Criminal

NYTs: Indian Country Crime High, Prosecutions Low

Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

“One of the basic problems is that not only are they declining to prosecute cases, but we are not getting the reason or notification for the declination,” said Jerry Gardner of the Tribal Law and Policy Institute in West Hollywood, Calif., which works with tribes to develop justice programs. “The federal system takes a long time to make a decision, and when it comes to something like a child sexual assault, the community gets the message that nothing is being done.”

Under federal law, tribal courts have the authority to prosecute tribal members for crimes committed on reservations, but cannot sentence those convicted to more than three years in prison. As a result, tribes usually seek federal prosecution for serious crimes.

SCT Issues Call for Response to Minn. AG re: Beaulieu Cert Petition

Matthew L.M. Fletcher3 Comments

Here is the CFR (US S Ct Clerk ltr2 Mn Atty Gen 2-13-2012).

This is interesting, and should place the case on the list of petitions to watch. The fairly significant confusion in Minnesota PL 280 jurisdiction cases may be playing a role here.

The petition is here.

Updated Version of Tulalip Justice System Study

Matthew L.M. Fletcher

We previously posted the study here.

Here is the updated study:

Justice in Indian Country- A Case Study of the Tulalip Tribes

Eighth Circuit Affirms Convictions of Fake Indians for Abuse of Process and Obstructing Justice

Matthew L.M. Fletcher4 Comments

Here is the opinion in United States v. Reed:

US v Reed CA8 Opinion

An excerpt:

Gregory Allen Davis and Michael Howard Reed irrationally believe that their membership in the Little Shell Nation, an unrecognized Indian tribe, means they are not United States citizens subject to the jurisdiction of the federal courts. This belief led them into serious trouble. First, Reed threatened North Dakota District Judge Ralph Erickson because he refused to dismiss federal drug charges against two other Little Shell members. Months later, when District Judge Daniel Hovland denied a motion to dismiss a firearm charge pending against Reed, Davis filed a Uniform Commercial Code (UCC) financing statement listing Judge Hovland and acting United States Attorney Lynn Jordheim as $3.4 million debtors and Davis as the secured party. After a three-day trial, a jury convicted Davis and Reed of conspiring to file and filing false liens against Judge Hovland and Jordheim in violation of 18 U.S.C. § 1521. The jury also convicted Reed of corruptly obstructing justice in violation of 18 U.S.C. § 1503(a), based on his earlier threats. On appeal, Davis argues that the evidence was insufficient to prove a violation of § 1521. Both Davis and Reed argue, for somewhat different reasons, that the district court violated their constitutional rights by allowing them to represent themselves at trial. We affirm.

Washington SCT Holds that State Has No Jurisdiction over Off-Rez

Matthew L.M. Fletcher1 Comment

Opinion here:

84716-9opinion

Briefs are here.

Habeas Petition of Indian Country DV Offender Denied

Matthew L.M. Fletcher

Here is the order in Shillingstad v. United States (D. S.D.):

DCT Order Denying Shillingstad Motion

The appeal of the original conviction is here:

Shillingstad CA8 Opinion

Ninth Circuit Denies En Banc Petition in Miranda v. Anchondo (BIA & Pascua Yaqui)

Matthew L.M. Fletcher

Here are the materials (the order denying review is here):

Miranda En Banc Petition

Combined Opposition to En Banc Petition

The panel materials and opinion are here.

 

Update in Shirk v. Tanakeyowma (ISDEAA Sovereign Immunity Case)

Matthew L.M. Fletcher3 Comments

Here are the federal government’s pleadings in that case (and all the rest of the materials moved here as well):

Proposed United States’ Amicus Brief

Resp to USA’s Amicus Brief

Brief of Amicus Curiae in Opposition to Pltf.’s Motion to Set Aside Judgment

USA’s Mtn to Dismiss

USA’s Reply on MTD

Order Granting Rule 60 Relief (main opinion)

Under Advisement Ruling

Notice of Appeal

 

Tulalip Tribes Justice System Case Study

Matthew L.M. Fletcher1 Comment

Important scholarship. [Will be replaced soon.]

Updated version:

Justice in Indian Country- A Case Study of the Tulalip Tribes

Senate Judiciary Committee Passes VAWA Reauthorization; Sen. Grassley Opposes Tribal Sovereignty

Matthew L.M. Fletcher2 Comments

Strict party line vote.

Sen. Grassley’s opposition to tribal sovereignty is reproduced here:

I’ll turn now to some of the provisions that I cannot support. For instance, S.1925 states that it recognizes the “inherent power” of Indian tribes “which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons.” Now I believe in the importance of federal responsibility for law enforcement and social services for Indian tribes. And I believe in tribal self-government. But as we meet here today, there is no inherent power of tribes to do anything of the sort the bill says. Self-government is not government over “all persons” – including non-Indians.

Because tribes lack this power, it’s untrue to say that Congress can recognize and affirm it. And if we do, I don’t know what effect such language will have on current law enforcement arrangements. After all, the bill goes much further than changing something for the future. It says that something exists that does not now exist.
For the first time, the Committee would extend tribal criminal jurisdiction over non-Indians. I do not believe the Committee has a good understanding of what the consequences would be of doing so. This was put in the bill. Like the other provisions to which I object, it was not the subject of any hearing.

Why would Congress, should it decide for the first time to make such a change, do so on a bill to reauthorize VAWA? Why should domestic violence cases be the first criminal cases to be treated in this way? What precedent would be created that might lead to other prosecutions of non-Indians in tribal courts? The bill’s expansion of the civil jurisdiction of tribal courts over non-Indians also needs more thought.

Well, the good news is that the opposition is on record. And now we know the opposition is explicitly racializing the problem of domestic violence in Indian country. In other words, Sen. Grassley would do nothing about DV offenders in Indian country who are non-Indian. I suspect he is tough on crime in every other instance, except where a non-Indian in Indian country commits a crime (or where the victim is gay).