The U.S. Supreme Court
has once again delayed action in an Indian Country violence case that few believe has a chance at being heard.
The petition in Bearcomesout
v. United States
questions whether a citizen of the Northern Cheyenne Tribe
can be prosecuted by her government and by the United States for killing her
common-law husband, whom she accused of beating her. Precedent suggests
there is no reason Tawnya Bearcomesout
, who has already been punished for the crime, can't be tried by both sovereigns.
The precedent, in fact, appears to be so strong that the federal government didn't even bother filing a response
to Bearcomesout's petition. No tribes, tribal organizations, Indian law professors or other advocates have weighed in either.
Instead, the court's failure to take action nine times over the past six months suggests one member needs time to explain why he wants to hear the case even though his colleagues don't. According to some observers, that would be Justice
, whose views on Indian law
and Indian policy
often fall outside of the mainstream.
"What Justice Thomas Gets Wrong About Constitutional History" was the title of a two-part
post on the influential Turtle Talk blog
when the jurist attacked the legality of the land-into-trust
after the Supreme Court refused to take on the issue.
Bearcomesout's case doesn't seem as high-profile as a land-into-trust dispute but the underlying facts are familiar in Indian Country, where rates of victimization are the highest in the nation. In August 2016, she pleaded guilty to one charge of involuntary manslaugther, admitting she stabbed and killed her husband -- identified in
court filings as "B.B." -- during a fight in which she said she
was attacked at their home on the Northern Cheyenne Reservation in Montana.
"Bearcomesout stated that she and B.B. got into an altercation on the
night of his death and that he hit her head against the sink. She explained that
she stabbed B.B. because he was beating on her and nobody was helping her," an
offer of proof
filed by federal prosecutors
Bearcomesout suffered injuries during the November 2014 fight, according to the
document. In their subsequent petition with the Supreme Court, her federal
public defenders said she had a "black eye and several cuts on her face and
In November 2016, a federal judge sentenced
Bearcomesout to time served
. She had already spent 17 months in tribal custody
so she had basically served all of the time that would have been imposed on her
under the terms of her plea
with the federal government.
But as Bearcomesout was taking her case to the 9th Circuit Court of Appeals
, a right she
reserved in her plea agreement, she got into trouble. According to a June 2017
, she failed to participate in substance abuse testing and substance
abuse treatment and failed to make payments toward restitution to her tribe and
to her victim's family.
She also pleaded guilty to driving under the influence in Northern
Cheyenne court. Alcohol had been a factor in the death of Brett
, who had been her common-law husband.
As a result, Bearcomesout was arrested last summer and she eventually admitted to 11
violations of her probation
. She served another six months in federal
custody and was released on January 19, according to the Federal Bureau of Prisons
Bearcomesout is now serving 30 months of supervised release and was
supposed to spend six months of that time in a residential release center. But a
facility in Billings has been unable to accept new arrivals, according to a petition filed by
federal probation officers
in March. There is no indication the judge has
ruled on the request to modify her punishment.
According to Docket
, the Supreme Court received Bearcomesout's petition on November
14. The Department of Justice
declined to file a response, a sign that government attorneys believe her case
won't be granted.
The petition was supposed to be considered at a closed-door conference in
early January, just as Bearcomesout was wrapping up her latest prison term. But
it was "rescheduled" without explanation and moved to to April 13.
Since then, the petition has been "distributed" on April 20, April 27,
May 10, May 17, May 24 and May 31, all without any subsequent action. It's now been
placed for review yet again on June 7.
9th Circuit Court of Appeals Decision:U.S. v.
(August 17, 2017)
Join the Conversation
Court delays action yet again on Indian Country violence case
(May 29, 2018)Appeals
court affirms conviction in Northern Cheyenne Tribe manslaughter case
(August 22, 2017)