Tribal court justice was again on trial today as the Supreme Court heard oral arguments in United States v. Bryant, a case that will establish whether tribal court misdemeanor convictions made without counsel in domestic violence cases can be used in federal court for repeat offenders.
Brought by the government, the case will be a crucial test for tribal courts across the country in regards to their ability to address the high rates of domestic violence on Indian lands, in what some are calling a “life and death” issue for Native communities.
This case began in 2011, when the defendant, Michael Bryant Jr., was convicted for assaults on two different women. Bryant, who is an enrolled member of the Northern Cheyenne Tribe, had pled guilty to charges of domestic abuse in at least five previous cases in tribal court.
Based on Bryant’s extensive criminal tribal court record, he was found eligible by the U.S. Attorney for “Habitual Offender” status and was indicted in federal district court in Montana. After he was sentenced to 46 months on each count in federal prison, he appealed to the Ninth Circuit to have his federal indictment dismissed on the grounds that, in essence, his tribal court convictions should not be counted against him because he pled guilty without a lawyer.
Additionally, Bryant argued that using his prior misdemeanor convictions to prove “habitual offender” status under the Violence Against Women Act (VAWA) violated the Fifth and Sixth Amendment under the Constitution.
In September 2014, the Ninth Circuit Court of Appeals in Portland, Oregon, agreed with Bryant and reversed his indictment, holding that using uncounseled tribal court convictions in federal court to establish habitual offender status was “unconstitutionally impermissible.”
The government’s position in this case is that tribal courts are crucial partners in ensuring public safety on Indian reservations and that their judicial systems are more than capable of procedural fairness in protecting Native women from their abusers.
Elizabeth Prelogar, assistant to the Solicitor General at the Department of Justice, represented the United States in this case. Stepping to the podium, she began her argument by challenging the Ninth Circuit’s decision.
“The Ninth Circuit was wrong to strike down the statute as applied to offenders like [Michael Bryant] who have abused and battered their intimate partners again and again, but whose tribal court misdemeanor convictions were uncounseled and resulted in a sentence of imprisonment,” said Prelogar. “The Ninth Circuit's constitutional analysis disconnects the validity of the underlying prior conviction from the permissibility of relying on those convictions to prove the defendant's recidivist status if he commits additional criminal conduct. And that runs counter to this Court's precedents.”
Prelogar said that a previous Supreme Court ruling held that valid uncounseled convictions remain valid in determining when to classify a defendant as a repeat offender.
Taking issue with the notion that Bryant was denied the right to counsel in violation of the Sixth Amendment, Prelogar also pointed out that not only was Bryant represented by appointed counsel at “every critical stage” of the case, he also admitted guilt in every single prior conviction.
“[Bryant] never attempted to argue that there was anything wrong with his prior tribal court convictions,” said Prelogar. “He has acknowledged at every stage that those convictions were obtained in compliance with the Indian Civil Rights Act [ICRA]. He has never suggested that he didn’t actually commit those repeated acts of domestic of domestic violence that resulted in some five convictions in tribal court for assaulting his intimate partners.”
Further, Prelogar argued that if Bryant had had a valid claim of unfairness in his proceedings that he could remove his case to federal court for redress.
But by arguing that tribal court convictions should be treated as if they don’t exist for the purposes of prosecution under federal law, Bryant would have a negative impact on tribal courts seeking to protect Native women from repeat offenders and escalating violence, she said.
As tribal courts have continued to improve their justice systems in recent years, said Prelogar, Congress has accordingly expanded their authority in regards to the jurisdiction they possess to prosecute crimes on their lands.
“So I do think that that reflects legislative judgment that tribal courts are sufficiently protective of individual rights, and that there's no fundamental unfairness that's occurring in those proceedings that would cause this Court to question the reliability of those determinations,” said Prelogar, concluding her opening argument. “...Respondent's suggestion that there might be some kind of a reliability concern with this conviction is really unmoored from the constitutional analysis that he's asking the Court to adopt in this case.”
Next, Steven Babcock argued on behalf of defendant Michael Bryant.
“The right to counsel is fundamental and essential in our country, and that is something that needs to be adhered to,” began Babcock. “Using the tribal court convictions in which Mr. Bryant was not afforded counsel, then turning them into an essential element of a ... prosecution, runs afoul what – what this Court has stated is a fundamental right for 53 years.”
Immediately, Justice Ruth Bader Ginsburg interjected that Babcock must agree that if the defendant had been only fined and not jailed, that the convictions would have been allowed for prosecution under federal law.
“Correct. And the reason that we've stated that, and we don't believe that does anything besides strengthen our argument in this case, because the reason why there is no violation of the Sixth Amendment is simply because the Sixth Amendment doesn't exist,” replied Babcock. “...If this case would have been in a State or Federal court, the only court in the United States in which it would not run afoul of the Sixth Amendment is tribal court.”
Later in Babcock’s arguments, the justices seemed baffled by his reasoning.
“My thought is this is quite formalistic. It doesn't have anything to do with inherent reliability or unreliability,” said Justice Anthony Kennedy. “In fact, if it were an uncounseled felony conviction, it might well have been that the trial judge was much more careful than he would be in a misdemeanor case. It's almost the opposite. I understand...— the efficacy of the clear line, but it's more formalistic than functional, it does seem to me.”
Babcock responded with an opinion delivered by the late Justice Antonin Scalia in Crawford v. Washington regarding the assessment of reliability.
“The tribal court convictions in this case were not subject to the crucible of meaningful adversarial testing,” Babcock said. “And that goes right back to what Justice Ginsburg stated in Shelton in 2002, that element. And it is an element of the offense. It is being used to establish guilt.”
Kennedy, however, pushed back. “But as Justice Ginsburg pointed out, you could make the same argument if [Bryant’s punishment] had been just a fine and no Sixth Amendment violation. So I don't understand why one is reliable and the other is not reliable, other than the formalistic argument which I can understand.”
Justice Stephen Breyer brought the argument to a fine point when he asked Babcock if Bryant’s sentence was unconstitutional.
No, replied Babcock, but Bryant did not have a right to counsel.
“Have you claimed that the sentence, the proceeding in the Indian court violated the Federal Constitution?”
“We have not,” replied Babcock.
“Well, then I take it that for purposes here, you concede that,” said Breyer. “I don't see how you can get around the fact you haven't complained. So if it's a valid conviction, why can't you use it?”
According to the Bureau of Justice Statistics, rates of domestic violence on Indian reservations are among the highest in the United States. Legal experts say that the practical affects of this case comes down to a matter of life and death for Native women.
“I was in the U.S. Attorney’s office in North Dakota for five years, and I can tell you that domestic violence is an escalating crime that has to be met with escalating consequences,” said Tim Purdon, who is now a partner and co-chair of the American Indian Law and Policy Group at Robins Kaplan Law Firm. “Because I had the ability to use tribal court convictions, I could charge serial offenders and better protect Indian women and save lives. This is a tool that allowed us to intercede a lot earlier. No victim should be put in the position where their abuser goes free because he doesn’t accept the legitimacy of tribal court convictions.”
Purdon says that tribal courts have made enormous strides in the last several decades and are equal to their state counterparts in efficacy and sophistication. He points to court systems in Standing Rock, North Dakota, Pascua Yaqui in Arizona, Umatilla in Oregon and Tulalip in Washington State as particularly strong judicial court systems with whom he has worked.
“What the court needs to recognize is tribal courts as they truly exist today. They are every bit as good as any other court system in their respective state and they need to be able to adjudicate these cases that have a profound impact on the lives of Native women and children,” said Purdon. “This case is a matter of life and death in Native communities.”
Returning to the podium for closing comment, Prelogar returned to the origin story of United States v. Bryant in her final remarks.
“[A]lthough there's been a lot of talk about fairness here, I think it is important to recognize that [Bryant] had it entirely within his power to not have a Federal court consider these prior tribal court convictions,” concluded Prelogar. “If he didn't want that to occur, then what he should have done is stop abusing his domestic partners. But because he didn't learn from those prior tribal convictions, because he kept battering women in Indian country and contributed to that epidemic of domestic violence, I don't think he should be heard to complain that he's being prosecuted under [the law].”