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.