Trusting the Tribal Courts

By: Kieley Sutton

Whether one views Native Americans as a racial or a political group, there is no question that the United States government is often-times making decisions for and about Native Americans.  One such case was recently granted certiorari before the Supreme Court: United States v. Bryant.[1] United States v. Bryant seeks to answer the question as to whether or not tribal court convictions should count as predicate offenses for “habitual offender” status under 18 U.S.C. § 117(a) (hereinafter VAWA § 117) when tribal courts and tribal defendants are not guaranteed the Sixth Amendment protection of counsel in criminal trials.[2]

Michael Bryant, Jr. is a member of the Northern Cheyenne Tribe.[3]  On various occasions, he pled guilty to various domestic assault misdemeanor offenses.[4]  He has over 100 separate convictions, with most of them being violent in nature.[5]  His prior convictions include assaulting his live-in girlfriend by “strangling her and hitting her on the head with a beer bottle” in 1999 and “knee[ing] his girlfriend in the face and st[riking] her with his fist” in 2007.[6]

Even though Bryant pled guilty to the two domestic assault charges, he seeks to have the federal indictment dismissed because the usage of his Tribal Court convictions to elevate him to “Habitual Offender” violates his Fifth and Sixth Amendments.[7]  The Bill of Rights, in its entirety, does not apply to Indian governments and so it is not referenced or relied upon throughout the prosecution of a defendant in tribal court.[8]  The Indian Civil Rights Act enumerates some of the Fourth and Fifth Amendment rights to which the citizens of the Native American nations are entitled, but the Sixth Amendment right to counsel is not one of them.[9]

The current debate is whether or not the Constitution allows for those convictions to stand as predicate offenses when the defendants are not guaranteed the same levels of protection as other defendants within the United States. However, the conversation around race has been largely avoided.

The black-white binary discussion dominated the civil rights conversation for quite a long time but not anymore. Soon the Supreme Court will have to determine just how comfortable it is with giving the tribal courts sovereignty over their own judicial process. Allowing the prior convictions to stand will give the tribal courts a more solidified level of autonomy, deference, and recognition.

Previous strides in racial issues such as Brown v. Board of Education are often contributed to something called the Interest Convergence Theory.[10] Derrick Bell, the theorist responsible for the Interest Convergence Concept, writes that if it were not from the global pressures on the United States to treat their citizens better during the Cold War, Brown v. Board of Education and other subsequent desegregation measures would not have happened. The great criticism the United States faced after World War II for the extreme mistreatment of African-Americans coincided with the height of the Civil Rights movement. The interests of the white majority and the African American minority converged.

However, these circumstances are not present for the Native American peoples. In this particular case, not even the tribal court’s interests have converged. The defendant, Mr. Bryant, has moved to vacate his convictions because he argues that including the tribal court convictions would violate his Fifth and Sixth Amendments.[11] However, policy groups within the tribes—such as the National Indigenous Women’s Resource Center pushing to have those prior convictions count. Mary Kathryn Nagle (attorney for the NIWRC) states that “Tribal Governments, like all other sovereign governments, know best how to balance the rights of their women to be free from domestic violence with the rights of the accused perpetrators to be treated fairly and afforded due process.”[12] They have petitioned the Court to overturn the decision to vacate the conviction and push for the tribal sovereignty to be upheld.[13]

The United States Supreme Court should hold that the tribal court convictions of Michael Bryant, Jr. do serve as predicate offenses under VAWA § 117.[14] Instead of abusing the interests of the various stakeholders that do not converge, they should rely on the positions of the major organizations representing the indigenous people and maintain that the tribal courts are capable of administering a fair trial based on their own priorities and beliefs. The Supreme Court is at a pivotal point where it gets to decide whether or not the United States continues to abuse and otherwise detract from the rights of the indigenous people. It should not continue to shove Native Americans into smaller and smaller pockets of lands and importance, but rather to respect their decision and uphold the convictions. The dominant narrative and identity should be that of the Native People in general; not that of a single individual.

Critical Race Theory is something that is largely unconsidered by the judicial system throughout the United States. However, it deserves a much larger part of the dialogue, especially when discussing Native American rights. For so long, those rights have been minimalized and ignored, simply because the people who identify as such do not look or act in the way that the white majority finds acceptable. This should not be the standard under which we analyze and develop the rights of the Native American population. Deciding to uphold the tribal court convictions is a way that the United States government can achieve this goal.


[1] Petition for Writ of Certiorari, United States v. Bryant (No. 15-240).

[2] Id. at I (stating that the issue at hand is whether reliance on valid uncounseled tribal-court misdemeanor convictions, in order to prove 18 U.S.C. § 117(a)’s predicate-offense element, violates the Constitution).

[3] Id. at 4.

[4] Id.

[5] Amy Howe, Argument Preview: The Right to Appointed Counsel, TribalCourt Convictions, and Federal DomesticViolence Statutes Collide, SCOTUSblog (Apr. 12, 2016) (stating that Michael Bryant’s criminal record is “a long one, in fact: more than one hundred convictions in tribal court, several of which involve domestic abuse), http://www.scotusblog.com/2016/04/argument-preview-the-right-to-appointed-counsel-tribal-court-convictions-and-federal-domestic-violence-statutes-collide/.

[6] Petition for Writ of Certiorari, United States v. Bryant at 4 (No. 15-240).

[7] Id. at 5.

[8] Duro v. Reina, 495 U.S. 676, 693 (1990).

[9] 25 U.S.C. § 1301

[10] Derrick A. Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518 (1980).

[11] Response to the Petition for Writ of Certiorari, United States v. Bryant (No. 15-240).

[12] Suzette Brewer, SCOTUS Grants Hearing United States v. Bryant (Dec. 15, 2015), http://indiancountrytodaymedianetwork.com/2015/12/15/scotus-grants-hearing-united-states-v-bryant-162779

[13] See generally Brief for National Congress of American Indians as Amicus Curiae Supporting Petitioner, United States v. Bryant (No. 15-420) (Nov. 4, 2015), http://www.scotusblog.com/wp-content/uploads/2015/12/data2.pdf; Brief for National Indigenous Women’s Resource Center and Additional Advocacy Organizations for Survivors of Domestic Violence an Assault as Amici Curiae Supporting Petitioner, United States v. Bryant, (No. 15-240) (Feb. 4, 2016), http://www.scotusblog.com/wp-content/uploads/2016/02/15-420_amicus_pet_NationalIndigenousWomensResourceCenter.authcheckdam.pdf; Brief of National Congress of American Indians as Amicus Curiae in Support of Petitioner, United States v. Bryant (No. 15-240) (Feb. 4, 2016), http://www.scotusblog.com/wp-content/uploads/2016/02/15-420_amicus_pet_NCAI.authcheckdam.pdf; Brief for Dennis K. Burke, Former United States Attorney, District of Arizona; Paul K. Charlton, Former United States Attorney, District of Arizona; Thomas B. Heffelfinger, Former United States Attorney, District of Minnesota; David C. Iglesias, Former United States Attorney, District of New Mexico; Brendan v. Johnson, Former United States Attorney, District of South Dakota; and Timothy Q. Purdon, Former United States Attorney, district of North Dakota as Amici Curiae Supporting Petitioner, United States v. Bryant (No. 15-240) (Feb. 4, 2016), http://www.scotusblog.com/wp-content/uploads/2016/02/15-420_amicus_pet_DennisBurke_et_al.authcheckdam.pdf

[14] Petition for Writ of Certiorari, United States v. Bryant at I (No. 15-240) (stating that the issue at hand is whether reliance on valid uncounseled tribal-court misdemeanor convictions, in order to prove 18 U.S.C. § 117(a)’s predicate-offense element, violates the Constitution).