Colorado Federal Court Refuses to Accept Plea Deal for Lesser Included Offense in Major Crimes Act Prosecution

Here are the materials in United States v. English (D. Colo.):

1 Indictment

33 Joint Memorandum in Support of Plea Agreement

36 Magistrate Minute Order: “This Court does not have jurisdiction over the charge in the proposed Plea Agreement. . . .”

37 Government Objection

39 English Objection

41 DCT Order

An excerpt:

The Major Crimes Act represents one way in which Congress has permitted federal courts to exercise jurisdiction over crimes occurring on tribal lands which otherwise would be subject to the exclusive jurisdiction of the tribal courts. Now codified at 18 U.S.C. § 1153, the Act gives federal courts exclusive federal jurisdiction over certain enumerated felonies occurring between Indians in Indian Country, including, specifically, “a felony assault under section 113.” 18 U.S.C.A. § 1153(a). See also United States v. Burch, 169 F.3d 666, 669 (10th Cir. 1999). Prosecution of crimes not expressly designated in section 1153, including, specifically, simple assault – is reserved to the tribal courts, in recognition of their inherent sovereignty over such matters. United States v. Antelope, 430 U.S. 641, 643 n.1, 97 S.Ct. 1395, 1397 n.1, 51 L.Ed.2d 701 (1977); United States v. Quiver, 241 U.S. 602, 700-01, 36 S.Ct. 699, 605-06, 60 L.Ed. 1196 (1916); United States v. Burch, 169 F.3d 666, 668-69 (10thCir. 1999). See also United States v. Lara, 541 U.S. 193, 199, 124 S.Ct. 1628, 1632-33, 158 L.Ed.2d 420 (2004) (“[25 U.S.C. § 1301] says that it ‘recognize[s] and affirm[s]’ in each tribe the ‘inherent’ tribal power … to prosecute nonmember Indians for misdemeanors.”).

Student Note on the Exclusionary Rule and the Indian Civil Rights Act

Seth E. Montgomery has published “ICRA’s Exclusionary Rule” in the Boston University Law Review.

The abstract:

The Fourth Amendment does not limit the actions of the 574 federally recognized Indian tribes. In an affront to tribal sovereignty, Congress enacted the Indian Civil Rights Act (“ICRA”) in 1968. The ICRA provides limitations on tribal governments that parallel the Bill of Rights. For example, the ICRA provides that no Indian tribe shall “violate the right of the people to be secure . . . against unreasonable search and seizures.”
But the ICRA—like the Fourth Amendment—does not state what happens when police obtain evidence from an unreasonable search or seizure and prosecutors seek to introduce that evidence in a criminal trial. Federal courts have developed an exclusionary rule for evidence obtained in violation of the Fourth Amendment: subject to myriad exceptions, if police obtain evidence unconstitutionally, then that evidence may not be introduced in a criminal trial. This Note asks whether the ICRA’s search-and-seizure provision incorporates such an exclusionary rule.
This Note advances an interpretation of the ICRA based on the statute’s 1968 meaning: the ICRA’s text compels an exclusionary rule, conditioned on deterring tribal police misconduct, but not subject to the myriad exceptions that apply in the Fourth Amendment context. And, with important qualifications, this Note explains why a court applying this interpretation should turn to tribal law. A deterrence-based exclusionary rule requires courts to consider whether exclusion deters police misconduct, how to measure the benefits of deterrence against the harms of excluding probative evidence, and how much deterrence is necessary for exclusion. Comity, self-determination, and federalism all compel deference to tribal law in answering these questions. Thus, tribal law can and should guide the application of the ICRA’s search-and-seizure provision in a criminal prosecution.
This Note contributes to the legal and academic landscape in three ways. First, it adds to an ever-growing body of literature advocating for federal and state deference to tribal law. Second, this Note fills a gap in the literature by addressing a remedy that the ICRA does not expressly provide—namely, exclusion. Most academics and courts describe federal habeas review as the ICRA’s only available remedy outside of tribal courts. Finally, this Note provides a roadmap for litigants arguing for or against a suppression motion based on an ICRA violation. Only a limited number of reported cases address whether the ICRA incorporates an exclusionary rule, and even fewer provide a full analysis. This Note thus answers an open question in a way that harmonizes constitutional criminal procedure with deference to tribal legal precedent.

Tenth Circuit Briefs in United States v. Murphy [yes, that Murphy]


Mr. Murphy prevailed against Oklahoma in the Supreme Court following the McGirt decision, but was immediately prosecuted and convicted by the United States. He is now challenging the federal government’s delay.

Oklahoma Federal Court [with New Mexico Judge] Dismisses Cherokee Citizens Claims against Oklahoma on State Court Exhaustion Grounds

Here are the materials in Pickup v. District Court of Nowata County (N.D. Okla.):

18 Counties Motion to Dismiss

24 District Attorneys Motion to Dismiss

27 Towns Motion to Dismiss

70 Clerks Motion to Dismiss

71 Clerk Edwards Motion to Dismiss

72 Clerk Newberry Motion to Dismiss

75 Opposition to 18

76 Opposition to 24

77 Opposition to 27

78 Opposition to 70

79 Opposition to 71

80 Opposition to 72

84 Reply in Support of 18

85 Reply in Support of 24

86 Reply in Support of 27

87 Owasso Motion to Dismiss

88 Reply in Support of 70

89 Reply in Support of 71

90 Reply in Support of 72

94 Opposition to 87

95 Reply in Support of 87

143 Tribes Motion to File Amicus Brief

143-1 Amicus Brief

170 DCT Order

Complaint here.

Emily Harwell on the Effects of McGirt

Emily N. Harwell has published “Judicial Discretion Across Jurisdictions: McGirt’s Effects on Indian Offenders in Oklahoma” in the Cornell Law Review. PDF.


Here is the abstract:

Oklahoma’s exercise of criminal jurisdiction over crime committed on tribal reservations remained unchecked until 2020. In McGirt v. Oklahoma, the Supreme Court held that the Muscogee Creek Nation’s reservation had in fact never been disestablished and remains in existence today. In doing so, the Court restored criminal prosecution authority to tribal and federal courts. McGirt received praise throughout the United States from tribal nations and federal Indian Law practitioners for Justice Gorsuch’s strong affirmation of the Muscogee Creek’s sovereignty over its reservation and the honoring of treaties made between the United States and the Muscogee Creek Nation. Similarly situated tribes in Eastern Oklahoma including the Cherokee, Choctaw, and Chickasaw have already joined the Muscogee Creek Nation in asserting the changes that McGirt brings.

In the wake of this change, legal and political discussion has centered around practical matters: Does the Tribe have adequate resources for managing criminal jurisdiction within its reservation? Will the increase in cases overload the federal court system? The question of how the change in prosecutorial authority will affect Native American criminal defendants has yet to be asked, though. This Note assesses the effects of McGirt on the sentencing of Native Americans who commit crimes on a reservation in Oklahoma. Oklahoma state court judges exercise discretion in areas of sentencing different from federal court judges. Existing empirical studies suggest federal sentencing produces harsher, lengthier sentences than state courts. By comparing Oklahoma and federal court sentencing data, this study attempts to answer whether McGirt‘s celebration of tribal sovereignty is simultaneously a devastating blow to Native American criminal defendants committing crimes on tribal reservations in Oklahoma.

Angela Riley & Sarah Glenn Thompson on Dual Sovereignty and Indian Country Crimes

Angela Riley & Sarah Glenn Thompson have posted “Mapping Dual Sovereignty and Double Jeopardy in Indian Country Crimes,” recently published in the Columbia Law Review, on SSRN.

Here is the abstract:

The Double Jeopardy Clause guarantees no individual will be put in jeopardy twice for the same offense. But, pursuant to the dualsovereignty doctrine, multiple prosecutions for offenses stemming from the same conduct do not violate the Clause if the offenses charged arise under the laws of separate sovereigns, even if the laws are otherwise identical. The doctrine applies to tribal prosecutions, but its impact in Indian country is rarely studied. Such an inquiry is overdue, particularly as the scope of crimes potentially subject to dual tribal and federal prosecutions has broadened in recent years. This Article is the first to undertake a preliminary examination of the dual-sovereignty doctrine in the tribal–federal context and describe the complex interplay between the doctrine and the rest of the criminal law fabric in Indian country. Perhaps most significantly, it includes an original typology highlighting when a defendant may be subject to the doctrine, which sovereigns have the authority to prosecute, pursuant to what source of power each sovereign operates, and when and how the sequence of prosecutions matters, if at all. This leads to the Article’s central thesis: Indian tribes are separate sovereigns with inherent sovereignty, and, under current conditions, the dual-sovereignty doctrine plays a central role in ensuring safety in Indian country. The doctrine’s application in Indian country, however, creates unique complexities that may threaten tribal sovereignty and raise issues of unfairness for defendants. This Article offers numerous reforms—some highly ambitious and others more modest—to address these issues.

two police officers staring at each other in the style of miro