Ninth Circuit Remands Two Appeals Affected by U.S. v. Bryant

Here are the materials in United States v. Stewart.

Unpublished opinion

US Brief

Here are the materials in United States v. Kirkaldie.

Unpublished opinion

US Opening Brief

Justice Ginsburg Corrected Minor Error in Bryant Decision

Here is the NYTs article discussing post-decision amendments and corrections in Supreme Court opinions more generally.

An excerpt:

On the last day of June, for instance, a deputy solicitor general Michael R. Dreeben, wrote a letter to the court saying there had been a mistake in a decision issued a few weeks before. He asked the court to fix the error, and, a week later, it did.

Writing for the majority in a case about domestic assault on Indian reservations, Justice Ruth Bader Ginsburg had said a federal law applied to some serious crimes “when both perpetrator and victim are Indians.” But what the law itself actually said, quite clearly, was that it applied to all victims, Indians or not.

When Mr. Dreeben’s letter arrived, the court promptly sent it to reporters. When the court amended the decision to adopt the revised language Mr. Dreeben had suggested, its website noted the change.

Albuquerque Journal Op-ed on U.S. v. Bryant by Barbara Creel and John LaVelle

Link to “High Court Denies Rights of Natives” here.


Most disturbing is the court’s disregard of the racial inequity left in the wake of Bryant. Federal prosecutors are now licensed to target Indians – and only Indians – who faced prosecution without assistance of counsel in tribal court proceedings. This is because ICRA allows tribal courts to imprison Indians without the benefit of counsel but does not impact non-Indians, who are entitled to court-appointed counsel in state, federal, and now tribal court, thanks to a recent amendment to ICRA.

Justice Ruth Bader Ginsburg, who wrote Bryant, denigrates Indian people’s civil rights, citing the need to protect Native women from domestic violence. But Department of Justice statistics show most domestic violence perpetrators in Indian country are non-Indians, and the Bryant decision leaves intact their constitutional rights, including the right to appointed counsel.

Takeaways from the Bryant Decision

As observers might have predicted from the oral argument in United States v. Bryant (opinion here), the government’s victory was not surprising. Of course, even a few years ago, this outcome was far from a foregone conclusion, as the 2005 Canby-Washburn-Sands debates in the Federal Sentencing Reporter suggested.

A few takeaways:

1. Remarkable that the Court heaps some of the blame on states for failure to prosecute DV offenses in Indian country, citing to the now-mammoth studies supporting what people in PL280 states have been saying for more than a half-century:

Even when capable of exercising jurisdiction, however, States have not devoted their limited criminal justice resources to crimes committed in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–1637 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7–8 (2007)…. [slip op. at 5]

2. We all know it’s coming — the constitutional challenge to VAWA’s tribal jurisdictional provisions:

In the Violence Against Women Reauthorization Act of 2013, Congress amended ICRA to authorize tribal courts to “exercise special domestic violence criminal jurisdiction” over certain domestic violence offenses committed by a non-Indian against an Indian. Pub. L. 113–4, §904, 127 Stat. 120–122 (codified at 25 U. S. C. §1304). Tribal courts’ exercise of this jurisdiction requires procedural safeguards similar to those required for imposing on Indian defendants sentences in excess of one year, including the unqualified right of an indigent defendant to appointed counsel. See §1304(d). We express no view on the validity of those provisions. [slip op. at 4 n. 4]

3. As is true most of the time, the Court does not acknowledge the disconnect between the terrible rates of crime in Indian country with the lack of effective law enforcement in Indian country, a reality created by Congress and made worse by the Court itself over the decades. Compare:

“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” [slip op. at 2]


That leaves the Federal Government. * * * As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of §117(a), faced at most a year’s imprisonment per offense—a sentence insufficient to deter repeated and escalating abuse. To ratchet up the punishment of serial offenders, Congress created the federal felony offense of domestic assault in Indian country by a habitual offender. [slip op. at 5, 6]


[Bryant] has a record of over 100 tribal-court convictions, including several misdemeanor convictions for domestic assault. Specifically, between 1997 and 2007, Bryant pleaded guilty on at least five occasions in Northern Cheyenne Tribal Court to committing domestic abuse in violation of the Northern Cheyenne Tribal Code. [slip op. at 10]

The feds already don’t have the capacity to prosecute all the repeat DV offenders who are Indians like Bryant, then add in the non-Indians — there’s a problem that 117(a) doesn’t fix.

3. Tribal criminal convictions on Indians in compliance with the Indian Civil Rights Act are all right for Congress, and therefore okay for the Supreme Court:

Proceedings in compliance with ICRA, Congress determined, and we agree, sufficiently ensure the reliability of tribal-court convictions. [slip op. at 16]

Let’s hope that statement applies to non-Indians, too.

4. Tribes start funding those criminal defender offices!!!!! This Lakota woman spent two months in jail because she couldn’t pay a $250 bond, let alone afford an attorney:

Angie told me that she had bought, not sold, marijuana that day. She should have been charged only with possession. She had pleaded not guilty at her arraignment, during which she had no representation. But because of the severity of her alleged crime — selling drugs to a minor — her bond was set at $250. Unable to pay, Angie was expected to sit in jail for the full two months until her next scheduled court appearance.

Indian country talks about taking care of kids and talks about changing the criminal justice system into a system of restorative justice, well, this doesn’t look it it to me.



SCOTUS Decides U.S. v. Bryant — Tribal Court Convictions May Be Used

Here is the opinion in United States v. Bryant.

From the syllabus:

Because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution.

Background materials, briefs, etc. here.

Oral Argument Transcript in United States v. Bryant (and Commentary)


Background materials here.

Quick commentary:

This was a dramatically less intense argument (reading from a cold transcript) than in Dollar General. Again, as in DG, much of the commentary about tribal courts depended on how much work Congress did in enacting the Indian Civil Rights Act. So long as the rights contained in that statute satisfy the Supreme Court, tribal court convictions may be used as prior convictions under 18 U.S.C.§ 117. 

If that is the case, Justices on the Court concerned about the use of uncounseled tribal court convictions must wrestle with precedents (mainly Scott and Argersinger) that affirmed there is not an absolute right to counsel in misdemeanor convictions where imprisonment is possible but not imposed.

Again, reading from a cold transcript, I was shocked that Bryant’s counsel noted that Bryant was not indigent. (p. 36, line 10) Moreover, Bryant apparently waived his right to counsel, which happens much of the time in state and federal court where incarceration is not on the table. Bryant also apparently waived a claim that the tribal court convictions were invalid, putting him a somewhat similar position to Billy Jo Lara. Bryant’s counsel was left arguing that ICRA does not confer any “rights” at all as a mere federal statute, and so there is no right to counsel at all in tribal court. So then the only way I see Bryant prevailing is if the Court holds that ICRA is a dead letter, and that there really is no federally guaranteed right to counsel in tribal courts (which I guess would mean tribes can deny counsel if they so choose). That seems like a particularly difficult holding to garner four votes (which would be enough to affirm by 4-4 split). Moreover, it’s simply not the case — I am aware of no tribal court that refuses to allow counsel to appear for criminal defendants.

The Chief Justice mentioned the National Association of Criminal Defense Lawyers brief that strongly criticized tribal court convictions (p. 12, lines 1-4), but that gave the government’s attorney a chance to note that the federal habeas right is a meaningful remedy (much as GRIC did in its controversial letter). 



Gila River Indian Community Letter to NACDL re: Bryant Amicus Brief


NACDL US v Bryant 04-15-16

An excerpt:

I am writing to you to express the Gila River Indian Community’s concerns regarding the Brief Amici Curiae of the National Association of Criminal Defense Lawyers and Experienced Tribal Court Litigators in Support of Respondent (“Brief’) recently filed with the Supreme Court of the United States in United States v. Bryant (No. 15-420). The Brief makes numerous attacks on the Community’s criminal justice system, hasty generalizations regarding tribal justice systems, and omits relevant facts and conclusions regarding the Community.

The stated purpose of the Brief is “to draw upon amici’s knowledge and experience with tribal-court criminal litigation to give this Court an informed perspective from which to assess these claims.” Brief at 4 (emphasis added). Unfortunately, the Brief does not do so. Instead, it reads as a narrative and anecdotal attack on tribal justice systems, prominently including the Community. These attacks on the Community’s criminal justice system have often come in a third-party form, such as letters from the National Association of Criminal Defense Lawyers and National Association of Federal Defenders to members of Congress regarding proposed legislation. Despite prominent mention of the Community, these letters- and the Brief-were not provided to the Community when sent or filed. We suspect it may have to do with the favorable outcomes to the Community in the cases discussed in the Brief.

Briefs and other materials in this case are here.

Student Note on U.S. v. Bryant

University of Nebraska law student Sara Rips has posted “Mind the Gap: The Unique Disadvantage Faced by Indigent Indians” on SSRN.

Here is the abstract:

In 2014, the Ninth Circuit created a federal circuit split over the use of tribal court convictions in federal prosecutions that the Supreme Court will soon resolve. In United States v. Bryant, the Ninth Circuit held that tribal court convictions cannot be used as predicate offenses in subsequent federal prosecutions unless the tribal court guarantees a right to counsel commensurate with the Sixth Amendment right. The Court accordingly dismissed a federal domestic assault charge under 18 U.S.C. § 117(a) because the predicate offense upon which the prosecution relied would have violated the Sixth Amendment right to counsel had the case arisen in federal or state court. The Court rooted its decision in the principle commonly espoused in criminal procedure jurisprudence that uncounseled convictions are unreliable. Extending this reliability principle to tribal proceedings is, perhaps predictably, problematic since indigent defendants are rarely guaranteed the right to appointed counsel, and the Constitution itself is without force in tribal courts. The Eighth and Tenth Circuits have thus upheld the use of uncounseled tribal court convictions on comity grounds. This Note analyzes the Eighth, Ninth, and Tenth Circuit cases to highlight the unique disadvantage indigent Indian defendants with prior uncounseled tribal court convictions confront when prosecuted under § 117(a). With an eye toward the Supreme Court, this Note proposes an alternative interpretation of the statute that avoids the constitutional quandary created by the Eighth and Tenth Circuits’ holdings. This Note concludes by urging the Court seize the opportunity United States v. Bryant presents to reassess Congress’ immense plenary power under the Indian Commerce Clause.