Limiting Protection for American Indian Defendants: US v. Shavanaux

Kyler Burgi[1]

The Sixth Amendment guarantees indigent criminal defendants a right to counsel in both federal and state courts. However, under the Indian Civil Rights Act (ICRA), defendants in tribal courts are not afforded that same protection. The Tenth Circuit found that a Ute Indian’s two uncounseled tribal convictions were admissible in federal court to prove elements of a federal crime.  This creates a double standard in right to counsel precedent which will have ramifications across the circuits.

Adam Shavanaux was prosecuted for assaulting a domestic partner under 18 U.S.C. § 117.[2] Shavanaux was convicted of assaulting a domestic partner on two prior occasions, both of which were in Ute Tribal Court, and was therefore indicted under section 117. He could not afford an attorney, and as a member of the Ute Indian Tribe, Shavanaux did not have the right to an attorney provided at tribal expense.[3] Instead, he chose a lay advocate[4] to represent him in both tribal prosecutions,[5] one in 2006, the other in 2008.[6]  Shavanaux served jail time for both convictions.[7]

The district court found that, while a tribe cannot deny a defendant the right to counsel at his or her own expense, indigent defendants have no right to appointed counsel.[8]  Because Shavanaux’s tribal convictions complied with the ICRA, the convictions themselves did not violate the Constitution.[9] But the court held that previous convictions could not be used for prosecution under section 117.

Writing for a unanimous court, Tenth Circuit Judge Carlos F. Lucero agreed with the lower court ruling that Shavanaux’s tribal court convictions cannot violate the Sixth Amendment, reasoning that the Bill of Rights does not govern Indian Tribes under the ICRA.[10]  The court conceded that this decision was “at odds” with the Ninth Circuit decision in U.S. v. Ant,[11] but argued that the tribal court power can only be constrained by “the supreme legislative authority of the United States,” and not the U.S. Constitution.[12]  The court also found unnecessary the Eighth Circuit’s dissection of the Sixth Amendment and its application to tribal prosecutions.[13] Therefore the court held that “[u]se of tribal convictions in subsequent prosecution cannot violate ‘anew’ the Sixth Amendment . . . because the Sixth Amendment was never violated in the first instance.”[14]

The court next considered whether “prior convictions which did not comply with, but also did not violate, the Constitution may be introduced” in federal court prosecutions and in doing so reversed the district court.[15]  Because the Ute tribal court convictions complied with the requirements of the ICRA, they were also “compatible with due process of law.”[16] In this instance, the principle of comity requires full effect be given to judgment from a foreign court so long as they are in accordance with that particular sovereign’s laws.[17]  Therefore, applying the Sixth Amendment standard to tribal court convictions would be improper, and risk applying broad standards to tribal and other sovereign courts.[18] Because the ICRA is does not violate due process, any conviction in accordance with the ICRA is not unconstitutional for the purposes of section 117.[19] 

Evidence of prior convictions from countries with no right to a jury trial, and even statements made to foreign law enforcement absent Miranda warnings, have been permitted at trial.[20]  Even evidence obtained by foreign law enforcement in violation of the Fourth Amendment has been admitted by the Ninth and Fifth Circuits.[21] The court found persuasive the proposition that evidence of foreign convictions be admitted in federal court unless the foreign legal system lacks the protections necessary to ensure fundamental fairness.[22]  The court concluded that “[a]lthough Shavanaux’s tribal convictions were obtained through procedures which did not comply with the Constitution, these convictions did not violate the Constitution.  Nor does their subsequent use in federal court [violate the Constitution].”[23]

The court also considered Shavanaux’s argument that section 117 violates the Equal Protection Clause under the Fourteenth and Fifth Amendments.[24]  The court noted that association with a tribe is voluntary, and “Shavanaux chose to submit himself to tribal jurisdiction and criminal procedures of the Ute tribe.” Furthermore, because “Indian” is a political classification and not a racial classification,[25] the court reasoned that federal regulation of Indian affairs is not based on a prohibited classification system.[26] Reviewing section 117 under a rational basis standard,[27] the court found a legitimate government interest in “[p]rotecting Indians from domestic violence,” an interest which is rationally tied to section 117 because the statute targets repeat offenders for increased punishment.[28]  Therefore, even if Indians are a victim of disparate treatment under the statute, “Congress has a rational basis” for the statute.[29]

The Tenth Circuit reversed the district court’s decision and remanded the case, finding that Shavanaux’s claims under the Sixth, Fifth, and Fourteenth Amendments were not sufficient to affirm the trial court’s decision.[30]  This decision greatly affects the rights of indigent, American Indian defendants.  By equating tribal courts with foreign courts, the Tenth Circuit in Shavanaux understates the importance of tribal courts, and leaves American Indians without a key constitutional protection.  Allowing uncounseled convictions in federal court is at odds with and circumvents Sixth Amendment jurisprudence as established by the Supreme Court over several decades. Furthermore, tribal courts are more properly equated with state courts, and thus a Sixth Amendment analysis should be required before convictions are admitted.

Even if tribal courts are properly characterized as foreign courts, allowing uncounseled convictions such as Shavanaux’s may in fact offend the notion of fundamental fairness set out by modern jurisprudence. Finally, any decision regarding the admissibility of uncounseled convictions would not interfere with a conviction within the tribal justice system and therefore would not offend principles of comity.  This decision has immediate ramifications. If the prior conviction is entered in state court, the defendant enjoys Constitutional protections.  If, on the other hand, the conviction takes place in tribal court, it need not comply with due process but can be used so long as it complied with the nebulous notion of fundamental fairness. This is a double standard that indigent American Indian defendants will have to negotiate going forward. 

[1] J.D. Candidate, 2013, University of Denver Sturm College of Law.

[2] U.S. v. Shavanaux, 647 F.3d 993 (10th Cir. 2011).

[3] U.S. v. Shavanaux, No. 2:10 CR 234 TC, 2010 WL 4038839, at *1 (D. Utah Oct. 14, 2010).

[4] Lay advocates are generally members of the tribe who represent another tribe member in tribal court.  While some tribes have minimum educational requirements for lay advocates and others practicing in tribal court, other tribes have less stringent requirements.  Generally lay advocates represent parties for a small fee.  Barbara Ann Atwood, Tribal Jurisprudence and Cultural Meanings of the Family, 79 Neb. L. Rev.  577, 593 n.73 (2000).

[5] 647 F.3d at 996.

[6] 2010 WL 4038839, at *1.

[7] Id.

[8] Id. (citing 25 U.S.C. § 1302(6)).

[9] Id.

[10] Id. at 996-7.

[11] 882 F.2d 1389, 1393 (9th Cir. 1989).

[12] 647 F.3d at 997 (quoting Talton v. Mayes, 163 U.S. 376, 384 (1896)).

[13] Id. at 998 n.5.

[14] Id. at 998.

[15] Id.

[16] Id. at 999 (quoting U.S. v. Shavanaux, No. 2:10 CR 234 TC, 2010 WL 4038839, at *1 (D. Utah Oct. 14, 2010)).

[17] Id.

[18] See id.

[19] Id.

[20] Id. at 1000-01 (citing U.S. v. Wilson, 556 F.2d 1177, 1178 (4th Cir. 1977); U.S. v. Mundt, 508 F.2d 904, 906 (10th Cir. 1974)).

[21] Id. at 1001.

[22] Id. at 1000 (citing U.S. v Wilson, 556 F.2d 1177, 1178 (4th Cir. 1977)).

[23] Id. at 1001.

[24] Id. at 1001-02.

[25] Id. at 1001 (citing Morton v. Mancari, 417 U.S. 535, 554 n.24 (1974)).

[26] Id. (citing U.S. v. Antelope, 430 U.S. 641, 646 (1977)).

[27] Id. at 1002 (citing Morton v Mancari, 417 U.S. 535, 554, 555 (1974) (holding that “legislation that singles out Indians for particular and special treatment” is reviewed under a rational basis standard)).

[28] Id.

[29] Id.

[30] See id.