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DoJ Asks SCOTUS To Rule on Tribal Court Convictions and Domestic Violence

Kristi Eaton
11/27/15

The U.S. Department of Justice has filed a petition with the U.S. Supreme Court, asking the high court to take up a case dealing with tribal court convictions in domestic violence cases in Indian country.

Michael Bryant Jr., a member of the Northern Cheyenne Tribe, was convicted of domestic violence as a habitual offender and sentenced in U.S. District Court for the District of Montana to 46 months in prison and three years of supervised release. Federal law makes it a felony to commit domestic violence on a spouse or intimate partner in Indian country if the perpetrator has at least two prior domestic abuse convictions in a federal, state or tribal court proceeding.

But the Ninth District Court of Appeals reversed the decision, saying the lower court had relied on the tribal convictions in which Bryant had not been provided with an attorney to meet the repeat offender determination, a violation of Bryant’s right under the U.S. Constitution’s Sixth Amendment.

“That holding is incorrect, in conflict with other circuits, and highly damaging to federal prosecutorial efforts to combat the serious problem of domestic violence in Indian country,” the Department of Justice wrote in its brief to the U.S. Supreme Court asking for a review.

The ruling by the Ninth Circuit Court of Appeals, which covers a large area of Indian country including Montana, California and Arizona, differs from a previous ruling by the Eighth Circuit.

In United States v. Cavanaugh, the U.S. Attorney’s Office in North Dakota successfully argued that Roman Cavanaugh’s prior tribal court convictions for domestic violence offense could serve as predicate offenses for purposes of the federal law even though the defendant did not have a court-appointed defense counsel in his tribal court domestic violence convictions. Cavanaugh eventually pleaded guilty and was sentenced to 65 months in federal prison.

Timothy Purdon, the former U.S. Attorney for the District of North Dakota during the Cavanaugh case, said the habitual domestic violence offender provision in the federal law is a powerful tool for the U.S. Attorney’s Offices when it comes to protecting American Indian women from domestic violence.

“By definition, someone who could be subject to this charge is a person who has a history of repeatedly perpetrating domestic violence, but whose prior court proceedings have not served to stop their violent domestic assaults,” said Purdon, now a partner at Robins Kaplan specializing in Indian country cases. “In this situation, Assistant United States Attorneys are often dealing with escalating situations where the level of violence may be increasing. These situations can, all too often, end up in the most tragic way possible. Given all this, the importance of the Cavanaugh rule is hard to overstate.”

The Department of Justice wrote in the brief that the Ninth Circuit Court of Appeals based its decision on a decades-old circuit precedent that relied on precedent from the U.S. Supreme Court that was later overruled.

“The court’s bar against the use of valid, but uncounseled, tribal-court convictions in subsequent federal proceedings cannot be reconciled with this Court’s decision upholding the subsequent use of prior valid, but uncounseled, convictions to support recidivist punishment,” the Department of Justice wrote.

Purdon noted that prosecuting domestic violence cases in Indian country was one of the toughest tasks undertaken by Assistant U.S. Attorneys while he was North Dakota’s U.S. Attorney.

The U.S. Centers for Disease Control and Prevention has reported that 46 percent of Native American women report having experienced rape, physical violence and/or stalking by an intimate partner in their lifetime.

“To do Indian country domestic violence cases well requires that the prosecutor spend a great deal of time with, and empathy on, the victim,” Purdon said. “The prosecutors who did it best were conscious of that and employed a ‘victim-centered’ approach to these cases.”

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