Criminal

Minnesota COA Case Denying Equal Protection Challenge to Indian Fishing Rights

Matthew L.M. Fletcher

Here is the opinion in State v. Fellegy:

opa111097-071112

From the court’s syllabus:

The district court need not conduct an evidentiary hearing on a criminal defendant’s pretrial motion to dismiss based on the defendant’s claim under his right to equal protection that the charge arose from unconstitutional selective enforcement if the defendant has asserted facts that, even if proven, would not substantiate the claim. And a defendant’s allegation that a different prosecutor in a different charging jurisdiction decided not to charge two individuals of a different race for the same offense that the defendant was charged with is not sufficient to substantiate an unconstitutional selective prosecution claim.

NYTs: Federal Officials Accuse Spirit Lake Tribal Leaders of Covering Up Child Sexual Abuse

Matthew L.M. Fletcher

Here.

An excerpt:

The tribe, according to federal and state administrators, has not conducted required background checks before placing foster children, failed to make mandated monthly visits to children in foster care and illegally removed foster children from homes and placed them elsewhere without determining that the new homes would be safe.

Unease about the tribe’s ability to adequately safeguard children has escalated in the past several weeks after two scathing, detailed e-mails were sent by federal officials to their superiors at the Department of Health and Human Services, alleging misconduct by reservation officials.

In a June 14 e-mail sent to his managers in Washington, Thomas F. Sullivan, the regional administrator for the Administration for Children and Families for six states, called on the government to declare a state of emergency at Spirit Lake, cut off the reservation’s federal financing and charge the tribe’s leader with child endangerment to combat what he described as “daunting” child abuse being covered up by the tribe.

Statement by Navajo Nation Special Prosecutor Regarding Motion to Dismiss Claims against Council Members

Matthew L.M. Fletcher

Here (NN v Benally July 6 2012):

Statement by The Navajo Nation Special Prosecutor Regarding Motion To Dismiss (PDF)

Today the Rothstein firm, which has been acting as the Special Prosecutor of the Navajo Nation since mid-2011, announced the filing of a Motion to Dismiss the civil complaints against Louis Denetsosie, the former attorney general of the Navajo Nation; Harrison Tsosie, the current attorney general; and council delegates Leonard Tsosie and Lorenzo Bates.

According to the Special Prosecutor:

It is important for the Special Prosecutor to clear present and former government officials of charges where the facts and the law do not justify continued legal proceedings.  We are now able to announce that we will not pursue the civil claims filed in July 2011 alleging breach of fiduciary duty against Louis Denetsosie, Harrison Tsosie, Leonard Tsosie, and Lorenzo Bates.

The Special Prosecutor was appointed to investigate claims that Navajo Nation council delegates had misused the discretionary fund program, which was established by the Navajo Nation Council, to provide financial relief to needy constituents.  The Special Prosecutor is also charged with investigating whether former President Joe Shirley acted improperly in connection with the OnSat contract with the Navajo Nation and the Navajo Nation’s guarantee of a JP Morgan Chase loan to BCDS Manufacturing, Inc., a failed Shiprock steel and fiberglass fabrication company.

During the course of investigating these potential claims, the scope of the Special Prosecutor’s jurisdiction was expanded to cover former Attorney General Louis Denetsosie, Attorney General Harrison Tsosie, and the controller of the Navajo Nation, Mark Grant.  In July 2011, the Special Prosecutor brought a civil action for breach of fiduciary duty which included claims against the former and current attorney general.  The complaint alleged that each of the attorneys general had improperly interfered with the Special Prosecutor by approving Navajo Nation funds to hire an attorney for President Joe Shirley and for the president’s chief of staff, Patrick Sandoval.  Former Attorney General Louis Denetsosie was also charged with failing to prevent the Navajo Nation Council from adopting or misusing the Discretionary Fund Program.

After completing a thorough investigation, the Special Prosecutor has concluded that no crimes or misconduct were committed by Louis Denetsosie or Harrison Tsosie, and neither of them violated any civil laws within the jurisdiction of the Special Prosecutor.  In this case, the former attorney general and the current attorney general authorized the use of Navajo Nation funds to retain separate counsel for the president and the chief of staff based upon a determination that this would be in the best interest of the Navajo Nation.  The Navajo Nation is not obligated to provide a defense for an employee or elected official charged with a crime, but there is no prohibition against its doing so.  One can agree, or disagree, with the decision to pay for separate counsel for President Shirley and Chief of Staff Sandoval, but that decision does not constitute a crime or misconduct.

The Special Prosecutor is continuing to investigate the use of the Discretionary Fund Program by council delegates.

We have concluded that a number of council delegates misused the Discretionary Fund Program to improperly benefit close family members.  The Discretionary Fund Program was administered without careful financial controls or oversight.  The few written rules for the program were frequently ignored.

The investigation has revealed two common abuses — First, some council delegates approved grants from the discretionary fund for family members.  The second abuse was more involved.  Council delegate A would approve payments to family members of Council delegate B, while Council delegate B in turn approved payments to family members of Council delegate A.  The abuses of the Discretionary Fund involved large sums of money.  Navajo law specifically prohibits a council delegate from using his or her position to benefit himself and/or his immediate family.

The Special Prosecutor has interviewed a number of witnesses and has reviewed detailed financial records of the Discretionary Fund Program.  A number of council delegates and other witnesses have cooperated in this investigation.  As a result, a number of instances of misuse of discretionary funds have become clearly apparent, and the Special Prosecutor intends to pursue claims arising from those cases vigorously.  At the same time, the Special Prosecutor has concluded that Leonard Tsosie and Lorenzo Bates did not misuse the Discretionary Fund Program.  This conclusion is based on independent records as well as the willingness of Leonard Tsosie and Lorenzo Bates to cooperate fully with the Special Prosecutor.

As a result, the Special Prosecutor has concluded that it is in the best interest of the Navajo Nation to dismiss all claims for breach of fiduciary duty with prejudice against Leonard Tsosie and Lorenzo Bates.

IPR: Emmet County Bear Hunting Conviction Overturned (Mich. Inland Treaty Rights Implications)

Matthew L.M. Fletcher

Here is the unpublished opinion in People v. Levigne:

Mich COA Opinion

And the IPR report.

An excerpt:

The Michigan Court of Appeals says it was legal for hunting guides to help with an off-season bear hunt in Emmet County back in September of 2010. The guides were assisting Todd Yoder, an American Indian hunter.

For Yoder, the hunt was clearly legal because of tribal hunting and fishing rights. But his two assistants are not Native American, and by their own admission, their help was vital to the success of the hunt. Their dogs ran the bear up a tree, where it was shot. Emmet County court found the guides, William McNeight and Blaine Levigne, guilty of “taking” a bear in the off-season.

But this week an appeals panel reversed that decision. The judges say the state law that applies to this case says the “taking” of an animal involves a firearm, crossbow, or bow and arrow. So the guides could help, they just couldn’t shoot.

Ninth Circuit Affirms Major Crimes Act Murder Conviction

Matthew L.M. Fletcher

Here is the opinion in United States v. Seideman.

Eighth and Ninth Circuits Affirm Indian Country D.V. Sentences

Matthew L.M. Fletcher

Here is Wednesday’s opinion in United States v. White Twin (CA8):

Opinion

And here is Wednesday’s opinion in United States v. Two Moons (CA9):

Opinion

Important New Empirical Research on PL280’s Impact on Indian Reservation Crime and Economies

Matthew L.M. Fletcher

Valentina P. Dimitrova-Grajzl, Peter Grajzl, and A. Joseph Guse, have posted “Jurisdiction, Crime, and Development: The Impact of Public Law 280 in Indian Country” on SSRN. Here is the abstract:

Public Law 280 transferred jurisdiction over criminal and civil matters from the federal to state governments in selected parts of Indian country. Where enacted, the law fundamentally altered the pre-existing legal order. Public Law 280 thus provides a unique opportunity to study the impact of legal institutions and their change on socio-economic outcomes. The law’s controversial content has attracted interest from legal scholars. However, empirical studies of its impact are scarce and do not address the law’s endogenous nature. We examine the law’s impact on crime and on economic development in U.S. counties with significant American Indian reservation population. To address the issue of selection of areas subject to Public Law 280, our empirical strategy draws on the law’s politico-historical context. We find that the application of Public Law 280 increased crime and lowered incomes. The law’s adverse impact is robust and noteworthy in magnitude.

This is perhaps the most important piece of empirical scholarship on Public Law 280 in that the researchers are not recognized as supporting either side, as far as I can tell.

Challenge to Federal Prosecution under Double Jeopardy Clause Fails

Matthew L.M. Fletcher

Here is the opinion in United States v. Gatewood (D. Ariz.):

DCT Order Denying Gatewood Motion to Dismiss

An excerpt:

Defendant argues that because the Tribe receives federal funding, regulatory oversight, and law enforcement assistance from the BIA, “it no longer makes sense to maintain the fiction that federal and tribal governments are so separate in their interests that the dual sovereignty doctrine is universally needed to protect one from the other.” (Doc. 137 at 7). Defendant further contends that this cooperation transforms the Tribe from a “dependant sovereign power” into a “political subdivision” of the federal government. Id. at 6.

Although the financial and regulatory relationship between tribal authorities and the federal government may be significant, this mutual cooperation does not create a “de facto divestiture of tribal sovereignty” or rise to the level of collusion necessary to meet the Bartkus exception.

And:

Defendant also claims that “Agent Hawkins assisted the White Mountain Apache Tribal Prosecutor John Major in securing information about the case,” citing activities by Agent Hawkins such as faxing Defendant’s criminal history to the White Mountain Apache Tribal Prosecutor’s Office and his presence at nearly all investigation and interviews after being notified of the allegations. (Doc. 137 at 2). Mere assistance and the sharing of records,  however, is insufficient proof of manipulation or undue coercion by federal authorities. Since Defendant has not provided the Court with specific allegations of coercion or collusion that would justify an evidentiary hearing, Defendant’s request for a hearing is denied.

Legislating in Light of the ideology and Politics of the Super-Legislature (On Obamacare and an Oliphant Fix)

Matthew L.M. Fletcher2 Comments

This week, the Supreme Court likely will strike down the individual mandate of the health care law, and perhaps go so far as to strike the whole thing down. It is telling to hear about how Democratic Congressional leaders never took seriously arguments that the health care law was unconstitutional.

Under the current constitutional law, it IS constitutional. But the Supreme Court can use a vehicle like Obamacare to drastically change constitutional law. That’s how judicial review works. Ideology matters. Politics matters. Elections matter. Only the hardest cases reach the Supreme Court, and those cases are usually cases where prior precedent fails. The vast majority of Americans want Obamacare struck down. It would be shocking if the most conservative Supreme Court in memory DIDN’T strike it down.

Tribal advocates should be feeling deja vu, of course. The Court changes Indian law all the time. Ideology matters here, more than politics (because most Americans couldn’t care less about Indian law).

In the past weeks, during the VAWA Reauthorization and SAVE Native Women Act debates, Dems assumed the constitutionality of a partial Oliphant fix. Under current law, it’s obviously constitutional. But the Supreme Court can change things. And it does, as Indian law observers know.

Harold Monteau pointed out the disingenuity of the Congressional Research Service report asserting the unconstitutionality of a partial Oliphant fix. He was right to do so under the law, but that doesn’t make the report wrong.

If I am right and Obamacare goes down, then the world will know what Indian law observers have known (or should know) for a long while.

TOMORROW, if the health care decision doesn’t come out, why Justice Kennedy’s consent theory of tribal governance may play an important role in the theorizing constitutional limits on the commerce clause.

Tenth Circuit Affirms Dismissal of Suit against Kiowa Court of Indian Offenses

Matthew L.M. Fletcher

The plaintiff wanted the CIO to enjoin his state court prosecution for violation of anti-cockfighting statutes. Here are the materials in Turner v. McGee:

Turner Opening Brief

CIO Motion to Dismiss

Turner Reply

And the briefs after the CA10 appointed counsel for Turner:

Turner Supplemental Brief

CIO Supplemental Brief

And the Tenth Circuit’s opinion.

A related cockfighting case out of the Tenth Circuit, United States v. Langford, holding federal courts had no jurisdiction.