In other words, the Michigan COA held that the state may prosecute non-Indians for engaging in drug-related criminal activity inside the Hannahville casino. Here is the opinion in People v. Collins:
Our previous post on this case is here.
Criminal
Ninth Circuit Vacates Condition of Indian Country Sex Offender’s Supervised Release
Here is the opinion in United States v. Wolf Child.
An excerpt:
Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer. The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members. We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.” The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.
News Profile of Tulalip Tribal Judiciary
Here.
An excerpt:
Today, the judges that preside over the Tulalip Tribal Court are provided by the Northwest Intertribal Court System and aren’t tribal employees, Taylor said. The judges, Theresa Pouley and Gary Bass, both members of the Colville Confederated Tribes, have decades of legal and judicial experience.
Pouley, the Tulalips’ chief judge, is president of the Northwest Tribal Court Judges Association. She also formerly served on the board of directors for the National American Indian Court Judges Association. She’s provided testimony to the U.S. Senate Committee on Indian Affairs and last year was appointed to the federal Indian Law and Order Commission.
In remarks to the U.S. Senate in 2008, Pouley said, “No government has a greater stake in effective criminal justice system in Indian Country than the tribes themselves.”
The Tulalip Tribal Court’s expansion has been significant since 2001. That’s when the Tulalips successfully petitioned the state and federal governments to return law enforcement powers on the reservation to the tribes and federal authorities. The retrocession cleared the way for the Tulalips to create their own police force to oversee public safety on the reservation.
Tom Gede on the Problems with an Oliphant Fix
Tom Gede has published “Criminal Jurisdiction of Indian Tribes: Should Non-Indians Be Subject to Tribal Criminal Authority Under VAWA?” in ENGAGE: The Journal of the Federalist Society Practice Groups.
Here is a sampling:
As a policy matter, Congress must consider whether the “relaxing” of restrictions on inherent tribal criminal jurisdiction over non-Indians is warranted, given that it would subject non-Indian citizens to the authority of an extraconstitutional sovereign to which they had not previously been subject, and where the customary guarantees of federal constitutional protections may be questioned. Unlike the Duro-fix, which related to non-member Indians, a full or partial Oliphant-fix that relies on reaffirming inherent tribal criminal jurisdiction will bring significant constitutional and prudential questions that will likely have to be tested at the highest levels. An Oliphant-fix that grants federal delegated authority to tribal governments and includes federal appellate review likely will be more palatable to non-Indians and to a Supreme Court that looks to constitutional structure guarantees, among others, but does nothing to respect tribal sovereignty. The real question ought to be what instrument most effectively and expeditiously permits the local prosecution and punishment of domestic violence and sexual assault and other crimes committed by non-Indians in Indian country.
Federal Magistrate Recommends Denial of Motion to Dismiss Tobacco Trafficking Charge arising in Indian Country
Here are the materials so far in United States v. Nappi (W.D. N.Y.):
Tenth Circuit Vacates Criminal Sentence of Two Navajo Members and Remands for Resentencing
Here is the opinion in United States v. Joe.
An excerpt:
We therefore hold that the district court erred when it enhanced Defendants’ offense levels for physical restraint of the victim as well as enhancing for the use of force against her. The government, which has the burden of proof of showing harmlessness, see United States v. Kieffer, 681 F.3d 1143, 1169 (10th Cir. 2012), has not argued that this error was harmless. Our cases lead us to the conclusion that it was not. If the government had argued that this error was harmless, no doubt that argument would have been centered on the fact that the district judge varied downward from the incorrectly calculated guidelines range to reach the sentence that he concluded was most appropriate in view of all of the factors listed in 18 U.S.C. § 3553(a). We have, however, emphasized the importance of the guideline range as the starting point in the process. See, e.g., Kieffer, 681 F.3d at 1170. We said there that “where the beginning point for a sentencing court’s analysis of the § 3553(a) factors is measurably wrong, the ending point usually will result from an incorrect application of the Guidelines.” Id. (emphasis in original). The government has not argued that the error is harmless, and we believe that the error is not obviously harmless. As explained herein, we remand for resentencing in both of these appeals.
WaPo Article on Justice Department’s Eagle Feathers Policy
Here. h/t PropertyProf Blog.
An excerpt:
Doug Craven, the natural resources director for the Little Traverse Bay Bands of Odawa Indians in Michigan, said tribal members there frequently encounter feathers from around 25 bald eagle nesting sites on their reservation. But it wasn’t always clear to them whether they could keep the feathers for ceremonial use or if they’d have to send them off to a repository.
“They feel that’s been gifted to them and they have a responsibility for that feather,” said Craven, who was part of a group consulting with the Justice Department on the eagle feather policy. “This policy supports that.”
Yay! It’s nice no longer being a crook.
DOJ Issues New Eagle Feather Policy re: Tribal Members
Here. The full policy is here.
From the press release:
The policy provides that, consistent with the Department of Justice’s traditional exercise of its discretion, a member of a federally recognized tribe engaged only in the following types of conduct will not be subject to prosecution:
· Possessing, using, wearing or carrying federally protected birds, bird feathers or other bird parts (federally protected bird parts);
· Traveling domestically with federally protected bird parts or, if tribal members obtain and comply with necessary permits, traveling internationally with such items;
· Picking up naturally molted or fallen feathers found in the wild, without molesting or disturbing federally protected birds or their nests;
· Giving or loaning federally protected bird parts to other members of federally recognized tribes, without compensation of any kind;
· Exchanging federally protected bird parts for federally protected bird parts with other members of federally recognized tribes, without compensation of any kind;
· Providing the feathers or other parts of federally protected birds to craftspersons who are members of federally recognized tribes to be fashioned into objects for eventual use in tribal religious or cultural activities.
South Dakota American Indian Prisoners Prove State Ban on Tobacco Violates Religious Freedom Rights
Here are the materials in Native American Council of Tribes v. Weber (D. S.D.):
Earlier materials on this case were here.
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