Reservation Justice? - Encounter Books

Reservation Justice?

How "Tribal Sovereignty" Undermines Constitutional Rights
July 14, 2016

Michael Bryant Jr, a member of the Northern Cheyenne tribe in Montana, has been convicted numerous time in tribal court for domestic abuse. Now the United States Supreme Court is intervening to jail him for a long time.

Bryant is “probably some kind of sociopath and deserves a harsh sentence,” writes Naomi Schaefer Riley, but is the justice dispensed in the tribal court system consistent with our constitutional standards?

Riley reports for the New York Post:

This case is “illustrative of the domestic violence problem existing in Indian country.” That was Justice Ruth Bader Ginsburg writing for the majority in the court’s ruling on Bryant handed down last month. In an 8-0 decision, Ginsburg and her colleagues decided that a defendant can be sentenced under federal guidelines as a repeat offender (three strikes and you’re eligible for federal prison time) even if he did not have access to a lawyer during the initial tribal proceedings. Bryant is probably some kind of sociopath and deserves a harsh sentence, but the court’s ruling is only masking a much bigger problem with justice on Indian reservations.

Bryant argued that his Sixth Amendment rights were violated by the federal conviction. Essentially he was being charged with a federal crime based on prior convictions even though those trials didn’t meet constitutional standards. The Supreme Court has held that convictions in federal or state courts obtained without the advice of counsel cannot then be used to obtain a conviction of another federal crime. But the standards are different in Indian country.

Oddly, this ruling has been hailed as a victory for tribal sovereignty because it allows Indian courts to continue to make their own rules of law and evidence, regardless of federal or state statutes. But actually it’s pretty shocking that Native Americans who are American citizens can be tried this way. As the National Association of Criminal Defense Lawyers pointed out in a letter warning the House of Representatives against expanding tribal powers, many tribes “do not make the code of laws publicly available” and “have no rules for discovery by the defendants of evidence against them.” And many tribes don’t provide defendants with a lawyer to represent them at trial.

By continuing to allow these tribal courts to operate by a different set of rules, and even placing a federal stamp of approval on their rulings, the Supreme Court is making matters worse for Indian victims of violence (sexual and otherwise) and making the process less fair and transparent for Indian defendants.

Read the full story here. And learn more in The New Trail of Tears: How Washington is Destroying American Indians.

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