U.S. v. Shavanaux

• Decision Date: 26 July 2011
• Docket Number: No. 10–4178.,10–4178.
• Citation: 647 F.3d 993
• Parties: UNITED STATES of America, Plaintiff–Appellant,v.Adam SHAVANAUX, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

647 F.3d 993

UNITED STATES of America, Plaintiff–Appellant,

v.Adam SHAVANAUX, Defendant–Appellee.

No. 10–4178.

United States Court of Appeals, Tenth Circuit.

July 26, 2011.

Richard A. Friedman, Department of Justice, Appellate Section, Criminal Division, Washington, D.C. (Charlie Christensen and Trina A. Higgins, Office of the United States Attorney, District of Utah, Salt Lake City, UT; Lanny A. Breuer and Gregory D. Andres, Department of Justice, Criminal Division, Washington, DC, with him on the briefs), for the Plaintiff–Appellant.Benjamin C. McMurray (Steven B. Killpack and Scott Keith Wilson with him on the briefs), Office of the Federal Public Defender, District of Utah, Salt Lake City, UT, for the Defendant–Appellee.Before KELLY, ANDERSON, and LUCERO, Circuit Judges.LUCERO, Circuit Judge.

We consider the government's appeal from the dismissal of Adam Shavanaux's indictment under 18 U.S.C. § 117(a) for domestic assault by a habitual offender. Exercising jurisdiction under 18 U.S.C. § 3731 and 28 U.S.C. § 1291, we reverse and remand for proceedings consistent with this opinion.

I

Shavanaux is a member of the Ute Indian Tribe and resides on the Uintah and Ouray Reservations within Utah. In 2010, Shavanaux was indicted under 18 U.S.C. § 117 for assaulting his domestic partner after having been convicted of assaulting a domestic partner on two prior occasions. 18 U.S.C. § 117(a) provides that:

(a) In general.—Any person who commits a domestic assault within the special maritime and territorial jurisdiction of the United States or 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—

(1) any assault, sexual abuse, or serious violent felony against a spouse or intimate partner; or

(2) an offense under chapter 110A [domestic violence and stalking offenses prescribed by 18 U.S.C. §§ 2261 (interstate domestic violence), 2261A (interstate stalking), 2262 (interstate violation of a protection order) ],

shall be fined under this title, imprisoned for a term of not more than 5 years, or both, except that if substantial bodily injury results from violation under this section, the offender shall be imprisoned for a term of not more than 10 years.

Shavanaux's two prior convictions were in Ute tribal court. In neither of the tribal prosecutions did Shavanaux have the right to appointed counsel provided at the Tribe's expense. Ute Indian R.Crim. P. 3(1)(b).¹ Shavanaux established by affidavits filed in the federal proceedings that he was not represented by counsel and could not afford an attorney in his previous tribal court prosecutions. He did, however, exercise his right to be represented by a lay advocate at his own expense.

Shavanaux filed a motion to dismiss the indictment asserting that the Sixth Amendment and the Due Process Clause of the Fifth Amendment of the United States Constitution forbid reliance on his uncounseled tribal misdemeanor convictions to support a charge under 18 U.S.C. § 117(a). The district court determined that the Constitution does not apply to tribal court prosecutions and therefore Shavanaux did not have Sixth Amendment or due process rights to appointed counsel in tribal court. It found that Shavanaux's tribal prosecutions complied with the applicable provisions of the Indian Civil Rights Act, 25 U.S.C. §§ 1301–1303 (“ICRA”). Accordingly, the district court concluded that “Shavanaux's two convictions for aggravated assault do not violate either the Indian Civil Rights Act or the United States Constitution.”

However, the district court ruled that use of those otherwise-valid tribal court convictions in a § 117(a) prosecution would violate Shavanaux's Sixth Amendment right to counsel.²

II

Dismissal of the indictment was predicated on the grounds that a prosecution under § 117(a) would violate the Sixth Amendment. United States v. Shavanaux, 2010 WL 4038839 at *1 (D.Utah Oct. 14, 2010) (Slip.Op.) Shavanaux argues that the use of his tribal convictions would also violate due process and the equal protection component of the Fifth Amendment's Due Process Clause.³ “We review challenges to the constitutionality of a statute de novo.” United States v. Dorris, 236 F.3d 582, 584 (10th Cir.2000).

In resolving whether prosecution under § 117(a) would violate the Sixth Amendment, it is first necessary to consider the relationship between Indian tribes and the United States. “The Bill of Rights does not apply to Indian tribes.” Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 337 [128 S.Ct. 2709, 171 L.Ed.2d 457] (2008) (citing Talton v. Mayes, 163 U.S. 376, 382–85 [16 S.Ct. 986, 41 L.Ed. 196] (1896)); see also Nevada v. Hicks, 533 U.S. 353, 383–84 [121 S.Ct. 2304, 150 L.Ed.2d 398] (2001); Duro v. Reina, 495 U.S. 676, 693 [110 S.Ct. 2053, 109 L.Ed.2d 693] (1990), superseded in other respects by statute, 25 U.S.C. § 1301.⁴ This is so because:

the Indian nations ha[ve] always been considered as distinct, independent political communities.... The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties.Talton, 163 U.S. at 383, 16 S.Ct. 986 (quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832)). Although the Court has moved away from Worcester's “platonic notions of Indian sovereignty,” McClanahan v. State Tax Comm'n of Ariz., 411 U.S. 164, 172, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), tribes “still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a result of their dependent status.” United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), superseded in other respects by statute, 25 U.S.C. §§ 1301–1303. One of the attributes of sovereignty which Indian tribes possess is the “power to prescribe and enforce internal criminal laws.” Wheeler at 326, 98 S.Ct. 1079.

The Talton Court acknowledged as much and reasoned “[i]t follows that, as the powers of local self-government enjoyed by the Cherokee Nation existed prior to the Constitution, they are not operated upon by the [F]ifth [A]mendment, which ... had for its sole object to control the powers conferred by the Constitution on the national government.” 163 U.S. at 384, 16 S.Ct. 986. Any appeal to the Fourteenth Amendment is similarly unavailing because, by its own terms, it applies only to the states. See U.S. Const. Amend. XIV. Thus, rather than being subject to the United States Constitution, the tribal exercise of inherent power is constrained only by “the supreme legislative authority of the United States.” Talton, 163 U.S. at 384, 16 S.Ct. 986; see also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56–57, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (Congress has plenary power over Indian affairs and exercised this power by passing ICRA).

Because the Bill of Rights does not constrain Indian tribes, Shavanaux's prior uncounseled tribal convictions could not violate the Sixth Amendment. Although a tribal prosecution may not conform to the requirements of the Bill of Rights, deviation from the Constitution does not render the resulting conviction constitutionally infirm.

In reaching this conclusion, we recognize we are at odds with the Ninth Circuit. In United States v. Ant, 882 F.2d 1389, 1393 (9th Cir.1989), the court held that an uncounseled tribal conviction was “constitutionally infirm.” Relying upon Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the Ninth Circuit determined that the admission of such a prior conviction was “inherently prejudicial” and thus unconstitutional. Ant, 882 F.2d at 1393, 1396.

Ant overlooks the Talton line of cases. We therefore disagree with Ant's threshold determination that an uncounseled tribal conviction is constitutionally infirm. Shavanaux's rights under the Sixth Amendment were not violated by the tribal prosecutions. For this reason Burgett, 389 U.S. at 115, 88 S.Ct. 258, and Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), are inapposite. Use of tribal convictions in a subsequent prosecution cannot violate “anew” the Sixth Amendment, see Burgett, 389 U.S. at 115, 88 S.Ct. 258, because the Sixth Amendment was never violated in the first instance.⁵

We reiterate that because the Bill of Rights does not apply to Indian tribes, tribal convictions cannot violate the Sixth Amendment. Shavanaux's convictions complied with ICRA's right to counsel provision, 25 U.S.C. § 1302(a)(6). Thus, use of Shavanaux's prior convictions in a prosecution under § 117(a) would not violate the Sixth Amendment, anew or otherwise.

III

A

The next issue is whether under the Due Process Clause of the Fifth Amendment, prior convictions which were obtained through procedures which did not comply with, but also did not violate, the Constitution may be introduced in subsequent prosecutions in federal court.

Again, our analysis turns on the nature of tribal sovereignty. “The condition of the Indians in relation to the United States is perhaps unlike that of any other [relationship] in existence.” Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16, 8 L.Ed. 25 (1831). Indian tribes are neither states of the union, nor foreign states exercising perfect sovereignty. Id. at 16–17. They are instead “domestic dependent nations,” id. at 17, which, though enjoying the protection of the United States, continue to exercise “limited sovereignty.” Wheeler, 435 U.S. at 322, 98 S.Ct. 1079; see also Worcester, 31 U.S. at 561.

Although Indian tribes are not foreign states, for the purposes of our analysis they share some important characteristics with foreign states insofar as tribes are sovereigns to whom the Bill of Rights...