The Chief Little Wolf Capitol Building of the Northern Cheyenne Tribe of Montana. Photo: Jimmy Emerson

Supreme Court delays action yet again on Indian Country violence case

The U.S. Supreme Court has had a busy few months dealing with Indian law cases but one petition seems to be troubling the justices a bit.

For the eighth time in a row, the court on Monday declined to take action on Bearcomesout v. United States , a manslaughter case linked to domestic violence in Indian Country. That tops the seven delays seen in another recent tribal matter.

The court has not explained why it keeps rescheduling Bearcomesout. But last month, professor Matthew L.M. Fletcher speculated on the influential Turtle Talk blog that there could be a reason -- one justice in particular might be upset that his colleagues are getting ready to deny the petition, meaning they won't hear the case at all.

"Justice Thomas anyone?" Fletcher wrote.

Justice Clarence Thomas could indeed be the culprit, since he was the cause for the seven delays in Upstate Citizens for Equality v. U.S. and Town of Vernon v. U.S., a dispute affecting the Oneida Nation and its homelands in New York. It turns out he was using the time -- about four months -- to develop a dissent which criticized his colleagues for turning down the chance to rule on the legality of the land-into-trust process.

Bearcomesout has been delayed five months and running. At issue is whether a citizen of the Northern Cheyenne Tribe can be prosecuted by her government and by the United States for killing her common-law husband, whom she accused of beating her.

Tawnya Bearcomesout asserts that her constitutional rights were violated because she was charged by the federal government after she had already been charged by her tribe. But the 9th Circuit Court of Appeals said that wasn't the case because the tribe and the United States are separate sovereigns.

"This argument is foreclosed," the 9th Circuit wrote in a short, unanimous memorandum in August 2017, a mere 8 days after the case was submitted. And in a sign of the non-controversial nature of the matter, no oral arguments were held.

The ruling cited the Supreme Court's decision in Commonwealth of Puerto Rico v. Sanchez Valle as precedent. Although the 2016 case had nothing to do with Indian Country, the issue of tribes as separate sovereigns was discussed at length in the majority opinion, a concurring opinion (written by Thomas incidentally) and a dissent.

"A tribe’s power to punish pre-existed the Union, and so a tribal prosecution, like a State’s, is 'attributable in no way to any delegation . . . of federal authority,'" Justice Elena Kagan wrote for the court.

The decision means people like Bearcomesout can be prosecuted in the tribal and federal systems for the same crime without violating the Double Jeopardy Clause of the U.S. Constitution.

The Supreme Court has ruled on similar issues in the past, concluding that double jeopardy is not implicated in these types of Indian Country cases. That's why Fletcher and other legal experts believe the justices will eventually turn Bearcomesout away without ruling on her constitutional claims.

In August 2016, Bearcomesout pleaded guilty to one charge of involuntary manslaughter. She admitted she stabbed and killed her husband -- identified in court filings as "B.B." -- in November 2014 during a fight in which she said she was attacked at their home on the Northern Cheyenne Reservation in Montana.

"Bearcomesout stated that she and B.B. got into an altercation on the night of his death and that he hit her head against the sink. She explained that she stabbed B.B. because he was beating on her and nobody was helping her," an offer of proof filed by federal prosecutors stated.

Bearcomesout suffered injuries during the fight, according to the document. In their subsequent petition with the Supreme Court, her federal public defenders said she had a "black eye and several cuts on her face and head."

In November 2016, a federal judge sentenced Bearcomesout to time served. She had already spent 17 months in tribal custody so she had basically served all of the time that would have been imposed on her under the terms of her plea agreement with the federal government.

But as Bearcomesout was appealing to the 9th Circuit, a right she reserved in her plea agreement, she got into trouble. According to a June 2017 petition, she failed to participate in substance abuse testing and substance abuse treatment and failed to make payments toward restitution to her tribe and to her victim's family.

She also pleaded guilty to driving under the influence in Northern Cheyenne court.. Alcohol had been a factor in the death of Brett Beckman, who had been her common-law husband.

As a result, Bearcomesout was arrested last summer and she eventually admitted to 11 violations of her probation. She served another six months in federal custody and was released on January 19, according to the Federal Bureau of Prisons.

Bearcomesout is now serving 30 months of supervised release and was supposed to spend six months of that time in a residential release center. But a facility in Billings has been unable to accept new arrivals, according to a petition filed by federal probation officers in March. There is no indication the judge has ruled on the request to modify her punishment.

According to Docket No. 17-6856, the Supreme Court received Bearcomesout's petition on November 14. The Department of Justice declined to file a response, a sign that government attorneys believe her case won't be granted.

The petition was supposed to be considered at a closed-door conference in early January, just as Bearcomesout was wrapping up her latest prison term. But it was "rescheduled" without explanation and moved to to April 13.

Since then, the petition has been "distributed" on April 20, April 27, May 10, May 17 and May 24, all without any subsequent action. It's now been placed for review on May 31.

9th Circuit Court of Appeals Decision:
U.S. v. Bearcomesout (August 17, 2017)

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