Rejecting the Ninth Circuit’s Distrust of Tribal Courts

This spring, the Supreme Court will have the opportunity to affirm its commitment to the integrity of tribal courts – and also protect indigenous women – when it decides U.S. v. Bryant.

Michael Bryant, Jr. was convicted at least six times for domestic abuse in the Northern Cheyenne Tribal Court.  In June 2011, Bryant was indicted by a federal grand jury on two counts of domestic assault by a habitual offender, in violation of 18 U.S.C. § 117(a).  Pursuant to the statute, it is 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.  In the U.S. District Court proceeding against Bryant, the government relied on two earlier convictions in tribal court for domestic abuse to support the federal charges.

Because Bryant was not represented by an attorney in the tribal court cases (tribal court procedure does not guarantee a right to counsel in all cases), the Ninth Circuit Court of Appeals determined the earlier convictions did not comport with the Sixth Amendment right to counsel.  Accordingly, the court decided the convictions from the Northern Cheyenne Tribal Court could not be the basis for the federal charges and dismissed the indictment.  The decision represents a foolhardy and disturbing departure from the usual treatment of tribal court convictions by federal courts.

The Ninth Circuit decision jeopardizes the health and safety of Native American women and stymies federal efforts to prosecute domestic violence in Indian country.  It is well-documented that nearly half of all indigenous women report being stalked, physically assaulted, or raped by an intimate partner during her lifetime. 

But the stakes of the case also extend to the legitimacy of the tribal courts.

Tribal court convictions result from fair and reliable proceedings that guarantee defendants the right to due process.  Although there is no right to counsel in tribal courts in all criminal cases, Congress, through the Indian Civil Rights Act of 1968, provided numerous procedural safeguards to defendants in tribal court cases.  Among other protections, the Act gives defendants the right against self-incrimination, provides against unreasonable searches and seizures, protects against double jeopardy, allows a trial by jury upon request, and offers a right to counsel at the defendant’s expense.  Defendants may also confront unfavorable witnesses and have access to favorable witnesses.  As the Supreme Court noted in a case from 1978, Congress selectively incorporated and modified the “safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments” when it implemented the Indian Civil Rights Act. 

Tribal courts, including the Northern Cheyenne Tribal Court that convicted Bryant, follow the procedures outlined in the Act.  Furthermore, the Northern Cheyenne courts have their own code of criminal procedure and their judgments are subject to appellate review.

Federal courts have historically respected and relied upon the uncounseled convictions obtained in tribal courts.  The Eighth Circuit, for example, when faced with nearly identical facts as those in the Bryant case, determined a defendant’s prior tribal court convictions could serve as the basis of a federal charge, even though the defendant did not have a court-appointed attorney.  Paradoxically, the Ninth Circuit will accept convictions obtained against defendants not represented by counsel in state and federal courts, but does not trust the reliability of tribal court convictions where the defendant is not represented by counsel.

The Ninth Circuit’s decision to reject the tribal court convictions reveals an alarming distrust of tribal courts and wrongly suggests they are undependable and unfair. The Supreme Court must overturn the Ninth Circuit in U.S. v. Bryant.  To hold otherwise would undermine the integrity of the tribal courts and threaten the rights of Native Americans to administer justice as a sovereign community. 

Alexander Birkhold’s writing on the law has appeared in the Yale Journal of International Law and the Washington University Law Review.  He holds a JD from New York University and previously clerked in the U.S District Court for the Central District of California.  Birkhold currently practices in the Los Angeles office of Arent Fox LLP. He may be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.