Predicate Offenses, Foreign Convictions, and Trusting Tribal Courts

Concerns about the reliability of criminal justice systems in foreign countries have resulted in uneven treatment of foreign convictions in U.S. courts. Federal courts, however, have historically accepted tribal court convictions as predicate offenses under recidivist statutes. But the Ninth Circuit Court of Appeals recently rejected the uncounseled convictions obtained against Michael Bryant, Jr., a serial domestic abuser, in the Northern Cheyenne Tribal Court. The court dismissed a federal indictment that had been brought against Bryant under 18 U.S.C § 117, which makes it a felony to commit domestic violence against a spouse or partner in Indian country if the perpetrator has at least two prior domestic abuse convictions, because Bryant’s convictions did “not comport with the Sixth Amendment right to counsel.” The Ninth Circuit decision jeopardizes the health and safety of Native American women and stymies federal efforts to prosecute domestic violence in Indian country. Available studies suggest domestic abuse is a grave concern among indigenous communities. For instance, over half of indigenous women respondents to a Department of Justice survey reported being stalked, physically assaulted, or raped during their lifetimes. But the stakes of the case also extend to the legitimacy of tribal courts. Because federal courts often allow the use of foreign convictions as predicate offenses or factor them into sentencing decisions, even where those convictions would have violated the U.S. Constitution if obtained domestically, the Ninth Circuit’s rejection of the uncounseled conviction in United States v. Bryant implicitly suggested that tribal courts are less reliable fora than many foreign courts. This year the Supreme Court will have the opportunity to repudiate the Ninth Circuit’s distrust of tribal court procedures and affirm its commitment to the integrity of tribal courts