Another Win-Lose Situation: Reactions to SCOTUS decision in U.S. v. Bryant

By: Heather Torres | Intern | heather.torres@procopio.com

On June 13, 2016 in its decision on U.S. v. Bryant, the Supreme Court held that uncounseled tribal court convictions that are compliant with the Indian Civil Rights Act (ICRA), are predicate offenses under the Indian Country domestic assault habitual offender statute. 18 U.S.C. §117(a). Section 117(a) was enacted in response to the deplorably high rates of domestic violence against Native American women. It provides that any person who commits domestic assault in Indian Country and has two prior domestic violence convictions in federal, state, or tribal court can be subject to federal fines, prison, or both.

Defendant, Michael Bryant, a Northern Cheyenne tribal member, argued that federal prosecution under 117(a) using prior uncounseled tribal court convictions carrying prison sentences as predicate offenses flied in the face of the Sixth Amendment right to counsel. However, the defendant did not challenge the reliability of the tribal court convictions themselves, conceding that the uncounseled charges could be used if the tribal courts imposed a fine instead of a prison sentence. Essentially, Bryant argued that if he was to be prosecuted for a federal crime, then constitutional protections should apply, and the uncounseled tribal court convictions cannot be used against him.

The Supreme Court disagreed. In the Supreme Court’s view, Bryant was being punished for recently committed assaults, and not his previous crimes. Thus, Bryant was represented by a lawyer in this case in comport with the Sixth Amendment. The uncounseled tribal convictions were valid (i.e., ICRA compliant) and thus were able to serve as predicate offenses for 117(a) prosecution.

So, why is this a win-lose situation?

WIN: Bryant seems to be the target of 117(a), a habitual domestic assault offender. Bryant has over 100 convictions in tribal court, with at least 5 for domestic abuse. The affirmation of his previous tribal court domestic assault convictions serves 117(a)’s intent to protect Native American women. Native women are raped or sexually assaulted at 2.5 times of U.S. women in general and as many as 46% experience physical violence by an intimate partner.

LOSE: Who is most likely to appear uncounseled in tribal courts? Indians. This is due to limited tribal criminal jurisdiction and lack of funding for and/or prioritization by Tribal Nations to provide defense counsel. At the end of the day, the Supreme Court’s decision can be viewed as one that forfeits constitutional protections for Native American defendants.

Heather Torres (San Ildefonso Pueblo, Navajo) is a rising 3L enrolled in the Critical Race Studies specialization at the University of California, Los Angeles School of Law. Heather is an Executive Editor for the Indigenous Peoples’ Journal of Law, Culture & Resistance at UCLA. She is a recipient of the 2016 Procopio Native American Internship.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Peacemaking, Restorative Justice and Empowering Native Communities

By: Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

I am a certified peacemaker.

How so? How many of our readers know what that means? Raise your hands? Okay, that’s what I thought…

At this point, you may imagine me calming the nerves of family members or even that of co-workers at the water cooler. Maybe you envision a circle and a talking piece. You see — circles— even blogging circles — are trendy. Even this season’s Orange is the New Black featured one.

Tribal Governments can use a Peacemaking Court as a forum for resolving conflicts using traditions, customs and culture as the basis for finding peace in the resolution.  For some, it can be codified in law and even be a division of the District Court.

Peacemaking is a process that requires the parties to agree to peacemaking and to the selection of the peacemakers in order to participate in the peacemaking process and resolve their differences.

The core values of the Peacemaking court are respect, humility, compassion, spirituality and honesty. No value carries more significance than any other. Participation in the Peacemaking Circle process indicates acceptance of these values both in word and action and a commitment to move forward from the point of dispute.

What is ironic about being a certified peacemaker is that it isn’t about an individual, and it surely isn’t about creating peace. It is about a unified community and about the intent of the circle. It is about restoring balance and about healing. In one tribal Peacemaking court, for those who are litigants and request peacemaking, the goal of the peacemaker is to strive to be:

• Mediators of their differences;
• Leaders in teaching them our history, customs and culture;
• Healers of conflict by promoting peace and harmony;
• Guides to teach them and help them find their tribal identity.

My debut into peacemaking is a result of years serving as a judicial clerk for the Honorable Chief Justice Barbara Smith who sits on the Supreme Court for the Chickasaw Nation. She has been a facilitator for the Native American Rights Fund (NARF) Chautauqua Peacemaking Project and is on the Advisory Committee for their current Peacemaking Project. She is also on the NARF Board of Directors. Though she is too humble to agree, I consider her the intellectual leader of peacemaking. She is entrusted by the elders of many tribal nations with the wisdom and traditions used in their peacemaking over the centuries.

She and her brother, the Honorable Michael Smith, a District Court Judge for the Sac and Fox Nation, have mentored me for years. They co-teach at the University of Oklahoma and took 15 of us through a journey of self-discovery to prepare to become peacemakers.  They are the ones that brought me to Medicine Bluffs.

Peacemaking requires patience. You have to let go of being in charge of communication in the circle — something that is difficult for attorneys and law students to do. If you represent a client who chooses the peacemaking circle route, then you will not even be allowed in the circle. There is no need for representation in the circle.

Peacemaking takes time. Really, it is all about time. In a circle you start to realize that everyone is equal. No titles and accolades exist within the circle. I am just a voice.  Not THE VOICE in the circle.  Who am I as a person, then, I wonder? For years now, every time I introduce myself or someone introduces me it is based on what I do. What am I supposed to say to this group of people looking at me if I can’t tell them what I do or what I’ve done?

The circle can introduce new doubts that you didn’t even know that you have inside of you — then give you the time and perspective to work through to the natural resolution.

For many litigants who opt-in to the circle they initially think it will be easier. Some perceive it will be less punishment. However, the circle oftentimes commands courage, requires responsibility and provokes shame in a way so intimate a Judge could never convey it down from the bench. When the litigant must be in community with and listen to the victim or the victims’ family there is a sense of obligation that often emerges. As it pertains to a justice system, Chief Justice Smith said something powerful that stays with me: It is better for my soul to do good things instead of mean things.

For example, punishing tribal youth for poor decisions, which will affect their college admission chances or potential job opportunities, does nothing for the person or the Native community. Instead, healing is a good thing for those involved in the circle and in the tribal community. After all, a tribe is a family of families. By making them aware of their actions and the affect it has on others can often prompt change and self-evaluation that can promote responsibility and maturity. Participation in the circle is voluntary.

Peacemaking courts are analogous to other restorative justice courts we see in mainstream judicial systems. Examples of these are DUI courts, drug courts, Veteran’s courts, Sex Trafficking Courts and Homelessness Courts. I think the success we have seen in the Homelessness Court, that started in San Diego in 1989, show us that doing something innovative can make a difference in citizens’ lives. An except from a presentation on the ABA Commission on Homelessness and Poverty highlights the importance of this program in the San Diego Community:

“Homeless Court helps the community by engaging homeless people in gainful activity, thereby removing them from the doorways, parks and gathering places where they are unwanted and susceptible to arrest. It helps homeless defendants move back into productive lives because the sentence is most often participation in a work and counseling program that offers help with overcoming social problems, enhancing job seeking skills and locating employment opportunities and affordable housing. In the words of Charles Campbell, past Presiding Judge of the Ventura Superior Court, “Other than providing temporary housing, incarceration of the homeless does nothing to benefit the homeless or the community.” Referrals to specialized alcohol and drug treatment programs, mental health services and training or searching for employment help the community to tackle the problem of homelessness in a meaningful and practical way.”

Ultimately, it is up to each sovereign to decide how to operate their court systems and systems of justice. I am confident that we can find ways to intentionally include multigenerational dialogue of our youth and our elders when addressing community issues in achieving balance. Peacemaking is a natural path to that end.

To learn more, join the National American Indian Court Judges Association, Columbia Law School, and the Native American Rights Fund at the Traditional Peacemaking: Exploring the Intersections between Tribal Courts and Peacemaking, Including Alternatives to Detention at the Hard Rock Hotel and Casino – Tulsa on October 6-7. Topics they will cover include:

• Peacemaking Doesn’t Operate in a Vacuum: The Importance of Context
• Approaching Culturally Appropriate Justice with Indigent Defendants
• Peacemaking from the Ground Up
• Peacemaking from the Bench
• Preparing the Next Generation of Peacemakers: Academic and Court Training Options
• Reentry Programs Using Peacemaking/Peacemaking in Correctional Facilities

To register for the event, click here.

Stephanie Conduff is a citizen of the Cherokee Nation. She graduated from the University of Oklahoma College of Law. Stephanie is especially thankful for her mentors, the Honorable Barbara Smith and the Honorable Michael Smith, who have significantly invested in her and her understanding of the inner-connection between cultural relativity and progress in Indian Country.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Showing the Way: Tribal and State Court Systems Unite to Ensure Best Practices and Solid Relationships

By: Eric Abeita | Intern
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Judicial interface between Tribal Court systems and other courts can be a challenge; however, there are ways to smooth the relationship and learn from one another.  In 2006, the New Mexico Supreme Court recognized the Tribal-State Judicial Consortium as one of its advisory committees.  The Consortium previously existed for many years, and was founded to strengthen the relationships between State and Tribal Courts; however it was underutilized.  Not so any longer.  Currently seven Tribal judges and seven State judges, along with several alternates, serve on the committee.  They deal with complex jurisdictional issues between the two court systems and promote general goodwill and rapport between the judges.

The Consortium has worked to develop a judicial bench card and best practices in regard to the Indian Child and Welfare Act (ICWA).  It has also worked to implement Full Faith and Credit between the court systems, and has courageously tackled the barriers of State Court recognition of Tribal Court orders.  The Consortium continues to have great success in addressing jurisdictional and sovereignty issues between State and Tribal Courts.  This has required both work and perseverance. For many years, State Court judges were uneasy with recognizing Tribal Courts as their peers, and to this day there is still uneasiness with some State judges.  However, with dedication and hard work the Consortium has greatly increased cooperation and communication between the Court systems and has helped to establish New Mexico Tribal Courts as Full Faith and Credit Courts in the state.

Several other law students and I began learning about the important work the Consortium was doing when we started attending their quarterly meetings in 2013.  We began attending the meetings as we all served as editors on the Tribal Law Journal at the University of New Mexico School of Law.  Part of our responsibility at the Journal is to annually update the Tribal Court Handbook, which is a catalog of contact information, court rules, and court members of the various Tribal Courts in New Mexico.  We thought by attending the Consortium meetings we could get direct contact with Tribal Judges which would aid in updating the Handbook.  We were welcomed warmly and invited to attend further general and committee meetings of the group, which we most graciously did.  We are now working with the Consortium to develop a Tribal Law Journal liaison.   This law student will be responsible for attending Consortium meetings and reporting back to the Journal.  It is these types of relationships that the Consortium is so good at fostering, and a major reason why it has been so successful.

While other types of coalitions exist throughout the country, the New Mexico Tribal-State Judicial Consortium is a model for many states to follow.  By attending the meetings, I saw first hand that the focus was not on whether the state or tribal system was “right”, but how to come to a solution was possible while showing mutual respect and a shared understanding of each other.  In many instances in American-Tribal relations, problems arise because of a lack of understanding of each other’s values, cultures and laws.  If there is a greater understanding of these backdrops from which the parties are working, the foundation is laid for these two systems to work together and respect each other’s sovereignty and jurisdictional authority.  Hopefully more states will follow the Consortium’s work and will have the same or even greater success it has had.

WHAT DOES THE TRIBAL-STATE JUDICIAL CONSORTIUM DO?

PROVIDE INFORMATION — Are you considering a custody case involving an Indian child?  Do orders of protection or child support orders from other jurisdictions come to your court for enforcement?  Did another area’s law enforcement officers pursue a suspect into your jurisdiction?  Issues like these – crossing jurisdictions – are the focus of the New Mexico Tribal-State Judicial Consortium.  By establishing local relationships and communications between the Courts, conflicts and cases can better be resolved.

DEVELOP RELATIONSHIPS — Quarterly Consortium meetings offer briefings by subject matter experts who can address situations involving cross-jurisdictional issues, such as extradition, and provide an opportunity for discussion among Tribal and State Judges about issues and cases generally.  The Consortium also promotes relationships and communications by conducting regional training events to help the Courts learn more about the challenges they encounter and begin working together to address them.  It also provides opportunities for Tribal Judges to attend State judicial conferences.

COLLABORATE — Growing out of a subcommittee of the Court Improvement Project on child welfare several years ago, the Consortium was formally recognized by the New Mexico Supreme Court as one of its advisory committees in 2006.  Equal numbers of Tribal and State Judges represent the various Pueblos, Tribes, and levels of New Mexico Courts on the Consortium.  These fourteen members, with the assistance of three alternate members, offer a forum to help raise awareness among the Courts about jurisdictional matters.

OUTREACH — The Consortium is currently concentrating on projects involving the Indian Child Welfare Act (ICWA), full faith and credit/comity, and improving outreach and communications with the Courts.  Anyone interested in Tribal/State collaboration is welcome to attend our meetings.  The Consortium has been recognized for its efforts in outreach and collaboration by the National Criminal Justice Association.

Eric Abeita is a member of the Isleta Pueblo and is entering his third year at the University of New Mexico School of Law. Eric is a recipient of the 2014 Procopio Native American Internship.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.