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Constitutional Gaps Don’t Taint Tribal Convictions

WASHINGTON (CN) — Dealing a blow to a woman-beater whose tribal convictions are not up to U.S. constitutional snuff, the Supreme Court ruled Monday that federal prosecutors can charge the man as a habitual offender.

Michael Bryant Jr. racked up more than 100 tribal-court convictions while living on a reservation in Montana for the Northern Cheyenne Tribe, according to the ruling.

Among at least misdemeanor convictions for domestic assault, Bryant once hit his live-in girlfriend on the head with a beer bottle and attempted to strangle her.

Bryant was also convicted for beating a different girlfriend, whom he kneed in the face, breaking her nose.

The tribal courts that sentenced Bryant never gave him more than a year in prison, and they also never him counsel, which he couldn't otherwise afford.

Though trial without representation is blatantly unconstitutional in U.S. courts, sovereign tribal law does not offer the same Sixth Amendment protection.

Bryant tried to rely on this distinction when a federal grand jury in 2011 indicted him on two counts of domestic assault with habitual-offender enhancements for assaulting two different live-in girlfriends.

That year, Bryant had attacked one girlfriend by "dragging her off the bed, pulling her hair, and repeatedly punching and kicking her," according to the ruling.

Three months later, while living with a new girlfriend, Bryant could not find his truck keys so he woke up his partner and began "choking her until she almost lost consciousness."

Bryant called it unconstitutional to prove habitual-offender status with his tribal convictions since he was not appointed counsel in the tribal court proceedings.

When a federal judge in Montana disagreed, Bryant pleaded guilty but reserved his right to appeal. This time he was sentenced to concurrent terms of 46 months' imprisonment on each count, to be followed by three years of supervised release.

The U.S. Supreme Court took up the case last year after the Ninth Circuit sided with Bryant, creating a circuit split.

By unanimous vote Monday, the justices reversed.

Though Bryant was uncounseled in tribal court, his convictions "did not violate the Sixth Amendment when obtained, and they retain their validity" when federal prosecutors invoked them for serial-offender status, according to the ruling.

The lead opinion by Justice Ruth Bader Ginsburg begins by pointing to the dark roots that led Congress to pass the serial-offender law dogging Bryant,

Section §117(a) of Title 18 is otherwise known as the Violence Against Women and Department of Justice Reauthorization Act of 2005.

Before its passage, serial domestic-violence offenders "faced at most a year's imprisonment per offense" because of limitations on tribal, state, and federal jurisdiction in Indian country, according to the ruling.

Ginsburg calls such sentences "insufficient to deter repeated and escalating abuse."

During congressional debate on the law, Sen. John McCain noted that Native American women "experience the highest rates of domestic violence" Compared to all other groups in the United States.

Records from the Centers for Disease Control and Prevention show that "as many as 46 percent of American Indian and Alaska Native women have been victims of physical violence by an intimate partner," according to the ruling.

A Justice Department study found that American Indian and Alaska Native women "are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general."

American Indian women experience battery "at a rate of 23.2 per 1,000, compared with 8 per 1,000 among Caucasian women," and they "experience 7 sexual assaults per 1,000, compared with 4 per 1,000 among black Americans, 3 per 1,000 among Caucasians, 2 per 1,000 among Hispanic women, and 1 per 1,000 among Asian women."

Compounding high recidivism rates among domestic abusers is the fact that their violence "often escalates in severity over time."

The ruling says over 75 percent of women who suffer intimate-partner violence across the nation have been previously victimized by the same offender.

"Incidents of repeating, escalating abuse more than occasionally culminate in a fatal attack," Ginsburg wrote.

Among Native Americans specifically, during the period 1979 through 1992, homicide was the third-leading cause of death for females who died between ages 15 and 34. Family members or acquaintances killed 75 percent of this group.

Justice Clarence Thomas noted in a concurring opinion to bemoan "how far afield our Sixth Amendment and Indian-law precedents have gone."

"I continue to doubt whether either view of tribal sovereignty is correct," Thomas said.

He added: "Until the court ceases treating all Indian tribes as an undifferentiated mass, our case law will remain bedeviled by amorphous and ahistorical assumptions about the scope of tribal sovereignty. And, until the Court rejects the fiction that Congress possesses plenary power over Indian affairs, our precedents will continue to be based on the paternalistic theory that Congress must assume all-encompassing control over the 'remnants of a race' for its own good."

Thomas emphasized that Indian tribes "have varied origins, discrete treaties with the United States, and different patterns of assimilation and conquest."

"In light of the tribes' distinct histories, it strains credulity to assume that all tribes necessarily retained the sovereign prerogative of prosecuting their own members," the ruling states. "And by treating all tribes as possessing an identical quantum of sovereignty, the court's precedents have made it all but impossible to understand the ultimate source of each tribe's sovereignty and whether it endures."

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