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DOJ asks Supreme Court to hear Indian domestic violence case

Wednesday, November 11, 2015

A view of the U.S. Supreme Court. Photo by Indianz.Com

The Obama administration is asking the U.S. Supreme Court to hear a domestic violence case that is generating interest across Indian Country.

American Indian and Alaska Native women already face high rates of violence in their communities. Unless the high court takes action, the Department of Justice is warning that they could be terrorized even more by repeat offenders.

"Domestic violence against Indians is a pressing problem of alarming magnitude," Solicitor General Donald B. Verrilli, Jr. wrote in a petition to the court. "More than forty percent of Indians have been victims of physical violence, rape, or stalking by an intimate partner in their lifetimes."

To address the issue, Congress took a hard line against people like Michael Bryant Jr., who has been convicted of domestic violence by the Northern Cheyenne Tribe at least seven times. Under 18 U.S.C. § 117, he would considered a "habitual offender" because the law recognizes his tribal record.

Indianz.Com SoundCloud: 9th Circuit Court of Appeals Oral Arguments in US v. Bryant

But Byrant was never provided with an attorney in tribal court, something that would have violated his rights under the Sixth Amendment to the U.S. Constitution in any other venue. So his convictions can't be used against him, the 9th Circuit Court of Appeals determined.

"We agree that Bryant’s prior tribal court domestic abuse convictions would have violated the Sixth Amendment had they been obtained in state or federal court," Judge Richard Paez wrote in a 2-1 decision from September 2014.

The 9th Circuit's ruling conflicts with ones from the 8th Circuit Court of Appeals and the 10th Circuit Court of Appeals. The three circuits cover a vast swath of Indian Country so the split poses a significant issue that only the high court can resolve.

"Of the 567 federally recognized tribes, more than 500 are located in the Eighth, Ninth, and Tenth Circuits," DOJ's brief reads. "This court should grant certiorari to ensure that habitual domestic violence offenders with tribal court convictions are treated the same way under Section 117(a) no matter where they reside."

A sign on the Northern Cheyenne Reservation in Montana, where tribal member Michael Bryant was convicted of domestic violence seven times. The 9th Circuit Court of Appeals, however, refused to treat him as a repeat offender under federal law because he wasn't provided with an attorney in tribal court. Photo from NRC

The case is still in the early review stages -- DOJ filed the petition on October 7 and Bryant responded in opposition on November 4. He's being represented by federal public defenders because he lacks sufficient resources to hire his own legal team.

Normally, tribes and their advocates don't want the Supreme Court to hear Indian law cases because the justices tend to rule against their interests. But the National Congress of American Indians, the largest inter-tribal organization, supports DOJ's petition.

"I think it's extremely likely that it will be accepted," NCAI's general counsel John Dossett said of the case at the organization's annual convention in San Diego, California, last month. NCAI filed a brief on November 5 to urge the Supreme Court to resolve the circuit split in favor of the federal government.

“These women's lives are in danger," Dossett told tribal leaders. "When you get a repeat offender, it's a real problem."

As one example, the Tulalip Tribes of Washington prosecuted nine domestic violence defendants who were the subject of more than 100 police calls between 2008 and 2014. The Pascua Yaqui Tribe of Arizona had 15 defendants with 84 law enforcement contacts. Both tribes fall in the 9th Circuit.

"These men have just drained our tribal resources," Tulalip Tribes attorney Michelle Demmert said at a DOJ event in Washington, D.C., on October 7, held in recognition of Domestic Violence Awareness Month.

The last federal Indian criminal case heard by the Supreme Court was US v. Lara. In April 2004, the justices held that tribes can exercise criminal jurisdiction over "all Indians" and not just their own members.

The 7-2 decision was significant because it affirmed the power of Congress to address the unique criminal justice issues facing tribes. DOJ is framing the new case, US v. Bryant, in a similar manner in hopes of overturning the 9th Circuit's decision.

"Contrary to the Ninth Circuit’s decision in this case, nothing in the Constitution prohibits Congress’s judgment that prior tribal- court misdemeanor convictions, whether or not they were counseled and whether or not they resulted in imprisonment, support a recidivist prosecution under Section 117(a)," the brief states.

DOJ will be submitting one more brief before the Supreme Court considers the petition at a closed-door conference, sometime in the coming months. If the justices agree to hear the case, another round of briefs will be filed.

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

8th Circuit Decision:
US v. Cavanaugh (July 6, 2011)

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