The dismissal of a federal domestic violence charge against a 37-year-old enrolled member of the Northern Ute Tribe was reversed and sent back to the lower court by a three-judge panel of the U.S. 10th Circuit Court of Appeals on July 26.
The justices ruled that neither the absence of counsel in two prior domestic violence convictions in Ute Tribal Court nor differences between tribal and U.S. law violated the rights of Adam Ray Shavanaux of Fort Duchesne, Uintah and Ouray Reservation, Utah.
Shavanaux was arrested in January 2010 after Ute tribal police officers were called to aid an assault victim who was able to escape from a home in Fort Duchesne and seek assistance. The victim was later taken to the hospital, according to the U.S. Attorney in Utah.
A federal grand jury later returned an indictment for the 2010 allegation making it a felony charge as Shavanaux had two previous domestic assault convictions (2006 and 2008) for which he served time.
Both the District Court and appeals court explored the relationship between tribal and federal law and between tribal nations as sovereigns and the U.S. government.
The lower court granted Shavanaux’s motion to dismiss the indictment because, it found, the fact that he was not represented by an attorney in the two prior convictions would mean the convictions’ use in the third prosecution would violate his Constitutional right to counsel.
Although the District Court agreed with the government that “tribal court proceedings are not governed by the United States Constitution but by the Indian Civil Rights Act (ICRA) or tribal law” and Shavanaux’s two convictions did not violate either, “significant constitutional issues tend to arise when tribal court convictions cross over into the federal judicial system.”
Based on an earlier precedent (Curtis v. United States, 1994) that stressed the Constitutional right to counsel, the District Court judge dismissed the indictment under “a theme that failure to appoint counsel for an indigent defendant was a unique Constitutional defect.”
But in reversing the lower court, the 10th Circuit judges noted that “one of the attributes of sovereignty which Indian tribes possess is the power to prescribe and enforce internal criminal laws,” and rather than being subject to the U.S. Constitution, tribal exercise of power is constrained by Congress’ plenary power, implemented by passing the ICRA.
“Because the Bill of Rights does not constrain Indian tribes, Shavanaux’s prior uncounseled tribal convictions could not violate the Sixth Amendment” guaranteeing the right to counsel, the justices said.
“Although a tribal prosecution may not conform to the requirements of the Bill of Rights, deviation from the Constitution does not render the resulting conviction constitutionally infirm," (court’s emphasis). The appeals court acknowledged it is at odds with the 9th Circuit, which held that the admission of an uncounseled prior tribal conviction was unconstitutional.
Tribes exercise limited sovereignty but share with foreign states the characteristic of being “sovereigns to whom the Bill of Rights does not apply,” while Ute courts are “compatible with due process of law” because they comply with ICRA’s allowing, but not mandating, defense counsel.
Shavanaux contended federal law taking into account two prior domestic violence convictions singles out Indian offenders, “falls along racial lines,” and is unconstitutional.
“This claim fails,” the three-judge panel said. “‘Indian’ is not a racial classification, but a political one.”
Shavanaux did not receive different treatment in federal court because of his ancestry, but because through his tribal membership and residence in Indian country he chose to accept tribal jurisdiction and the criminal procedures of the Ute tribe, the court said.
Disparate treatment has to be related to a legitimate legislative objective, the justices noted, and “protecting Indians from domestic violence is unquestionably a legitimate government interest,” particularly given the disproportionately higher rates of physical and sexual abuse to which Indian women are subjected.
That assertion echoed statements by the U.S. Attorney in Utah, who said after Shavanaux’s arrest: “We are committed to using every tool we have to address domestic violence on Native American reservations in Utah. The charge in this indictment—domestic assault by a habitual offender—is appropriate given the ongoing conduct of this defendant.”
The potential maximum penalty for the charge is up to five years in prison and a $250,000 fine, the U.S. Attorney’s office said.