April 19, 2016
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
response to the high incidence of domestic violence against
Native American women, Congress enacted a felony offense of
domestic assault in Indian country by a habitual offender.
18 U.S.C. §117(a). Section 117(a)(1) provides that any
person who "commits a domestic assault within . . .
Indian country" and who has at least two prior final
convictions for domestic violence rendered "in
Federal, State, or Indian tribal court proceedings . . .
shall be fined . . ., imprisoned for a term of not more
than 5 years, or both . . . ." Having two prior
tribal-court convictions for domestic violence crimes is
thus a predicate of the new offense.
case raises the question whether §117(a)'s
inclusion of tribal-court convictions as predicate offenses
is compatible with the Sixth Amendment's right to
counsel. The Sixth Amendment guarantees indigent defendants
appointed counsel in any state or federal criminal
proceeding in which a term of imprisonment is imposed,
Scott v. Illinois, 440 U.S. 367, 373–374,
but it does not apply in tribal-court proceedings, see
Plains Commerce Bank v. Long Family Land & Cattle
Co., 554 U.S. 316, 337. The Indian Civil Rights Act of
1968 (ICRA), which governs tribal-court proceedings,
accords a range of procedural safeguards to tribal-court
defendants "similar, but not identical, to those
contained in the Bill of Rights and the Fourteenth
Amendment, " Santa Clara Pueblo v. Martinez,
436 U.S. 49, 57. In particular, ICRA provides indigent
defendants with a right to appointed counsel only for
sentences exceeding one year. 25 U.S.C. §1302(c)(2).
ICRA's right to counsel therefore is not coextensive
with the Sixth Amendment right.
Court has held that a conviction obtained in state or
federal court in violation of a defendant's Sixth
Amendment right to counsel cannot be used in a subsequent
proceeding "to support guilt or enhance punishment for
another offense." Burgett v. Texas, 389 U.S.
109, 115. Use of a constitutionally infirm conviction would
cause "the accused in effect [to] suffe[r] anew from
the [prior] deprivation of [his] Sixth Amendment
right." Ibid. Burgett's
principle was limited by the Court's holding in
Nichols v. United States, 511 U.S. 738, that
"an uncounseled misdemeanor conviction, valid under
Scott because no prison term was imposed, is also
valid when used to enhance punishment at a subsequent
conviction, " id., at 748–749.
Michael Bryant, Jr., has multiple tribal-court convictions
for domestic assault. When convicted, Bryant was indigent
and was not appointed counsel. For most of his convictions,
he was sentenced to terms of imprisonment not exceeding one
year's duration. Because of his short prison terms, the
prior tribal-court proceedings complied with ICRA, and his
convictions were therefore valid when entered. Based on
domestic assaults he committed in 2011, Bryant was indicted
on two counts of domestic assault by a habitual offender,
in violation of §117(a). Represented in federal court
by appointed counsel, he contended that the Sixth Amendment
precluded use of his prior, uncounseled, tribal-court
misdemeanor convictions to satisfy §117(a)'s
predicate-offense element and moved to dismiss the
indictment. The District Court denied the motion; Bryant
pleaded guilty, reserving the right to appeal. The Ninth
Circuit reversed the conviction and directed dismissal of
the indictment. It comprehended that Bryant's
uncounseled tribal-court convictions were valid when
entered because the Sixth Amendment right to counsel does
not apply in tribal-court proceedings. It held, however,
that Bryant's tribal-court convictions could not be
used as predicate convictions within §117(a)'s
compass because they would have violated the Sixth
Amendment had they been rendered in state or federal court.
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
Nichols instructs that convictions valid when
entered retain that status when invoked in a subsequent
proceeding. Nichols reasoned that
"[e]nhancement statutes . . . do not change the
penalty imposed for the earlier conviction"; rather,
repeat-offender laws "penaliz[e] only the last offense
committed by the defendant." 511 U.S., at 747.
Bryant's sentence for violating §117(a) punishes
his most recent acts of domestic assault, not his prior
crimes prosecuted in tribal court. He was denied no right
to counsel in tribal court, and his Sixth Amendment right
was honored in federal court. Bryant acknowledges that
Nichols would have allowed reliance on uncounseled
tribal court convictions resulting in fines to satisfy
§117(a)'s prior-crimes predicate. But there is no
cause to distinguish for §117(a) purposes between
fine-only tribal-court convictions and valid but
uncounseled tribal-court convictions resulting in
imprisonment for a term not exceeding one year. Neither
violates the Sixth Amendment. Bryant is not aided by
Burgett. A defendant convicted in tribal court
suffered no Sixth Amendment violation in the first
instance, so he cannot "suf-fe[r] anew" from a
prior deprivation in his federal prosecution.
Bryant also invokes the Due Process Clause of the Fifth
Amendment to support his assertion that tribal-court
judgments should not be used as predicate offenses under
§117(a). ICRA, however, guarantees "due process of
law, " accords other procedural safeguards, and permits
a prisoner to challenge the fundamental fairness of tribal
court proceedings in federal habeas corpus proceedings.
Because proceedings in compliance with ICRA sufficiently
ensure the reliability of tribal-court convictions, the use
of those convictions in a federal prosecution does not
violate a defendant's due process right. Pp. 12–
769 F.3d 671, reversed and remanded.
Ginsburg, J., delivered the opinion for a unanimous Court.
Thomas, J., filed a concurring opinion.
response to the high incidence of domestic violence against
Native American women, Congress, in 2005, enacted 18 U.S.C.
§117(a), which targets serial offenders. Section 117(a)
makes it a federal crime for any person to "commi[t] a
domestic assault within . . . Indian country" if the
person has at least two prior final convictions for domestic
violence rendered "in Federal, State, or Indian tribal
court proceedings." See Violence Against Women and
Department of Justice Reauthorization Act of 2005 (VAWA
Reauthorization Act), Pub. L. 109-162, §§901, 909,
119 Stat. 3077, 3084. Respondent Michael Bryant, Jr., has
multiple tribal-court convictions for domestic assault. For
most of those convictions, he was sentenced to terms of
imprisonment, none of them exceeding one year's duration.
His tribal-court convictions do not count for § 117(a)
purposes, Bryant maintains, because he was uncounseled in
Sixth Amendment guarantees indigent defendants, in state and
federal criminal proceedings, appointed counsel in any case
in which a term of imprisonment is imposed. Scott v.
Illinois, 440 U.S. 367, 373-374 (1979). But the Sixth
Amendment does not apply to tribal-court proceedings. See
Plains Commerce Bank v. Long Family Land & Cattle
Co., 554 U.S. 316, 337 (2008). The Indian Civil Rights
Act of 1968 (ICRA), Pub. L. 90-284, 82 Stat. 77, 25 U.S.C.
§1301 etseq., which governs criminal
proceedings in tribal courts, requires appointed counsel only
when a sentence of more than one year's imprisonment is
imposed. § 1302(c)(2). Bryant's tribal-court
convictions, it is undisputed, were valid when entered. This
case presents the question whether those convictions, though
uncounseled, rank as predicate offenses within the compass of
§117(a). Our answer is yes. Bryant's tribal-court
convictions did not violate the Sixth Amendment when
obtained, and they retain their validity when invoked in a
§ 117(a) prosecution. That proceeding generates no Sixth
Amendment defect where none previously existed.
to all other groups in the United States, " Native
American women "experience the highest rates of domestic
violence." 151 Cong. Rec. 9061 (2005) (remarks of Sen.
McCain). According to the Centers for Disease Control and
Prevention, as many as 46% of American Indian and Alaska
Native women have been victims of physical violence by an
intimate partner. Centers for Disease Control and Prevention,
National Center for Injury Prevention and Control, M. Black
et al., National Intimate Partner and Sexual Violence Survey
2010 Summary Report 40 (2011) (Table 4.3), online at
ViolencePrevention/pdf/NISVS_report2010-a.pdf (all Internet
materials as last visited June 9, 2016). American Indian and
Alaska Native women "are 2.5 times more likely to be
raped or sexually assaulted than women in the United States
in general." Dept. of Justice, Attorney General's
Advisory Committee on American Indian and Alaska Native
Children Exposed to Violence, Ending Violence So Children Can
Thrive 38 (Nov. 2014), online at https://
can_thrive.pdf. American Indian women experience battery
"at a rate of 23.2 per 1, 000, compared with 8 per 1,
000 among Caucasian women, " and they "experience 7
sexual assaults per 1, 000, compared with 4 per 1, 000 among
Black Americans, 3 per 1, 000 among Caucasians, 2 per 1, 000
among Hispanic women, and 1 per 1, 000 among Asian
women." VAWA Reauthorization Act, §901, 119 Stat.
Court has noted, domestic abusers exhibit high rates of
recidivism, and their violence "often escalates in
severity over time." United States v.
Castleman, 572 U.S. ___, ___ (2014) (slip op., at 2).
Nationwide, over 75% of female victims of intimate partner
violence have been previously victimized by the same
offender, Dept. of Justice, Bureau of Justice Statistics, S.
Catalano, Intimate Partner Violence 1993–2010, p. 4
(rev. 2015) (Figure 4), online at
multiple times, Dept. of Justice, National Institute of
Justice, P. Tjaden & N. Thoennes, Extent, Nature, and
Consequences of Intimate Partner Violence, p. iv (2000),
online at https://www.ncjrs.gov/pdffiles1/nij/181867.pdf
("[W]omen who were physically assaulted by an intimate
partner averaged 6.9 physical assaults by the same
partner."). Incidents of repeating, escalating abuse
more than occasionally culminate in a fatal attack. See VAWA
Reau-thorization Act, §901, 119 Stat. 3077–3078
("[D]uring the period 1979 through 1992, homicide was
the third leading cause of death of Indian females aged 15 to
34, and 75 percent were killed by family members or
"complex patchwork of federal, state, and tribal
law" governing Indian country, Duro v. Reina,
495 U.S. 676, 680, n. 1 (1990), has made it difficult to stem
the tide of domestic violence experienced by Native American
women. Although tribal courts may enforce the tribe's
criminal laws against Indian defendants, Congress has curbed
tribal courts' sentencing authority. At the time of
§117(a)'s passage, ICRA limited sentences in tribal
court to a maximum of one year's imprisonment. 25 U.S.C.
§1302(a)(7) (2006 ed.). Congress has since expanded
tribal courts' sentencing authority, allowing them to
impose up to three years' imprisonment, contingent on
adoption of additional procedural safeguards. 124 Stat.
2279– 2280 (codified at 25 U.S.C. §1302(a)(7)(C),
(c)). To date, however, few tribes have employed
this enhanced sentencing authority. See Tribal Law and Policy
Inst., Implementation Chart: VAWA Enhanced Jurisdiction and
TLOA Enhanced Sentencing, online at
are unable or unwilling to fill the enforcement gap. Most
States lack jurisdiction over crimes committed in Indian
country against Indian victims. See United States v.
John, 437 U.S. 634, 651 (1978). In 1953, Congress
increased the potential for state action by giving six States
"jurisdiction over specified areas of Indian country
within the States and provid[ing] for the [voluntary]
assumption of jurisdiction by other States."
California v. Cabazon Band of Mission Indians, 480
U.S. 202, 207 (1987) (footnote omitted). See Act of Aug. 15,
1953, Pub. L. 280, 67 Stat. 588 (codified, as amended, at 18
U.S.C. §1162 and 25 U.S.C. §§1321–1328,
1360). States so empowered may apply their own criminal laws
to "offenses committed by or against Indians within all
Indian country within the State." Cabazon Band of
Mission Indians, 480 U.S., at 207; see 18 U.S.C.
§1162(a). 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), online at
leaves the Federal Government. Although federal law generally
governs in Indian country, Congress has long excluded from
federal-court jurisdiction crimes committed by an Indian
against another Indian. 18 U.S.C. §1152; see Ex
parte Crow Dog, 109 U.S. 556, 572 (1883) (requiring
"a clear expression of the intention of Congress"
to confer federal jurisdiction over crimes committed by an
Indian against another Indian). In the Major Crimes Act,
Congress authorized federal jurisdiction over enumerated
grave criminal offenses when both perpetrator and victim are
Indians, including murder, manslaughter, and felony assault.
§1153. At the time of §117(a)'s enactment,
felony assault subject to federal prosecution required
"serious bodily injury, " §113(a)(6) (2006
ed.), meaning "a substantial risk of death, "
"extreme physical pain, " "protracted and
obvious disfigurement, " or "protracted loss or
impairment of the function of a bodily member, organ, or
mental faculty." §1365(h)(3) (incorporated through
§113(b)(2)).In short, when §117(a) was before
Congress, Indian perpetrators of domestic violence
"escape[d] felony charges until they seriously injure[d]
or kill[ed] someone." 151 Cong. Rec. 9062 (2005)
(remarks of Sen. McCain).
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. §117(a) (2012
ed.); see No. 12– 30177 (CA9, July 6, 2015), App. to
Pet. for Cert. 41a (Owens, J., dissenting from denial of
rehearing en banc) ("Tailored to the unique problems . .
. that American Indian and Alaska Native Tribes face,
§117(a) provides felony-level punishment for serial
domestic violence offenders, and it represents the first true
effort to remove these recidivists from the communities that
they repeatedly terrorize."). The section provides in
"Any person who commits a domestic assault within . . .
Indian country and who has a final conviction on at least 2
separate prior occasions in Federal, State, or Indian tribal
court proceedings for offenses that would be, if subject to
Federal jurisdiction any assault, sexual abuse, or serious
violent felony against a spouse or intimate partner . . .
shall be fined . . ., ...