UNITED STATES v. MICHAEL BRYANT, JR.
No. 15-420
SUPREME COURT OF THE UNITED STATES
June 13, 2016
579 U.S. ___ (2016)
OCTOBER TERM, 2015
(Slip Opinion)
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
UNITED STATES v. BRYANT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 15-420. Argued April 19, 2016-Decided June 13, 2016
In
This case raises the question whether
This 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
Respondent 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
Held: 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
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
Bryant also invokes the Due Process Clause of the Fifth Amendment to support his assertion that tribal-court judgments
769 F. 3d 671, reversed and remanded.
GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 15-420
UNITED STATES, PETITIONER v. MICHAEL BRYANT, JR.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 13, 2016]
JUSTICE GINSBURG delivered the opinion of the Court.
In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted
The 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),
I
A
“[C]ompared 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 http://www.cdc.gov/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://www.justice.gov/sites/default/files/defendingchildhood/pages/attachments/2015/03/23/ending_violence_so_children_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. 3077.
As this 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. 157, 160 (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 http://www.bjs.gov/content/pub/pdf/ipv9310.pdf, often 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 Reauthorization 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 acquaintances.“).
The “complex patchwork of federal, state, and tribal law” governing Indian country, Duro v. Reina, 495 U. S. 676, 680, n. 1 (1990), has
States 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,
That 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.
As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of
terrorize.“). The section provides in pertinent part:
“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 . . . , imprisoned for a term of not more than 5 years, or both . . . .”
§117(a)(1) .6
Having two prior convictions for domestic violence crimes including tribal-court convictions is thus a predicate of the new offense.
B
This case requires us to determine whether
“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.” Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978). The Bill of Rights, including the Sixth Amendment right to counsel, therefore, does not apply in tribal-court proceedings. See Plains Commerce Bank, 554 U. S., at 337.
In ICRA, however, Congress accorded 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.” Martinez, 436 U. S., at 57; see id., at 62–63 (ICRA “modified the safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments“). In addition to other enumerated protections, ICRA guarantees “due process of law,”
The right to counsel under ICRA is not coextensive with the Sixth Amendment right. If a tribal court imposes a sentence in excess of one year, ICRA requires the court to accord the defendant “the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution,” including appointment of counsel for an indigent defendant at the tribe‘s expense.
The question here presented: Is it permissible to use uncounseled tribal-court convictions—obtained in full compliance with ICRA—to establish the prior-crimes predicate of
In Nichols v. United States, 511 U. S. 738 (1994), we stated an important limitation on the principle recognized in Burgett. In the case under review, Nichols pleaded guilty to a federal felony drug offense. 511 U. S., at 740. Several years earlier, unrepresented by counsel, he had been convicted of driving under the influence (DUI), a state-law misdemeanor, and fined $250 but not imprisoned. Ibid. Nichols’ DUI conviction, under the then-mandatory Sentencing Guidelines, effectively elevated by about two years the sentencing range for Nichols’ federal drug offense. Ibid. We rejected Nichols’ contention that, as his later sentence for the federal drug offense involved imprisonment, use of his uncounseled DUI conviction to elevate that sentence violated the Sixth Amendment. Id., at 746-747. “[C]onsistent with the Sixth and Fourteenth Amendments of the Constitution,” we held, “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.
C
Respondent Bryant‘s conduct is illustrative of the domestic violence problem existing in Indian country. During the period relevant to this case, Bryant, an enrolled member of the Northern Cheyenne Tribe, lived on that Tribe‘s reservation in Montana. He has a record of over 100 tribal-court convictions, including several misdemeanor convictions for domestic assault. Specifically, between 1997 and 2007, Bryant pleaded guilty on at least five occasions in Northern Cheyenne Tribal Court to committing domestic abuse in violation of the Northern Cheyenne Tribal Code. On one occasion, Bryant hit his live-in girlfriend on the head with a beer bottle and attempted to strangle her. On another, Bryant beat a different girlfriend, kneeing her in the face, breaking her nose, and leaving her bruised and bloodied.
For most of Bryant‘s repeated brutal acts of domestic violence, the Tribal Court sentenced him to terms of imprisonment, never exceeding one year. When convicted of these offenses, Bryant was indigent and was not appointed counsel. Because of his short prison terms, Bryant acknowledges, the prior tribal-court proceedings complied with ICRA, and his convictions were therefore valid when entered. Bryant has never challenged his tribal-court convictions in federal court under ICRA‘s habeas corpus provision.
In 2011, Bryant was arrested yet again for assaulting women. In February of that year, Bryant attacked his then girlfriend, dragging her off the bed, pulling her hair, and repeatedly punching and kicking her. During an interview with law enforcement officers, Bryant admitted that he had physically assaulted this woman five or six times. Three months later, he assaulted another woman with whom he was then living, waking her by yelling that he could not find his truck keys and then choking her until she almost lost consciousness. Bryant later stated that he had assaulted this victim on three separate occasions during the two months they dated.
Based on the 2011 assaults, a federal grand jury in Montana indicted Bryant on two counts of domestic assault by a habitual offender, in violation of
The Court of Appeals for the Ninth Circuit reversed the conviction and directed dismissal of the indictment. 769 F. 3d 671 (2014). Bryant‘s tribal-court convictions were not themselves constitutionally infirm, the Ninth Circuit comprehended, because “the Sixth Amendment right to appointed counsel does not apply in tribal court proceedings.” Id., at 675. But, the court continued, had the convictions been obtained in state or federal court, they would have violated the Sixth Amendment because Bryant had received sentences of imprisonment although he lacked the aid of appointed counsel. Adhering to its prior decision in United States v. Ant, 882 F. 2d 1389 (CA9 1989),7
the Court of Appeals held that, subject to narrow exceptions not relevant here, “tribal court convictions may be used in subsequent [federal] prosecutions only if the tribal court guarantees a right to counsel that is, at minimum, coextensive with the Sixth Amendment right.” 769 F. 3d, at 677. Rejecting the Government‘s argument that our decision in Nichols required the opposite result, the Ninth Circuit concluded that Nichols applies only when the prior conviction did comport with the Sixth Amendment, i.e., when no sentence of imprisonment was imposed for the prior conviction. 769 F. 3d, at 677-678.
Judge Watford concurred, agreeing that Ant controlled the outcome of this case, but urging reexamination of Ant in light of Nichols. 769 F. 3d, at 679. This Court‘s decision in Nichols, Judge Watford wrote, “undermines the notion that uncounseled convictions are, as a categorical matter, too unreliable to be used as a basis for imposing a prison sentence in a subsequent case.” 769 F. 3d, at 679. The Court of Appeals declined to rehear the case en banc over vigorous dissents by Judges Owens and O‘Scannlain.
In disallowing the use of an uncounseled tribal-court conviction to establish a prior domestic violence conviction within
II
Bryant‘s tribal-court convictions, he recognizes, infringed no constitutional right because the Sixth Amendment does not apply to tribal-court proceedings. Brief
As earlier recounted, we held in Nichols 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.” 511 U. S., at 748-749. “Enhancement statutes,” we reasoned, “do not change the penalty imposed for the earlier conviction“; rather, repeat-offender laws “penaliz[e] only the last offense committed by the defendant.” Id., at 747; see United States v. Rodriquez, 553 U. S. 377, 386 (2008) (“When a defendant is given a higher sentence under a recidivism statute 100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant‘s ‘status as a recidivist.‘“). Nichols thus instructs that convictions valid when entered—that is, those that, when rendered, did not violate the Constitution—retain that status when invoked in a subsequent proceeding.
Nichols’ reasoning steers the result here. Bryant‘s 46-month sentence for violating
Bryant acknowledges that had he been punished only by fines in his tribal-court proceedings, Nichols would have allowed reliance on his uncounseled convictions to satisfy
In keeping with Nichols, we resist creating a “hybrid” category of tribal-court convictions, “good for the punishment actually imposed but not available for sentence
enhancement in a later prosecution.” 511 U. S., at 744. Nichols indicates that use of Bryant‘s uncounseled tribal-court convictions in his
Our decision in Burgett, which prohibited the subsequent use of a conviction obtained in violation of the right to counsel, does not aid Bryant. Reliance on an invalid conviction, Burgett reasoned, would cause the accused to “suffe[r] anew from the deprivation of [his] Sixth Amendment right.” 389 U. S., at 115. Because a defendant convicted in tribal court suffers no Sixth Amendment violation in the first instance, “[u]se of tribal convictions in a subsequent prosecution cannot violate [the Sixth Amendment] ‘anew.‘” Shavanaux, 647 F. 3d, at 998.
Bryant observes that reliability concerns underlie our right-to-counsel decisions and urges that those concerns remain even if the Sixth Amendment itself does not shelter him. Scott and Nichols, however, counter the argument that uncounseled misdemeanor convictions are categorically unreliable, either in their own right or for use in a subsequent proceeding. Bryant‘s recognition that a tribal-court conviction resulting in a fine would qualify as a
Bryant also invokes the Due Process Clause of the Fifth Amendment in support of his assertion that tribal-court judgments should not be used as predicate offenses. But, as earlier observed, ICRA itself requires tribes to ensure “due process of law,”
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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
It is so ordered.
THOMAS, J.
SUPREME COURT OF THE UNITED STATES
No. 15-420
UNITED STATES, PETITIONER v. MICHAEL BRYANT, JR.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 13, 2016]
JUSTICE THOMAS, concurring.
The Court holds that neither the Sixth Amendment nor the Fifth Amendment‘s Due Process Clause prohibits the Government from using Michael Bryant‘s uncounseled tribal-court convictions as predicates for the federal crime of committing a domestic assault within Indian country. Ante, at 15-16; see
The fact that this case arose at all, however, illustrates how far afield our Sixth Amendment and Indian-law precedents have gone. Three basic assumptions underlie this case: that the Sixth Amendment ordinarily bars the Government from introducing, in a later proceeding, convictions obtained in violation of the right to counsel, ante, at 8-9; that tribes’ retained sovereignty entitles them to prosecute tribal members in proceedings that are not subject to the Constitution, ante, at 7-8; and that Congress can punish assaults that tribal members commit against each other on Indian land, ante, at 5-7. Although our precedents have endorsed these assumptions for dec-ades, the Court has never identified a sound constitutional basis for any of them, and I see none.
Start with the notion that the Sixth Amendment generally prohibits the government from using a prior, uncounseled conviction obtained in violation of the right to counsel as a predicate for a new offense in a new proceeding. Ante, at 8-9. All that the text of the Sixth Amendment requires in a criminal prosecution is that the accused enjoy the “[a]ssistance of [c]ounsel” in that proceeding. The Court was likely wrong in Burgett v. Texas, 389 U. S. 109 (1967), when it created a Sixth Amendment “exclusionary rule” that prohibits the government from using prior convictions obtained in violation of the right to counsel in subsequent proceedings to avoid “erod[ing] the principle” of the right to counsel. Id., at 115. I would be open to reconsidering Burgett in a future case.
The remaining two assumptions underpinning this case exemplify a central tension within our Indian-law jurisprudence. On the one hand, the only reason why tribal courts had the power to convict Bryant in proceedings where he had no right to counsel is that such prosecutions are a function of a tribe‘s core sovereignty. See United States v. Lara, 541 U. S. 193, 197 (2004); United States v. Wheeler, 435 U. S. 313, 318, 322–323 (1978). By virtue of tribes’ status as “separate sovereigns pre-existing the Constitution,” tribal prosecutions need not, under our precedents, comply with “those constitutional provisions framed specifically as limitations on federal or state authority.” Ante, at 7-8 (quoting Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978)).
On the other hand, the validity of Bryant‘s ensuing federal conviction rests upon a contrary view of tribal sovereignty. Congress ordinarily lacks authority to enact a general federal criminal law proscribing domestic abuse. See United States v. Morrison, 529 U.S. 598, 610-613 (2000). But, the Court suggests, Congress must intervene on reservations to ensure that prolific domestic abusers receive sufficient punishment. See ante, at 4-5. The Court does not explain where Congress’
I continue to doubt whether either view of tribal sovereignty is correct. See id., at 215 (THOMAS, J., concurring in judgment). Indian tribes have varied origins, discrete treaties with the United States, and different patterns of assimilation and conquest. In light of the tribes’ distinct histories, it strains credulity to assume that all tribes necessarily retained the sovereign prerogative of prosecuting their own members. And by treating all tribes as possessing an identical quantum of sovereignty, the Court‘s precedents have made it all but impossible to understand the ultimate source of each tribe‘s sovereignty and whether it endures. See Prakash, Against Tribal Fungibility, 89 Cornell L. Rev. 1069, 1070–1074, 1107-1110 (2004).
Congress’ purported plenary power over Indian tribes rests on even shakier foundations. No enumerated power—not Congress’ power to “regulate Commerce . . . with Indian Tribes,” not the Senate‘s role in approving treaties, nor anything else—gives Congress such sweeping authority. See Lara, supra, at 224-225 (THOMAS, J., concurring in judgment); Adoptive Couple v. Baby Girl, 570 U. S. 637, 659-666 (2013) (THOMAS, J., concurring) (slip op., at 3-5). Indeed, the Court created this new power because it was unable to find an enumerated power justifying the federal Major Crimes Act, which for the first time punished crimes committed by Indians against Indians on Indian land. See Kagama, supra, at 377–380; cf. ante, at 5. The Court asserted: “The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection. . . . It must exist in that government, because it has never existed anywhere else.” Kagama, supra, at 384. Over a century later, Kagama endures as the foundation of this doctrine, and the Court has searched in vain for any valid constitutional justification for this unfettered power. See, e.g., Lone Wolf v. Hitchcock, 187 U. S. 553, 566-567 (1903) (relying on Kagama‘s race-based plenary power theory); Winton v. Amos, 255 U. S. 373, 391–392 (1921) (Congress’ “plenary authority” is based on Indians’ “condition of tutelage or dependency“); Wheeler, supra, at 319 (Winton and Lone Wolf illustrate the “undisputed fact that Congress has plenary authority” over tribes); Lara, supra, at 224 (THOMAS, J., concurring in judgment) (“The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty“).
It is time that the Court reconsider these precedents. Until the Court ceases treating all Indian tribes as an undifferentiated mass, our case law will remain bedeviled by amorphous and ahistorical assumptions about the scope of tribal sovereignty. And, until the Court rejects