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In U.S. v. Bryant, the Court has granted review of a decision by the U.S. Court of Appeals for the Ninth Circuit which held that tribal court criminal convictions for domestic violence may be used in federal court prosecutions as a habitual offender under 18 USC §117 (the “Habitual Offender Provision”) only if the tribal court guarantees a right to counsel. The Ninth Circuit (in conflict with the Eighth and Tenth Circuits) concluded that it is constitutionally impermissible to use uncounseled convictions to establish an element of the offense in a subsequent prosecution under § 117(a). The case raises important issues of protecting the safety of Native women survivors of domestic violence in Indian country, as well as questions on the right to counsel for indigent persons in tribal courts. The cert stage briefs are available at: http://sct.narf.org/caseindexes/us_v_bryant.html. NIWRC will file an amicus brief to support the United States’ position, specifically, to make clear that Congress did not intend to make the application of the Habitual Offender Provision dependent on whether the defendant in the underlying tribal court DV conviction received assistance of counsel. Thus, NIWRC will advocate that federal courts have no authority to dictate to Tribal Governments how they will treat their own members in their own Tribal Courts. Tribal Governments, like all other sovereign governments, know best how to balance the rights of their women to be free from domestic violence with the rights of the accused perpetrators to be treated fairly and afforded due process. Nothing in the United States Constitution provides the U.S. federal courts with the authority to determine how Tribal Governments will adjudicate disputes that fall exclusively between tribal citizens. NIWRC’s brief will also cover the extensive and important legislative history behind the enactment of the Habitual Offender Provision. Domestic violence is a pattern of violence that typically escalates over time in severity and frequency. To prevent future violence and end the pattern, perpetrators must be held accountable immediately. Many states have passed statutes enhancing the penalty for repeat domestic violence offenders. Native women under federal jurisdiction however did not have this protection so the movement organized nationally to pass the Habitual Offender Provision as part of the Safety for Indian Women Title of VAWA in 2005. We also recognized that federal prosecutors do not charge domestic violence offenders in the majority of cases committed against Native women. This statute created a federal statute to address repeat offenders and is essential to the safety of Native women on tribal lands.
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