In June 2016, the Supreme Court held in United States v. Bryant that uncounseled tribal court convictions could serve as predicate offenses under 18 U.S.C. § 117(a). Citing the public safety crisis in Indian country, the limitations of tribal court sentencing, and the legislative history of Section 117(a), the Court upheld the federal statute enacted to address domestic violence offender recidivism. Beyond Section 117(a), at stake in Bryant was a challenge to tribal sovereignty, tribal courts’ ability to provide due process for their defendants, and protection for Indian victims of domestic violence. Bryant is simultaneously nested within a larger national conversation about the crisis of public defense in the United States, a due process right fundamental to Anglo-American jurisprudence. Due to tribes’ preconstitutional status, procedural protections for defendants in tribal court stem not from the U.S. Constitution, but from tribal law and the Indian Civil Rights Act, which guarantees a right to counsel at the defendant’s expense. Though the Sixth Amendment right to appointed counsel does not apply in tribal court, no liberal sovereign can be absolved of the imperative to protect the rights of the accused in its criminal proceedings.
Moving forward in the wake of Bryant, tribal courts must address this imperative. Procedural protections for tribal court defendants should be measured not by replication of state and federal public defense systems, but rather by analyzing tribal courts under international principles of comity to determine if a verdict is fundamentally fair. This Comment offers a two-layered proposal for addressing the public defense needs of tribal courts: calling first for a reformation of federal funding structures to promote strong federal and tribal partnerships, and second, by examining the models tribal courts across the country are using to ensure fairness and protect the rights of criminal defendants.