Legal confusion.

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Supreme Court Makes Hash of U.S. Tribal Law

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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No area of the Supreme Court’s docket is more laden with contradictions than Indian law. On the one hand is the court’s well-intentioned impulse to protect Native Americans who’ve been victimized by centuries of injustice. On the other is the equally well-meaning aspiration to recognize tribal sovereignty. But these are competing values, so the justices frequently make a hash of it.

That happened in Monday’s decision allowing domestic-violence convictions in tribal court to count towards a federal felony conviction. On the surface, the result protects Native American victims of domestic violence and respects the validity of prior convictions. But underneath, the decision weakens constitutional protections for Native American defendants.

The case grew from an addition to the Violence Against Women Reauthorization Act of 2005. Enacted in response to domestic violence on tribal lands, the law makes it a federal crime for someone with at least two prior domestic violence convictions to commit a domestic assault in “Indian country.” In other words, the law functions as a three-strikes law. If your third domestic-violence conviction comes on a reservation, you’ve automatically committed a federal felony.

It’s worth noting that the federal government couldn’t make such a law for ordinary state convictions. In the 2000 case U.S. v. Morrison, the Supreme Court struck down the core of the original Violence Against Women Act of 1994 on the ground that domestic violence was a domain traditionally reserved to the states and therefore beyond the reach of Congress.

The 2005 law is within federal authority only because Congress can criminalize conduct on tribal reservations. Although theoretically treated as sovereign nations, tribes are in practice less sovereign than states.

The constitutional trouble with the law has to do with the right to counsel derived from the Sixth Amendment.  Like the rest of the Constitution, that amendment applies on tribal lands only insofar as it is implemented by the Indian Civil Rights Act of 1968.

Unlike the Sixth Amendment, the Indian civil rights law doesn’t require tribes to provide lawyers for indigent defendants charged with crimes punishable by less than a year in prison. As a result, defendants can be convicted of a misdemeanor – including misdemeanor domestic violence -- in tribal court without ever having the benefit of a lawyer.

That’s problematic for the federal three-strikes law. Two of the strikes can be misdemeanor domestic-violence convictions in tribal court, which may not have involved a legal defense.

The result is that somebody can be convicted of a federal crime based on prior convictions that didn’t satisfy federal constitutional standards.

That wouldn’t be permitted off the reservation. The Supreme Court has held that a conviction obtained in state or federal court without the advice of counsel can’t be used in a future federal trial to “support guilt or innocence of a federal offense.”

But a unanimous Supreme Court upheld the law. Justice Ruth Bader Ginsburg wrote the opinion. Its formal logic was that because the tribal court convictions without a lawyer are legal under the Indian Civil Rights Act, there is no reason not to count them as prior offenses for purposes of the federal law.

Ginsburg, true to her feminist roots, also emphasized the scourge of domestic violence on Native American women. She noted that Native American women “experience the highest rates of domestic violence” in the U.S. By one count, 46 percent of Native American women have been victimized.  The focus on the domestic violence problem is characteristic of the court’s paternalism toward Native Americans living on reservations.

Similarly, Ginsburg mentioned that few tribes have chosen to implement an option created by Congress to impose domestic-violence sentences of up to three years instead of one. Her rhetoric suggested that this was a reason to uphold the federal law. Seen from the standpoint of tribal sovereignty, it actually cuts the other way. For better or worse, the federal government is actively intervening in the internal governance of reservations to protect victims of domestic violence.

The decision may be understood as a victory for the protection of women on tribal lands. But it’s troubling nevertheless, because it makes it easier to convict defendants despite their lack of counsel. And those defendants will invariably be Native Americans, because it’s Native Americans who are tried for misdemeanors in tribal courts.

When the crime is federal, not tribal, the protections should be the same as would be available for a federal or state conviction. That means a lawyer.

The bottom line is therefore that the federal law is likely to lead to more Native Americans ending up in federal prisons – without having had the benefits of legal representation when they were convicted of the underlying crimes that helped put them there. This compromises Native Americans’ constitutional rights – which the justices should be in the business of protecting.

  1. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

  2. Ginsburg conflated the experiences of Native American women with those of women living on tribal lands, but that analytic error, although telling, can perhaps be forgiven.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net