Tribal-Representation Issue Heads to High Court

     WASHINGTON (CN) – The Supreme Court agreed Monday to decide whether tribal court convictions support charging someone as a habitual offender in state or federal courts.
     Michael Bryant Jr. has a history of beating up girlfriends, as documented in two tribal court convictions for domestic violence that earned him time in prison.
     Bryant did not have legal representation in either tribal case, however, a circumstance that is completely legal under sovereign tribal law but blatantly unconstitutional in U.S. courts.
     So when federal prosecutors indicted Bryant on two counts of domestic assault with habitual-offender enhancements for assaulting two different live-in girlfriends, Bryant demanded the charges be dismissed.
     Bryant pointed out the using his tribal court convictions to prove his habitual-offender status violated both his Fifth and Sixth Amendment rights, since he was not appointed counsel in those proceedings.
     The government admitted that Bryant’s tribal court convictions would have been unconstitutional if obtained in a federal or state court, but the trial court denied Bryant’s request in an oral ruling.
     The Ninth Circuit reversed in September 2014, citing two past decisions in which the federal appeals court held that state and federal courts cannot rely on unrepresented tribal court convictions.
     Writing for a three-judge panel last year, Judge Richard Paez noted that both the Eighth and the 10th Circuits have ruled otherwise in recent years, but points to the “continued vitality” of the Ninth Circuit precedent.
     In a concurring opinion, Judge Paul Watford said that the Supreme Court has chipped away at the reasoning in the first case – 1989’s U.S. v. Ant.
     “It’s true that Michael Bryant’s prior domestic abuse convictions would have been obtained in violation of the Sixth Amendment had he been tried in state or federal court, since he lacked appointed counsel and appears to have received a term of imprisonment following those convictions,” Watford wrote. “But the fact remains that his prior convictions were not obtained in violation of the Sixth Amendment because they occurred in tribal court, where the Sixth Amendment doesn’t apply. It seems odd to say that a conviction untainted by a violation of the Sixth Amendment triggers a violation of that same amendment when it’s used in a subsequent case where the defendant’s right to appointed counsel is fully respected. As the Tenth Circuit stated, ‘Use of tribal convictions in a subsequent prosecution cannot violate anew the Sixth Amendment, because the Sixth Amendment was never violated in the first instance.’ The contrary rule we adopted in Ant would make sense if uncounseled convictions were deemed insufficiently reliable to warrant giving them any weight in subsequent criminal proceedings. But, as I’ve noted, the Supreme Court undercuts the proposition that uncounseled convictions are categorically unreliable.”
     Watford said the “resulting asymmetry is striking,” and called on the Supreme Court to intervene.
     But he added that he felt comfortable in refusing to recognize the validity of Bryant’s tribal convictions “because of concerns over the reliability of those convictions.”
     The Supreme Court granted the U.S. government a writ of certiorari in Bryant’s case Monday.
     Per its custom, the court did not issue any comment on the case, except to grant Bryant leave to proceed in forma pauperis.

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