“If you cannot afford an attorney, one will be appointed for you.” Since Miranda v. Arizona, that popularized phrase has widely been regarded as true in the United States. However, because the Bill of Rights does not apply to Native American tribes, defendants in tribal courts are regularly sentenced to imprisonment without the aid of counsel. One of those defendants was Michael Bryant, who has several convictions for domestic assault and was not appointed counsel even though he was indigent and imprisoned.

Domestic assault is a terrible problem in Native American communities. Native American women suffer from domestic violence at higher rates than any other racial group. In an effort to reduce domestic violence in the tribes, Congress criminalized domestic assault by a habitual offender. That crime requires two prior convictions, which can be obtained in tribal courts. However, because the Indian Civil Rights Act (ICRA) does not guarantee the same rights as the United States Constitution, a conviction may be valid in tribal court even though it would have been unconstitutional had it been obtained in state or federal court. That conviction may then be used as a predicate offense for domestic assault by a habitual offender.

In United States v. Bryant, the Supreme Court held that it is permissible to use uncounseled tribal court convictions as predicate offenses. The Court decided the issue, but a sense of injustice remains. It seems backhanded to use uncounseled tribal convictions to prove an element of a federal offense when those same convictions could not be used if they had been obtained in a different court. This Note proposes three solutions. One solution is to amend the Indian Civil Rights Act to make tribal court defendants’ rights coexistant with state or federal court defendants’ rights. Another is to give tribal courts the authority to impose harsher penalties for domestic assault instead of leaving the federal government as the only court system with the ability to impose adequate penalties. A third proposal is to expand the jurisdiction of tribal courts to allow them to prosecute non-members who commit offenses on tribal lands. Each of these solutions preserves the Court’s reasoning in United States v. Bryant while making the process more just for offenders, victims, and the tribes.


To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.