Native women carry signs reading Project Our Penojek (Children) during a rally at the U.S. Supreme Court on December 7, 2015. Photo by Indianz.Com



The death of Justice Antonin Scalia and the political struggle to replace him on the U.S. Supreme Court comes as the justices consider how best to protect Native women and children from domestic violence.

Before Scalia's passing on February 13 at the age of 79, the justices agreed to hear US v. Bryant . The outcome in the closely-watched case will determine whether offenders who repeatedly abuse Native women can be punished more harshly.

So far, the 8th Circuit Court of Appeals and the 10th Circuit Court of Appeals have agreed that tribal domestic violence convictions can be used against habitual offenders even if the defendant wasn't provided with an attorney. Normally, the lack of counsel would be barred under the under the Sixth Amendment to the U.S. Constitution but the courts determined that tribal governments aren't constrained by the Bill of Rights

The 9th Circuit Court of Appeals , however, came to a different conclusion, casting doubt on a law that was written to address the high rates of domestic violence in Indian Country. According to the Department of Justice , more than 46 percent of Native Americans have been victims of physical violence, rape, or stalking by an intimate partner in their lifetimes.

Native Lives Matter, a quilt square for The Monument Quilt is seen on the lawn of the U.S. Capitol on December 7, 2015. Photo by Indianz.Com



"At its core, domestic violence is about 'gaining control of another person,'" the National Indigenous Women’s Resource Center wrote in a brief to the high court that was joined by 34 other organizations. "Thus, the first incident of abuse is usually not the last, and when less abusive acts fail to establish sufficient control, a perpetrator resorts to more dangerous acts."

"Consequently, if the law allows a perpetrator to repeatedly abuse a Native woman without the imposition of a sufficient penalty, the violence is more than likely to increase in severity," the February 4 brief continues.

A group of former federal prosecutors who served in the Obama and Bush administrations underscored that point in their own brief. They note that Roman Cavanaugh, Jr., a member of the Spirit Lake Dakotah Nation whose conviction was the subject of the 8th Circuit case, would not have been sentenced to 65 months had he not been treated as a habitual offender under 18 U.S.C. § 117

"If federal prosecutors had not had Section 117(a) available to allow them to charge Cavanaugh’s escalating violent attacks against his intimate partners as a felony in these circumstances, using his prior tribal-court convictions as predicate domestic violence offenses, then there would have been no way for federal law enforcement to intervene until Cavanaugh had inflicted substantial bodily injury upon his common-law wife, or perhaps even killed her," the brief, also filed on February 4, states.

Tim Purdon , who served as U.S. Attorney for North Dakota when the 8th Circuit handed down its decision in Cavanaugh, is among the six former federal prosecutors who signed onto the brief. He said was important for the Supreme Court to hear from officials with experience in using Section 117.

“As former U.S. Attorneys with responsibilities for public safety in Indian Country, we know how important a tool the Cavanaugh rule is to the fight to protect American Indian women from domestic violence, and we felt it was important for SCOTUS to hear that message from folks like us who have been on the front lines of this battle," said Purdon, who now works in private practice.

The U.S. Supreme Court in 2010: Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, the late Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. Photo by Steve Petteway / Collection of the Supreme Court of the United States



Together, the 8th Circuit, the 9th Circuit and the 10th Circuit cover a vast swath of Indian Country. More than 500 tribes are located in the three circuits so the split poses a major issue that only the Supreme Court can resolve.

Briefs are still being accepted in the Bryant case and a date for oral arguments has not been scheduled. But a hearing will most likely occur with only eight justices as Scalia's chair and bench in the courtroom have been draped with black cloth. Additionally, a black drape has been hung over the doors of the courtroom, the Supreme Court said on Tuesday

The court can still function with eight members but legal scholars are debating what might happen in the event of a a 4-4 vote in a case. Tom Goldstein, the publisher of the influential SCOTUSBlog believes tie votes will result in reargument during the court's next term, presumably when a ninth justice has been confirmed, rather than the affirmation of the lower court's decision in the case.

8th Circuit Decisions: US v Harlan (February 16, 2016) US v. Cavanaugh (July 6, 2011)

9th Circuit Decisions: US v. Bryant (July 6, 2015) US v. Bryant (September 30, 2014)

10th Circuit Decision: US v. Shavanaux (July 26, 2011)

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