The U.S. Supreme Court last week heard arguments in a case, United States v. Bryant, that could decide whether tribal court misdemeanor convictions made without benefit of counsel might be used as examples of multiple offenses in domestic violence cases in federal courts.
Domestic violence is an epidemic in many tribes, and is thus addressed repeatedly by tribal courts. Some call it a “life and death” issue for tribes.
In 2011 Michael Bryant Jr. was convicted for assaulting two different women. Bryant is a member of the Northern Cheyenne Tribe. He was a repeat offender, having pled guilty several times before.
A U.S. Attorney found Bryant eligible to be labeled as a “Habitual Offender,” a status under which he was sentenced to 46 months per each count. Bryant sued to have his federal indictment dismissed because his pleadings in tribal court were made without an attorney present.
He also claims that the prior convictions violated the Fifth and Sixth Amendments to the U.S. Constitution. The Ninth Circuit Court of Appeals sided with Bryant in 2014, but the Justice Department appealed, arguing that tribal judicial systems are fair and partners in guaranteeing public safety on reservations.
Elizabeth Prelogar, assistant to the Solicitor General, told the Justices, “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.
She added, “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.”
Bryant’s attorney Steve Babcock told the Justices, “The right to counsel is fundamental and essential in our country, and that is something that needs to be adhered to. 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.”
