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Supreme Court agrees to review yet another Indian law dispute

Native women and their supporters rallied at the U.S. Supreme Court on December 7, 2015, as the justices heard Dollar General Corporation v. Mississippi Band of Choctaw Indians. Photo by Indianz.Com

The U.S. Supreme Court accepted a fourth Indian law case on Monday, agreeing to resolve a dispute over the use of tribal convictions against domestic violence offenders.

Without comment, the justices issued an order that granted the petition in US v. Bryant. The outcome will determine whether tribal court convictions can be counted in federal court even if the defendant wasn't provided with an attorney.

Normally, the Sixth Amendment to the U.S. Constitution bars a defendant from being tried without the assistance of an attorney. But since tribes operate as sovereign governments, the 8th Circuit Court of Appeals and the 10th Circuit Court of Appeals have determined that tribal convictions can be used against repeat domestic violence offenders.

The 9th Circuit Court of Appeals, however, arrived at a different conclusion, leaving Native women in a large number of Western states without the same protections as their counterparts. The dispute will now be resolved once and for all by the justices.

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

"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."

In 2005, Congress amended the Violence Against Women Act to address repeat offenders like Michael Bryant Jr., the defendant in the case. Bryant has been convicted by the Northern Cheyenne Tribe at least seven times, qualifying him as a "habitual offender" under 18 U.S.C. § 117.

"Michael Bryant likes to beat women. Sometimes he kicks them. Sometimes he punches them. Sometimes he drags them by their hair," Judge John B. Owens of the 10th Circuit wrote in a dissent in July, when the court refused to revisit the issue by putting it to an en banc panel of judges. "He punched and kicked one girlfriend repeatedly, threw her to the floor, and even bit her. When he could not find his keys, he choked another woman to the verge of passing out."

Judge Diarmuid O'Scannlain also wrote passionately to protest the outcome of the case. He said the 10th Circuit's decision "holds tribal courts in contempt for having the audacity to follow the law as it is, rather than the law as we think it should be."

Bonnie Juneau, a council member for the Tulalip Tribes, speaks at a rally on the lawn of the U.S. Capitol on December 7, 2015. Photo by Indianz.Com

Judge Richard Paez, who wrote the original opinion in the case, defended the outcome and said it was "consistent with Congress’s dual interest in respecting tribal courts and ensuring due process for tribal court defendants."

But he also acknowledged that the "sharp division over the important issues at stake" could lead to review by the Supreme Court, whose members have ruled consistently against Indian interests over the last decade.

Just last week, the justices placed tribal courts under scrutiny as they heard arguments in Dollar General Corporation v. Mississippi Band of Choctaw Indians. Dozens of Native women and their supporters rallied at the court and at the U.S. Capitol on December 7 to stress the importance of tribal courts in protecting the most vulnerable.

"We need to be able to protect our women and our children," Bonnie Juneau, a council member for the Tulalip Tribes of Washington, said at the rally. "Justice should be applied no matter where you live."

Tribal leaders listen to a presentation about U.S. v Bryant and other Indian law cases at the National Congress of American Indians annual convention in San Diego, California, on October 19, 2015. Photo by Indianz.Com

But justice does not appear to come easy for Indian Country. Under the leadership of John Roberts, the high court hasn't treated tribal interests so well.

"Since 2006, under John Roberts, there's been 11 Indian cases decided by that court and we have won only two of those cases," Native American Rights Fund executive director John Echohawk told the National Congress of American Indians during the organization's annual convention in October.

Through the Tribal Supreme Court Project, NARF and NCAI have been able to keep most disputes away from the high court. But the current October 2015 term boasts the largest Indian law docket since 2000, when tribes lost four out of five cases.

In addition to Dollar General, the Supreme Court heard arguments on December 1 in Menominee Indian Tribe of Wisconsin v. US, a contract support costs case involving the Menominee Nation of Wisconsin. The justices will hear Nebraska v. Parker, a reservation boundary case affecting the Omaha Tribe of Nebraska, on January 20, 2015.

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)

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