As we explained in our prior post on the cert grant in this case, the Sixth Amendment does not apply in tribal courts. Congress has created a statutory right to counsel in such courts, including for indigent defendants, in prosecutions involving prison sentences greater than one year. But for charges involving less than a year of incarceration, only defendants who can afford a lawyer are entitled to have one. Bryant has several prior domestic violence convictions in tribal court for which he was not statutorily entitled to, and did not receive, a lawyer. The question here is whether these convictions can form the predicate for his new, federal-court conviction for “domestic assault within … Indian country” which applies only to those with at least two DV priors.
Short answer: yes. Though prior convictions obtained without counsel in violation of the Sixth Amendment cannot be used to enhance a later sentence or form the predicate for new charges, Burgett v. Texas, 389 U. S. 109, 115 (1967), where there is no Sixth Amendment right, there’s no violation and hence, in the Court’s view, no problem. The Court relies on and analogizes to Nichols v. United States, 511 U.S. 738 (1994), which held that an uncounseled prior conviction resulting only in a fine, rather than jail time, did not violate the Sixth Amendment and could thus be used as an enhancer. (Slip op. at 13-15).
Longer answer: still yes, but preceded by a lengthy and seemingly irrelevant discussion of the reasons that Congress created the substantive crime. (Slip op. at 2-7). This commentary is perhaps intended as a rebuttal to Justice Thomas’s concurrence, which challenges what it views as the three “basic assumptions” underlying the case: that the Sixth Amendment forbids the use, as enhancers, of convictions obtained in violation of the right to counsel, that tribes are entitled to prosecute crimes outside the bounds of the Constitution, and that Congress has “plenary power” over the tribes such that it can, inter alia, criminally punish members for assaults against one another. As to the first “assumption,” Thomas describes Burgett as “likely wrong” and ripe for overturning. (Slip op., Thomas, J. dissenting at 2). As to the remaining two, he identifies a tension between, on the one hand, the notion that the tribes retain the “core sovereignty” to punish crimes in Indian country, and on the other, the claim that Congress may also punish such crimes, despite what he sees as the lack of any textual basis for such authority in the Constitution. Thomas concludes by decrying the Court’s precedents endowing Congress with this power as “based on the paternalistic theory that Congress must assume all-encompassing control over the ‘remnants of a race’ for its own good.” (Slip op., Thomas, J. dissenting at 4).