University of Nebraska law student Sara Rips has posted “Mind the Gap: The Unique Disadvantage Faced by Indigent Indians” on SSRN.
Here is the abstract:
In 2014, the Ninth Circuit created a federal circuit split over the use of tribal court convictions in federal prosecutions that the Supreme Court will soon resolve. In United States v. Bryant, the Ninth Circuit held that tribal court convictions cannot be used as predicate offenses in subsequent federal prosecutions unless the tribal court guarantees a right to counsel commensurate with the Sixth Amendment right. The Court accordingly dismissed a federal domestic assault charge under 18 U.S.C. § 117(a) because the predicate offense upon which the prosecution relied would have violated the Sixth Amendment right to counsel had the case arisen in federal or state court. The Court rooted its decision in the principle commonly espoused in criminal procedure jurisprudence that uncounseled convictions are unreliable. Extending this reliability principle to tribal proceedings is, perhaps predictably, problematic since indigent defendants are rarely guaranteed the right to appointed counsel, and the Constitution itself is without force in tribal courts. The Eighth and Tenth Circuits have thus upheld the use of uncounseled tribal court convictions on comity grounds. This Note analyzes the Eighth, Ninth, and Tenth Circuit cases to highlight the unique disadvantage indigent Indian defendants with prior uncounseled tribal court convictions confront when prosecuted under § 117(a). With an eye toward the Supreme Court, this Note proposes an alternative interpretation of the statute that avoids the constitutional quandary created by the Eighth and Tenth Circuits’ holdings. This Note concludes by urging the Court seize the opportunity United States v. Bryant presents to reassess Congress’ immense plenary power under the Indian Commerce Clause.