In February of 2014, a grand jury returned an indictment charging William Kirkaldie with domestic abuse by a habitual offender under 18 U.S.C. § 117(a), a federal statute enacted to promote safety for Native American women. Congress enacted Section 117 to address the issue of assault in “Indian Country” by attaching “a federal penalty to the commission of a domestic assault when the actor has had at least two prior, similar convictions in another jurisdiction.” The prior convictions can arise from state, federal, or tribal court. Kirkaldie pled guilty to two prior charges of domestic violence in tribal court without an attorney, and had served jail time as part of these prior convictions. In granting the defendant’s motion to dismiss the indictment, Judge Morris for the District Court of Montana held that Kirkaldie’s uncounseled tribal court convictions could not be admitted to establish an element of the offense under the federal recidivist statute.

Kirkaldie’s holding falls in line with Ninth Circuit precedent as stated in United States v. Ant, and is a correct application of the law in this jurisdiction. The District Court came to the right conclusion based on the facts and the law presented to it. However, the Supreme Court of Montana along with the Eighth and Tenth Circuit Courts disagree with the Ninth Circuit’s holding in Ant. The United States Supreme Court has never entertained argument on this precise constitutional issue, but recent decisions perpetuating a significant Circuit split may require it to do so in the near future. Part II of this note summarizes the legal history prior to U.S. v. Kirkaldie, Part III explores the differences in reasoning among the circuits, Part IV summarizes the opinion in U.S. v. Kirkaldie, Part V analyzes the different Circuit approaches to this issue, and Part VI concludes the note by exploring possible consequences of the continuing Circuit split.