On June 13, 2016, the U.S. Supreme Court issued a unanimous decision in United States v. Bryant, holding that use of tribal court convictions entered in compliance with the Indian Civil Rights Act (ICRA) as predicate offenses in a federal prosecution does not violate the United States Constitution. United States v. Bryant, 136 S.Ct. 1954, 1957 (2016).
The case involved Michael Bryant, Jr., a member of the Northern Cheyenne Tribe, who had been convicted of several domestic violence charges in the Northern Cheyenne Tribal Court over a ten-year period. Because ICRA requires a criminal defendant to be represented by an attorney only when the sentence imposed exceeds one year, 25 U.S.C. § 1302(c), Bryant was not represented for many of his misdemeanor domestic-assault convictions. Based on domestic assaults he committed in 2011, the federal government indicted Bryant on two counts of domestic assault by a habitual offender in violation of 18 U.S.C. § 117(a). Bryant moved to dismiss the indictment, contending that his Sixth Amendment right to be represented by an attorney precluded the government’s use of his uncounseled tribal-court misdemeanor convictions to satisfy the predicate-offense requirement of § 117(a). The district court denied the motion. The Ninth Circuit reversed and directed dismissal of the indictment. United States v. Bryant, 769 F.3d 671, 679 (9th Cir. 2014). The Supreme Court granted certiorari to resolve a circuit split resulting from the Ninth Circuit’s decision.
The Supreme Court reversed and instructed the Ninth Circuit to reinstate Bryant’s federal conviction. Writing for the majority, Justice Ginsburg emphasized that Bryant’s tribal-court convictions were valid when entered because they complied with ICRA and “infringed no constitutional right” given the well-established principle that tribes are unconstrained by the U.S. Constitution. Bryant, 136 S. Ct. at 1964 (noting that “the Sixth Amendment does not apply to tribal-court proceedings”). As a result, Justice Ginsburg reasoned, the Court’s prior decision in Nichols v. United States—which instructs that convictions that are valid when entered retain that status when invoked in a subsequent proceeding—controls the outcome. Id. at 1965. Because Bryant had no Sixth Amendment right to counsel for his misdemeanor tribal court convictions, the Court reasoned that use of those convictions in and of itself cannot violate the Sixth Amendment anew.
The epidemic of domestic violence in Indian Country and respect for tribal courts generally also served as important themes underlying the Court’s decision. Noting that Bryant had a record of over 100 tribal court convictions, the Court acknowledged at length that § 117(a) had been enacted in response to the difficulty tribes have had in quelling domestic violence due in part to congressionally-imposed limitations on tribal-court sentencing authority. Bryant, 136 S. Ct. at 1963-64. The Court also acknowledged the highly disproportionate rates of domestic violence suffered by Native American women due in part to such limitations. Id. And notably, the Court rebuffed Bryant’s attacks on the reliability of the tribal court convictions, pointing out that Bryant had conceded that an uncounseled misdemeanor violation resulting in a fine would not be categorically unreliable and that “there is no reason to suppose that tribal-court proceedings are less reliable when a sentence of a year’s imprisonment is imposed than when the punishment is merely a fine.” Id. at 1366.
In sum, the Bryant decision is an important victory for tribal interests. It affirms the fundamental tenet of Indian law jurisprudence that as separate sovereigns pre-existing the Constitution, tribes are unconstrained by the United States Constitution. Second, it strengthens the sanctity of tribal-court convictions by recognizing them as important tools in the effort to quell the epidemic of domestic violence in Indian Country. And third, it promotes respect for tribal courts by exposing general concerns about the “reliability” of tribal court decisions as not grounded in evidence or reality.