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Indian Law

United States v. Bryant - Post-Decision SCOTUScast

SCOTUScast 7-12-16 featuring Thomas F. Gede
Thomas F. Gede July 12, 2016

On June 13, 2016, the Supreme Court decided United States v. Bryant. Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. He did not have the benefit of counsel with respect to these convictions, though they complied with the Indian Civil Rights Act (ICRA). Having made further domestic assaults in 2011, Bryant was charged with violating 18 U.S.C. §117(a), which makes it a federal crime for any person to “commi[t] a domestic assault within...Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.” He argued that the Sixth Amendment precluded use of his prior, uncounseled, tribal-court misdemeanor convictions to satisfy §117(a)’s predicate-offense element. Although the district court rejected Bryant’s argument the U.S. Court of Appeals for the Ninth Circuit agreed with him, vacating his conviction and directing dismissal of the indictment. 

By a vote of 8-0, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. Justice Ginsburg delivered the opinion for a unanimous Court, which held that because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution. Justice Thomas filed a concurring opinion.

To discuss the case, we have Thomas F. Gede, who is Principal at Morgan Lewis Consulting LLC and of counsel at Morgan, Lewis & Bockius LLP.

Dollar General Corporation v. Mississippi Band of Choctaw Indians - Post-Argument SCOTUScast

SCOTUScast 12-15-15 featuring Zachary Price
Zachary Price December 15, 2015

On December 7, 2015, the Supreme Court heard oral argument in Dollar General Corporation v. Mississippi Band of Choctaw Indians. This case concerns a dispute over tribal court jurisdiction relating to allegations that the non-Indian manager of a Dollar General store on Choctaw tribal land sexually molested an Indian minor who interned at the store. When the minor’s parents sought to hold Dolgencorp--the subsidiary that operated the store--vicariously liable for the manager’s conduct, Dolgencorp petitioned in federal district court for an injunction barring tribal court proceedings, on the grounds that the tribal court lacked jurisdiction. The district court denied relief, concluding that while tribal courts typically lack civil authority over the conduct of non-members on non-Indian land within a reservation, Dolgencorp’s situation fell within a “consensual relationship” exception to the rule. The U.S. Court of Appeals for the Fifth Circuit affirmed, and denied rehearing en banc over the dissent of five judges.

The question before the Supreme Court is whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members.

To discuss the case, we have Zachary Price, who is Associate Professor of Law at University of California, Hastings College of Law.

Is the Akaka Bill Back? - Podcast

Civil Rights Practice Group Podcast
Hans A. von Spakovsky December 17, 2014

The Akaka Bill, originally proposed by former U.S. Senator Daniel Akaka, was designed to establish a process for Native Hawaiians to gain federal recognition similar to that of some Native American tribes. Based on this status, members can then receive preferential treatment. Critics argue that such treatment would violate the Equal Protection Clause of the U.S. Constitution. Supporters argue that such preferences would be authorized because they would be on the political relationship that existed between the U.S. government and its native peoples, and based on the pre-existing sovereignty of those native peoples. Will the Akaka Bill, or some version of it, resurface? If so, is it good law? Good policy?

  • Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

Michigan v. Bay Mills Indian Community - Post-Decision SCOTUScast

SCOTUScast 6-2-14 featuring Tom Gede
Thomas F. Gede June 02, 2014

Thomas F. GedeOn May 27, 2014, the Supreme Court issued its decision in Michigan v. Bay Mills Indian Community. The question in this case is twofold. First, whether a federal court may exercise jurisdiction to prohibit an activity that violates the Indian Gaming Regulatory Act (IGRA), but does not occur on Indian lands; and second, whether tribal sovereign immunity precludes a state from suing a tribe in federal court for violations of IGRA that take place outside of Indian lands.

By a vote of 5-4, the Court held in an opinion delivered by Justice Kagan that Michigan's suit against Bay Mills is barred by tribal sovereign immunity. Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor joined the opinion of the Court. Justice Sotomayor authored a concurring opinion. Justice Scalia wrote a dissenting opinion. Justice Thomas also wrote a dissenting opinion, joined by Justices Scalia, Ginsburg, and Alito. Justice Ginsburg wrote a separate dissenting opinion. The opinion of the Sixth Circuit was affirmed and the case was remanded.

To discuss the case, we have Tom Gede, who is a principal in Bingham Consulting and of counsel at Bingham McCutchen.

Michigan v. Bay Mills Indian Community - Post-Argument SCOTUScast

SCOTUScast 12-31-13 featuring Tom Gede
Thomas F. Gede December 31, 2013

Thomas F. GedeOn December 2, 2013, the Supreme Court heard oral argument in Michigan v. Bay Mills Indian Community. The question in this case is twofold. First, whether a federal court may exercise jurisdiction to prohibit an activity that violates the Indian Gaming Regulatory Act (IGRA), but does not occur on Indian lands; and second, whether tribal sovereign immunity precludes a state from suing a tribe in federal court for violations of IGRA that take place outside of Indian lands.

To discuss the case, we have Tom Gede, who is a principal in Bingham Consulting and of counsel at Bingham McCutchen.