Well, it’s complicated. Colville has not reinstated the death penalty in accordance with the Federal Death Penalty Act, which removes capital murder from the Major Crimes Act unless the tribe “reinstates” it. But apparently a split panel of the Ninth Circuit held (and holds) that federal prosecutors can still pursue the crime of capital murder under the Major Crimes Act, they just can’t impose the death penalty. And the CA9 panel majority says that therefore the 5-year statute of limitations for capital crimes is therefore waived. Interesting. Here is the opinion (and the earlier opinion).
The majority panel writes:
If we were to limit the federal statute of limitations for murder to five years when a tribe has not opted to permit imposition of the death penalty against its members under the Federal Death Penalty Act, we would in fact be limiting sovereignty by burdening the choice created by the Act. “[T]here is typically no statute of limitations for first-degree murder — for the obvious reason that it would be intolerable to let a cold-blooded murderer escape justice through the mere passage of time . . . .” United States v. Quinones, 196 F. Supp. 2d 416, 418 (S.D.N.Y. 2002), rev’d on other grounds, 313 F.3d 49 (2d Cir. 2002); see also Story v. State, 721 P.2d 1020, 1026-27 (Wyo. 1986) (stating that no state has adopted a limitations period for murder). If the statute of limitations for murder were to shorten so dramatically as a consequence of a tribe’s decision not to reinstate the death penalty, tribal governments would be forced to choose between capital punishment — to which they may have religious or political objections — and justice for the most heinous of crimes.
Judge Tashima disagreed:
In my view, the Federal Death Penalty Act removes first degree murder committed within the boundaries of “Indian country” from the realm of offenses punishable by death and delegates to the tribes the authority to determine the availability of the death penalty. See 18 U.S.C. § 3598. The Confederated Tribes of the Colville Reservation has not elected to make the death penalty available for first degree murder on the Colville Reservation. Thus, capital punishment has been clearly eliminated for the crime for which Gallaher was indicted. Because Gallaher has not been indicted for an “offense punishable by death,” see 18 U.S.C. § 3281, the five year statute of limitations applies, see 18 U.S.C. § 3282.
The next step is a petition for en banc review.
Turtle Talk 