This week, a Supreme Court decision affirmed the sovereignty of Native American tribal courts and emphasized the importance of addressing domestic violence against Native women. In United States v. Bryant, the court unanimously upheld the federal conviction of Michael Bryant, Jr. as a habitual domestic assault offender, overruling a previous court’s decision.
“The Bryant case is a victory. It’s not a victory where we won ground — it’s a victory where we didn’t lose ground,” said Rebecca Nagle, an anti-rape activist and an enrolled member of the Cherokee Nation. “But, what’s really awesome about the decision is … the Supreme Court is very clear about the crisis of sexual violence and domestic violence against Native women and the need for tribal jurisdiction within the crisis, which could set precedence for other cases.”
Bryant, a member of the Northern Cheyenne Tribe, has been convicted of at least five instances of domestic violence — including choking a girlfriend until she almost lost consciousness — in tribal courts since 1995. Under the Violence Against Women Act, anyone with at least two convictions of domestic assault from federal, state, or tribal courts can be tried by a federal court and receive a prison sentence up to five years. A high court sentenced Bryant to almost four years in prison after he confessed to and was convicted of two counts of domestic assault by tribal courts in 2011.
After Bryant appealed the case, the 9th Circuit Court determined that his conviction under the federal court was unconstitutional. The court said that if Bryant’s previous cases in tribal courts had been tried in federal or state courts, they would have violated his Sixth Amendment right to be represented by a lawyer.
“It’s not a victory where we won ground — it’s a victory where we didn’t lose ground.”
According to the Indian Civil Rights Act of 1968, defendants may pay for a lawyer if the lawsuit would result in less than a year’s sentence, but the tribal courts do not have to provide a lawyer. Bryant was not represented by a lawyer in the domestic abuse convictions in tribal courts.
The Supreme Court ruled that the tribal court’s convictions properly adhered to the Indian Civil Rights Act of 1968, and therefore could be used in a federal court. Bryant could not “suffer anew” from a constitutional violation that never took place.
In the opinion, which Justice Ruth Bader Ginsburg delivered, the justices further stated that as “separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.”
The court also commented on the high rates of domestic violence faced by Native women: “Bryant’s conduct is illustrative of the domestic violence problem existing in Indian country.”
About 46 percent of Native American women have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime, according to a 2011 report by the National Center for Injury Prevention and Control Centers for Disease Control and Prevention.
“Our reality is not if [a Native woman is] raped, but when,” Brunner said.
“Our reality is not if [a Native woman is] raped, but when.”
“I think that the crisis of violence against Native women is connected to tribal sovereignty,” Nagle said.
While tribal courts can hold non-Natives accountable for domestic assault, they don’t have jurisdiction over other forms of sexual assault. This is problematic, as Native Americans are more likely to be assaulted by non-Natives, and the federal government often does not prosecute sexual assault cases involving Native American victims.
Between 2005 and 2009, the U.S. Attorney’s Office declined to prosecute 67 percent of sexual abuse cases by a non-Native perpetrator with a Native victim, according to a report by the United States Government Accountability Office.
“When we have declinations or no response at all, it clearly [sends the message] that you can go ahead and rape us, because … the legal system won’t touch you,” said Lisa Brunner, an advocate for abuse survivors and member of the White Earth Nation in Minnesota. “The tribes cannot touch you, they cannot hold you accountable. Go ahead and go out and hunt. And, that’s what they do … they know where the most vulnerable populations are, and they know where the extent of the law ends, and they know they can … target and harm us.”
The Supreme Court Could Further Strip Native Communities Of Their Once-Promised PowersJustice by CREDIT: AP Photo, Manuel Balce Ceneta The Supreme Court will hear a case on Monday that could significantly…thinkprogress.orgThe Supreme Court will also rule on another case regarding tribal sovereignty in the near future. This lawsuit involves a thirteen-year-old boy who says he was sexually assaulted by his manager at Dollar General. Although the manager is non-Native, the boy is a member of the Mississippi Band of Choctaw Indians and the store sits on tribal land. After the federal government declined to try the case, the boy’s family sued the manager and Dollar General in tribal court. Dollar General, however, has contested the tribe’s jurisdiction to try the case.
“We sit, we pray and we hope it will follow suit with this victory,” Brunner said. “That the Supreme Court will once again affirm the tribes’ sovereign authority.”
Rachel Cain is an intern at ThinkProgress.