Here are the materials in United States v. Bryant:
Bryant Opening Brief
US Appellee Brief [Bryant]
The CA8 and CA10 have rejected similar challenges, here.
An interesting problem. The Eighth and Tenth Circuits were clearly right as a matter of statutory law—Congress intended to include valid tribal court convictions, regardless of whether the defendant was appointed counsel. And there is no obvious constitutional violation because the tribal court defendant has no federal constitutional rights and presumably was afforded all the process due under tribal and federal law. The defendant has little room to complain that the tribal conviction has collateral consequences in subsequent federal prosecutions. And sec. 117 is a necessary and completely appropriate response to the overwhelming problem of repeat domestic violence offenses on Indian reservations.
Taken to the logical extreme, however, Congress could provide that anyone subject to one (or two or three) tribal domestic violence (or other) conviction(s) is guilty of a federal offense with a mandatory minimum federal prison sentence of 5, 10, 20 years. All the federal prosecutor would have to prove is the existance of the predicate tribal court conviction(s), and the defendant would effectively be denied the right to counsel at the proceeding which actually determined their guilt.
I certainly don’t believe Congress is likely to adopt such a law without providing the criminal defendants greater procedural protections than currently exist under ICRA and tribal law (if the Law and Order Act and proposed VAWA special domestic violence jurisdiction provisions are any indication), but the Constitutional implications of such a law should give us pause.
Additionally, I wonder if the federal courts would be as willing to rely on uncounseled tribal court convictions if tribes were able to exercise such jurisdiction over non-Indian offenders. This could be another case where Indian federal criminal defendants are afforded fewer procedural protections than their non-Indian counter-parts, because right now only Indian criminal defendants can be convicted to terms of imprisonment within the territorial United States without the right to appointment of counsel.
Would not we all be much better off if tribes were empowered to exercise primary law enforcement jurisdiction over everyone within their territories, and to afford Indian and non-Indian offenders the same civil rights and procedural protections in all such prosecutions?
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