Summary 

7/7/2016 4:12:59 PM 

Differences exist between documents. 

New Document: Old Document: 

15-420_new 15-420 

23 pages (174 KB) 23 pages (177 KB) 

7/7/2016 4:12:51 PM 7/7/2016 4:12:51 PM 

Used to display results. 

Get started: first change is on page 8. 

No pages were deleted 

How to read this report 

Highlight indicates a change. 

Deleted indicates deleted content.
 

indicates pages were changed.
 

indicates pages were moved.
 

file://NoURLProvided[7/7/2016 4:13:03 PM] 
 

 

 

(Slip Opinion) OCTOBER TERM, 2015 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

UNITED STATES v. BRYANT 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE NINTH CIRCUIT 

No. 15–420. Argued April 19, 2016—Decided June 13, 2016 

In response to the high incidence of domestic violence against Native

American women, Congress enacted a felony offense of domestic assault in Indian country by a habitual offender. 18 U. S. C. §117(a). 

Section 117(a)(1) provides that any person who “commits a domestic

assault within . . . Indian country” and who has at least two prior final convictions for domestic violence rendered “in Federal, State, or 

Indian tribal court proceedings . . . shall be fined . . . , imprisoned for

a term of not more than 5 years, or both . . . .” Having two prior tribal-court convictions for domestic violence crimes is thus a predicate of

the new offense. 

This case raises the question whether §117(a)’s inclusion of tribalcourt convictions as predicate offenses is compatible with the Sixth

Amendment’s right to counsel. The Sixth Amendment guarantees

indigent defendants appointed counsel in any state or federal criminal proceeding in which a term of imprisonment is imposed, Scott v. 

Illinois, 440 U. S. 367, 373–374, but it does not apply in tribal-court

proceedings, see Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 337. The Indian Civil Rights Act of 1968 

(ICRA), which governs tribal-court proceedings, accords a range of

procedural safeguards to tribal-court defendants “similar, but not

identical, to those contained in the Bill of Rights and the Fourteenth 

Amendment,” Santa Clara Pueblo v. Martinez, 436 U. S. 49, 57. In 

particular, ICRA provides indigent defendants with a right to appointed counsel only for sentences exceeding one year. 25 U. S. C. 

§1302(c)(2). ICRA’s right to counsel therefore is not coextensive with 

the Sixth Amendment right.

This Court has held that a conviction obtained in state or federal 

court in violation of a defendant’s Sixth Amendment right to counsel 
 

 

 

 

 

 

 

2 UNITED STATES v. BRYANT 

Syllabus 

cannot be used in a subsequent proceeding “to support guilt or enhance punishment for another offense.” Burgett v. Texas, 389 U. S. 

109, 115. Use of a constitutionally infirm conviction would cause “the

accused in effect [to] suffe[r] anew from the [prior] deprivation of [his]

Sixth Amendment right.” Ibid. Burgett’s principle was limited by 

the Court’s holding in Nichols v. United States, 511 U. S. 738, that 

“an uncounseled misdemeanor conviction, valid under Scott because 

no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction,” id., at 748–749. 

Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. When convicted, Bryant was indigent and

was not appointed counsel. For most of his convictions, he was sentenced to terms of imprisonment not exceeding one year’s duration.

Because of his short prison terms, the prior tribal-court proceedings 

complied with ICRA, and his convictions were therefore valid when 

entered. Based on domestic assaults he committed in 2011, Bryant

was indicted on two counts of domestic assault by a habitual offender, 

in violation of §117(a). Represented in federal court by appointed

counsel, he contended that the Sixth Amendment precluded use of his 

prior, uncounseled, tribal-court misdemeanor convictions to satisfy

§117(a)’s predicate-offense element and moved to dismiss the indictment. The District Court denied the motion; Bryant pleaded guilty, 

reserving the right to appeal. The Ninth Circuit reversed the conviction and directed dismissal of the indictment. It comprehended that

Bryant’s uncounseled tribal-court convictions were valid when entered because the Sixth Amendment right to counsel does not apply

in tribal-court proceedings. It held, however, that Bryant’s tribalcourt convictions could not be used as predicate convictions within

§117(a)’s compass because they would have violated the Sixth 

Amendment had they been rendered in state or federal court. 

Held: 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. 

Nichols instructs that convictions valid when entered retain that 

status when invoked in a subsequent proceeding. Nichols reasoned 

that “[e]nhancement statutes . . . do not change the penalty imposed

for the earlier conviction”; rather, repeat-offender laws “penaliz[e] only the last offense committed by the defendant.” 511 U. S., at 747. 

Bryant’s sentence for violating §117(a) punishes his most recent acts

of domestic assault, not his prior crimes prosecuted in tribal court. 

He was denied no right to counsel in tribal court, and his Sixth

Amendment right was honored in federal court. Bryant acknowledges that Nichols would have allowed reliance on uncounseled tribal-
 

Cite as: 579 U. S. ____ (2016) 3 

Syllabus 

court convictions resulting in fines to satisfy §117(a)’s prior-crimes 

predicate. But there is no cause to distinguish for §117(a) purposes

between fine-only tribal-court convictions and valid but uncounseled

tribal-court convictions resulting in imprisonment for a term not exceeding one year. Neither violates the Sixth Amendment. Bryant is 

not aided by Burgett. A defendant convicted in tribal court suffered 

no Sixth Amendment violation in the first instance, so he cannot “suffe[r] anew” from a prior deprivation in his federal prosecution. 

Bryant also invokes the Due Process Clause of the Fifth Amendment to support his assertion that tribal-court judgments should not

be used as predicate offenses under §117(a). ICRA, however, guarantees “due process of law,” accords other procedural safeguards, and

permits a prisoner to challenge the fundamental fairness of tribal

court proceedings in federal habeas corpus proceedings. Because proceedings in compliance with ICRA sufficiently ensure the reliability

of tribal-court convictions, the use of those convictions in a federal 

prosecution does not violate a defendant’s due process right. Pp. 12– 

16. 

769 F. 3d 671, reversed and remanded. 

GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS, 

J., filed a concurring opinion. 
 

 

_________________ 

_________________ 

 


 


 

Cite as: 579 U. S. ____ (2016) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 15–420 

UNITED STATES, PETITIONER v. 

MICHAEL BRYANT, JR.
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE NINTH CIRCUIT
 

[June 13, 2016]

 JUSTICE GINSBURG delivered the opinion of the Court. 

In response to the high incidence of domestic violence 

against Native American women, Congress, in 2005, enacted 18 U. S. C. §117(a), which targets serial offenders.

Section 117(a) 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.” See Violence Against Women

and Department of Justice Reauthorization Act of 2005 

(VAWA Reauthorization Act), Pub. L. 109–162, §§901, 909, 

119 Stat. 3077, 3084.1 Respondent 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. His tribal-court convictions do not count for §117(a)

purposes, Bryant maintains, because he was uncounseled 

—————— 

1 “Indian country” is defined in 18 U. S. C. §1151 to encompass all

land within any Indian reservation under federal jurisdiction, all 

dependent Indian communities, and all Indian allotments, the Indian

titles to which have not been extinguished. 
 

 

2 UNITED STATES v. BRYANT 

Opinion of the Court 

in those proceedings. 

The Sixth Amendment guarantees indigent defendants,

in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed. Scott v. Illinois, 440 U. S. 367, 373–374 (1979). 

But the Sixth Amendment does not apply to tribal-court

proceedings. See Plains Commerce Bank v. Long Family 

Land & Cattle Co., 554 U. S. 316, 337 (2008). The Indian 

Civil Rights Act of 1968 (ICRA), Pub. L. 90–284, 82 Stat.

77, 25 U. S. C. §1301 et seq., which governs criminal proceedings in tribal courts, requires appointed counsel only 

when a sentence of more than one year’s imprisonment is

imposed. §1302(c)(2). Bryant’s tribal-court convictions, it 

is undisputed, were valid when entered. This case presents the question whether those convictions, though

uncounseled, rank as predicate offenses within the compass of §117(a). Our answer is yes. Bryant’s tribal-court 

convictions did not violate the Sixth Amendment when 

obtained, and they retain their validity when invoked in a 

§117(a) prosecution. That proceeding generates no Sixth 

Amendment defect where none previously existed. 

I 

A 

“[C]ompared to all other groups in the United States,” 

Native American women “experience the highest rates of 

domestic violence.” 151 Cong. Rec. 9061 (2005) (remarks 

of Sen. McCain). According to the Centers for Disease

Control and Prevention, as many as 46% of American 

Indian and Alaska Native women have been victims of 

physical violence by an intimate partner. Centers for 

Disease Control and Prevention, National Center for 

Injury Prevention and Control, M. Black et al., National

Intimate Partner and Sexual Violence Survey 2010 Summary

Report 40 (2011) (Table 4.3), online at http://www.cdc.gov/

ViolencePrevention/pdf/NISVS_report2010-a.pdf (all Internet 
 

Cite as: 579 U. S. ____ (2016) 3 

Opinion of the Court 

materials as last visited June 9, 2016). American Indian 

and Alaska Native women “are 2.5 times more likely to

be raped or sexually assaulted than women in the United 

States in general.” Dept. of Justice, Attorney General’s 

Advisory Committee on American Indian and Alaska 

Native Children Exposed to Violence, Ending Violence So 

Children Can Thrive 38 (Nov. 2014), online at https:// 

www.justice.gov /sites /default/files/defendingchildhood/ 

pages/attachments/2015/03/23/ending_violence_so_children_ 

can_thrive.pdf. American Indian women experience 

battery “at a rate of 23.2 per 1,000, compared with 8 per 

1,000 among Caucasian women,” and they “experience 7

sexual assaults per 1,000, compared with 4 per 1,000 

among Black Americans, 3 per 1,000 among Caucasians,

2 per 1,000 among Hispanic women, and 1 per 1,000 

among Asian women.” VAWA Reauthorization Act, §901, 

119 Stat. 3077. 

As this Court has noted, domestic abusers exhibit high

rates of recidivism, and their violence “often escalates in 

severity over time.” United States v. Castleman, 572 U. S. 

___, ___ (2014) (slip op., at 2). Nationwide, over 75% of 

female victims of intimate partner violence have been

previously victimized by the same offender, Dept. of Justice, Bureau of Justice Statistics, S. Catalano, Intimate 

Partner Violence 1993–2010, p. 4 (rev. 2015) (Figure 4), 

online at http://www.bjs.gov/content/pub/pdf/ipv9310.pdf, 

often multiple times, Dept. of Justice, National Institute of

Justice, P. Tjaden & N. Thoennes, Extent, Nature, and 

Consequences of Intimate Partner Violence, p. iv (2000),

online at https://www.ncjrs.gov/pdffiles1/nij/181867.pdf 

(“[W]omen who were physically assaulted by an intimate 

partner averaged 6.9 physical assaults by the same partner.”). Incidents of repeating, escalating abuse more than

occasionally culminate in a fatal attack. See VAWA Reauthorization Act, §901, 119 Stat. 3077–3078 (“[D]uring the 

period 1979 through 1992, homicide was the third leading 
 

 

 

 

4 UNITED STATES v. BRYANT 

Opinion of the Court 

cause of death of Indian females aged 15 to 34, and 75

percent were killed by family members or acquaintances.”). 

The “complex patchwork of federal, state, and tribal

law” governing Indian country, Duro v. Reina, 495 U. S. 

676, 680, n. 1 (1990), has made it difficult to stem the tide

of domestic violence experienced by Native American 

women. Although tribal courts may enforce the tribe’s 

criminal laws against Indian defendants, Congress has

curbed tribal courts’ sentencing authority. At the time of 

§117(a)’s passage, ICRA limited sentences in tribal court 

to a maximum of one year’s imprisonment. 25 U. S. C. 

§1302(a)(7) (2006 ed.).2 Congress has since expanded

tribal courts’ sentencing authority, allowing them to impose up to three years’ imprisonment, contingent on adoption of additional procedural safeguards. 124 Stat. 2279– 

2280 (codified at 25 U. S. C. §1302(a)(7)(C), (c)).3 To date, 

however, few tribes have employed this enhanced sentencing

authority. See Tribal Law and Policy Inst., Implementation 

Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced 

Sentencing, online at http://www.tribal-institute.org/

download/VAWA/VAWAImplementationChart.pdf.4 

—————— 

2Until 1986, ICRA permitted sentences of imprisonment up to only 

six months. See 100 Stat. 3207–146. 3Among the additional safeguards attending longer sentences is the

unqualified right of an indigent defendant to appointed counsel. 25 

U. S. C. §1302(c)(1), (2). 

4Tribal governments generally lack criminal jurisdiction over nonIndians who commit crimes in Indian country. See Oliphant v. 

Suquamish Tribe, 435 U. S. 191, 195 (1978). In the Violence Against

Women Reauthorization Act of 2013, Congress amended ICRA to authorize tribal courts to “exercise special domestic violence criminal jurisdiction” over certain domestic violence offenses committed by a non-Indian

against an Indian. Pub. L. 113–4, §904, 127 Stat. 120–122 (codified at 25 

U. S. C. §1304). Tribal courts’ exercise of this jurisdiction requires 

procedural safeguards similar to those required for imposing on Indian

defendants sentences in excess of one year, including the unqualified

right of an indigent defendant to appointed counsel. See §1304(d). We 

express no view on the validity of those provisions. 
Cite as: 579 U. S. ____ (2016) 5 

Opinion of the Court 

States are unable or unwilling to fill the enforcement 

gap. Most States lack jurisdiction over crimes committed

in Indian country against Indian victims. See United 

States v. John, 437 U. S. 634, 651 (1978). In 1953, Congress increased the potential for state action by giving six 

States “jurisdiction over specified areas of Indian country 

within the States and provid[ing] for the [voluntary] assumption of jurisdiction by other States.” California v. 

Cabazon Band of Mission Indians, 480 U. S. 202, 207 

(1987) (footnote omitted). See Act of Aug. 15, 1953, Pub.

L. 280, 67 Stat. 588 (codified, as amended, at 18 U. S. C. 

§1162 and 25 U. S. C. §§1321–1328, 1360). States so 

empowered may apply their own criminal laws to “offenses 

committed by or against Indians within all Indian country 

within the State.” Cabazon Band of Mission Indians, 480 

U. S., at 207; see 18 U. S. C. §1162(a). Even when capable

of exercising jurisdiction, however, States have not devoted their limited criminal justice resources to crimes committed in Indian country. Jimenez & Song, Concurrent 

Tribal and State Jurisdiction Under Public Law 280, 47 

Am. U. L. Rev. 1627, 1636–1637 (1998); Tribal Law and 

Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, &

M. White Eagle, Final Report: Focus Group on Public Law 

280 and the Sexual Assault of Native Women 7–8 (2007),

online at http://www.tribal-institute.org/download/Final

%20280%20FG%20Report.pdf.

That leaves the Federal Government. Although federal

law generally governs in Indian country, Congress has 

long excluded from federal-court jurisdiction crimes committed by an Indian against another Indian. 18 U. S. C. 

§1152; see Ex parte Crow Dog, 109 U. S. 556, 572 (1883) 

(requiring “a clear expression of the intention of Congress”

to confer federal jurisdiction over crimes committed by an

Indian against another Indian). In the Major Crimes Act,

Congress authorized federal jurisdiction over enumerated

grave criminal offenses when the perpetrator is an Indian and 
 

6 UNITED STATES v. BRYANT 

Opinion of the Court 

the victim is “another Indian or other person,” including

murder, manslaughter, and felony assault. §1153. At the 

time of §117(a)’s enactment, felony assault subject to

federal prosecution required “serious bodily injury,” 

§113(a)(6) (2006 ed.), meaning “a substantial risk of 

death,” “extreme physical pain,” “protracted and obvious 

disfigurement,” or “protracted loss or impairment of the 

function of a bodily member, organ, or mental faculty.”

§1365(h)(3) (incorporated through §113(b)(2)).5 In short, 

when §117(a) was before Congress, Indian perpetrators of 

domestic violence “escape[d] felony charges until they

seriously injure[d] or kill[ed] someone.” 151 Cong. Rec. 

9062 (2005) (remarks of Sen. McCain). 

As a result of the limitations on tribal, state, and federal 

jurisdiction in Indian country, serial domestic violence

offenders, prior to the enactment of §117(a), faced at most 

a year’s imprisonment per offense—a sentence insufficient

to deter repeated and escalating abuse. To ratchet up the

punishment of serial offenders, Congress created the 

federal felony offense of domestic assault in Indian country by a habitual offender. §117(a) (2012 ed.); see No. 12–

30177 (CA9, July 6, 2015), App. to Pet. for Cert. 41a (Owens, J., dissenting from denial of rehearing en banc) (“Tailored to the unique problems . . . that American Indian 

and Alaska Native Tribes face, §117(a) provides felonylevel punishment for serial domestic violence offenders, 

and it represents the first true effort to remove these

recidivists from the communities that they repeatedly 

—————— 

5Congress has since expanded the definition of felony assault to include “[a]ssault resulting in substantial bodily injury to a spouse[,] . . . 

intimate partner, [or] dating partner” and “[a]ssault of a spouse, 

intimate partner, or dating partner by strangling, suffocating, or 

attempting to strangle or suffocate.” Violence Against Women Reauthorization Act of 2013, §906, 127 Stat. 124 (codified at 18 U. S. C.

§113(a)(7), (8)). The “substantial bodily injury” requirement remains

difficult to satisfy, as it requires “a temporary but substantial disfigurement” or “a temporary but substantial loss or impairment of the

function of any bodily member, organ, or mental faculty.” §113(b)(1). 
Cite as: 579 U. S. ____ (2016) 7 

Opinion of the Court 

terrorize.”). The section provides in pertinent part: 

“Any person who commits a domestic assault within

. . . Indian country and who has a final conviction on

at least 2 separate prior occasions in Federal, State, or

Indian tribal court proceedings for offenses that would 

be, if subject to Federal jurisdiction any assault, sexual abuse, or serious violent felony against a spouse or 

intimate partner . . . shall be fined . . . , imprisoned for

a term of not more than 5 years, or both . . . .” 

§117(a)(1).6 

Having two prior convictions for domestic violence 

crimes—including tribal-court convictions—is thus a 

predicate of the new offense. 

B 

This case requires us to determine whether §117(a)’s 

inclusion of tribal-court convictions is compatible with the 

Sixth Amendment’s right to counsel. The Sixth Amendment to the U. S. Constitution guarantees a criminal 

defendant in state or federal court “the Assistance of 

Counsel for his defence.” See Gideon v. Wainwright, 372 

U. S. 335, 339 (1963). This right, we have held, requires 

appointment of counsel for indigent defendants whenever 

a sentence of imprisonment is imposed. Argersinger v. 

Hamlin, 407 U. S. 25, 37 (1972). But an indigent defendant has no constitutional right to appointed counsel if his

conviction results in a fine or other noncustodial punishment. Scott, 440 U. S., at 373–374. 

“As separate sovereigns pre-existing the Constitution,

tribes have historically been regarded as unconstrained by 

—————— 

6Section 117(a) has since been amended to include as qualifying predicate offenses, in addition to intimate-partner crimes, “assault, sexual

abuse, [and] serious violent felony” offenses committed “against a child

of or in the care of the person committing the domestic assault.” 18 

U. S. C. §117(a) (Supp. II 2014). 
 

 

8 UNITED STATES v. BRYANT 

Opinion of the Court 

those constitutional provisions framed specifically as

limitations on federal or state authority.” Santa Clara 

Pueblo v. Martinez, 436 U. S. 49, 56 (1978). The Bill of 

Rights, including the Sixth Amendment right to counsel, 

therefore, does not apply in tribal-court proceedings. See 

Plains Commerce Bank, 554 U. S., at 337. 

In ICRA, however, Congress accorded a range of procedural safeguards to tribal-court defendants “similar, but

not identical, to those contained in the Bill of Rights and 

the Fourteenth Amendment.” Martinez, 436 U. S., at 57; 

see id., at 62–63 (ICRA “modified the safeguards of the 

Bill of Rights to fit the unique political, cultural, and 

economic needs of tribal governments”). In addition to 

other enumerated protections, ICRA guarantees “due 

process of law,” 25 U. S. C. §1302(a)(8), and allows tribalcourt defendants to seek habeas corpus review in federal 

court to test the legality of their imprisonment, §1303.

The right to counsel under ICRA is not coextensive with 

the Sixth Amendment right. If a tribal court imposes a

sentence in excess of one year, ICRA requires the court to 

accord the defendant “the right to effective assistance of 

counsel at least equal to that guaranteed by the United 

States Constitution,” including appointment of counsel for 

an indigent defendant at the tribe’s expense. §1302(c)(1),

(2). If the sentence imposed is no greater than one year, 

however, the tribal court must allow a defendant only the

opportunity to obtain counsel “at his own expense.” 

§1302(a)(6). In tribal court, therefore, unlike in federal or 

state court, a sentence of imprisonment up to one year 

may be imposed without according indigent defendants

the right to appointed counsel. 

The question here presented: Is it permissible to use 

uncounseled tribal-court convictions—obtained in full 

compliance with ICRA—to establish the prior-crimes 

predicate of §117(a)? It is undisputed that a conviction

obtained in violation of a defendant’s Sixth Amendment 
 

Cite as: 579 U. S. ____ (2016) 9 

Opinion of the Court 

right to counsel cannot be used in a subsequent proceeding 

“either to support guilt or enhance punishment for another 

offense.” Burgett v. Texas, 389 U. S. 109, 115 (1967). In 

Burgett, we held that an uncounseled felony conviction

obtained in state court in violation of the right to counsel

could not be used in a subsequent proceeding to prove the

prior-felony element of a recidivist statute. To permit

such use of a constitutionally infirm conviction, we explained, would cause “the accused in effect [to] suffe[r] 

anew from the [prior] deprivation of [his] Sixth Amendment right.” Ibid.; see United States v. Tucker, 404 U. S. 

443, 448 (1972) (invalid, uncounseled prior convictions

could not be relied upon at sentencing to impose a longer

term of imprisonment for a subsequent conviction); cf. 

Loper v. Beto, 405 U. S. 473, 483–484 (1972) (plurality 

opinion) (“use of convictions constitutionally invalid under 

Gideon v. Wainwright to impeach a defendant’s credibility 

deprives him of due process of law” because the prior 

convictions “lac[k] reliability”).

In Nichols v. United States, 511 U. S. 738 (1994), we

stated an important limitation on the principle recognized 

in Burgett. In the case under review, Nichols pleaded 

guilty to a federal felony drug offense. 511 U. S., at 740. 

Several years earlier, unrepresented by counsel, he had 

been convicted of driving under the influence (DUI), a 

state-law misdemeanor, and fined $250 but not imprisoned. Ibid. Nichols’ DUI conviction, under the thenmandatory Sentencing Guidelines, effectively elevated by 

about two years the sentencing range for Nichols’ federal 

drug offense. Ibid. We rejected Nichols’ contention that,

as his later sentence for the federal drug offense involved 

imprisonment, use of his uncounseled DUI conviction to 

elevate that sentence violated the Sixth Amendment. Id., 

at 746–747. “[C]onsistent with the Sixth and Fourteenth

Amendments of the Constitution,” we held, “an uncounseled misdemeanor conviction, valid under Scott because 
 

 

10 UNITED STATES v. BRYANT 

Opinion of the Court 

no prison term was imposed, is also valid when used to

enhance punishment at a subsequent conviction.” Id., at 

748–749. 

C 

Respondent Bryant’s conduct is illustrative of the domestic violence problem existing in Indian country. During the period relevant to this case, Bryant, an enrolled

member of the Northern Cheyenne Tribe, lived on that 

Tribe’s reservation in Montana. He has a record of over 

100 tribal-court convictions, including several misdemeanor 

convictions for domestic assault. Specifically, between

1997 and 2007, Bryant pleaded guilty on at least five

occasions in Northern Cheyenne Tribal Court to committing domestic abuse in violation of the Northern Cheyenne

Tribal Code. On one occasion, Bryant hit his live-in girlfriend on the head with a beer bottle and attempted to 

strangle her. On another, Bryant beat a different girlfriend, kneeing her in the face, breaking her nose, and 

leaving her bruised and bloodied.

For most of Bryant’s repeated brutal acts of domestic 

violence, the Tribal Court sentenced him to terms of imprisonment, never exceeding one year. When convicted of 

these offenses, Bryant was indigent and was not appointed 

counsel. Because of his short prison terms, Bryant 

acknowledges, the prior tribal-court proceedings complied 

with ICRA, and his convictions were therefore valid when 

entered. Bryant has never challenged his tribal-court 

convictions in federal court under ICRA’s habeas corpus 

provision.

In 2011, Bryant was arrested yet again for assaulting 

women. In February of that year, Bryant attacked his 

then girlfriend, dragging her off the bed, pulling her hair, 

and repeatedly punching and kicking her. During an

interview with law enforcement officers, Bryant admitted

that he had physically assaulted this woman five or six 
Cite as: 579 U. S. ____ (2016) 11 

Opinion of the Court 

times. Three months later, he assaulted another woman 

with whom he was then living, waking her by yelling that 

he could not find his truck keys and then choking her until 

she almost lost consciousness. Bryant later stated that he 

had assaulted this victim on three separate occasions 

during the two months they dated.

Based on the 2011 assaults, a federal grand jury in

Montana indicted Bryant on two counts of domestic assault by a habitual offender, in violation of §117(a). Bryant was represented in federal court by appointed counsel. 

Contending that the Sixth Amendment precluded use of

his prior, uncounseled, tribal-court misdemeanor convictions to satisfy §117(a)’s predicate-offense element, Bryant 

moved to dismiss the indictment. The District Court 

denied the motion, App. to Pet. for Cert. 32a, and Bryant

entered a conditional guilty plea, reserving the right to

appeal that decision. Bryant was sentenced to concurrent

terms of 46 months’ imprisonment on each count, to be

followed by three years of supervised release.

The Court of Appeals for the Ninth Circuit reversed the

conviction and directed dismissal of the indictment. 769 

F. 3d 671 (2014). Bryant’s tribal-court convictions were

not themselves constitutionally infirm, the Ninth Circuit 

comprehended, because “the Sixth Amendment right to

appointed counsel does not apply in tribal court proceedings.” Id., at 675. But, the court continued, had the convictions been obtained in state or federal court, they would 

have violated the Sixth Amendment because Bryant had 

received sentences of imprisonment although he lacked 

the aid of appointed counsel. Adhering to its prior decision in United States v. Ant, 882 F. 2d 1389 (CA9 1989),7 

—————— 

7 In United States v. Ant, 882 F. 2d 1389 (1989), the Ninth Circuit 

proscribed the use of an uncounseled tribal-court guilty plea as evidence of guilt in a subsequent federal prosecution arising out of the 

same incident. Use of the plea was impermissible, the Court of Appeals 

reasoned, “because the tribal court guilty plea was made under circum-
 

 


 

12 UNITED STATES v. BRYANT 

Opinion of the Court 

the Court of Appeals held that, subject to narrow exceptions not relevant here, “tribal court convictions may be 

used in subsequent [federal] prosecutions only if the tribal 

court guarantees a right to counsel that is, at minimum, 

coextensive with the Sixth Amendment right.” 769 F. 3d, 

at 677. Rejecting the Government’s argument that our 

decision in Nichols required the opposite result, the Ninth

Circuit concluded that Nichols applies only when the prior

conviction did comport with the Sixth Amendment, i.e., 

when no sentence of imprisonment was imposed for the 

prior conviction. 769 F. 3d, at 677–678. 

Judge Watford concurred, agreeing that Ant controlled 

the outcome of this case, but urging reexamination of Ant 

in light of Nichols. 769 F. 3d, at 679. This Court’s decision in Nichols, Judge Watford wrote, “undermines the

notion that uncounseled convictions are, as a categorical

matter, too unreliable to be used as a basis for imposing a

prison sentence in a subsequent case.” 769 F. 3d, at 679. 

The Court of Appeals declined to rehear the case en banc 

over vigorous dissents by Judges Owens and O’Scannlain. 

In disallowing the use of an uncounseled tribal-court 

conviction to establish a prior domestic violence conviction 

within §117(a)’s compass, the Ninth Circuit created a 

Circuit split. The Eighth and Tenth Circuits have both

held that tribal-court “convictions, valid at their inception, 

and not alleged to be otherwise unreliable, may be used to

prove the elements of §117.” United States v. Cavanaugh, 

643 F. 3d 592, 594 (CA8 2011); see United States v. Shavanaux, 647 F. 3d 993, 1000 (CA10 2011). To resolve this 

disagreement, we granted certiorari, 577 U. S. ___ (2016), 

and now reverse. 

—————— 

stances which would have violated the United States Constitution were
 

it applicable to tribal proceedings.” Id., at 1390. 
 


 

Cite as: 579 U. S. ____ (2016) 13 

Opinion of the Court 

II
 

Bryant’s tribal-court convictions, he recognizes, infringed no constitutional right because the Sixth Amendment does not apply to tribal-court proceedings. Brief for 

Respondent 5. Those prior convictions complied with

ICRA, he concedes, and therefore were valid when entered. But, had his convictions occurred in state or federal 

court, Bryant observes, Argersinger and Scott would have 

rendered them invalid because he was sentenced to incarceration without representation by court-appointed counsel. Essentially, Bryant urges us to treat tribal-court 

convictions, for §117(a) purposes, as though they had been

entered by a federal or state court. We next explain why

we decline to do so. 

As earlier recounted, we held in Nichols that “an uncounseled misdemeanor conviction, valid under Scott 

because no prison term was imposed, is also valid when

used to enhance punishment at a subsequent conviction.”

511 U. S., at 748–749. “Enhancement statutes,” we reasoned, “do not change the penalty imposed for the earlier 

conviction”; rather, repeat-offender laws “penaliz[e] only

the last offense committed by the defendant.” Id., at 747; 

see United States v. Rodriquez, 553 U. S. 377, 386 (2008) 

(“When a defendant is given a higher sentence under a 

recidivism statute . . . 100% of the punishment is for the

offense of conviction. None is for the prior convictions or

the defendant’s ‘status as a recidivist.’”). Nichols thus 

instructs that convictions valid when entered—that is, 

those that, when rendered, did not violate the Constitution—retain that status when invoked in a subsequent 

proceeding. 

Nichols’ reasoning steers the result here. Bryant’s 46-

month sentence for violating §117(a) punishes his most 

recent acts of domestic assault, not his prior crimes prosecuted in tribal court. Bryant was denied no right to counsel in tribal court, and his Sixth Amendment right was 
 

 

 

14 UNITED STATES v. BRYANT 

Opinion of the Court 

honored in federal court, when he was “adjudicated guilty

of the felony offense for which he was imprisoned.” Alabama v. Shelton, 535 U. S. 654, 664 (2002). It would be 

“odd to say that a conviction untainted by a violation of 

the Sixth Amendment triggers a violation of that same

amendment when it’s used in a subsequent case where the 

defendant’s right to appointed counsel is fully respected.”

769 F. 3d, at 679 (Watford, J., concurring).8 

Bryant acknowledges that had he been punished only by 

fines in his tribal-court proceedings, Nichols would have 

allowed reliance on his uncounseled convictions to satisfy 

§117(a)’s prior-crimes predicate. Brief for Respondent 50. 

We see no cause to distinguish for §117(a) purposes between valid but uncounseled convictions resulting in a fine 

and valid but uncounseled convictions resulting in imprisonment not exceeding one year. “Both Nichols’s and Bryant’s uncounseled convictions ‘comport’ with the Sixth

Amendment, and for the same reason: the Sixth Amendment right to appointed counsel did not apply to either

conviction.” App. to Pet. for Cert. 50a (O’Scannlain, J., 

dissenting from denial of rehearing en banc). 

In keeping with Nichols, we resist creating a “hybrid”

category of tribal-court convictions, “good for the punishment actually imposed but not available for sentence 

—————— 

8True, as Bryant points out, we based our decision in Nichols v. 

United States, 511 U. S. 738, 747 (1994), in part on the “less exacting” nature of sentencing, compared with the heightened burden of proof 

required for determining guilt. But, in describing the rule we adopted, 

we said that it encompasses both “criminal history provisions,” applicable at sentencing, and “recidivist statutes,” of which §117(a) is one. 

Ibid. Moreover, Nichols’ two primary rationales—the validity of the

prior conviction and the sentence’s punishment of “only the last offense”—do not rely on a distinction between guilt adjudication and 

sentencing. Indeed, it is the validity of the prior conviction that distinguishes Nichols from United States v. Tucker, 404 U. S. 443, 448 (1972),

in which we found impermissible the use at sentencing of an invalid, 

uncounseled prior conviction. 
 

Cite as: 579 U. S. ____ (2016) 15 

Opinion of the Court 

enhancement in a later prosecution.” 511 U. S., at 744. 

Nichols indicates that use of Bryant’s uncounseled tribalcourt convictions in his §117(a) prosecution did not “transform his prior, valid, tribal court convictions into new,

invalid, federal ones.” App. to Pet. for Cert. 50a (opinion

of O’Scannlain, J.).

Our decision in Burgett, which prohibited the subsequent use of a conviction obtained in violation of the right 

to counsel, does not aid Bryant. Reliance on an invalid 

conviction, Burgett reasoned, would cause the accused to 

“suffe[r] anew from the deprivation of [his] Sixth Amendment right.” 389 U. S., at 115. Because a defendant 

convicted in tribal court suffers no Sixth Amendment 

violation in the first instance, “[u]se of tribal convictions in 

a subsequent prosecution cannot violate [the Sixth 

Amendment] ‘anew.’” Shavanaux, 647 F. 3d, at 998. 

Bryant observes that reliability concerns underlie our 

right-to-counsel decisions and urges that those concerns 

remain even if the Sixth Amendment itself does not shelter him. Scott and Nichols, however, counter the argument that uncounseled misdemeanor convictions are 

categorically unreliable, either in their own right or for

use in a subsequent proceeding. Bryant’s recognition that 

a tribal-court conviction resulting in a fine would qualify 

as a §117(a) predicate offense, we further note, diminishes

the force of his reliability-based argument. There is no 

reason to suppose that tribal-court proceedings are less 

reliable when a sentence of a year’s imprisonment is imposed than when the punishment is merely a fine. No 

evidentiary or procedural variation turns on the sanction—fine only or a year in prison—ultimately imposed.

Bryant also invokes the Due Process Clause of the Fifth 

Amendment in support of his assertion that tribal-court

judgments should not be used as predicate offenses. But, 

as earlier observed, ICRA itself requires tribes to ensure 

“due process of law,” §1302(a)(8), and it accords defend-
 

 

16 UNITED STATES v. BRYANT 

Opinion of the Court 

ants specific procedural safeguards resembling those 

contained in the Bill of Rights and the Fourteenth 

Amendment. See supra, at 8. Further, ICRA makes 

habeas review in federal court available to persons incarcerated pursuant to a tribal-court judgment. §1303. By

that means, a prisoner may challenge the fundamental 

fairness of the proceedings in tribal court. Proceedings in

compliance with ICRA, Congress determined, and we 

agree, sufficiently ensure the reliability of tribal-court 

convictions. Therefore, the use of those convictions in a 

federal prosecution does not violate a defendant’s right to 

due process. See Shavanaux, 647 F. 3d, at 1000; cf. State 

v. Spotted Eagle, 316 Mont. 370, 378–379, 71 P. 3d 1239, 

1245–1246 (2003) (principles of comity support recognizing 

uncounseled tribal-court convictions that complied with

ICRA). 

* * * 

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. We accordingly reverse the judgment of the 

Court of Appeals for the Ninth Circuit and remand the 

case for further proceedings consistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

 


 


 

Cite as: 579 U. S. ____ (2016) 1 

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 15–420 

UNITED STATES, PETITIONER v. 

MICHAEL BRYANT, JR.
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE NINTH CIRCUIT
 

[June 13, 2016] 

JUSTICE THOMAS, concurring. 

The Court holds that neither the Sixth Amendment nor 

the Fifth Amendment’s Due Process Clause prohibits the

Government from using Michael Bryant’s uncounseled 

tribal-court convictions as predicates for the federal crime 

of committing a domestic assault within Indian country. 

Ante, at 15–16; see 18 U. S. C. §117(a) (making it a federal

crime to “commi[t] a domestic assault within . . . Indian

country” if the person “has a final conviction on at least 2

separate prior occasions in . . . Indian tribal court proceedings” for domestic assault and similar crimes). Because 

our precedents dictate that holding, I join the Court’s 

opinion.

The fact that this case arose at all, however, illustrates 

how far afield our Sixth Amendment and Indian-law 

precedents have gone. Three basic assumptions underlie

this case: that the Sixth Amendment ordinarily bars the 

Government from introducing, in a later proceeding, convictions obtained in violation of the right to counsel, ante, 

at 8–9; that tribes’ retained sovereignty entitles them to

prosecute tribal members in proceedings that are not 

subject to the Constitution, ante, at 7–8; and that Congress can punish assaults that tribal members commit 

against each other on Indian land, ante, at 5–7. Although

our precedents have endorsed these assumptions for dec-
 

2 UNITED STATES v. BRYANT 

THOMAS, J., concurring 

ades, the Court has never identified a sound constitutional 

basis for any of them, and I see none. 

Start with the notion that the Sixth Amendment generally prohibits the government from using a prior, uncounseled conviction obtained in violation of the right to counsel as a predicate for a new offense in a new proceeding. 

Ante, at 8–9. All that the text of the Sixth Amendment 

requires in a criminal prosecution is that the accused 

enjoy the “[a]ssistance of [c]ounsel” in that proceeding.

The Court was likely wrong in Burgett v. Texas, 389 U. S. 

109 (1967), when it created a Sixth Amendment “exclusionary rule” that prohibits the government from using

prior convictions obtained in violation of the right to counsel in subsequent proceedings to avoid “erod[ing] the

principle” of the right to counsel. Id., at 115. I would be 

open to reconsidering Burgett in a future case. 

The remaining two assumptions underpinning this case

exemplify a central tension within our Indian-law jurisprudence. On the one hand, the only reason why tribal

courts had the power to convict Bryant in proceedings

where he had no right to counsel is that such prosecutions

are a function of a tribe’s core sovereignty. See United 

States v. Lara, 541 U. S. 193, 197 (2004); United States v. 

Wheeler, 435 U. S. 313, 318, 322–323 (1978). By virtue of

tribes’ status as “‘separate sovereigns pre-existing the

Constitution,’” tribal prosecutions need not, under our 

precedents, comply with “‘those constitutional provisions 

framed specifically as limitations on federal or state authority.’” Ante, at 7–8 (quoting Santa Clara Pueblo v. 

Martinez, 436 U. S. 49, 56 (1978)).

On the other hand, the validity of Bryant’s ensuing

federal conviction rests upon a contrary view of tribal

sovereignty. Congress ordinarily lacks authority to enact

a general federal criminal law proscribing domestic abuse.

See United States v. Morrison, 529 U. S. 598, 610–613 

(2000). But, the Court suggests, Congress must intervene 
 

 

 

 

 

 

Cite as: 579 U. S. ____ (2016) 3 

THOMAS, J., concurring 

on reservations to ensure that prolific domestic abusers

receive sufficient punishment. See ante, at 4–5. The 

Court does not explain where Congress’ power to act

comes from, but our precedents leave no doubt on this 

score. Congress could make Bryant’s domestic assaults a

federal crime subject to federal prosecution only because

our precedents have endowed Congress with an “allencompassing” power over all aspects of tribal sovereignty. 

Wheeler, supra, at 319. Thus, even though tribal prosecutions of tribal members are purportedly the apex of tribal

sovereignty, Congress can second-guess how tribes prosecute domestic abuse perpetrated by Indians against other 

Indians on Indian land by virtue of its “plenary power” 

over Indian tribes. See United States v. Kagama, 118 

U. S. 375, 382–384 (1886); accord, Lara, 541 U. S., at 200. 

I continue to doubt whether either view of tribal sovereignty is correct. See id., at 215 (THOMAS, J., concurring 

in judgment). Indian tribes have varied origins, discrete

treaties with the United States, and different patterns of

assimilation and conquest. In light of the tribes’ distinct 

histories, it strains credulity to assume that all tribes

necessarily retained the sovereign prerogative of prosecuting their own members. And by treating all tribes as

possessing an identical quantum of sovereignty, the Court’s 

precedents have made it all but impossible to understand 

the ultimate source of each tribe’s sovereignty and whether 

it endures. See Prakash, Against Tribal Fungibility, 89

Cornell L. Rev. 1069, 1070–1074, 1107–1110 (2004). 

Congress’ purported plenary power over Indian tribes

rests on even shakier foundations. No enumerated power—

not Congress’ power to “regulate Commerce . . . with Indian Tribes,” not the Senate’s role in approving treaties, nor 

anything else—gives Congress such sweeping authority. See 

Lara, supra, at 224–225 (THOMAS, J., concurring in judgment); Adoptive Couple v. Baby Girl, 570 U. S. ___, ___– 

___ (2013) (THOMAS, J., concurring) (slip op., at 3–5). 
 

 

 

 

4 UNITED STATES v. BRYANT 

THOMAS, J., concurring 

Indeed, the Court created this new power because it was

unable to find an enumerated power justifying the federal

Major Crimes Act, which for the first time punished

crimes committed by Indians against Indians on Indian

land. See Kagama, supra, at 377–380; cf. ante, at 5. The 

Court asserted: “The power of the General Government 

over these remnants of a race once powerful, now weak

and diminished in numbers, is necessary to their protection . . . . It must exist in that government, because it has

never existed anywhere else.” Kagama, supra, at 384. 

Over a century later, Kagama endures as the foundation 

of this doctrine, and the Court has searched in vain for 

any valid constitutional justification for this unfettered 

power. See, e.g., Lone Wolf v. Hitchcock, 187 U. S. 553, 

566–567 (1903) (relying on Kagama’s race-based plenary 

power theory); Winton v. Amos, 255 U. S. 373, 391–392 

(1921) (Congress’ “plenary authority” is based on Indians’ 

“condition of tutelage or dependency”); Wheeler, supra, at 

319 (Winton and Lone Wolf illustrate the “undisputed fact

that Congress has plenary authority” over tribes); Lara, 

supra, at 224 (THOMAS, J., concurring in judgment) (“The 

Court utterly fails to find any provision of the Constitution 

that gives Congress enumerated power to alter tribal 

sovereignty”).

It is time that the Court reconsider these precedents.

Until the Court ceases treating all Indian tribes as an

undifferentiated mass, our case law will remain bedeviled 

by amorphous and ahistorical assumptions about the 

scope of tribal sovereignty. And, until the Court rejects 

the fiction that Congress possesses plenary power over

Indian affairs, our precedents will continue to be based on 

the paternalistic theory that Congress must assume allencompassing control over the “remnants of a race” for its 

own good. Kagama, supra, at 384.