6th Am. Can't Stop Federal Courts From Using Tribal Convictions

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By Casey C. Sullivan, Esq. on June 15, 2016 3:58 PM

Federal law makes it a felony for a habitual offender to commit domestic assault within Indian country, when the abuser has two or more prior convictions for domestic violence. And since the law seeks to protect Native American women from abuse, those predicate convictions can come from tribal courts.

But tribal courts are not required to provide lawyers for criminal defendants in many cases, including misdemeanor domestic assault charges. And while that would be a violation of the Sixth Amendment should it occur in state or federal court, that does not stop federal courts from relying on lawyerless tribal convictions as predicate offenses for the domestic violence law, the Supreme Court ruled on Monday.

Congress Takes on Violence Against Women

Native American women suffer rates of domestic abuse far greater than the general public. And domestic abusers are often repeat abusers, growing more violent over time. According to DOJ statistics, 75 percent of women who have been abused by an intimate partner had previously been victimized by the same offender. Meanwhile, Congress has limited tribal courts' ability to sentence defendants, making punishing abusers on Native American land difficult.

To address these concerns, Congress made domestic assault by a habitual offender a federal felony when reauthorizing the Violence Against Women Act in 2005 -- and made sure that the new felony encompassed crimes committed on tribal lands and convictions handed down in tribal courts.

Multiple Assaults, Five Convictions, Zero Lawyers

Michael Bryant Jr., a member of the Northern Cheyenne Tribe, was just the kind of repeat abuser the law targeted. Bryant has more than 100 tribal-court convictions. Over a decade, he pleaded guilty to domestic violence charges at least five different times.

But because of Congressional limits placed on the authority of tribal courts at the time, he could never be sentenced to more to more than a year per offense. And, because he did not face a sentence of more than year, he was not entitled to a court-appointed defense attorney.

But when he was finally charged with a felony under the federal domestic violence law, the court relied on those tribal convictions as the necessary predicate convictions. And that reliance on lawyerless criminal convictions, the Supreme Court ruled in a unanimous decision, the majority opinion authored by Justice Ginsburg, did not violate the Sixth Amendment.

No Need for the Sixth

The Sixth Amendment guarantees criminal defendants the right to counsel when imprisonment of any length could be imposed. But, as Justice Ginsburg notes, "the Bill of Rights, including the Sixth Amendment right to counsel ... does not apply in tribal-court proceedings."

That's because native tribes are "separate sovereigns" whose sovereignty precedes the Constitution, leaving them "unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority."

Instead, tribal courts are governed by the Indian Civil Rights Act of 1968, which guarantees many, but not all, of the rights afforded by the Bill of Rights to tribal members. Notably missing is the right to counsel in all criminal proceedings that could end in imprisonment. Instead, under the ICRA, tribal courts must only provide counsel to indigent defendants when imposing sentences in excess of one year.

A Vindication for Tribes, Right?

Convictions obtained in violation of the Sixth Amendment cannot be used in subsequent proceedings, including for enhanced sentencing or as predicate convictions, the Court affirmed.

But because Bryant's convictions complied with the ICRA, there were no constitutional violations. And because there were no constitutional violations, federal courts and prosecutors could permissibly rely upon those convictions as the necessary predicates for enhancement statutes.

So long as those convictions did not violate the Sixth when they were obtained, they remain valid for later prosecution.

The ruling may seem like a win for tribal sovereignty, an acknowledgement of the validity of a tribal court's convictions. But not everyone sees it as such. Writing in Bloomberg, Harvard Law Professor Noah Feldman argues that the ruling "weakens constitutional protections for Native American defendants" and "makes hash of U.S. tribal law."

"The bottom line," he writes, "is therefore that the federal law is likely to lead to more Native Americans ending up in federal prisons -- without having the benefits of legal representation when they were convicted of the underlying crimes that put them there."

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