May 06, 2016

Supreme Court Case May Endanger Native Women

Eliza Racine

The legitimacy of tribal courts and the Violence Against Women Act is being questioned in a case that could cause severe negative repercussions for Native women. United States v. Bryant will determine if uncounseled tribal court misdemeanor convictions in domestic violence cases can be used in federal court for repeat offenders.

This case is a life and death matter for Native women according to legal experts like Tim Purdon, co-chair of the American Indian Law and Policy Group at Robins Kaplan Law Firm.

“Because I had the ability to use tribal court convictions, I could charge serial offenders and better protect Indian women and save lives. This is a tool that allowed us to intercede a lot earlier,” said Purdon in an interview with Indian Country Today Media Network. “No victim should be put in the position where their abuser goes free because he doesn’t accept the legitimacy of tribal court convictions.”

A member of the Northern Cheyenne tribe, Michael Bryant Jr. already has more than 100 tribal court convictions from 1997 to 2007, including five domestic abuse convictions to which he pled guilty. After being convicted in 2011 for two different cases of domestic violence, Bryant was found eligible for a habitual offender status and was indicted by Montana’s federal district court.

However, Bryant appealed to the Ninth Circuit Court of Appeals and asked to have the federal indictment dismissed. He argued that using his previous misdemeanor convictions to prove habitual offender status under the Violence Against Women Act (VAWA) violated his Fifth and Sixth Amendment rights. The court agreed with Bryant in September 2014 and his indictment and 46-month federal prison term were thrown out.

The case appealed to the Supreme Court in December 2015 for its 2016 session, and arguments were heard last month. A decision on the legitimacy of tribal convictions is expected by late June.

Bryant is arguing that tribal court convictions should be treated as non-existent for the purposes of prosecution under federal law. If the Supreme Court rules in favor of Bryant, this would damage the tribal court’s’ ability to protect Native women from repeat offenders.

Steven Babcock, Bryant’s lawyer, asserts that the use of prior convictions in prosecuting Bryant on new charges violated his constitutional right to an attorney. The justices were skeptical because Bryant never challenged his earlier convictions or prison sentences of up to a year. While the Sixth Amendment guarantees the right to counsel, the Indian Civil Rights Act of 1968 does not guarantee defendants an attorney provided by tribal courts unless the defendant faces a prison sentence of more than a year.

“No victim should be put in the position where their abuser goes free because he doesn’t accept the legitimacy of tribal court convictions.”

– Tim Purdon, co-chair of the American Indian Law and Policy Group at Robins Kaplan Law Firm.

Elizabeth Prelogar, who’s representing the United States, pointed out that Bryant was represented by appointed counsel through his case and admitted guilt to all his prior convictions. She added that a previous Supreme Court ruling held that uncounseled convictions remain valid in determining when to classify a defendant as a repeat offender.

Tribal courts are necessary in ensuring public safety on Indian reservations, this case has the potential to delegitimize them to the point where the tribal courts wouldn’t be able to protect Native American women from being attacked by repeat offenders.

The Violence Against Women Act (VAWA), which was amended in 2013 to allow tribal courts to prosecute non-Natives, also allows tribal convictions to count toward the number of offenses needed to be charged as a habitual offender. This helps protect Native women from abusers, which is much too common.

Forty-six percent of Native American women have been victims of domestic violence, rape, or stalking, according to the U.S. Center for Diseases Control and Prevention. Native American women face the highest rates of domestic violence — twice as much as women of any other race. It doesn’t help that tribal courts have been severely limited in handling such cases until the past three years.

VAWA has become crucial in the fight against domestic violence in Native communities because most abusers are non-Native men– who make up 86 percent of attackers in reported rape and sexual assault cases against Native American women– and could come back repeatedly and continue abusing Native American women without legal repercussions.

If the Supreme Court rules in favor of Bryant, then tribal court convictions would not be able to count towards habitual offender status, making it much easier for abusers to get away with their crimes in Native communities.