Mimesis Law
27 May 2022

Bryant & The Problem With Native American Sovereignty

June 16, 2016 (Fault Lines) — The concept of Native American sovereignty, namely granting tribes on reservations the ability to set their own laws, try their own cases, and only remain subject to federal jurisdiction, is a tricky proposition.  It creates a potential where federal law will clash with tribal law, and possibly violate a defendant’s constitutional rights.  Justice Thomas, in his concurring opinion in U.S. v. Bryant, outlines what happens when self-governance clashes with constitutional rights in domestic violence cases.  Spoiler alert: it isn’t pretty.

The fact that this case arose at all, however, illustrates how far afield our Sixth Amendment and Indian-law precedents have gone.  Three basic assumptions underlie this case: That the Sixth Amendment ordinarily bars the Government from introducing, in a later proceeding, conditions obtained in the violation of the right to counsel…that tribes’ retained sovereignty entitles them to prosecute tribal members in proceedings that aren’t subject to the Constitution…and that Congress can punish assaults that tribal members commit against each other on Indian land…Although our precedents have endorsed these assumptions for decades, the Court has never identified a sound constitutional basis for any of them, and I see none. 

Michael Bryant, Jr. isn’t the sort of guy you’d invite home to dinner.  His tendency to treat various lovers as punching bags landed him in court several times over domestic violence issues.  Because Bryant’s an enrolled member of the Cheyenne tribe, living on tribal land in Montana, his various domestic violence convictions were handled through tribal court.

Bryant was indigent and didn’t have counsel during those proceedings, since each charge carried a sentence of less than one year’s imprisonment. According to the Indian Civil Rights Act, you only get appointed counsel if your potential sentence is over a year.  With over “100 tribal court convictions, including several misdemeanor convictions for domestic assault,” one would think Bryant quite familiar with this quirk in Tribal Court.  That quirk would cost him approximately four years of his life, thanks to a new statute enacted when Congress reauthorized the Violence Against Women Act in 2005.

Acknowledging Native American and Alaskan Native women were at the highest levels of risk for domestic assault, Congress enacted 18 U.S.C. § 117, the “Domestic Assault by A Habitual Offender” law.”  This provided that, if a person in Federal, State, or Indian Tribal Courts committed domestic assault and had at least two final convictions, he would be “if subject to Federal jurisdiction,” then the defendant faced fines and/or imprisonment of up to five years.  The statute was as far as Congress could “ratchet up” penalties for domestic assault on tribal land, since most states didn’t have the power to prosecute crimes committed on reservations.  Bryant’s decision to beat up two women in 2011 meant he now faced this Habitual Offender law, and was indicted in Federal court.

Now, with the assistance of counsel, Bryant moves to dismiss the indictment because the Tribal Courts didn’t afford him a right to indigent counsel.  If these were federal or state courts, he would have received court-appointed counsel, and might not have pled out.  Therefore, the previous tribal convictions wouldn’t constitute predicate offenses.  When the trial court dismissed Bryant’s motion, he pled guilty and plotted an appeal.  After Monday’s holding, Bryant must wonder whether that initial appeal was worth his time, since it eventually took his case to the Supreme Court.

In a pyrrhic victory, the Ninth Circuit Court of Appeals reversed the decision and dismissed the indictment, buying Bryant’s claims and labeling this a Sixth Amendment violation.  Unfortunately, the Eighth and Tenth Circuits had previously ruled otherwise, so the United States Supreme Court granted certiorari to end the split and determine once and for all if tribal convictions for domestic assault were predicate offenses for the Habitual Domestic Assault Offender Law.  In a unanimous opinion, penned by Justice Ginsburg, the U.S. Supremes held Bryant’s Sixth Amendment rights weren’t violated since each domestic assault conviction complied with the Indian Civil Rights Act.

Furthermore, Bryant’s Fifth Amendment argument of “denial of due process” didn’t fly either, since the ICRA required tribes provide “due process of law” in tribal courts.  Thomas, in his concurring opinion, outlines why the layperson might find this decision fundamentally unfair.

On the one hand, the only reason why tribal courts had the power to convict Bryant in proceedings where he had no right to counsel is that such prosecutions are a function of a tribe’s core sovereignty….On the other had, the validity of Bryant’s ensuing federal conviction rests upon a contrary view of tribal sovereignty…The Court does not explain where Congress’ power to act comes from, but our precedents leave no doubt on this score. …Thus, even though tribal prosecutions of tribal members are purportedly the apex of tribal sovereignty, Congress can second-guess how tribes prosecute domestic abuse…on Indian land…by virtue of its “plenary power” over Indian tribes.

Thomas’s conundrum outlines the fundamental problem with tribal sovereignty and congressional authority.  Native American and Alaskan Native tribes are granted the power to prosecute and convict as they see fit until Congress says “you didn’t do it right.” It then makes a literal federal case out of the alleged “mistake.”

This reflects an enormous irony in the treatment of Native Americans. On the one hand, tribes are given enormous autonomy as sovereign nations to make choices without the same constitutional constraints to which states  must adhere.  And yet, they can still be held subject to laws imposed upon them by Congress, for no better reason than its plenary power, which is doctrinally pretty much because “we say so.”

While Congress passes law putatively based upon the limits imposed by the Constitution, tribal law has no similar analogue. But that may not be taken into account by Congress, which presumes that tribal courts will function under the same constitutional constraints as other courts.  This creates a dilemma, as the defendant found out.

The recourse Thomas presents is clear and correct.  Stop treating each tribe as an undifferentiated mass, consider whether sovereignty still applies, and reject the “fiction that Congress possesses plenary power over Indian affairs.”  Otherwise our courts will see more defendants like Michael Bryant, Jr., people caught in a web of conflicting laws that must be decided at the highest levels of the judiciary, as they continue to suffer one harm at a time.

10 Comments on this post.

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  • Greg Prickett
    16 June 2016 at 2:18 pm - Reply

    Sorry Chris, but you’re wrong, and J. Thomas is wrong, in part.

    The idea that Congress has plenary power is unconstitutional, an improper assumption of power out of the opinion in United States v. Kagama, 118 U.S. 375 (1886). There is nothing in the Constitution that grants Congress plenary power, but the justices are not friendly to the tribes.

    The tribes have the inherent right to run their own courts, and they should be able to try anyone that violates their law within their territory. They can’t because SCOTUS has held that a tribe cannot try a non-Indian. Does that mean if I travel to New York I can’t be tried by a court there if I break the law? I’m not a New Yorker.

    The tribes are sovereign, and any attempt to restrict that sovereignty is just another example that shows why the federal government cannot be trusted to keep its word.

    • shg
      16 June 2016 at 2:32 pm - Reply

      Ah, you’ve fallen into a precedent trap. The precedent is that Congress has no plenary powers, yet the court relied on Congress’ plenary power to rule against the defendant. What’s the message (and it’s not one you’re going to life)?

      Remember, the Supreme Court isn’t final because infallible. It’s infallible because it’s final.

      • Greg Prickett
        16 June 2016 at 11:43 pm - Reply

        No, the precedent is, per Kagama, that Congress does have plenary power over the tribes. It just doesn’t appear anywhere in the Constitution.

        BTW, after SCOTUS held that the feds could try Kagama, he was acquitted of murder. It seems the offense was not committed on reservation land.

        • shg
          17 June 2016 at 8:15 am - Reply

          Thanks for clearing that up for me. As the tribes are sovereign, they would be treated no differently by the Constitution than any other sovereign nation, except for their existence within our borders, making their sovereign existence (as well as Congress’ plenary power) pretty damn awkward.

    • CLS
      16 June 2016 at 2:39 pm - Reply


      Somehow, I knew you’d comment on this. Maybe it’s the psychological mind reader in me.
      I hadn’t read Kagama until yesterday, but the funny thing about Bryant is the High Court treats it like it’s gospel when ruling on Bryant. Looking into the backstory behind Kagama it also appears as though Kagama, like Bryant, is a case of the Feds telling tribes they can’t possibly understand the law and need a good learning on how things are supposed to work.

      And that seems to be part of Thomas’s argument. Precedent after precedent after precedent has led us here, and it’s time to revisit that precedent because it’s caused our laws to turn into a shitstorm of crazy.

      • shg
        16 June 2016 at 3:20 pm - Reply

        There’s a saying, “remember the rubric, forget the rationale.” Happens a lot with very old caselaw, that gets cited (with approval, of course) even though its core message is long forgotten or ignored.

      • Greg Prickett
        16 June 2016 at 11:40 pm - Reply

        I’ve done a lot of research into the issue. It really started with Ex parte Crow Dog, 109 U.S. 556 (1883), where one Brule Lakota leader killed another Lakota leader on the rez in South Dakota. The tribe handled the crime by having Crow Dog pay the family of the victim, but the whites didn’t like it, arrested Crow Dog, tried him in a federal territorial court, convicted him, and sentenced him to hang. SCOTUS overturned the conviction, noting that the federal court did not have jurisdiction.

        So Congress passed the Major Crimes Act. Kagama was the test case for the MCA, and of course SCOTUS upheld the act by inventing the “plenary power” doctrine. It is just another example of whites telling Indians how they should do things, and by making stuff up as it goes.

        I like J. Thomas’ argument on plenary power, but I hate his position on sovereignty. Most of the tribes entered into treaties with the United States, treaties that were ratified by the Senate and which are the law of the land. There are no grounds to remove the sovereignty of the tribes, other than it is inconvenient for white folks.

        • TMM
          17 June 2016 at 5:35 pm - Reply

          The sovereignty of all tribes (or at least their legal separateness from the federal government) is implicitly recognized in the commerce clause — treating commerce with the tribes as functionally equivalent to interstate and foreign commerce.

          While Framers may not have expressly created a “plenary” power over the tribes, it is hard to look at the history of how the Framers (and the next several generations) treated the tribes without inferring a power on behalf of the federal government to manage relations with the tribes (including impinging on the autonomy and territory of the tribe) in whatever way the federal government believed was appropriate — typically in favor of white settlers over the tribes.

          • Greg Prickett
            19 June 2016 at 1:46 am -

            The framers had a method of dealing with the Indians, by treaty.

            Until 1871, the government managed relations with the tribes by having the executive branch negotiate a treaty, sign it, and then get the Senate to ratify it. Only the House got irritated because they were not allowed to play, but would have to pay the bills from the treaties. So they changed the rules, decided no more treaties, and started the plenary power BS that appears nowhere in the Constitution.

            And the people who were around at the framing didn’t always agree with the white settlers. Justice Marshall issued a stay of execution for George Corn Tassel in 1830, but the State of Georgia ignored it and hung Tassel anyway. They later found for the Cherokee Nation’s sovereignty in Worcester v. State of Georgia, 31 U.S. (6 Pet.) 515 (1832). Georgia ignored that decision too, and President Andrew Jackson refused to enforce it, as he wanted to move the Cherokees to the Indian Territory and away from the gold that had been found on their land.

  • Fault Lines’ First Monday In October
    3 October 2016 at 8:04 am - Reply

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