Federal Court Dismisses Indictment in Indian Country Domestic Violence; Questions Constitutionality of Statute

Here is United States v. Cavanaugh (D. N.D.), where the court dismissed an indictment under the federal domestic violence by a habitual offender in Indian Country statute (18 U.S.C. 117), holding that the use of prior uncounseled tribal court D.V. convictions to establish the “habitual” element of the crime was unconstitutional. See my paper on how state courts should use, if at all, uncounseled tribal court convictions. The court rejected claims that the statute itself was unconstitutional under Morrison and Lopez.

Here are the materials:

Cavanaugh DCT Order on Motion to Dismiss

Cavanaugh Motion to Dismiss

US Opposition to Cavanaugh Motion to Dismiss

Cavanaugh Reply Brief

Incidentally, the defendant is represented by Alex Reichart, the very same litigator who argued himself into a hole in United States v. Lara. And the government is represented by the same AUSA, Janice Morley. AND the parallel tribal court cases are out of the Spirit Lake Tribal Court, where I believe the tribal prosecutor in Lara was (and may still be) Michelle Rivard Parks. See my paper on Lara for their post-Lara argument interactions.

4 thoughts on “Federal Court Dismisses Indictment in Indian Country Domestic Violence; Questions Constitutionality of Statute

  1. Jim Del Duca January 5, 2010 / 1:09 pm

    Friends, this situation reminds me of Alabama in the ’60’s. Crooked cops, judges, and goverments protecting the violent crimnals. The difference is that the crimes are Native on Native, with the crooks hiding behind Tribal Sovereignty and Martinez vs. Santa Clara Pueblo…. Progress only came in the South when activists gave up investing fruitlessly in court cases and resorted to direct action.

    You lawyers must believe in the system or you wouldn’t be lawyers, but I challenge you attorneys to explain how the people will ever have justice from such a corrupt system. It will take energetic and resolute direct action to get results, and then the Law will gradually fall in line. Don’t forget the Alabama struggle!

    In Solidarity,
    Jim Del Duca, Delagate
    Industrial Workers of the World (IWW)

  2. Brent Leonhard January 5, 2010 / 1:15 pm

    I hope this is appealed. From what I understand, the court essentially holds that a prosecutor can’t introduce evidence obtained in violation of the US Constitution to prove an essential element of the crime. No doubt that’s true. However, that isn’t what happened.

    The prosecutor introduced evidence that was obtained in a situation where the US Constitution didn’t apply – namely, tribal court convictions. There is no evidence that ICRA, which did apply, was violated in the prior convictions. Furthermore, as I understand it, the silver platter doctrine in Lustig allows for introduction of evidence obtained in this kind of situation (where a given constitutional provision didn’t apply, but had it applied it would have been obtained in violation of the constitution). While Lustig was practicably overruled in Elkins, that was because Elkins recognized that the fourth amendment applied to state officials for searches and seizures via the court’s decision in Wolf v. Colorado – it didn’t overrule the underlying principle of the silver platter doctrine (which is still alive and well in state courts). While Lustig involved evidence that would have been obtained in violation of the fourth amendment and the exclusionary rule, I don’t understand why the silver platter doctrine wouldn’t apply to evidence that would have been obtained in violation the fifth amendment and due process/Gideon rights.

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