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Supreme Court ready to hear fourth Indian law case on the docket

Monday, April 18, 2016

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, a tribal jurisdiction case. Photo by Indianz.Com

Update: The Supreme Court has posted the transcript from the oral arguments.

All eyes are back on the U.S. Supreme Court as the justices take up another Indian law case on Tuesday.

The court has scheduled one hour of arguments for US v. Bryant. The outcome of the closely-watched case will determine whether tribal convictions can be used in federal court to punish offenders who repeatedly abuse American Indian women.

Elizabeth B. Prelogar of the Solicitor General's Office at the Department of Justice is presenting the case on behalf of the federal government. She will argue that tribal convictions can be used against repeat offenders even if they weren't provided with an attorney in tribal court.

"Congress enacted 18 U.S.C. 117(a) to address the jurisdictional vacuum that permitted offenders like respondent to harm their domestic partners in Indian country again and again, while facing only misdemeanor punishment reserved for minor crimes," the Obama administration wrote in an April 6 brief, citing 18 U.S.C. § 117, the law that was used to bring Michael Bryant to justice for beating his girlfriend.

One hour has been set aside for arguments in US v. Bryant on April 19, 2016. Image from U.S. Supreme Court

Steven C. Babcock, a federal defender from Montana, is presenting the other side of the case. While Bryant does not dispute that he was repeatedly convicted by the Northern Cheyenne Tribe, he will argue that using those proceedings against him in federal court violates his right to counsel under the Sixth Amendment to the U.S. Constitution.

"Although the prior uncounseled tribal court convictions were not themselves unconstitutional because the Constitution does not apply to tribal courts, the Sixth Amendment was violated when these uncounseled convictions were used to establish an element of a felony offense in federal court," Babcock wrote in a March 7 brief.

Siding with the government are the National Congress of American Indians, the National Indigenous Women’s Resource Center and a group of former U.S. Attorneys who have brought repeat offenders to justice. These interests aren't getting any argument time at the hearing but they have strongly urged the high court to uphold the law.

"We all agree that, given that 46 percent of Native American women report having experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime, expansion of the Cavanaugh rule to all of Indian Country is vitally important to enhance DOJ’s ability to protect American Indian women from repeat domestic violence," said Tim Purdon, who served as U.S. Attorney for North Dakota, when US v. Cavanaugh -- the first case to challenge the law -- was decided in favor of the government back in 2011.

The question presented in US v. Byrant will determine whether tribal convictions can be used against repeat offenders who may have not been provided with an attorney in tribal court. Source: U.S. Supreme Court

On the other side are the Tribal Defender Network, the National Association of Criminal Defense Lawyers, the Citizens Equal Rights Foundation and a coalition of criminal justice organizations. They are calling on the high court to establish a firm rule against the use of convictions obtained without the aid of an attorney

"To single out and exclude the Indian defendant from the fundamental protections celebrated by this Court’s constitutional jurisprudence is contrary and offensive to our most basic notions of justice," professors John LaVelle and Barbara Creel, both of whom are members of federally recognized tribes, wrote in the Tribal Defender Network's March 14 brief.

The numerous briefs speak to the significance of the outcome. By issuing a decision, the Supreme Court will be resolving a major split: while 8th Circuit Court of Appeals and the 10th Circuit Court of Appeals have upheld the use of tribal convictions, the 9th Circuit Court of Appeals came to a different conclusion, leaving Indian women in a large number of states without the same protections as their counterparts.

The argument itself comes at an unusual time. The case will be heard by just eight members of the court due to the passing of Justice Antonin Scalia in February. The last time that happened in an Indian law case was in a pair of fiduciary trust disputes from 2010 and 2011 when Justice Elena Kagan recused herself because she worked at DOJ when the cases were being litigated.

A crowd watches as the body of the late Justice Antonin Scalia is taken into the U.S. Supreme Court in Washington, D.C., on February 19, 2016. Photo by Indianz.Com

The hearing also marks the fourth Indian law case of the term. Indian Country hasn't seen this much activity at the high court in more than a decade and it's possible more cases could be added to the docket before the justices go on break in June.

So far, the court has issued rulings in two of the court cases. In Menominee Indian Tribe of Wisconsin v. US, the justices held that the Menominee Nation waited too long to pursue certain contract support costs claims against the Indian Health Service. The decision, which was unanimous, was issued on January 25, prior to Scalia's death.

In Nebraska v. Parker, the court held that Congress did not diminish the reservation of the Omaha Tribe in Nebraska. The decision, which was issued on March 22, was unanimous so Scalia's passing did not play a role in the outcome.

The justices have yet to issue a decision in Dollar General Corporation v. Mississippi Band of Choctaw Indians. The outcome will determine whether Dollar General -- a publicly-traded company that reported $18.9 billion in net sales in 2014 -- can escape the jurisdiction of the Mississippi Band of Choctaw Indians despite entering into an agreement with the tribe to operate a store on the reservation.

Arguments took place on December 7, 2015, prior to Scalia's passing. The case is among one of the oldest pending on the docket, according to SCOTUSBlog. Only three cases that were heard in November and one that was heard in October have yet to be decided.

The hearing in US v. Byrant will take place at 10am on Tuesday and the Supreme Court will post the written transcript later in the day. The audio will be posted by Friday.

Additional Analysis:
Amy Howe: Argument preview: The right to appointed counsel, tribal-court convictions, and federal domestic-violence statutes collide (SCOTUSBlog 4/12)

Supreme Court Documents:
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)