Recently, two federal circuits — the Eighth and the Tenth — have affirmed trial courts’ use of uncounseled tribal court convictions to increase prison sentences under the federal habitual offender statute (18 U.S.C. § 117). The cases are Cavanaugh and Shavanaux.
Both circuits reversed trial court decisions ruling that the portion of § 117 allowing the use of uncounseled tribal court convictions for sentencing purposes was unconstitutional. Both circuits held that since the uncounseled tribal court conviction did not violate either the U.S. Constitution (under Talton v. Mayes) or the Indian Civil Rights Act (which does not require tribes to provide indigent defendants paid counsel), the tribal court convictions were valid.
Frankly, I’m surprised, and to a considerable extent pleased. I’m pleased that the federal courts are so deferential to tribal courts as a matter of comity. I’m surprised because there is some federal constitutional infirmity in using such convictions to enhance a federal sentence, though apparently not enough to trouble these circuits. Both courts agree that the uncounseled convictions could not be used to prove an element of a federal offense, for example.
Conceivably, both could be reversed en banc, assuming petitions for rehearing are filed (especially, the CA8 decision, where the panel was split). There’s no circuit split … yet … though it seems at least possible that Ninth Circuit or another circuit would come out the other way in the next 5, 10 years.
One possible outcome, even if the Supreme Court never reviews these cases, is a big impact on tribal court criminal justice. More and more tribal defendants will, the theory goes, refuse to plea bargain given these cases. Regardless, the need for full-scale tribal public defender offices grows daily.