Supreme Court case raises questions about tribal convictions

ALBUQUERQUE, N.M. — The U.S. Supreme Court will hear arguments on whether federal felony charges can be filed against defendants who were previously convicted of multiple domestic violence counts in tribal courts that didn’t provide attorneys.

The case to be heard Tuesday marks a test for federal efforts to combat domestic violence in Indian Country, where Congress has begun broadening tribes’ authority to prosecute cases.

In domestic violence cases, a decade-old law has sought to combat high assault rates on reservations by transferring cases involving offenders with multiple convictions to the federal courts for possible stiffer punishments.

That statute is now being challenged on the argument that defendants must be guaranteed counsel in tribal courts if their cases are ultimately grounds for stiffer penalties in U.S. courts.

“This case is being presented from the perspective of fighting against a serious problem of domestic violence on reservations,” said Daniel Kaplan, a federal public defender in Arizona who filed a brief in the case. “I certainly do not question the reality of that as a serious issue but I think that it should also be understood that there is a serious issue of due process in tribal courts.”

Federal data show nearly half of American Indian or Alaska Native women have been victims of stalking or physical or sexual violence — a dire reality that Sarah Deer, a professor at William Mitchell College of Law in Minnesota, said was the backdrop for legislation that established the 2005 habitual offender statute allowing federal prosecution.

Before the law, federal agents could only intervene in domestic violence cases on reservations and in tribal communities after a victim was seriously injured, making it difficult to stop an assailant from reoffending.

“If you have a domestic violence case that doesn’t really rise to a felony, you had tribes with very little authority and the federal government with no authority to prosecute. So this law provides some semblance of justice for victims,” Deer said.

The arguments set to be heard by the Supreme Court stem from a series of domestic assault cases against Michael Bryant Jr. on the Northern Cheyenne Reservation in Montana.

Authorities said Bryant was convicted of multiple domestic assault counts in tribal court before federal agents arrested him under the habitual offender statute in 2011. He was accused of beating two women in the span of several months, according to a criminal complaint.

In one of the two cases, authorities said Bryant drug a woman onto a bedroom floor, pulled her hair, and punched and kicked her. Another woman said that several months later Bryant grabbed and choked her until she almost passed out, according to the complaint.

Bryant appealed his federal sentence of more than three years in the case, saying his constitutional rights were violated because he didn’t have counsel in the prior tribal cases that triggered the federal charges.

Under the Indian Civil Rights Act, defendants have the right to hire their own attorneys in tribal court but are not guaranteed that one will be retained by the court for them.

Some tribes have a public defenders office, but there are dozens that without the money to hire defense attorneys or recruit them in some of the most remote areas in the country where they might only handle a few cases a month.

The Ninth Circuit Court of Appeals ruled in favor of Bryant. But in similar cases, appeals courts in other circuits have sided with the Justice Department.

“If we didn’t have this tool and we had to wait until those victims had to sustain a substantial bodily injury, some of those women could have been killed,” said Timothy Purdon, a former U.S. attorney, whose office prosecuted the North Dakota case. “That’s just a factual statement. For that victim, this was a very important statute.”

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