Puerto Rico v. Franklin California Tax-Free Trust

OCTOBER TERM, 2015

115

Syllabus

COMMONWEALTH OF PUERTO RICO et al. v. FRANKLIN CALIFORNIA TAX-FREE TRUST et al.

certiorari to the united states court of appeals for the rst circuit

No. 15–233. Argued March 22, 2016—Decided June 13, 2016*

In response to an ongoing fscal crisis, petitioner Puerto Rico enacted the Puerto Rico Public Corporation Debt Enforcement and Recovery Act. Portions of the Recovery Act mirror Chapters 9 and 11 of the Federal Bankruptcy Code and enable Puerto Rico's public utility corporations to restructure their climbing debt. Respondents, a group of investment funds and utility bondholders, sought to enjoin the Act. They con- tended, among other things, that a Bankruptcy Code provision explicitly pre-empts the Recovery Act, see 11 U. S. C. § 903(1). The District Court enjoined the Act's enforcement, and the First Circuit affrmed, concluding that the Bankruptcy Code's defnition of “State” to include Puerto Rico, except for purposes of defning who may be a debtor under Chapter 9, § 101(52), did not remove Puerto Rico from the scope of the pre-emption provision.

Held: Section 903(1) of the Bankruptcy Code pre-empts Puerto Rico's Re-

covery Act. Pp. 121–130.

(a) Three federal municipal bankruptcy provisions are relevant here. First, the “gateway” provision, § 109(c), requires a Chapter 9 debtor to be an insolvent municipality that is “specifcally authorized” by a State “to be a debtor.” Second, the pre-emption provision, § 903(1), expressly bars States from enacting municipal bankruptcy laws. Third, the def- nition of “State,” § 101(52), as amended in 1984, “includes . . . Puerto Rico, except for the purpose of defning who may be a debtor under chapter 9.” Pp. 121–124.

(b) If petitioners are correct that the amended defnition of “State” excludes Puerto Rico altogether from Chapter 9, then the pre-emption provision does not apply. But if respondents' narrower reading is cor- rect and the defnition only precludes Puerto Rico from authorizing its municipalities to seek Chapter 9 relief, then Puerto Rico is barred from implementing its Recovery Act. Pp. 124–130.

*Together with No. 15–255, Acosta-Febo et al. v. Franklin California

Tax-Free Trust et al., also on certiorari to the same court.

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(1) The Bankruptcy Code's plain text supports respondents' read- ing. The unambiguous language of the pre-emption provision “contains an express pre-emption clause,” the plain wording of which “necessarily contains the best evidence of Congress' pre-emptive intent.” Chamber of Commerce of United States of America v. Whiting, 563 U. S. 582, 594. The defnition provision excludes Puerto Rico for the single purpose of defning who may be a Chapter 9 debtor, an unmistakable reference to the § 109 gateway provision. This conclusion is reinforced by the defnition's use of the phrase “defning who may be a debtor under chap- ter 9,” § 101(52), which is tantamount to barring Puerto Rico from “spe- cifcally authorizing” which municipalities may fle Chapter 9 petitions under the gateway provision, § 903(1). The text of the exclusion thus extends no further. Had Congress intended to exclude Puerto Rico from Chapter 9 altogether, including Chapter 9's pre-emption provision, Congress would have said so. Pp. 125–127.

(2) The amended defnition of “State” does not exclude Puerto Rico from all of Chapter 9's provisions. First, Puerto Rico's exclusion as a “State” for purposes of the gateway provision does not also remove Puerto Rico from Chapter 9's separate pre-emption provision. A State that chooses under the gateway provision not to authorize a municipal- ity to fle is still bound by the pre-emption provision. Likewise, Puerto Rico is bound by the pre-emption provision, even though Congress has removed its authority under the gateway provision to authorize its mu- nicipalities to seek Chapter 9 relief. Second, because Puerto Rico was not “by defnition” excluded from Chapter 9, both § 903's introductory clause and its proviso, the pre-emption provision, continue to apply in Puerto Rico. Finally, the argument that the Recovery Act is not a “State law” that can be pre-empted is based on technical amendments to the terms “creditor” and “debtor” that are too “subtle” to support such a “[f]undamental chang[e] in the scope” of Chapter 9's pre-emption provision. Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, 575 U. S. 650, 660. Pp. 127–130.

805 F. 3d 322, affrmed.

Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, and Kagan, JJ., joined. Sotomayor, J., fled a dissenting opinion, in which Ginsburg, J., joined, post, p. 131. Alito, J., took no part in the consideration or decision of the cases.

Christopher Landau argued the cause for petitioners in both cases. With him on the briefs for petitioners in No. 15–233 were Claire McCusker Murray, César Miranda

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Rodríguez, and Margarita Mercado Echegaray. Martin J. Bienenstock, Mark D. Harris, Sigal Mandelker, Philip M. Abelson, Ehud Barak, John E. Roberts, Andrea G. Miller, Laura Stafford, and José R. Coleman-Tio´ fled briefs for petitioners in No. 15–255.

Matthew D. McGill argued the cause for respondents in both cases. With him on the brief for respondent Blue Mountain Capital Management, LLC, were Theodore B. Olson, Jonathan C. Bond, Russell B. Balikian, David C. In- diano, Jeffrey M. Williams, and Leticia Casalduc-Rabell. Thomas Moers Mayer, Philip Bentley, Amy Caton, and Dav id E. Blabey, Jr., filed a brief for the Franklin respondents.†

Justice Thomas delivered the opinion of the Court. The Federal Bankruptcy Code pre-empts state bankruptcy laws that enable insolvent municipalities to restructure their debts over the objections of creditors and instead requires municipalities to restructure such debts under Chapter 9 of the Code. 11 U. S. C. § 903(1). We must decide whether

†Briefs of amici curiae urging reversal in both cases were fled for Colegio de Abogados y Abogadas de Puerto Rico et al. by Betty Lugo, Carmen A. Pacheco, and Mark Anthony Bimbela; for LatinoJustice PRLDEF et al. by Edward H. Tillinghast III, Jennifer A. Trusso, Robert J. Stumpf, Jr., and Juan Cartagena; for the Puerto Rico Electric Power Authority by Lewis J. Liman, Lawrence B. Friedman, Richard J. Cooper, and Sean A. O'Neal; for Puerto Rico Manufacturers Association by Luis Sánchez Betances; and for Clayton P. Gillette et al. by Randy A. Hertz. Briefs of amici curiae urging reversal were fled in No. 15–233 for Fun- dación Ángel Ramos, Inc., et al. by José L. Nieto-Mingo; and for Gregorio Igartua by Mr. Igartua, pro se.

Briefs of amici curiae urging affrmance in both cases were fled for the Association of Financial Guaranty Insurers by Marc E. Kasowitz, Daniel R. Benson, Joseph I. Lieberman, Clarine Nardi Riddle, and Andrew K. Glenn; for the Chamber of Commerce of the United States of America by William S. Consovoy, Bryan K. Weir, and Kate Comerford Todd; and for Scotiabank de Puerto Rico by George T. Conway III, Richard G. Mason, Emil A. Kleinhaus, and Antonio A. Arias-Larcada.

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Puerto Rico is a “State” for purposes of this pre-emption provision. We hold that it is.

The Bankruptcy Code has long included Puerto Rico as a “State,” but in 1984 Congress amended the defnition of “State” to exclude Puerto Rico “for the purpose of defning who may be a debtor under chapter 9. ” Bankruptcy Amendments and Federal Judgeship Act, § 421( j)(6), 98 Stat. 368–369, now codifed at 11 U. S. C. § 101(52). Puerto Rico interprets this amended defnition to mean that Chapter 9 no longer applies to it, so it is no longer a “State” for purposes of Chapter 9's pre-emption provision. We hold that Congress' exclusion of Puerto Rico from the defnition of a “State” in the amended defnition does not sweep so broadly. By ex- cluding Puerto Rico “for the purpose of defning who may be a debtor under chapter 9,” § 101(52) (emphasis added), the Code prevents Puerto Rico from authorizing its munici- palities to seek Chapter 9 relief. Without that authoriza- tion, Puerto Rico's municipalities cannot qualify as Chap- ter 9 debtors. § 109(c)(2). But Puerto Rico remains a “State” for other purposes related to Chapter 9, including that chapter's pre-emption provision. That provision bars Puerto Rico from enacting its own municipal bankruptcy scheme to restructure the debt of its insolvent public utili- ties companies.

Puerto Rico and its instrumentalities are in the midst of a fscal crisis. More than $20 billion of Puerto Rico's climbing debt is shared by three government-owned public utilities companies: the Puerto Rico Electric Power Authority, the Puerto Rico Aqueduct and Sewer Authority, and the Puerto Rico Highways and Transportation Authority. For the fs- cal year ending in 2013, the three public utilities operated with a combined defcit of $800 million. The Government Development Bank for Puerto Rico (Bank)—the Common-

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wealth's government-owned bank and fscal agent—has pre- viously provided fnancing to enable the utilities to continue operating without defaulting on their debt obligations. But the Bank now faces a fscal crisis of its own. As of fscal year 2013, it had loaned nearly half of its assets to Puerto Rico and its public utilities. Puerto Rico's access to capital markets has also been severely compromised since ratings agencies downgraded Puerto Rican bonds, including the utili- ties', to noninvestment grade in 2014.

Puerto Rico responded to the fscal crisis by enacting the Puerto Rico Corporation Debt Enforcement and Recovery Act (Recovery Act) in 2014, which enables the Common- wealth's public utilities to implement a recovery or restruc- turing plan for their debt. 2014 Laws P. R. p. 371. See generally McGowen, Puerto Rico Adopts a Debt Recovery Act for Its Public Corporations, 10 Pratt's J. Bkrtcy. Law 453 (2014). Chapter 2 of the Recovery Act creates a “consen- sual” debt modifcation procedure that permits the public utilities to propose changes to the terms of the outstanding debt instruments, for example, changing the interest rate or the maturity date of the debt. 2014 Laws P. R., at 428–429. In conjunction with the debt modifcation, the public utility must also propose a Bank-approved recovery plan to bring it back to fnancial self-suffciency. Ibid. The debt modif- cation binds all creditors so long as those holding at least 50% of affected debt participate in (or consent to) a vote re- garding the modifcations, and the participating creditors holding at least 75% of affected debt approve the modifca- tions. Id., at 430. Chapter 3 of the Recovery Act, on the other hand, mirrors Chapters 9 and 11 of the Federal Bank- ruptcy Code by creating a court-supervised restructuring process intended to offer the best solution for the broadest group of creditors. See id., at 448–449. Creditors holding two-thirds of an affected class of debt must participate in the vote to approve the restructuring plan, and half of those participants must agree to the plan. Id., at 449.

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A group of investment funds, including the Franklin Cali- fornia Tax-Free Trust, and BlueMountain Capital Manage- ment, LLC, brought separate suits against Puerto Rico and various government offcials, including agents of the Bank, to enjoin the enforcement of the Recovery Act. Collec- tively, the plaintiffs hold nearly $2 billion in bonds issued by the Electric Power Authority, one of the distressed utilities. The complaints alleged, among other claims, that the Federal Bankruptcy Code prohibited Puerto Rico from implementing its own municipal bankruptcy scheme.

The District Court consolidated the suits and ruled in the plaintiffs' favor on their pre-emption claim. 85 F. Supp. 3d 577 (PR 2015). The court concluded that the pre-emption provision in Chapter 9 of the Federal Bankruptcy Code, 11 U. S. C. § 903(1), precluded Puerto Rico from implementing the Recovery Act and enjoined its enforcement. 85 F. Supp. 3d, at 601, 614.

The First Circuit affrmed. 805 F. 3d 322 (2015). The court examined the 1984 amendment to the defnition of “State” in the Federal Bankruptcy Code, which includes Puerto Rico as a “State” for purposes of the Code “ `except for the purpose of defning who may be a debtor under chap- ter 9.' ” Id., at 330–331 (quoting § 101(52); emphasis added). The court concluded that the amendment did not remove Puerto Rico from the scope of the pre-emption provision and held that the pre-emption provision barred the Recovery Act. Id., at 336–337. The court opined that it was up to Congress, not Puerto Rico, to decide when the government- owned companies could seek bankruptcy relief. Id., at 345. We granted the Commonwealth's petitions for writs of cer-

tiorari. 577 U. S. 1025 (2015).*

*After the parties briefed and argued these cases, Members of Con- gress introduced a bill in the House of Representatives to establish an oversight board to assist Puerto Rico and its instrumentalities. See H. 5278, 114th Cong., 2d Sess. (2016). The bill does not amend the Federal

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These cases require us to parse three provisions of the Bankruptcy Code: the “who may be a debtor” provision re- quiring States to authorize municipalities to seek Chapter 9 relief, § 109(c), the pre-emption provision barring States from enacting their own municipal bankruptcy schemes, § 903(1), and the defnition of “State,” § 101(52). We frst explain the text and history of these provisions. We then conclude that Puerto Rico is still a “State” for purposes of the pre-emption provision and hold that this provision pre-empts the Recov- ery Act.

The Constitution empowers Congress to establish “uni- form Laws on the subject of Bankruptcies throughout the United States.” Art. I, § 8, cl. 4. Congress frst exercised that power by enacting a series of temporary bankruptcy Acts beginning in 1800, which gave way to a permanent fed- eral bankruptcy scheme in 1898. See An Act To Establish a Uniform System of Bankruptcy Throughout the United States, 30 Stat. 544; Hanover Nat. Bank v. Moyses, 186 U. S. 181, 184 (1902). But Congress did not enter the feld of mu- nicipal bankruptcy until 1933 when it enacted the precursor to Chapter 9, a chapter of the Code enabling an insolvent “municipality,” meaning a “political subdivision or public agency or instrumentality of a State,” 11 U. S. C. § 101(40), to restructure municipal debts. See McConnell & Picker, When Cities Go Broke: A Conceptual Introduction to Munici- pal Bankruptcy, 60 U. Chi. L. Rev. 425, 427, 450–451 (1993). Congress has tailored the federal municipal bankruptcy laws to preserve the States' reserved powers over their mu- nicipalities. This Court struck down Congress' frst attempt to enable the States' political subdivisions to fle for federal bankruptcy relief after concluding that it infringed the

Bankruptcy Code; it instead proposes adding a chapter to Title 48, govern- ing the Territories. Id., § 6.

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States' powers “to manage their own affairs.” Ashton v. Cameron County Water Improvement Dist. No. One, 298 U. S. 513, 531 (1936). Congress tried anew in 1937, and the Court upheld the amended statute as an appropriate balance of federal and state power. See United States v. Bekins, 304 U. S. 27, 49–53 (1938). Critical to the Court's constitutional analysis was that the State had frst authorized its instru- mentality to seek relief under the federal bankruptcy laws. See id., at 47–49, 53–54.

Still today, the provision of the Bankruptcy Code defn- ing who may be a debtor under Chapter 9, which we refer to here as the “gateway” provision, requires the States to authorize their municipalities to seek relief under Chapter 9 before the municipalities may fle a Chapter 9 petition:

“§ 109. Who may be a debtor

“(c) An entity may be a debtor under chapter 9 of this

title if and only if such entity—

“(1) is a municipality; “(2) is specifcally authorized, in its capacity as a mu- nicipality or by name, to be a debtor under such chapter by State law, or by a governmental offcer or organiza- tion empowered by State law to authorize such entity to be a debtor under such chapter . . . .”

The States' powers are not unlimited, however. The fed- eral bankruptcy laws changed again in 1946 to bar the States from enacting their own municipal bankruptcy schemes. The amendment overturned this Court's holding in Faitoute Iron & Steel Co. v. Asbury Park, 316 U. S. 502, 507–509 (1942) (rejecting contention that Congress occupied the feld of municipal bankruptcy law). In Faitoute, the Court held that federal bankruptcy laws did not pre-empt New Jersey's municipal bankruptcy scheme, which required municipali- ties to seek relief under state law before resorting to the

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federal municipal bankruptcy scheme. Ibid. To override Fai toute, Congress enacted a provision expressly pre- empting state municipal bankruptcy laws. Act of July 1, 1946, 60 Stat. 415.

The express pre-emption provision, central to these cases,

is now codifed with some stylistic changes in § 903(1):

“§ 903. Reservation of State power to control municipalities

“This chapter does not limit or impair the power of a State to control, by legislation or otherwise, a municipality of or in such State in the exercise of the political or governmental powers of such municipality, including expenditures for such exercise, but—

“(1) a State law prescribing a method of composition of indebtedness of such municipality may not bind any creditor that does not consent to such composition; and “(2) a judgment entered under such a law may not bind a creditor that does not consent to such composition.”

The third provision of the Bankruptcy Code at issue is the defnition of “State,” which has included Puerto Rico since it became a Territory of the United States in 1898. The frst Federal Bankruptcy Act, also enacted in 1898, de- fined “States” to include “ the Territories, the In- dian Territory, Alaska, and the District of Columbia.” 30 Stat. 545. When Congress recodifed the bankruptcy laws to form the Federal Bankruptcy Code in 1978, the de- finition of “State” dropped out of the definitional sec- tion. See generally Bankruptcy Reform Act, 92 Stat. 2549– 2554. Congress then amended the Code to reincorporate the defnition of “State” in 1984. § 421, 98 Stat. 368–369, now codifed at § 101(52). The amended defnition includes Puerto Rico as a State for purposes of the Code with one exception:

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“§ 101. Defnitions

. “(52) The term `State' includes the District of Colum- bia and Puerto Rico, except for the purpose of defning who may be a debtor under chapter 9 of this title.”

It is our task to determine the effect of the amended def- nition of “State” on the Code's other provisions governing Chapter 9 proceedings. We must decide whether, in light of the amended defnition, Puerto Rico is no longer a “State” only for purposes of the gateway provision, which requires States to authorize their municipalities to seek Chapter 9 relief, or whether Puerto Rico is also no longer a “State” for purposes of the pre-emption provision.

The parties do not dispute that, before 1984, Puerto Rico was a “State” for purposes of Chapter 9's pre-emption provi- sion. Accordingly, before 1984, federal law would have pre- empted the Recovery Act because it is a “State law prescrib- ing a method of composition of indebtedness” for Puerto Rico's instrumentalities that would bind nonconsenting cred- itors, § 903(1).

The parties part ways, however, in deciphering how the 1984 amendment to the defnition of “State” affected the pre- emption provision. Petitioners interpret the amended defnition of “State” to exclude Puerto Rico altogether from Chapter 9. If petitioners are correct, then the pre-emption provision does not apply to them. Puerto Rico, in other words, may enact its own municipal bankruptcy scheme without running afoul of the Code. Respondents, on the other hand, read the amended defnition narrowly. They contend that the defnition precludes Puerto Rico from “spe- cifcally authoriz[ing]” its municipalities to seek relief, as re- quired by the gateway provision, § 109(c)(2), but that Puerto Rico is no less a “State” for purposes of the pre-emption provision than the other “State[s],” as that term is defned in

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the Code. If respondents are correct, then the pre-emption provision applies to Puerto Rico and bars it from enacting the Recovery Act.

Respondents have the better reading. We hold that Puerto Rico is still a “State” for purposes of the pre-emption provision. The 1984 amendment precludes Puerto Rico from authorizing its municipalities to seek relief under Chap- ter 9, but it does not remove Puerto Rico from the reach of Chapter 9's pre-emption provision.

The plain text of the Bankruptcy Code begins and ends our analysis. Resolving whether Puerto Rico is a “State” for purposes of the pre-emption provision begins “with the language of the statute itself,” and that “is also where the inquiry should end,” for “the statute's language is plain.” United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989). And because the statute “contains an express pre-emption clause,” we do not invoke any presumption against preemption but instead “focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' preemptive intent.” Chamber of Commerce of United States of America v. Whiting, 563 U. S. 582, 594 (2011) (internal quotation marks omitted); see also Gobeille v. Liberty Mut. Ins. Co., 577 U. S. 312, 325 (2016).

The amended defnition of “State” excludes Puerto Rico for the single “purpose of defning who may be a debtor under chapter 9 of this title.” § 101(52) (emphasis added). That exception unmistakably refers to the gateway provision in § 109, titled “who may be a debtor.” Section 109(c) be- gins, “An entity may be a debtor under chapter 9 of this title if and only if . . . .” We interpret Congress' use of the “who may be a debtor” language in the amended defnition of “State” to mean that Congress intended to exclude Puerto Rico from this gateway provision delineating who may be a debtor under Chapter 9. See, e. g., Sullivan v. Stroop, 496

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U. S. 478, 484 (1990) (reading same term used in different parts of the same Act to have the same meaning); see also Northcross v. Board of Ed. of Memphis City Schools, 412 U. S. 427, 428 (1973) (per curiam) (“[S]imilarity of language . . . is . . . a strong indication that the two statutes should be interpreted pari passu”). Puerto Rico, therefore, is not a “State” for purposes of the gateway provision, so it cannot perform the single function of the “State[s]” under that pro- vision: to “specifcally authoriz[e]” municipalities to seek Chapter 9 relief. § 109(c). As a result, Puerto Rico's mu- nicipalities cannot satisfy the requirements of Chapter 9's gateway provision until Congress intervenes.

The amended defnition's use of the term “defning” also confrms our conclusion that the amended defnition excludes Puerto Rico as a “State” for purposes of the gateway provi- sion. The defnition specifes that Puerto Rico is not a “ `State . . . for the purpose of defning who may be a debtor under chapter 9.” § 101(52) (emphasis added). To “defne” is “to decide upon,” 4 Oxford English Dictionary 383 (2d ed. 1989), or “to settle” or “to establish or prescribe authorita- tively,” Black's Law Dictionary 380 (5th ed. 1979). As dis- cussed, a State's role under the gateway provision is to do just that: The State must defne (or “decide upon”) which entities may seek Chapter 9 relief. Barring Puerto Rico from “defning who may be a debtor under chapter 9” is tan- tamount to barring Puerto Rico from “specifcally authoriz- ing” which municipalities may fle Chapter 9 petitions under the gateway provision. The amended defnition of “State” unequivocally excludes Puerto Rico as a “State” for purposes of the gateway provision.

The text of the defnition extends no further. The excep- tion excludes Puerto Rico only for purposes of the gateway provision. Puerto Rico is no less a “State” for purposes of the pre-emption provision than it was before Congress amended the defnition. The Code's pre-emption provision has prohibited States and Territories defned as “States”

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from enacting their own municipal bankruptcy schemes for 70 years. See 60 Stat. 415 (overturning Faitoute, 316 U. S., at 507–509). Had Congress intended to “alter th[is] funda- mental detai[l]” of municipal bankruptcy, we would expect the text of the amended defnition to say so. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). Congress “does not, one might say, hide elephants in mouse- holes.” Ibid.

The dissent, adopting many of petitioners' arguments, reads the amended defnition to say what it does not—that “for the purpose of . . . chapter 9,” Puerto Rico is not a State. The arguments in support of that capacious reading are unavailing.

First, the dissent agrees with petitioners' view that the exclusion of Puerto Rico as a “State” for purposes of the gateway provision effectively removed Puerto Rico from all of Chapter 9. See post, at 136–137 (opinion of Sotomayor, J.). To be sure, § 109(c) and the surrounding subsections serve an important gatekeeping role. Those provisions “specify who qualifes—and who does not qualify—as a debtor under the various chapters of the Code.” Toibb v. Radloff, 501 U. S. 157, 161 (1991). For instance, a railroad must fle under Chapter 11, not Chapter 7, §§ 109(b)(1), (d), whereas only “family farmer[s] or family fsherm[e]n” may fle under Chap- ter 12, § 109(f). The provision delineating who may be a debtor under Chapter 9 is no exception. Only municipalities may fle under Chapter 9, and only if the State has “specif- cally authorized” the municipality to do so. §§ 109(c)(1)–(2); see also McConnell & Picker, 60 Chi. L. Rev., at 455–461 (discussing the gatekeeping requirements for Chapter 9).

That Puerto Rico is not a “State” for purposes of the gate- way provision, however, says nothing about whether Puerto Rico is a “State” for the other provisions of Chapter 9 involv- ing the States. The States do not “pass through” the gate- way provision. Post, at 137. The gateway provision is in-

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stead directed at the debtors themselves—the municipalities, in the case of Chapter 9 bankruptcy. A municipality that cannot secure state authorization to fle a Chapter 9 petition is excluded from Chapter 9 entirely. But the same cannot be said about the State in which that municipality is located. A State's only role under the gateway provision is to provide that “authoriz[ation]” to fle. § 109(c)(2). The pre-emption provision then imposes an additional requirement: The States may not enact their own municipal bankruptcy schemes. A State that chooses not to authorize its munici- palities to seek Chapter 9 relief under the gateway provision is no less bound by that pre-emption provision. Here too, Puerto Rico is no less bound by the pre-emption provision even though Congress has removed its authority to provide authorization for its municipalities to fle Chapter 9 petitions. Again, if it were Congress' intent to also exclude Puerto Rico as a “State” for purposes of that pre-emption provision, it would have said so.

Second, both petitioners and the dissent place great weight on the introductory clause of § 903. Post, at 135–136. The pre-emption provision cannot apply to Puerto Rico, so goes the argument, because it is a proviso to § 903's introductory clause, which they posit is inapplicable to Puerto Rico. The introductory clause affrms that Chapter 9 “does not limit or impair the power of a State to control” its “municipalit[ies].” § 903. The dissent surmises that this clause “is irrelevant” and “meaningless” in Puerto Rico. Post, at 136. Because Puerto Rico's municipalities are ineligible for Chapter 9 re- lief, Chapter 9 cannot “affec[t] Puerto Rico's control over its municipalities,” according to the dissent. Ibid. In other words, “there is no power” for the introductory clause to “reserve” for Puerto Rico's use. Ibid. Petitioners likewise contend that “it would be nonsensical for Congress to pro- vide Puerto Rico with a shield against intrusion by a Chap- ter that, by defnition, can have no effect on Puerto Rico.” Brief for Petitioner Commonwealth of Puerto Rico et al. in

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No. 15–233, p. 25. So “it follows” that the pre-emption provision, the proviso to that clause, cannot apply either. Ibid.

This reading rests on the faulty assumption that Puerto Rico is, “by defnition,” excluded from Chapter 9. Ibid. For all of the reasons already explained, see Part II–B–1, supra, it is not. The amended definition of “State” precludes Puerto Rico from authorizing its municipalities to seek Chapter 9 relief. But Puerto Rico is no less a “State” for purposes of § 903's introductory clause and its proviso. Both continue to apply in Puerto Rico. They are neither “irrelevant” nor “meaningless.” Post, at 136. If, for ex- ample, Congress created a path for the Puerto Rican munici- palities to restructure their debts under Chapter 9, then § 903 would assure Puerto Rico, no less a “State” for pur- poses of this section, of its continued power to “control, by legislation or otherwise, [its] municipalit[ies] . . . in the exercise of the political or governmental powers of such municipalit[ies].”

Third, the Government Development Bank contends that the Recovery Act does not run afoul of the pre-emption provision because the Recovery Act does not bind noncon- senting “creditors,” as the Bankruptcy Code now defnes that term. In 1978, Congress redefined “creditor ” to mean an “entity that has a claim against the debtor . . . .” 92 Stat. 2550, now codifed at § 101(10) (emphasis added). A “debtor,” in turn, is a “person or municipality con- cerning which a case under this title has been com- menced.” Id., at 2551, now codifed at § 101(13) (emphasis added). In light of these defnitions, the Bank contends that the Puerto Rican municipalities are not “debtor[s]” as the Code defi nes the ter m because they cannot “commenc[e]” an action under Chapter 9 without authoriza- tion from Puerto Rico. Brief for Petitioner Acosta- Febo et al. 31–33. And because respondents cannot be “creditors” of a nonexistent “debtor,” the Recovery Act is

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not a “State law” that binds “any creditor.” § 903(1). Id., at 31–33.

Tellingly, the dissent does not adopt this reading. The Bank's interpretation would nullify the pre-emption provi- sion. Applying the Bank's logic, a municipality that fails to meet any one of the requirements of Chapter 9's gatekeeping provision is not a “debtor” and would have no “creditors.” So a State could refuse to “specifcally authoriz[e]” its munic- ipalities to seek relief under Chapter 9, § 109(c)(2), required to commence a case under that chapter. That State would be free to enact its own municipal bankruptcy scheme be- cause its municipalities would have no “creditors” under fed- eral law. The technical amendments to the defnitions of “creditor” and “debtor” are too “subtle a move” to support such a “[f]undamental chang[e] in the scope” of Chapter 9's pre-emption provision. Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, 575 U. S. 650, 660 (2015).

The dissent concludes that “the government and people of Puerto Rico should not have to wait for possible congres- sional action to avert the consequences” of the Common- wealth's fscal crisis. Post, at 139. But our constitutional structure does not permit this Court to “rewrite the statute that Congress has enacted.” Dodd v. United States, 545 U. S. 353, 359 (2005); see also Electric Storage Battery Co. v. Shimadzu, 307 U. S. 5, 14 (1939). That statute pre- cludes Puerto Rico from authorizing its municipalities to seek relief under Chapter 9. But it does not remove Puerto Rico from the scope of Chapter 9's pre-emption provision. Federal law, therefore, pre-empts the Recovery Act. The judgment of the Court of Appeals for the First Circuit is affrmed.

It is so ordered.

Justice Alito took no part in the consideration or deci-

sion of these cases.

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Justice Sotomayor, with whom Justice Ginsburg

joins, dissenting.

Chapter 9 of the Federal Bankruptcy Code allows States' “municipalities”—cities, utilities, levee boards, and the like— to fle for federal bankruptcy with their State's authorization. But the Code excludes Puerto Rican municipalities from ac- cessing federal bankruptcy. 11 U. S. C. §§ 101(52), 109(c)(2). Because of this bar, Puerto Rico enacted its own law in 2014—the Recovery Act—to allow its utilities to restructure their signifcant debts outside the federal bankruptcy process. The Court today holds that Puerto Rico's Recovery Act is barred by § 903(1) of Chapter 9 of the Bankruptcy Code, which prohibits States from creating their own bankruptcy processes for their insolvent municipalities. Because Puerto Rican municipalities cannot access Chapter 9's federal bankruptcy process, however, a nonfederal bankruptcy solu- tion is not merely a parallel option; it is the only existing legal option for Puerto Rico to restructure debts that could cripple its citizens. The structure of the Code and the lan- guage and purpose of § 903 demonstrate that Puerto Rico's municipal debt restructuring law should not be read to be prohibited by Chapter 9. I respectfully dissent.

The Commonwealth of Puerto Rico and its municipalities are in the middle of a fscal crisis. Ante, at 118. The com- bined debt of Puerto Rico's three main public utilities ex- ceeds $20 billion. These utilities provide power, water, sewer, and transportation to residents of the island. With rising interest rates and limited access to capital markets, their debts are proving unserviceable. Soon, Puerto Rico and the utilities contend, they will be unable to pay for things like fuel to generate electricity, which will lead to roll- ing blackouts. Other vital public services will be imperiled, including the utilities' ability to provide safe drinking water, maintain roads, and operate public transportation.

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When debtors face untenable debt loads, bankruptcy is the primary tool the law uses to forge workable long-term solu- tions. By requiring a debtor and creditors to negotiate to- gether and forcing both sides to make concessions within the limits set by law, bankruptcy gives the debtor a “fresh start,” discourages creditors from racing each other to sue the debtor, prohibits a small number of holdout creditors from blocking a compromise, protects important creditor rights such as the prioritization of debts, and allows all par- ties to fnd equitable and effcient solutions to fscal problems. See Marrama v. Citizens Bank of Mass., 549 U. S. 365, 367 (2007); Young v. Higbee Co., 324 U. S. 204, 210 (1945).

These concerns are starkly presented in the context of mu- nicipal entities like public utilities. While a business corpo- ration can use bankruptcy to reorganize, and, if that fails, fold up shop and liquidate all of its assets, governments can- not shut down powerplants, water, hospitals, sewers, and trains and leave citizens to fend for themselves. A “fresh start” can help not only the unfortunate individual debtor but also—and perhaps especially—the unfortunate munici- pality and its people. See United States v. Bekins, 304 U. S. 27, 53–54 (1938).

Congress has excluded the municipalities of Puerto Rico and the District of Columbia from the federal municipal bankruptcy scheme in Chapter 9 of the Bankruptcy Code. See 11 U. S. C. §§ 101(52), 109(c). So, in 2014, the Puerto Rican Government enacted the Puerto Rico Public Corpora- tion Debt Enforcement and Recovery Act (Recovery Act or Act). 2014 Laws P. R. p. 371. The Act authorizes Puerto Rico's public utilities to restructure their debts while contin- uing to provide essential public services like electricity and water. Portions of the Act mirror Chapter 9 of the Bank- ruptcy Code and allow Puerto Rico's utilities to renegotiate their debts with their creditors. See ante, at 119. Like a restructuring plan fled under Chapter 9, a restructuring plan under the Recovery Act that is approved by at least a

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majority of creditors and a court would be binding on all creditors, including objecting holdouts.

After the Recovery Act was signed into law, mutual funds and hedge funds holding bonds of the Puerto Rico Electric Power Authority fled two lawsuits seeking to enjoin Puerto Rico's enforcement of the Act. The District Court held that the Recovery Act could not be enforced because, inter alia, it was prohibited by § 903(1) of the Bankruptcy Code. The First Circuit agreed that § 903(1) pre-empted the Act and did not address whether some provisions of the Act might be unlawful for other reasons. This Court now affrms.

Bankruptcy is not a one-size-fts-all process. The Federal Bankruptcy Code sets out specifc procedures and governing law for each type of entity that seeks bankruptcy protection. To see how this approach works, consider the structure of the Code in more depth.

Chapter 1 is the starting point. It sets out how to read the Code. See 11 U. S. C. § 101 et seq. For example, § 101 sets out general defnitions, and § 102 provides rules of con- struction. Now skip ahead to § 109, titled, “Who may be a debtor.” That section tells would-be debtors and the inter- ested parties in their bankruptcy which specifc bankruptcy laws apply to them. For example, § 109 tells an ordinary person seeking to restructure her debts to do so using the rules outlined in Chapter 7, § 109(b), or those enumerated in Chapter 13, § 109(e). It tells a family farm or fsherman to use the rules outlined in Chapter 12. § 109(f). Certain cor- porations can use Chapter 7, § 109(b), or Chapter 11, § 109(d). And a municipality's bankruptcy is governed by the rules in Chapter 9. § 109(c)(1).

Because § 109 tells different kinds of debtors which bodies of bankruptcy law apply to them, the Court has described that section as a “ `gateway' ” provision. Ante, at 122. Once an entity meets the eligibility requirements for a spe-

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cifc “gateway” set out in § 109 and elects to pass through that gateway, it becomes subject to the relevant chapter of the Code—7, 9, 11, 12, or 13. The debtor, its creditors, and any other interested parties are governed only by that chapter and the chapters of the Bankruptcy Code—like Chapter 1— that apply to all cases. See § 103; 1 Collier Pamphlet Edi- tion, Bankruptcy Code 2016, p. 59 (“[A]s a general rule, the provisions of the particular chapter apply only in that chapter”).

Interpreting statutory provisions in the context of the op- erative chapters in the Bankruptcy Code in which they ap- pear is not unusual—it is how the Code is designed to work. For example, both Chapter 9 and Chapter 13 require the debtor to “fle a plan” proposing how the court should reor- ganize its debts. Compare §§ 941–946 (“The Plan” under Chapter 9) with §§ 1321–1330 (“The Plan” under Chapter 13). But no bankruptcy court or practitioner would suggest that a Chapter 9 “plan” also has to satisfy the requirements of Chapter 13. The Code is read in context.

These cases concern § 109's “gateway” for municipalities. That provision says that a municipality may fle for bank- ruptcy under Chapter 9 if and only if it meets fve eligibility criteria. The debtor must (1) be “a municipality,” § 109(c)(1); (2) be “specifcally authorized . . . by State law” to seek bankruptcy restructuring, § 109(c)(2); (3) be “insolvent,” § 109(c)(3); (4) have a “desir[e] to effect a plan to adjust” its debts, § 109(c)(4); and (5) have attempted to negotiate with its creditors, with some exceptions, § 109(c)(5).

The second eligibility requirement is relevant here. Only a municipality “authorized . . . by State law” may pass through the “gateway” and fle for bankruptcy under Chap- ter 9's provisions. But Chapter 1's defnitional provision, which applies throughout the Code, provides that the “term `State' includes the District of Columbia and Puerto Rico, except for the purpose of defning who may be a debtor under chapter 9 of this title.” § 101(52). It is undisputed

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that the “except for the purpose of defning who may be a debtor under chapter 9” clause is referring to the second eligibility prerequisite in § 109's gateway provision. Ante, at 124. So, in short, Puerto Rico cannot “specifcally author- iz[e]” any of its municipalities to apply for Chapter 9 bank- ruptcy. No Puerto Rican municipality will thus satisfy the state authorization requirement of § 109's gateway for munic- ipalities, and so no Puerto Rican municipality can access Chapter 9.1

The question in these cases is whether § 903(1), a pre- emption provision in Chapter 9, still applies to Puerto Rico even though its municipalities are not elig ible to pass through the “gateway” into Chapter 9. It should not. Sec- tion 903 by its terms presupposes that Chapter 9 applies only to States who have the power to authorize their municipali- ties to invoke its protection.

Section 903 delineates the balance of power between the States that can authorize their municipalities to access Chap- ter 9 protection and the bankruptcy court that would preside over any municipal bankruptcy commenced under Chapter 9. To understand that interplay, and why § 903(1) does not pre- empt the Recovery Act, it is important to consider that stat- utory provision in context.

Section 903, titled “Reservation of State power to control

municipalities,” reads in full:

“This chapter [Chapter 9] does not limit or impair the power of a State to control, by legislation or otherwise, a municipality of or in such State in the exercise of the political or governmental powers of such municipality, including expenditures for such exercise, but—

1 Puerto Rico was initially included in the scope of Chapter 9. § 1(29), 52 Stat. 842. But in 1984, Congress amended the Bankruptcy Code, with- out comment, to bar Puerto Rico and the District of Columbia from author- izing their municipalities to access Chapter 9. § 421( j)(6), 98 Stat. 368– 369, codifed at 11 U. S. C. § 101(52).

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“(1) a State law prescribing a method of composition of indebtedness of such municipality may not bind any creditor that does not consent to such composition; and “(2) a judgment entered under such a law may not bi nd a creditor that does not consent to such composition.”

This “reservation” of power to the States was added to the Code in response to this Court's earlier recognition that States possess plenary control over their municipalities, par- ticularly in fscal matters. Faitoute Iron & Steel Co. v. As- bury Park, 316 U. S. 502, 509 (1942), overruled in part by Act of July 1, 1946, 60 Stat. 415. Section 903 says that States continue to possess those powers not implicated by the bankruptcy itself by noting that “[t]his chapter,” i. e., Chapter 9, “does not limit or impair the power of a State to control” its municipalities. § 903. For example, even if a municipality is in Chapter 9 bankruptcy, a State could still revoke its charter.

Section 903, however, also subjects that broad reservation to an exception articulated in the pre-emption provision that the Court now says bars Puerto Rico's Recovery Act. States may control their municipalities, but they may not “prescrib[e] a method of composition of indebtedness of [a] municipality” that “bind[s] any creditor that does not consent to such composition.” § 903(1).

But this distribution of power between the State and the bankruptcy court is irrelevant to Puerto Rico. Because Puerto Rico's municipalities cannot pass through the § 109(c) gateway to Chapter 9, nothing in the operation of a Chapter 9 case affects Puerto Rico's control over its municipalities. The “reservation” preamble is therefore meaningless to Puerto Rico—there is no power to reserve from Chapter 9's operation. And if this preamble does not and cannot apply to Puerto Rico, it follows that § 903(1)'s proviso qualifying that reservation of power to the States does not apply to

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Puerto Rico either. See, e. g., United States v. Morrow, 266 U. S. 531, 534–535 (1925).

This understanding of § 903 is fundamentally confrmed by the careful gateway structure the Code sets out for under- standing how its chapters work together. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 320 (2014) (“ ` “[W]ords of a statute must be read in their context and with a view to their place in the overall statutory scheme” ' ” (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000))). Chapter 1's defnitions section pre- vents Puerto Rico from defning “who may be a debtor under chapter 9” under § 109(c)'s gateway. Because of the struc- ture of the Code, that change to Chapter 1's defnition has ripple effects. By amending the defnition of State to ex- clude Puerto Rico, the District of Columbia, and their munici- palities from § 109(c)'s gateway, Congress excluded Puerto Rico from Chapter 9 for all purposes—it shut the gate and barred it tight. And because Chapter 9's process and rules by their terms can only affect municipalities and States eligible to pass through the gateway in § 109(c), that must mean that none of Chapter 9's provisions—including § 903's pre-emption provision—apply to Puerto Rico and its municipalities.

III

The Court rejects contextual analysis in favor of a syllo- gism. According to the Court, § 903(1) pre-empts all “State” composition laws like Puerto Rico's that bind nonconsenting municipal creditors. “State” includes Puerto Rico, “except for the purpose of defning who may be a debtor under chap- ter 9 of this title,” § 101(52), which is a reference to § 109(c). Thus, according to the Court, while the defnition of “State” prevents Puerto Rico from authorizing its municipalities to seek Chapter 9 protection under § 109(c), it has no effect on the pre-emption clause in § 903(1).

The majority's plain meaning syllogism is not without force. But it ignores this Court's repeated exhortations to

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read statutes in context of the overall statutory scheme. Utility Air, 573 U. S., at 320. In context, for the reasons discussed, § 903 is directed to States that can approve their municipalities for Chapter 9 bankruptcy. Moreover, in an attempt to buttress its syllogism, the majority's analysis makes an additional critical misstep.

The majority argues that, in light of the longstanding na- ture of the § 903(1)'s pre-emption provision to preclude state municipal bankruptcy laws, “[h]ad Congress intended to `alter this fundamental detail' of municipal bankruptcy” to not apply to Puerto Rico, “we would expect the text of the amended defnition to say so. Congress `does not, one might say, hide elephants in mouseholes.' ” Ante, at 127 (quoting Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001); citation and brackets omitted). But the Court ignores that Congress already altered the fundamental de- tails of municipal bankruptcy when it amended the defnition of “State” to exclude Puerto Rico from authorizing its munic- ipalities to take advantage of Chapter 9. Nobody has pre- sented a compelling reason for why Congress would have done so, and the legislative history of the amendment is un- helpful.2 Under either interpretation the scheme has been fundamentally altered by Congress. And, in context, the proper understanding of that alteration is that Puerto Rico and its municipalities have been removed entirely from Chapter 9—both from the benefts it provides and from the burden of the pre-emption clause in § 903(1).

Pre-emption cases may seem like abstract discussions of the appropriate balance between state and federal power.

2 The only comment on excluding Puerto Rico from Chapter 9 came from Professor Frank Kennedy, former Executive Director of the Commission on Bankruptcy Laws, who said: “I do not understand why the municipal corporations of Puerto Rico are denied by the proposed defnition of `State' of the right to seek relief under Chapter 9.” Bankruptcy Improvements Act, Hearing on S. 333 et al. before the Senate Committee on the Judiciary, 98th Cong., 1st Sess., 326 (1983).

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But they have real-world consequences. Finding pre- emption here means that a government is left powerless and with no legal process to help its 3.5 million citizens.

Congress could step in to resolve Puerto Rico's crisis. But, in the interim, the government and people of Puerto Rico should not have to wait for possible congressional action to avert the consequences of unreliable electricity, transpor- tation, and safe water—consequences that members of the Executive and Legislative Branches have described as a looming “humanitarian crisis.” The White House, Address- ing Puerto Rico's Economic and Fiscal Crisis and Creating a Path to Recovery, p. 1 (Oct. 26, 2015) (italics deleted); Letter from Sen. Richard Blumenthal et al. to Charles Grassley, Chair, Senate Committee on the Judiciary (Sept. 30, 2015). Statutes should not easily be read as removing the power of a government to protect its citizens.

For the foregoing reasons, I would hold that § 903(1) of the Bankruptcy Code does not pre-empt Puerto Rico's Recovery Act. I respectfully dissent.

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UNITED STATES v. BRYANT

certiorari to the united states court of appeals for the ninth circuit

No. 15–420. Argued April 19, 2016—Decided June 13, 2016

In response to the high incidence of domestic violence against Native American women, Congress enacted a felony offense of domestic assault in Indian country by a habitual offender. 18 U. S. C. § 117(a). Section 117(a)(1) provides that any person who “commits a domestic assault within . . . Indian country” and who has at least two prior fnal convic- tions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings . . . shall be fned . . . , imprisoned for a term of not more than 5 years, or both . . . .” Having two prior tribal-court convic- tions for domestic violence crimes is thus a predicate of the new offense. This case raises the question whether § 117(a)'s inclusion of tribal- court convictions as predicate offenses is compatible with the Sixth Amendment's right to counsel. The Sixth Amendment guarantees indi- gent defendants appointed counsel in any state or federal criminal proceeding in which a term of imprisonment is imposed, Scott v. Illinois, 440 U. S. 367, 373–374, but it does not apply in tribal-court proceedings, see Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 337. The Indian Civil Rights Act of 1968 (ICRA), which gov- erns tribal-court proceedings, accords a range of procedural safeguards to tribal-court defendants “similar, but not identical, to those contained in the Bill of Rights and the Fourteenth Amendment,” Santa Clara Pueblo v. Martinez, 436 U. S. 49, 57. In particular, ICRA provides indi- gent defendants with a right to appointed counsel only for sentences exceeding one year. 25 U. S. C. § 1302(c)(2). ICRA's right to counsel therefore is not coextensive with the Sixth Amendment right.

This Court has held that a conviction obtained in state or federal court in violation of a defendant's Sixth Amendment right to counsel cannot be used in a subsequent proceeding “to support guilt or enhance punishment for another offense.” Burgett v. Texas, 389 U. S. 109, 115. Use of a constitutionally infrm conviction would cause “the accused in effect [to] suffe[r] anew from the [prior] deprivation of [his] Sixth Amendment right.” Ibid. Burgett's principle was limited by the Court's holding in Nichols v. United States, 511 U. S. 738, that “an un- counseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction,” id., at 748–749.

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Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. When convicted, Bryant was indigent and was not appointed counsel. For most of his convictions, he was sentenced to terms of imprisonment not exceeding one year's duration. Because of his short prison terms, the prior tribal-court proceedings complied with ICRA, and his convictions were therefore valid when entered. Based on domestic assaults he committed in 2011, Bryant was indicted on two counts of domestic assault by a habitual offender, in violation of § 117(a). Represented in federal court by appointed counsel, he contended that the Sixth Amendment precluded use of his prior, un- counseled, tribal-court misdemeanor convictions to satisfy § 117(a)'s predicate-offense element and moved to dismiss the indictment. The District Court denied the motion; Bryant pleaded guilty, reserving the right to appeal. The Ninth Circuit reversed the conviction and directed dismissal of the indictment. It comprehended that Bryant's uncoun- seled tribal-court convictions were valid when entered because the Sixth Amendment right to counsel does not apply in tribal-court proceedings. It held, however, that Bryant's tribal-court convictions could not be used as predicate convictions within § 117(a)'s compass because they would have violated the Sixth Amendment had they been rendered in state or federal court.

Held: Because Bryant's tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a § 117(a) prosecution does not violate the Constitution.

Nichols instructs that convictions valid when entered retain that sta- tus when invoked in a subsequent proceeding. Nichols reasoned that “[e]nhancement statutes . . . do not change the penalty imposed for the earlier conviction”; rather, repeat-offender laws “penaliz[e] only the last offense committed by the defendant.” 511 U. S., at 747. Bryant's sen- tence for violating § 117(a) punishes his most recent acts of domestic assault, not his prior crimes prosecuted in tribal court. He was denied no right to counsel in tribal court, and his Sixth Amendment right was honored in federal court. Bryant acknowledges that Nichols would have allowed reliance on uncounseled tribal-court convictions resulting in fnes to satisfy § 117(a)'s prior-crimes predicate. But there is no cause to distinguish for § 117(a) purposes between fne-only tribal-court convictions and valid but uncounseled tribal-court convictions resulting in imprisonment for a term not exceeding one year. Neither violates the Sixth Amendment. Bryant is not aided by Burgett. A defendant convicted in tribal court suffered no Sixth Amendment violation in the frst instance, so he cannot “suffe[r] anew” from a prior deprivation in his federal prosecution.

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Bryant also invokes the Due Process Clause of the Fifth Amendment to support his assertion that tribal-court judgments should not be used as predicate offenses under § 117(a). ICRA, however, guarantees “due process of law,” accords other procedural safeguards, and permits a pris- oner to challenge the fundamental fairness of tribal-court proceedings in federal habeas corpus proceedings. Because proceedings in compliance with ICRA suffciently ensure the reliability of tribal-court convictions, the use of those convictions in a federal prosecution does not violate a defendant's due process right. Pp. 154–157.

769 F. 3d 671, reversed and remanded.

Ginsburg, J., delivered the opinion for a unanimous Court. Thomas,

J., fled a concurring opinion, post, p. 157.

Elizabeth B. Prelogar argued the cause for the United States. With her on the briefs were Solicitor General Ver- rilli, Assistant Attorney General Caldwell, Deputy Solici- tor General Dreeben, and Demetra Lambros.

Steven C. Babcock argued the cause for respondent. With him on the brief were Anthony R. Gallagher, Michael Don- ahoe, and Joslyn Hunt.*

Justice Ginsburg delivered the opinion of the Court. In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted 18 U. S. C. § 117(a), which targets serial offenders. Section 117(a) makes it a federal crime for any person to “commi[t] a

*Briefs of amici curiae urging reversal were fled for the National Con- gress of American Indians by Joshua M. Segal and Mark P. Gaber; for the National Indigenous Women's Resource Center et al. by Mary Kathryn Nagle; and for Dennis K. Burke et al. by Eric J. Magnuson and Katherine S. Barrett Wiik.

Briefs of amici curiae urging affrmance were fled for the Citizens Equal Rights Foundation by James J. Devine, Jr.; for Criminal Justice Organizations et al. by Gene C. Schaerr, S. Kyle Duncan, Sara B. Thomas, David J. Euchner, Mikel P. Steinfeld, Talmage E. Newton IV, Rankin Johnson IV, and Thomas E. Weaver; for the National Association of Crimi- nal Defense Lawyers et al. by Daniel L. Kaplan and Barbara E. Bergman; and for Barbara L. Creel et al. by Ms. Creel, pro se, and John P. LaVelle.

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domestic assault within . . . Indian country” if the person has at least two prior fnal convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceed- ings.” See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, §§ 901, 909, 119 Stat. 3077, 3084.1 Re- spondent Michael Bryant, Jr., has multiple tribal-court con- victions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year's duration. His tribal-court convictions do not count for § 117(a) purposes, Bryant maintains, because he was uncounseled in those proceedings.

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed. Scott v. Illinois, 440 U. S. 367, 373–374 (1979). But the Sixth Amendment does not apply to tribal-court proceedings. See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 337 (2008). The Indian Civil Rights Act of 1968 (ICRA), Pub. L. 90–284, 82 Stat. 77, 25 U. S. C. § 1301 et seq., which governs criminal proceedings in tribal courts, requires appointed counsel only when a sentence of more than one year's imposed. § 1302(c)(2). Bryant's tribal-court convictions, it is undisputed, were valid when entered. This case presents the question whether those convictions, though uncounseled, rank as predicate of- fenses within the compass of § 117(a). Our answer is yes. Bryant's tribal-court convictions did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a § 117(a) prosecution. That proceeding generates no Sixth Amendment defect where none pre- viously existed.

imprisonment

1 “Indian country” is defned in 18 U. S. C. § 1151 to encompass all land within any Indian reservation under federal jurisdiction, all dependent Indian communities, and all Indian allotments, the Indian titles to which have not been extinguished.

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UNITED STATES v. BRYANT

Opinion of the Court

“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” 151 Cong. Rec. 9061 (2005) (remarks of Sen. McCain). According to the Centers for Disease Control and Prevention, as many as 46% of American Indian and Alaska Native women have been victims of physical vio- lence by an intimate partner. Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, M. Black et al., National Intimate Partner and Sexual Violence Survey 2010 Summary Report 40 (2011) (Table 4.3), online at http://www.cdc.gov/ViolencePrevention/ pdf/NISVS_report2010-a.pdf (all Internet materials as last visited June 9, 2016). American Indian and Alaska Native women “are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general.” Dept. of Justice, Attorney General's Advisory Committee on American Indian and Alaska Native Children Exposed to Vio- lence, Ending Violence So Children Can Thrive 38 (Nov. 2014), online at https://www.justice.gov/sites/default/fles/defending childhood/pages/attachments/2015/03/23/ending_violence_ so_children_can_thrive.pdf. American Indian women expe- rience battery “at a rate of 23.2 per 1,000, compared with 8 per 1,000 among Caucasian women,” and they “experience 7 sexual assaults per 1,000, compared with 4 per 1,000 among Black Americans, 3 per 1,000 among Caucasians, 2 per 1,000 among Hispanic women, and 1 per 1,000 among Asian women.” VAWA Reauthorization Act, § 901, 119 Stat. 3077. As this Court has noted, domestic abusers exhibit high rates of recidivism, and their violence “often escalates in se- verity over time.” United States v. Castleman, 572 U. S. 157, 160 (2014). Nationwide, over 75% of female victims of intimate-partner violence have been previously victimized by the same offender, Dept. of Justice, Bureau of Justice Sta-

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tistics, S. Catalano, Intimate Partner Violence 1993–2010, p. 4 (rev. 2015) (Figure 4), online at http://www.bjs.gov/ content/pub/pdf/ipv9310.pdf, often multiple times, Dept. of Justice, National Institute of Justice, P. Tjaden & N. Thoen- nes, Extent, Nature, and Consequences of Intimate Part- ner Violence, p. iv (2000), online at https://www.ncjrs.gov/ pdffiles1/nij/181867.pdf (“[W]omen who were physically assaulted by an intimate partner averaged 6.9 physical as- saults by the same partner.”). Incidents of repeating, es- calating abuse more than occasionally culminate in a fatal attack. See VAWA Reauthorization Act, § 901, 119 Stat. 3077–3078 (“[D]uring the period 1979 through 1992, homicide was the third leading cause of death of Indian females aged 15 to 34, and 75 percent were killed by family members or acquaintances.”).

The “complex patchwork of federal, state, and tribal law” governing Indian country, Duro v. Reina, 495 U. S. 676, 680, n. 1 (1990), has made it diffcult to stem the tide of domes- tic violence experienced by Native American women. Al- though tribal courts may enforce the tribe's criminal laws against Indian defendants, Congress has curbed tribal courts' sentencing authority. At the time of § 117(a)'s pas- sage, ICRA limited sentences in tribal court to a maximum of one year's imprisonment. 25 U. S. C. § 1302(a)(7) (2006 ed.).2 Congress has since expanded tribal courts' sentenc- ing authority, allowing them to impose up to three years' imprisonment, contingent on adoption of additional pro- cedural safeguards. 124 Stat. 2279–2280 (codifed at 25 U. S. C. § 1302(a)(7)(C), (c)).3 To date, however, few tribes have employed this enhanced sentencing authority. See Tribal Law and Policy Inst., Implementation Chart: VAWA

2 Until 1986, ICRA permitted sentences of imprisonment up to only six

months. See 100 Stat. 3207–146.

3 Among the additional safeguards attending longer sentences is the un- qualifed right of an indigent defendant to appointed counsel. 25 U. S. C. § 1302(c)(1), (2).

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Enhanced Jurisdiction and TLOA Enhanced Sentencing, online at http://www.tribal-institute.org/download/VAWA/ VAWAImplementationChart.pdf.4

States are unable or unwilling to fll the enforcement gap. Most States lack jurisdiction over crimes committed in In- dian country against Indian victims. See United States v. John, 437 U. S. 634, 651 (1978). In 1953, Congress increased the potential for state action by giving six States “jurisdic- tion over specifed areas of Indian country within the States and provid[ing] for the [voluntary] assumption of jurisdiction by other States.” California v. Cabazon Band of Mission Indians, 480 U. S. 202, 207 (1987) (footnote omitted). See Act of Aug. 15, 1953, Pub. L. 280, 67 Stat. 588 (codifed, as amended, at 18 U. S. C. § 1162 and 25 U. S. C. §§ 1321–1328, 1360). States so empowered may apply their own criminal laws to “offenses committed by or against Indians within all Indian country within the State.” Cabazon Band of Mis- sion Indians, 480 U. S., at 207; see 18 U. S. C. § 1162(a). Even when capable of exercising jurisdiction, however, States have not devoted their limited criminal justice re- sources to crimes committed in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–1637 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on

4 Tribal governments generally lack criminal jurisdiction over non- Indians who commit crimes in Indian country. See Oliphant v. Suqua- mish Tribe, 435 U. S. 191, 195 (1978). In the Violence Against Women Reauthorization Act of 2013, Congress amended ICRA to authorize tribal courts to “exercise special domestic violence criminal jurisdiction” over certain domestic violence offenses committed by a non-Indian against an Indian. Pub. L. 113–4, § 904, 127 Stat. 120–122 (codifed at 25 U. S. C. § 1304). Tribal courts' exercise of this jurisdiction requires procedural safeguards similar to those required for imposing on Indian defendants sentences in excess of one year, including the unqualifed right of an indi- gent defendant to appointed counsel. See § 1304(d). We express no view on the validity of those provisions.

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Public Law 280 and the Sexual Assault of Native Women 7– 8 (2007), online at http://www.tribal-institute.org/download/ Final%20280%20FG%20Report.pdf.

That leaves the Federal Government. Although federal law generally governs in Indian country, Congress has long excluded from federal-court jurisdiction crimes committed by an Indian against another Indian. 18 U. S. C. § 1152; see Ex parte Crow Dog, 109 U. S. 556, 572 (1883) (requiring “a clear expression of the intention of Congress” to confer fed- eral jurisdiction over crimes committed by an Indian against another Indian). In the Major Crimes Act, Congress au- thorized federal jurisdiction over enumerated grave criminal offenses when the perpetrator is an Indian and the victim is “another Indian or other person,” including murder, manslaughter, and felony assault. § 1153. At the time of § 117(a)'s enactment, felony assault subject to federal prose- cution required “serious bodily injury,” § 113(a)(6) (2006 ed.), meaning “a substantial risk of death,” “extreme physical pain,” “protracted and obvious disfgurement,” or “pro- tracted loss or impairment of the function of a bodily mem- ber, organ, or mental faculty.” § 1365(h)(3) (incorporated through § 113(b)(2)).5 In short, when § 117(a) was before Congress, Indian perpetrators of domestic violence “es- cape[d] felony charges until they seriously injure[d] or kill[ed] someone.” 151 Cong. Rec. 9062 (2005) (remarks of Sen. McCain).

5 Congress has since expanded the defnition of felony assault to include “[a]ssault resulting in substantial bodily injury to a spouse[,] . . . intimate partner, [or] dating partner” and “[a]ssault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate.” Violence Against Women Reauthorization Act of 2013, § 906, 127 Stat. 124 (codifed at 18 U. S. C. § 113(a)(7), (8)). The “substantial bodily injury” requirement remains diffcult to satisfy, as it requires “a temporary but substantial disfgurement” or “a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty.” § 113(b)(1).

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As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of § 117(a), faced at most a year's imprisonment per offense—a sentence insuffcient to deter repeated and escalating abuse. To ratchet up the pun- ishment of serial offenders, Congress created the federal fel- ony offense of domestic assault in Indian country by a habit- ual offender. § 117(a); see 792 F. 3d 1042, 1045 (2015) (Owens, J., dissenting from denial of rehearing en banc) (“Tailored to the unique problems . . . that American Indian and Alaska Native Tribes face, § 117(a) provides felony-level punishment for serial domestic violence offenders, and it rep- resents the frst true effort to remove these recidivists from the communities that they repeatedly terrorize.”). The sec- tion provides in pertinent part:

“Any person who commits a domestic assault within . . . Indian country and who has a fnal 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 any assault, sexual abuse, or serious violent felony against a spouse or inti- mate partner . . . shall be fned . . . , imprisoned for a term of not more than 5 years, or both . . . .” § 117(a)(1).6

Having two prior convictions for domestic violence crimes— including tribal-court convictions—is thus a predicate of the new offense.

This case requires us to determine whether § 117(a)'s inclu- sion of tribal-court convictions is compatible with the Sixth

6 Section 117(a) has since been amended to include as qualifying predi- cate offenses, in addition to intimate-partner crimes, “assault, sexual abuse, [and] serious violent felony” offenses committed “against a child of or in the care of the person committing the domestic assault.” 18 U. S. C. § 117(a) (2012 ed., Supp. II).

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Amendment's right to counsel. The Sixth Amendment to the U. S. Constitution guarantees a criminal defendant in state or federal court “the Assistance of Counsel for his de- fence.” See Gideon v. Wainwright, 372 U. S. 335, 339 (1963). This right, we have held, requires appointment of counsel for indigent defendants whenever a sentence of imprisonment is imposed. Argersinger v. Hamlin, 407 U. S. 25, 37 (1972). But an indigent defendant has no constitutional right to ap- pointed counsel if his conviction results in a fne or other noncustodial punishment. Scott, 440 U. S., at 373–374.

“As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifcally as limita- tions on federal or state authority.” Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978). The Bill of Rights, includ- ing the Sixth Amendment right to counsel, therefore, does not apply in tribal-court proceedings. See Plains Com- merce Bank, 554 U. S., at 337.

In ICRA, however, Congress accorded a range of proce- dural safeguards to tribal-court defendants “similar, but not identical, to those contained in the Bill of Rights and the Fourteenth Amendment.” Martinez, 436 U. S., at 57; see id., at 62–63 (ICRA “modifed the safeguards of the Bill of Rights to ft the unique political, cultural, and economic needs of tribal governments”). In addition to other enumer- ated protections, ICRA guarantees “due process of law,” 25 U. S. C. § 1302(a)(8), and allows tribal-court defendants to seek habeas corpus review in federal court to test the legal- ity of their imprisonment, § 1303.

The right to counsel under ICRA is not coextensive with the Sixth Amendment right. If a tribal court imposes a sen- tence in excess of one year, ICRA requires the court to ac- cord the defendant “the right to effective assistance of coun- sel at least equal to that guaranteed by the United States Constitution,” including appointment of counsel for an indi- gent defendant at the tribe's expense. § 1302(c)(1), (2). If

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the sentence imposed is no greater than one year, however, the tribal court must allow a defendant only the opportunity to obtain counsel “at his own expense.” § 1302(a)(6). In tribal court, therefore, unlike in federal or state court, a sen- tence of imprisonment up to one year may be imposed with- out according indigent defendants the right to appointed counsel.

The question here presented: Is it permissible to use un- counseled tribal-court convictions—obtained in full compli- ance with ICRA—to establish the prior-crimes predicate of § 117(a)? It is undisputed that a conviction obtained in vio- lation of a defendant's Sixth Amendment right to counsel cannot be used in a subsequent proceeding “either to support guilt or enhance punishment for another offense.” Burgett v. Texas, 389 U. S. 109, 115 (1967). In Burgett, we held that an uncounseled felony conviction obtained in state court in violation of the right to counsel could not be used in a subse- quent proceeding to prove the prior-felony element of a recidivist statute. To permit such use of a constitutionally infrm conviction, we explained, would cause “the accused in effect [to] suffe[r] anew from the [prior] deprivation of [his] Sixth Amendment right.” Ibid.; see United States v. Tucker, 404 U. S. 443, 448 (1972) (invalid, uncounseled prior convictions could not be relied upon at sentencing to impose a longer term of imprisonment for a subsequent conviction); cf. Loper v. Beto, 405 U. S. 473, 483–484 (1972) (plurality opinion) (“use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant's credibility deprives him of due process of law” because the prior convic- tions “lac[k] reliability”).

In Nichols v. United States, 511 U. S. 738 (1994), we stated an important limitation on the principle recognized in Bur- gett. In the case under review, Nichols pleaded guilty to a federal felony drug offense. 511 U. S., at 740. Several years earlier, unrepresented by counsel, he had been con- victed of driving under the infuence (DUI), a state-law mis-

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demeanor, and fned $250 but not imprisoned. Ibid. Nich- ols' DUI conviction, under the then-mandatory Sentencing Guidelines, effectively elevated by about two years the sen- tencing range for Nichols' federal drug offense. Ibid. We rejected Nichols' contention that, as his later sentence for the federal drug offense involved imprisonment, use of his uncounseled DUI conviction to elevate that sentence violated the Sixth Amendment. Id., at 746–747. “[C]onsistent with the Sixth and Fourteenth Amendments of the Constitution,” we held, “an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent con- viction.” Id., at 748–749.

Respondent Bryant's conduct is illustrative of the domestic violence problem existing in Indian country. During the pe- riod relevant to this case, Bryant, an enrolled member of the Northern Cheyenne Tribe, lived on that Tribe's reservation in Montana. He has a record of over 100 tribal-court convic- tions, including several misdemeanor convictions for domes- tic assault. Specifcally, between 1997 and 2007, Bryant pleaded guilty on at least fve occasions in Northern Chey- enne Tribal Court to committing domestic abuse in violation of the Northern Cheyenne Tribal Code. On one occasion, Bryant hit his live-in girlfriend on the head with a beer bot- tle and attempted to strangle her. On another, Bryant beat a different girlfriend, kneeing her in the face, breaking her nose, and leaving her bruised and bloodied.

For most of Bryant's repeated brutal acts of domestic vio- lence, the Tribal Court sentenced him to terms of imprison- ment, never exceeding one year. When convicted of these offenses, Bryant was indigent and was not appointed counsel. Because of his short prison terms, Bryant acknowledges, the prior tribal-court proceedings complied with ICRA, and his convictions were therefore valid when entered. Bryant has

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never challenged his tribal-court convictions in federal court under ICRA's habeas corpus provision.

In 2011, Bryant was arrested yet again for assaulting women. In February of that year, Bryant attacked his then girlfriend, dragging her off the bed, pulling her hair, and repeatedly punching and kicking her. During an interview with law enforcement offcers, Bryant admitted that he had physically assaulted this woman fve or six times. Three months later, he assaulted another woman with whom he was then living, waking her by yelling that he could not fnd his truck keys and then choking her until she almost lost con- sciousness. Bryant later stated that he had assaulted this victim on three separate occasions during the two months they dated.

Based on the 2011 assaults, a federal grand jury in Mon- tana indicted Bryant on two counts of domestic assault by a habitual offender, in violation of § 117(a). Bryant was repre- sented in federal court by appointed counsel. Contending that the Sixth Amendment precluded use of his prior, un- counseled, tribal-court misdemeanor convictions to satisfy § 117(a)'s predicate-offense element, Bryant moved to dismiss the indictment. The District Court denied the motion, App. to Pet. for Cert. 32a, and Bryant entered a conditional guilty plea, reserving the right to appeal that decision. Bryant was sentenced to concurrent terms of 46 months' imprison- ment on each count, to be followed by three years of super- vised release.

The Court of Appeals for the Ninth Circuit reversed the conviction and directed dismissal of the indictment. 769 F. 3d 671 (2014). Bryant's tribal-court convictions were not themselves constitutionally infrm, the Ninth Circuit compre- hended, because “the Sixth Amendment right to appointed counsel does not apply in tribal court proceedings.” Id., at 675. But, the court continued, had the convictions been ob- tained in state or federal court, they would have violated the Sixth Amendment because Bryant had received sentences of

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imprisonment although he lacked the aid of appointed coun- sel. Adhering to its prior decision in United States v. Ant, 882 F. 2d 1389 (CA9 1989),7 the Court of Appeals held that, subject to narrow exceptions not relevant here, “tribal court convictions may be used in subsequent [federal] prosecutions only if the tribal court guarantees a right to counsel that is, at minimum, coextensive with the Sixth Amendment right.” 769 F. 3d, at 677. Rejecting the Government's argument that our decision in Nichols required the opposite result, the Ninth Circuit concluded that Nichols applies only when the prior conviction did comport with the Sixth Amendment, i. e., when no sentence of imprisonment was imposed for the prior conviction. 769 F. 3d, at 677–678.

Judge Watford concurred, agreeing that Ant controlled the outcome of this case, but urging reexamination of Ant in light of Nichols. 769 F. 3d, at 679. This Court's decision in Nichols, Judge Watford wrote, “undermines the notion that uncounseled convictions are, as a categorical matter, too un- reliable to be used as a basis for imposing a prison sentence in a subsequent case.” 769 F. 3d, at 679. The Court of Ap- peals declined to rehear the case en banc over vigorous dis- sents by Judges Owens and O'Scannlain.

In disallowing the use of an uncounseled tribal-court con- viction to establish a prior domestic violence conviction within § 117(a)'s compass, the Ninth Circuit created a Circuit split. The Eighth and Tenth Circuits have both held that tribal-court “convictions, valid at their inception, and not al- leged to be otherwise unreliable, may be used to prove the elements of § 117.” United States v. Cavanaugh, 643 F. 3d

7 In United States v. Ant, 882 F. 2d 1389 (1989), the Ninth Circuit pro- scribed the use of an uncounseled tribal-court guilty plea as evidence of guilt in a subsequent federal prosecution arising out of the same incident. Use of the plea was impermissible, the Court of Appeals reasoned, “be- cause the tribal court guilty plea was made under circumstances which would have violated the United States Constitution were it applicable to tribal proceedings.” Id., at 1390.

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592, 594 (CA8 2011); see United States v. Shavanaux, 647 F. 3d 993, 1000 (CA10 2011). To resolve this disagreement, we granted certiorari, 577 U. S. 1048 (2016), and now reverse.

Bryant's tribal-court convictions, he recognizes, infringed no constitutional right because the Sixth Amendment does not apply to tribal-court proceedings. Brief for Respond- ent 5. Those prior convictions complied with ICRA, he concedes, and therefore were valid when entered. But, had his convictions occurred in state or federal court, Bryant observes, Argersinger and Scott would have rendered them invalid because he was sentenced to incarceration with- out representation by court-appointed counsel. Essen- tially, Bryant urges us to treat tribal-court convictions, for § 117(a) purposes, as though they had been entered by a federal or state court. We next explain why we decline to do so.

As earlier recounted, we held in Nichols that “an uncoun- seled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.” 511 U. S., at 749. “Enhancement statutes,” we reasoned, “do not change the penalty imposed for the earlier conviction”; rather, repeat-offender laws “penaliz[e] only the last offense com- mitted by the defendant.” Id., at 747; see United States v. Rodriquez, 553 U. S. 377, 386 (2008) (“When a defendant is given a higher sentence under a recidivism statute . . . 100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant's `status as a recidi- vist.' ”). Nichols thus instructs that convictions valid when entered—that is, those that, when rendered, did not violate the Constitution—retain that status when invoked in a sub- sequent proceeding.

Nichols' reasoning steers the result here. Bryant's 46- month sentence for violating § 117(a) punishes his most re- cent acts of domestic assault, not his prior crimes prosecuted

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in tribal court. Bryant was denied no right to counsel in tribal court, and his Sixth Amendment right was honored in federal court, when he was “adjudicated guilty of the felony offense for which he was imprisoned.” Alabama v. Shelton, 535 U. S. 654, 664 (2002). It would be “odd to say that a conviction untainted by a violation of the Sixth Amendment triggers a violation of that same amendment when it's used in a subsequent case where the defendant's right to ap- pointed counsel is fully respected.” 769 F. 3d, at 679 (Wat- ford, J., concurring).8

Bryant acknowledges that had he been punished only by fnes in his tribal-court proceedings, Nichols would have al- lowed reliance on his uncounseled convictions to satisfy § 117(a)'s prior-crimes predicate. Brief for Respondent 50. We see no cause to distinguish for § 117(a) purposes between valid but uncounseled convictions resulting in a fne and valid but uncounseled convictions resulting in imprisonment not exceeding one year. “Both Nichols's and Bryant's un- counseled convictions `comport' with the Sixth Amendment, and for the same reason: the Sixth Amendment right to ap- pointed counsel did not apply to either conviction.” 792 F. 3d, at 1048 (O'Scannlain, J., dissenting from denial of rehear- ing en banc).

In keeping with Nichols, we resist creating a “hybrid” cat- egory of tribal-court convictions, “good for the punishment actually imposed but not available for sentence enhancement

8 True, as Bryant points out, we based our decision in Nichols v. United States, 511 U. S. 738, 747 (1994), in part on the “less exacting” nature of sentencing, compared with the heightened burden of proof required for determining guilt. But, in describing the rule we adopted, we said that it encompasses both “criminal history provisions,” applicable at sentenc- ing, and “recidivist statutes,” of which § 117(a) is one. Ibid. Moreover, Nichols' two primary rationales—the validity of the prior conviction and the sentence's punishment of “only the last offense”—do not rely on a distinction between guilt adjudication and sentencing. Indeed, it is the validity of the prior conviction that distinguishes Nichols from United States v. Tucker, 404 U. S. 443, 448 (1972), in which we found impermissible the use at sentencing of an invalid, uncounseled prior conviction.

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in a later prosecution.” 511 U. S., at 744. Nichols indicates that use of Bryant's uncounseled tribal-court convictions in his § 117(a) prosecution did not “transform his prior, valid, tribal court convictions into new, invalid, federal ones.” 792 F. 3d, at 1048 (opinion of O'Scannlain, J.).

Our decision in Burgett, which prohibited the subsequent use of a conviction obtained in violation of the right to coun- sel, does not aid Bryant. Reliance on an invalid conviction, Burgett reasoned, would cause the accused to “suffe[r] anew from the deprivation of [his] Sixth Amendment right.” 389 U. S., at 115. Because a defendant convicted in tribal court suffers no Sixth Amendment violation in the frst instance, “[u]se of tribal convictions in a subsequent prosecution cannot violate [the Sixth Amendment] `anew.' ” Shavanaux, 647 F. 3d, at 998.

Bryant observes that reliability concerns underlie our right-to-counsel decisions and urges that those concerns re- main even if the Sixth Amendment itself does not shelter him. Scott and Nichols, however, counter the argument that uncounseled misdemeanor convictions are categorically unreliable, either in their own right or for use in a subse- quent proceeding. Bryant's recognition that a tribal-court conviction resulting in a fne would qualify as a § 117(a) pred- icate offense, we further note, diminishes the force of his reliability-based argument. There is no reason to suppose that tribal-court proceedings are less reliable when a sen- tence of a year's imprisonment is imposed than when the punishment is merely a fne. No evidentiary or procedural variation turns on the sanction—fne only or a year in prison—ultimately imposed.

Bryant also invokes the Due Process Clause of the Fifth Amendment in support of his assertion that tribal-court judgments should not be used as predicate offenses. But, as earlier observed, ICRA itself requires tribes to ensure “due process of law,” § 1302(a)(8), and it accords defendants specifc procedural safeguards resembling those contained in

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the Bill of Rights and the Fourteenth Amendment. See supra, at 149. Further, ICRA makes habeas review in fed- eral court available to persons incarcerated pursuant to a tribal-court judgment. § 1303. By that means, a prisoner may challenge the fundamental fairness of the proceedings in tribal court. Proceedings in compliance with ICRA, Con- gress determined, and we agree, suffciently ensure the relia- bility of tribal-court convictions. Therefore, the use of those convictions in a federal prosecution does not violate a de- fendant's right to due process. See Shavanaux, 647 F. 3d, at 1000; cf. State v. Spotted Eagle, 316 Mont. 370, 378–379, 71 P. 3d 1239, 1245–1246 (2003) (principles of comity support recognizing uncounseled tribal-court convictions that com- plied with ICRA).

Because Bryant's tribal-court convictions occurred in pro- ceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a § 117(a) prosecution does not violate the Constitution. We accordingly reverse the judgment of the Court of Ap- peals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas, concurring. The Court holds that neither the Sixth Amendment nor the Fifth Amendment's Due Process Clause prohibits the Government from using Michael Bryant's uncounseled tribal- court convictions as predicates for the federal crime of com- mitting a domestic assault within Indian country. Ante, at 157; see 18 U. S. C. § 117(a) (making it a federal crime to “commi[t] a domestic assault within . . . Indian country” if the person “has a fnal conviction on at least 2 separate prior occasions in . . . Indian tribal court proceedings” for domestic assault and similar crimes). Because our precedents dictate that holding, I join the Court's opinion.

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The fact that this case arose at all, however, illustrates how far afeld our Sixth Amendment and Indian-law prece- dents have gone. Three basic assumptions underlie this case: that the Sixth Amendment ordinarily bars the Govern- ment from introducing, in a later proceeding, convictions ob- tained in violation of the right to counsel, ante, at 150; that tribes' retained sovereignty entitles them to prosecute tribal members in proceedings that are not subject to the Constitu- tion, ante, at 149; and that Congress can punish assaults that tribal members commit against each other on Indian land, ante, at 147–148. Although our precedents have endorsed these assumptions for decades, the Court has never identifed a sound constitutional basis for any of them, and I see none. Start with the notion that the Sixth Amendment generally prohibits the government from using a prior, uncounseled conviction obtained in violation of the right to counsel as a predicate for a new offense in a new proceeding. Ante, at 150. All that the text of the Sixth Amendment requires in a criminal prosecution is that the accused enjoy the “[a]ssist- ance of [c]ounsel” in that proceeding. The Court was likely wrong in Burgett v. Texas, 389 U. S. 109 (1967), when it cre- ated a Sixth Amendment “exclusionary rule” that prohibits the government from using prior convictions obtained in vio- lation of the right to counsel in subsequent proceedings to avoid “erod[ing] the principle” of the right to counsel. Id., at 115. I would be open to reconsidering Burgett in a fu- ture case.

The remaining two assumptions underpinning this case ex- emplify a central tension within our Indian-law jurispru- dence. On the one hand, the only reason why tribal courts had the power to convict Bryant in proceedings where he had no right to counsel is that such prosecutions are a function of a tribe's core sovereignty. See United States v. Lara, 541 U. S. 193, 197 (2004); United States v. Wheeler, 435 U. S. 313, 318, 322–323 (1978). By virtue of tribes' status as “ `sepa- rate sovereigns pre-existing the Constitution,' ” tribal prose-

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cutions need not, under our precedents, comply with “ `those constitutional provisions framed specifcally as limitations on federal or state authority.' ” Ante, at 149 (quoting Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978)).

On the other hand, the validity of Bryant's ensuing federal conviction rests upon a contrary view of tribal sovereignty. Congress ordinarily lacks authority to enact a general fed- eral criminal law proscribing domestic abuse. See United States v. Morrison, 529 U. S. 598, 610–613 (2000). But, the Court suggests, Congress must intervene on reservations to ensure that prolifc domestic abusers receive suffcient pun- ishment. See ante, at 145–147. The Court does not explain where Congress' power to act comes from, but our prece- dents leave no doubt on this score. Congress could make Bryant's domestic assaults a federal crime subject to federal prosecution only because our precedents have endowed Con- gress with an “all-encompassing” power over all aspects of tribal sovereignty. Wheeler, supra, at 319. Thus, even though tribal prosecutions of tribal members are purport- edly the apex of tribal sovereignty, Congress can second- guess how tribes prosecute domestic abuse perpetrated by Indians against other Indians on Indian land by virtue of its “plenary power” over Indian tribes. See United States v. Kagama, 118 U. S. 375, 382–384 (1886); accord, Lara, 541 U. S., at 200.

I continue to doubt whether either view of tribal sover- eignty is correct. See id., at 215 (Thomas, J., concurring in judgment). Indian tribes have varied origins, discrete trea- ties with the United States, and different patterns of assimi- lation and conquest. In light of the tribes' distinct histories, it strains credulity to assume that all tribes necessarily re- tained the sovereign prerogative of prosecuting their own members. And by treating all tribes as possessing an iden- tical quantum of sovereignty, the Court's precedents have made it all but impossible to understand the ultimate source of each tribe's sovereignty and whether it endures. See

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Prakash, Against Tribal Fungibility, 89 Cornell L. Rev. 1069, 1070–1074, 1107–1110 (2004).

Congress' purported plenary power over Indian tribes rests on even shakier foundations. No enumerated power— not Congress' power to “regulate Commerce . . . with Indian Tribes,” not the Senate's role in approving treaties, nor any- thing else—gives Congress such sweeping authority. See Lara, supra, at 224–225 (Thomas, J., concurring in judg- ment); Adoptive Couple v. Baby Girl, 570 U. S. 637, 659–665 (2013) (Thomas, J., concurring). Indeed, the Court created this new power because it was unable to fnd an enumerated power justifying the federal Major Crimes Act, which for the frst time punished crimes committed by Indians against Indians on Indian land. See Kagama, supra, at 377–380; cf. ante, at 147. The Court asserted: “The power of the Gen- eral Government over these remnants of a race once power- ful, now weak and diminished in numbers, is necessary to their protection . . . . It must exist in that government, because it has never existed anywhere else.” Kagama, supra, at 384. Over a century later, Kagama endures as the foundation of this doctrine, and the Court has searched in vain for any valid constitutional justifcation for this unfet- tered power. See, e. g., Lone Wolf v. Hitchcock, 187 U. S. 553, 566–567 (1903) (relying on Kagama's race-based plenary power theory); Winton v. Amos, 255 U. S. 373, 391–392 (1921) (Congress' “plenary authority” is based on Indians' “condi- tion of tutelage or dependency”); Wheeler, supra, at 319 (Winton and Lone Wolf illustrate the “undisputed fact that Congress has plenary authority” over tribes); Lara, supra, at 224 (Thomas, J., concurring in judgment) (“The Court ut- terly fails to fnd any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty”).

It is time that the Court reconsider these precedents. Until the Court ceases treating all Indian tribes as an undif- ferentiated mass, our case law will remain bedeviled by amorphous and ahistorical assumptions about the scope of

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tribal sovereignty. And, until the Court rejects the fction that Congress possesses plenary power over Indian affairs, our precedents will continue to be based on the paternalistic theory that Congress must assume all-encompassing control over the “remnants of a race” for its own good. Kagama, supra, at 384.