney welcomes review of domestic violence case (12/17)
Supreme Court agrees to review yet another Indian law dispute (12/14)
Former US Attorney backs review of domestic violence case (11/13)
Obama asks Supreme Court to hear domestic violence case (11/11)
Vice President Joe Biden reflects on triumphs of Obama's Indian policies (10/28)
Tribes still waiting on funds from Violence Against Women Act (10/16)
Pioneering tribes share experiences with prosecuting non-Indians (10/7)
DOJ awards $97M in grants for public safety in Indian Country (09/16)
Alaska to recognize tribal domestic violence protection orders (07/31)
Congress fails to provide funds to help tribes comply with VAWA (07/29)
Ambassador Harper discusses violence against indigenous women (07/09)
9th Circuit divided on tribal convictions in domestic violence cases (7/7)
Native Sun News: Oglala leader blames deaths on domestic violence (07/06)
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)