Quinault Nation President Fawn Sharp, at podium, speaks at the National Congress of American Indians executive council winter session in Washington, D.C., on February 23, 2016. Sharp serves as vice president of NCAI. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Law | National

Supreme Court decision hailed as a victory for tribal sovereignty

Tuesday, June 14, 2016

The U.S. Supreme Court isn't always kind to Indian Country but a unanimous decision in a domestic violence case is drawing praise from tribes and their advocates.

By an 8-0 vote, the justices on Monday upheld the use of tribal court convictions in the federal system. The decision in US v. Bryant means that offenders who repeatedly abuse Native women will continue to face consequences for the actions.

“We deeply appreciate this confirmation of tribal legal rights and jurisdiction," Fawn Sharp, the president of the Quinault Nation of Washington, said in response to the decision. "People need to know that tribal governments consider the issue of violence against women or anyone else on our reservations a top priority issue."

The National Indigenous Women’s Resource Center was thankful for the decision as well. She noted that the majority opinion, which was written by Justice Ruth Bader Ginsburg, cited numerous studies that show Native women are the victims of violence at rates far higher than their counterparts.

"The Supreme Court recognized the staggering rates at which our Native women suffer from domestic violence, and the severe consequences Native women face due to jurisdictional limitations on prosecuting violent offenders in Indian Country," Cherrah Giles, the president of the organization's board of directors, said in a press release.

In addition to the statistics, the decision laid out the criminal history of the defendant whose treatment as a "habitual offender" under 18 U.S.C. § 117 was at the heart of the dispute. Michael Bryant Jr., has been convicted by the Northern Cheyenne Tribe of Montana at least 100 times, Ginsburg wrote, a record that includes at least five guilty pleas for domestic violence.

"On one occasion, Bryant hit his live-in girlfriend on the head with a beer bottle and attempted to strangle her," the decision stated. "On another, Bryant beat a different girlfriend, kneeing her in the face, breaking her nose, and leaving her bruised and bloodied."

Indianz.Com SoundCloud: U.S. Supreme Court Oral Argument in United States v. Bryant

But since he wasn't provided with an attorney in tribal court, the 9th Circuit Court of Appeals concluded that the use of tribal convictions violated his right to an attorney under the Sixth Amendment to the U.S. Constitution. That holding conflicted with the 8th Circuit Court of Appeals and the 10th Circuit Court of Appeals, leaving Native women in a large number of states -- including California and Washington -- without the same protections as their counterparts.

The Supreme Court resolved the split in favor of tribal interests and the whose Department of Justice, whose attorneys successfully argued that the 9th Circuit got it wrong. Native women all across the country will be able to benefit from the federal law at issue in the case.

"This decision is a victory for Native women and a victory in the fight to reduce domestic violence in Reservation communities," said Tim Purdon, who served as the U.S. Attorney for North Dakota, when US v. Cavanaugh -- the case from the 8th Circuit -- was decided in favor of the federal government back in 2011.

"It means that U.S. Attorneys with responsibilities for public safety in Indian Country can make full use of the habitual domestic violence offender statute to protect American Indian women from those who would commit serial acts of domestic violence against them," added Purdon, who was among a group of six former federal prosecutors that submitted a brief in defense of tribal court convictions to the Supreme Court.

Congress recognized tribal convictions in the 2005 reauthorization of the Violence Against Women Act so the law has only been on the books for a little over a decade. In addition to Bryant's case, it has survived constitutional challenges from other men who abused their partners in Indian Country.

The 2013 reauthorization of VAWA went even further by recognizing the "Inherent" authority of tribes to arrest, prosecute and sentence non-Indians who abuse their partners. But tribes that wish to follow the law must ensure that their justice systems protect the rights of defendants by providing them with access to attorneys.

Native women rallied at the U.S. Supreme Court on December 7, 2015, to call attention to justice issues in Indian Country. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Several tribes have been successfully prosecuting non-Indians but their authority hasn't been challenged so far. Although VAWA was not at issue in the Bryant's case and, as a tribal member, he falls under the Indian Civil Rights Act, which does not guarantee access to an attorney, the decision underscored a key point in the ongoing debate about justice in tribal communities.

"The Bill of Rights, including the Sixth Amendment right to counsel," Ginsburg wrote, "does not apply in tribal-court proceedings."

In 2010, Congress passed the Tribal Law and Order Act, which allowed tribes to impose sentences of up to three years on Indian offenders. In those situations, as with VAWA, defendants must be given access to an attorney.

Sharp, who also serves president of the Affiliated Tribes of Northwest Indians and vice president of the National Congress of American Indians, noted the connection between The Supreme Court's ruling and newer laws like the 2013 reauthorization of VAWA. She said tribes will use every tool to stem the high rates of violence on their lands.

"Tribes have the authority to make arrests and prosecute anyone who commits these crimes on their reservations and we intend to use it," said Sharp. "All of our people are precious to us. Our elders, our children, our men and our women. We will not tolerate this kind of abuse. The nightmare is still not over, but this is a major step in the right direction."

Supreme Court Decision:
US v. Bryant (June 13, 2016)

Supreme Court Documents:
Oral Argument Transcript | Docket Sheet No. 15-420: US v. Bryant | Question Presented

8th Circuit Decisions:
US v Harlan (February 16, 2016)
US v. Cavanaugh (July 6, 2011)

9th Circuit Decisions:
US v. Bryant (July 6, 2015)
US v. Bryant (September 30, 2014)

10th Circuit Decision:
US v. Shavanaux (July 26, 2011)