Here.
Author: Matthew L.M. Fletcher
Fletcher on ICWA at Cato Unbound
Here is “Limit Government Intrusion in Indian Families’ Lives.” This essay is part of a series of online essays at Cato Unbound on the Indian Child Welfare Act.
Excerpts:
The Indian Child Welfare Act (ICWA) restricts government intervention in Indian families’ lives, imposes important obligations on the government that benefit both children and parents when it does interfere, and limits the ease by which private entities profit from government action.
And:
Alexandria P. is a story of how foster parents created an adversarial relationship with a child’s family, disregarding the goal of reunification, and then created a perfect storm of anti-Indian media sentiment when they lost. Some facts should be made clear, in case they are not: Lexi knew and regularly visited her Utah family – her sisters and her aunt and uncle – and she always knew she was a foster child. From the beginning, the California foster couple was the only party to contest Lexi’s placement with her relatives. The state of California, the Choctaw Nation, her relatives, her father, and Lexi’s own counsel all agreed that the placement with her relatives was absolutely in her best interest. Not once did any court disagree.
Finally:
Casual racism against American Indians is alive and well. In this hostile racial climate, it shouldn’t be surprising that Indian parents in South Dakota argue that “there’s this collective belief that Native people can’t take care of their own children.” The critique that ICWA improperly routes Indian children to their relatives’ homes instead of non-Indian homes is a critique that takes advantage of racial animus against Indian people and comes dangerously close to an allegation that Indian parents and tribal communities are inherently inferior (others have outright denounced the Goldwater Institute’s goals for this reason). Indian people love their children the same as everyone else. ICWA, the gold standard in child welfare, is there to support Indian families against governments that too often devalue them.
Texas COA Reinstates State Court Jurisdiction over Indian Child Custody Dispute
Here is the opinion in Villarreal v. Villarreal (Tex. Ct. App.):
Ninth Circuit Affirms Indian Country Conviction for Strangulation (VAWA)
Here is the opinion in United States v. Lamott.
Briefs:
An excerpt:
In 2013, Congress added the offense of assault by strangulation to the federal assault statute, 18 U.S.C. § 113. The following year a jury convicted Jordan Lamott under this provision for nonfatally strangling his girlfriend. We must decide whether the jury was properly instructed to disregard Lamott’s voluntary intoxication, which requires us to determine whether § 113(a)(8) is a general or specific intent crime. We also must decide whether the court’s instruction to the jury on assault by strangulation violated Lamott’s due process rights. We hold that assault by strangulation under § 113(a)(8) is a general intent crime, and Lamott’s intoxication was therefore irrelevant. We find no plain error in the court’s instruction on the elements of the offense. Accordingly, we affirm Lamott’s conviction.
A lengthier excerpt:
Violence against Native American women in Indian Country has reached alarming rates in the past few decades. See United States v. Bryant, 136 S. Ct. 1954, 1959 (2016). Recent studies suggest that Native American women experience certain violent crimes at two and a half times the national average. Id. (citing Dept. of Justice, Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence, Ending Violence So Children Can Thrive 38 (Nov. 2014)). Particularly pervasive among violent crime is nonfatal strangulation by domestic partners. See Nancy Glass et al., Non-Fatal Strangulation Is an Important Risk Factor for Homicide of Women, 35 J. Emergency Med. 329, 333 (2008).
Nearly half of domestic violence victims report being choked. Id. at 330, 333. Recent studies show that although nonfatal strangulation often leaves few visible signs of injury, it can cause severe physical, neurological, and psychological complications and often forebodes future domestic homicide. See Donald J. Smith, Jr. et al., Frequency and Relationship of Reported Symptomology in Victims of Intimate Partner Violence: The Effect of Multiple Strangulation Attacks, 21 J. Emergency Med. 323, 327–28 (2001); see also Glass, supra, at 329–33 (concluding that women who have been nonfatally strangled are over seven times more likely to become a victim of homicide with the same partner). The recent increased focus on the dangers of nonfatal strangulation confirms what “[s]urvivors of non-fatal strangulation have known for years”: “Many domestic violence offenders and rapists do not strangle their partners to kill them; they strangle them to let them know they can kill them—any time they wish.” Casey Gwinn, Strangulation and the Law, in The Investigation and Prosecution of Strangulation Cases 5, 5 (2013).
These concerns helped motivate the reauthorization in 2013 of the Violence Against Women Act (VAWA). 159 Cong. Rec. S480-02, S488 (daily ed. Feb. 7, 2013) (statement of Sen. Udall). In relevant part, the Act amended the federal assault statute to add a provision directed toward victims of nonfatal strangulation by a domestic partner. Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat. 54. The newly added section (a)(8) criminalizes “[a]ssault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate.” 18 U.S.C. § 113(a)(8).
Ninth Circuit Reverses Major Crimes Act Conviction on Indian Status Grounds
Here is the opinion in United States v. Alvirez.
The court’s syllabus:
The panel reversed a conviction for assault resulting in serious bodily injury on an Indian reservation, in violation of 18 U.S.C. §§ 1153 and 113(a)(6), and remanded.
The panel held that the district court abused its discretion when it determined that a Certificate of Indian Blood offered into evidence by the government in order to establish Indian status, an essential element of § 1153, was a self-authenticating document under Fed. R. Evid. 902(1). The panel held that this error was not harmless.
The panel held that the district court did not abuse its discretion in denying the defendant’s motion in limine to exclude references to polygraph evidence, where the defendant, who elected not to present his multiple-interrogation defense as a legal strategy, was not denied the opportunity to present his defense.
The panel held that the district court cannot show plain error in the district court’s application of enhancement under U.S.S.G. § 2A2.2 for infliction of permanent or life-threatening injury.
The panel held that double jeopardy does not bar retrial after reversal in this case because the erroneously-admitted Certificate of Indian Blood was nevertheless sufficient evidence to support the conviction.
Briefs here.
Federal Court Enjoins North Dakota Voter ID Law
Here is the opinion in Brakebill v. Jaeger (D.N.D.):
Doc. 50 Order Granting Plaintiff’s Motion for Preliminary Injunction
Prior materials here.
NARF press release here.
NYTs coverage here.
Union Action against Shingle Springs Proceeds
Here are the pleadings so far in UNITE HERE International Union v. Shingle Springs Band of Miwok Indians (E.D. Cal.):
Ninth Circuit Reverses Major Crimes Act Conviction for Crime Arising on Navajo
Here is the opinion in United States v. Benally.
An excerpt:
Joe Arviso Benally appeals a jury conviction for involuntary manslaughter under 18 U.S.C. §§ 1112 and 1153 and for using a firearm in connection with a “crime of violence” under 18 U.S.C. § 924(c). In a separate unpublished memorandum disposition, we address Benally’s challenge to the trial proceedings and sentence. In this opinion, we address whether involuntary manslaughter can be considered a “crime of violence” under § 924(c). We hold that involuntary manslaughter is not a “crime of violence” and reverse the § 924(c) count of conviction.
538: “Clinton And Trump Are Both Promising An Extreme Supreme Court”
Here.
Second Circuit Briefs in Challenge to New York Oneida Trust Land Acquisition
Here are the briefs in Central New York Fair Business Assn. v. Jewell:
Lower court materials here.
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