(Lame Deer, MT) The United States Supreme Court, in a unanimous decision, affirmed the constitutionality of the Federal Government’s reliance on the existence of prior Tribal Court convictions to create federal criminal jurisdiction over a repeat offender’s third—and hopefully final—assault on a Native woman. The Supreme Court’s decision in United States v. Bryant upholds the constitutionality of the Habitual Offender Provision (§ 117(a)) of the Violence Against Women Act (“VAWA”).
“The Supreme Court recognized the staggering rates at which our Native women suffer from domestic violence, and the severe consequences Native women face due to jurisdictional limitations on prosecuting violent offenders in Indian Country,” stated Cherrah Giles, President of the National Indigenous Women’s Resource Center’s (“NIWRC”) Board of Directors, a leading advocate against domestic violence in Indian Country and Amici Curiae to the Bryant case.
“In re-affirming Tribal sovereignty, and upholding the constitutionality of § 117(a), the Court has ensured that repeat domestic violence offenders in Indian Country will receive more than a slap on the wrist.” Lucy Simpson, NIWRC’s Executive Director stated.
In United States v. Bryant, the Supreme Court acknowledged the extraordinarily high rates of domestic violence Native women experience, and that as a result of the tribal, state, and federal criminal jurisdictional patchwork, many repeat abusers fell through the cracks and escaped sentences of any real consequence prior to the enactment of VAWA § 117(a) in 2005.
Section 117 creates federal criminal jurisdiction over individuals who have at least two prior, valid domestic violence convictions. In today’s decision, the Supreme Court rejected Bryant’s assertion that prior, valid Tribal Court convictions cannot give rise to federal criminal jurisdiction when the previous convictions were obtained in a Tribal Court proceeding without the provision of counsel. Specifically, the Supreme Court held that because Tribal Nations constitute “separate sovereigns pre-existing the Constitution,” the Sixth Amendment does not govern Tribal Court proceedings, and moreover, the Indian Civil Rights Act (“ICRA”) ensures defendants in tribal court proceedings enjoy rights equivalent to the United States Constitution’s Bill of Rights.
“Today the Supreme Court affirmed the inherent sovereignty of Tribal Nations to protect their women and children from repeat domestic violence offenders,” said Mary Kathryn Nagle, partner at Pipestem Law, P.C. and attorney for NIWRC. “Justice Ginsburg’s well-reasoned opinion confirms that a Tribe’s exercise of its inherent sovereignty in no way ‘violates’ the Constitution because the Tribe’s power existed before, during, and after the United States’ Constitution came into existence.”
As a leading advocate in the fight against domestic violence in Indian Country, the NIWRC’s amicus brief was joined by 34 organizations that work to end domestic violence nationwide.
“Today the Supreme Court clearly articulated that the rate of violence against Native women is unacceptable,” said Sarah Deer, co-author of the NIWRC’s amicus brief. “Now we have a decision which affirms one of the most important tools at our disposal – namely, the ability of federal prosecutors to take action after multiple tribal court convictions. Until a complete restoration of tribal authority is achieved, this VAWA provision is critical for the safety of Native women. The decision necessarily implicates tribal sovereignty, which is directly and repeatedly threatened whenever a Native woman is attacked.”
The National Indigenous Women’s Resource Center (“NIWRC”) is a nonprofit organization that provides technical assistance, policy development, training, materials, and resource information for Indian and Alaska Native women, Native Hawaiians, and Native non-profit organizations addressing safety for Native women. The NIWRC’s primary mission is to restore safety for Native women through preserving and restoring the inherent jurisdiction of Indian Nations to protect their women and children on tribal lands. For more information, visit www.niwrc.org.
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