The question is whether the parent should have had attorney representation during the interview with the qualified expert witness. This is a really interesting question, especially given that in this case the mother was assigned her own Guardian ad Litem. The Court ultimately held that she did not have the right to representation during the interview and upheld the termination of parental rights.
Here is the petition in Bearscomesout v. United States:
Whether the “separate sovereign” concept actually exists any longer where Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s Constitution in this case such that Petitioner’s prosecutions in both tribal and federal court violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
The Ninth Circuit’s unpublished opinion is here. We posted briefs in this case because the federal appellate defender characterized this case as a direct challenge to the applicability of the dual sovereign exception to double jeopardy as applied to Indian tribes.
SCOTUSBlog notes this case has been relisted, perhaps because a justice wants to write a dissent from denial of certiorari (Justice Thomas anyone?), but who knows?
The Supreme Court has not addressed the interaction between Oliphant’s rejection of inherent criminal jurisdiction over non-Indians and a non-Indian’s ability to waive the question of personal jurisdiction before the tribal court in criminal matters. The extent to which a non-Indian may consent to tribal jurisdiction is not settled law. Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1136–40 (9th Cir. 2006) (en banc) (discussing non-tribal member consent to jurisdiction in civil suits).
Statement from the National Indigenous Women’s Resource Center, Link Here
The current reports of abduction and murder of American Indian women and girls are alarming and represent one of the most severe aspects of the spectrum of violence committed against Native women. The murder rate of Native women is more than ten times the national average. Often, these disappearances or murders are connected to crimes of domestic violence, sexual assault, and sex trafficking.
The NIWRC recognizes that before this crisis will be sufficiently addressed it must first be acknowledged. This past year, over 200 tribal, state and national organizations joined with NIWRC and signed on in support of a resolution to create a National Day of Awareness for Missing and Murdered Native Women and Girls. The Montana delegation Senator Steve Daines, Senator Jon Tester, and then Congressman Ryan Zinke introduced the resolution in memory of Hanna Harris, a Northern Cheyenne tribal member, who was murdered in July 2013. The resolution was introduced in April 2016 on the same day that RoyLynn Rides Horse, a Crow tribal member, passed away after having been beaten, burned, and left in a field to die. This past Wednesday, May 3, 2017, the United States took a historic step forward and passed the Senate resolution #60 by unanimous consent.
The NIWRC was honored to have worked with so many sister organizations at the tribal, state and federal levels to see the passage of this historic resolution. Today, May 5th 2017, organized community actions are taking place across tribal nations in honor of missing and murdered Native women and girls. The national office of NIWRC is honored to walk with Melinda Harris, mother of Hanna Harris, Senator Steve Daines, staff of Senator Jon Tester and so many others at a walk organized at Lame Deer, Montana. Tribal actions are being held at the Muscogee Creek Nation, the Mohawk Nation, the Oglala Sioux Indian Nation, the Northern Cheyenne Indian Nation, and many other locations.
We ask all of those concerned about safety and justice for American Indian, Alaska Native, and Native Hawaiian women to join together today to honor Native American women and girls who have disappeared and those who have been murdered. Together we can work to bring an end to this crisis endangering not only Indigenous women and girls but Indian nations.
The NIWRC is committed to organizing to increase safety and access to justice for American Indian and Alaska Native women and girls, to bringing awareness to this critical issue, and to preventing future acts of violence in our Nations.
Executive Director, NIWRC
Board Chair, NIWRC
Here are the briefs in United States v. Bearcomesout:
An excerpt from the opening brief:
Because the Northern Cheyenne Constitution cedes almost unfettered authority to the federal government, Ms. Bearcomesout’s prior conviction in Tribal Court bars subsequent federal prosecution in U.S. District Court as a violation of the Double Jeopardy clause. What is more, the frequency of litigation attacking identical and successive prosecutions says something about the inherent unfairness and counter intuitive legal analysis imposed on what seems to be a simple constitutional prohibition. Perhaps it is time to eschew the ‘separate sovereign’ concept altogether; because the harm it is intended to proscribe is hardly served by current separate sovereigns doctrine. See Puerto Rico v. Sanchez Valle, 579 U.S ___, 136 S.Ct. 1863, 1877 (2016) (Ginsberg, J., concurring).