"Equal Justice Under Law" at the U.S. Supreme Court. Photo: John Brighenti

Supreme Court delays action for ninth time in Indian Country violence case

The U.S. Supreme Court has once again delayed action in an Indian Country violence case that few believe has a chance at being heard.

The petition in Bearcomesout v. United States questions 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. Precedent suggests there is no reason Tawnya Bearcomesout, who has already been punished for the crime, can't be tried by both sovereigns.

The precedent, in fact, appears to be so strong that the federal government didn't even bother filing a response to Bearcomesout's petition. No tribes, tribal organizations, Indian law professors or other advocates have weighed in either.

Instead, the court's failure to take action nine times over the past six months suggests one member needs time to explain why he wants to hear the case even though his colleagues don't. According to some observers, that would be Justice Clarence Thomas, whose views on Indian law and Indian policy often fall outside of the mainstream.

"What Justice Thomas Gets Wrong About Constitutional History" was the title of a two-part post on the influential Turtle Talk blog when the jurist attacked the legality of the land-into-trust process after the Supreme Court refused to take on the issue.

Bearcomesout's case doesn't seem as high-profile as a land-into-trust dispute but the underlying facts are familiar in Indian Country, where rates of victimization are the highest in the nation. In August 2016, she pleaded guilty to one charge of involuntary manslaugther, admitting she stabbed and killed her husband -- identified in court filings as "B.B." -- 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 November 2014 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 taking her case to the 9th Circuit Court of Appeals, 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, May 24 and May 31, all without any subsequent action. It's now been placed for review yet again on June 7.

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

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