Uncounseled Tribal Court Convictions Resulting in Jail Time Can Be Basis for Later Enhancements

U.S. v. Shavanaux, 2011 WL 3087015 (7/26/11) (Utah) (Published) - Tribal court convictions resulting in jail time, obtained in the absence of appointed counsel for an indigent defendant, can be predicate convictions for a domestic assault conviction under 18 U.S.C. § 117(a), or for any other enhanced punishment for that matter. The convictions were not unconstitutional because neither the Sixth Amendment nor the Due Process Clause applies to tribal courts. As long as the proceedings comply with the Indian Civil Rights Act by allowing representation by counsel at the defendant's expense, the resulting convictions are copacetic. This follows from the notion that tribes are independent sovereigns. The fact that convictions from foreign countries can constitutionally be used as predicate offenses if they are fundamentally fair supports the use of tribal convictions to enhance sentences. The deprivation of appointed counsel does not render proceedings fundamentally unfair. This decision is at odds with 9th Circuit precedent. There is also no equal protection problem. The singling out of Indians for prosecution on the basis of uncounseled convictions is a political, not a racial, distinction. The defendant chose to associate himself with the tribe. The 10th reverses the d. ct.'s dismissal of the indictment.