This unexceptional habeas case (I don’t think the government even responded) highlights an interesting question, one in which I assume there is not a circuit split yet. But it is a bit odd.
The habeas petitioner alleged that the United States hadn’t sufficiently proved that the victim and defendant were Indians, as required under the Major Crimes Act, an argument that hadn’t been raised below. It should have been waived under regular habeas rules. The court in footnote 2 notes that such a question would seem to suggest that perhaps the government hadn’t sufficiently proved subject matter jurisdiction, a question that cannot be waived. However, citing non-Major Crimes Act cases, the court concluded that it did not go toward jurisdiction, but as to the elements of the crime.
I wonder if there have been other Major Crimes Act habeas cases like this. If this one came out the other way, it might be that much harder for federal prosecutors to work in Indian Country.
Turtle Talk 