Federal Court Denies ICRA Habeas Writ in Right to Counsel Case

Here is the order.

This could be a case to watch if the dicta in United States v. Lara is to be believed.

Cert Petition in Comenout v. Washington — Tax Case

Here.

Here are the questions presented:

1. Did the court below err by holding that the State of Washington has jurisdiction to charge a state cigarette tax crime against a Quinault Indian and other Indians allegedly selling untaxed cigarettes at the Quinault Indian’s trust allotment located outside the Quinault Indian Reservation boundaries?

2. Did the court below err in refusing to apply the federal law definition of Indian country, 18 U.S.C. § 1151(c)?

3. Did the court below err in holding that the State of Washington, an optional Public Law 280 state, had state tax crime criminal jurisdiction of enrolled Indians on trust lands?

4. Did the court below err in holding that Washington law, Wash.Rev.Code 37.12.010 through 060, was exempt from the Quinault Tribe’s retrocession of state jurisdiction?

Updated Supreme Court of Canada Aboriginal Law Stats

Here’s the updated stats after the recent decision, R. v. Ipeelee, 2012 SCC 13, where the court revisited Gladue and found in favor of aboriginal interests 6-1.  Individual percentages in favor of aboriginal interests now range from 29.1% (LeBel – 7/24) to 57.1% (Cromwell – 4/7).  

https://turtletalk.blog/wp-content/uploads/2009/04/supreme-court-of-canada-report-card-2012.pdf

SCT of Canada Orders Lower Courts to Consider Aboriginal History When Sentencing Natives

Here is the opinion in R. v. Ipeelee.

An excerpt from the Court’s syllabus:

When sentencing an Aboriginal offender, a judge must consider the factors outlined in R. v. Gladue, [1999] 1 S.C.R. 688:  (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.  Systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness.  Failing to take these circumstances into account would violate the fundamental principle of sentencing— that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.  The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.  The principles from Gladue are entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process.  Section 718.2(e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples.

News coverage here.

H/t to RK.

 

Federal Agent Affidavit in United Auburn Community Fraud Case

Here.

News coverage here, via Pechanga.

Minnesota Cert Opposition Brief in Beaulieu v. Minnesota

Here:

Mn AG Brief Oppsng Kev B Pet4 Cert 3-14-12

You may recall the state waived its right to respond to the cert petition, but the SCT called for a response.

More on Consent to Tribal Criminal Jurisdiction

We should add that at least one legal commentator and at least one other tribal court has previously discussed non-Indian consent to tribal criminal jurisdiction. The article (which is about more than simply consent, and which was authored by Chris Chaney) is here:

14BYUJPubL173

And the case is here:

Navajo v Hunter

Hunter seems to be about implied consent, while Hjert seems to be about express consent (which was ruled by that court to be invalid).

Can a Tribe Prosecute a Non-Indian If He Consents? Opinion from Port Gamble S’Klallam

Every now and again we like to highlight an interesting tribal court opinion. Personally, I’ve been waiting for many years to see an opinion on this subject, answered in the negative by the court.

Here is the opinion in Port Gamble S’Klallam Tribe v. Hjert.

This case seems almost easy given that the tribal constitution self-limits tribal jurisdiction by referencing federal law, suggesting that Oliphant could control this case (see page 4, quoting the PGST Const.).

What about tribes that do not have such language?

Sixth Circuit Vacates Conviction in Alleged Sex Offense at Grand Traverse Band

Here is the opinion in United States v. Anderson.

Briefs in Yakama v. Holder

Here are the briefs relating to last week’s opinion posted here:

237 FILED – Memorandum in support of motion for TRO and PI

244 FILED – federal opposition to motion for tro

248 FILED – County Opposition to TRO

255 FILED – Reply in support of TRO (county)

256 FILED – Reply in support of TRO (fed)