Criminal

Eighth Circuit, Over a Dissent, Affirms 48-Year Sentence for Indian Juvenile Convicted of Murder

Matthew L.M. Fletcher

Here is the court’s opinion in United States v. Boneshirt.

A lengthy excerpt from the dissent:

As a longtime federal judge, I have seen and reviewed scores of cases in which Indian males have been convicted of assaultive crimes, including murder. Alcohol has played a substantial role in the crime in almost every one of those cases. See, e.g., United States v. Jensen, 423 F.3d 851, 853 (8th Cir. 2005), United States v. LeClair, 338 F.3d 882, 884–85 (8th Cir. 2003), United States v. Emeron Taken Alive, 262 F.3d 711, 712 (8th Cir. 2001). And alcohol obviously played a major role in the unfortunate homicide of Ms. Walking Eagle. Yet the sentencing judge chose a sentence well above the average sentence for murder when, in context, the circumstances were not outside of the usual, serious crime by an adult male Indian, particularly on a reservation.

In addition, the district court did not take into consideration Boneshirt’s life expectancy. The sentencing judge specifically expressed the desire to protect the public by ensuring that Boneshirt would be an old man when he was released: “the Court believes that there is just too much of a risk with Mr. Boneshirt being a part of society before the point where he’s of a very mature age.” However, the district court did not properly consider Boneshirt’s background as a Native American male, who has a life expectancy of fifty-eight years. See Christopher J. L. Murray et al., Eight Americas: Investigating Mortality Disparities across Races, Counties, and RaceCounties in the United States, 3 PLoS Med. 1513, 1514 (2006) “Native American males in the cluster of Bennet, Jackson, Mellette, Shannon, Todd, and Washabaugh Counties in South Dakota had a life expectancy of 58 [years] in 1997–2001 . . . .”). Even if he earns all of his good time credit, which the district court was not optimistic about, he will still serve more than forty years in prison. The district court anticipated Boneshirt would be an old man when he was released, but in reality he may be a dead man.

Federal Court Finds Interior Violates Self-Determination Act in Denying 638 Public Safety Funds to Tribes in PL280 States

Matthew L.M. Fletcher1 Comment

Here are the materials in Los Coyotes Band of Cahuilla and Cupeno Indians (S.D. Cal.):

DCT Order Granting Los Coyotes Motion

Los Coyotes Band Motion for Summary J

Interior Motion for Summary J

Los Coyotes Reply

Interior Reply

Minnesota Indian Women’s Sexual Assault Coalition to Release Report Today — UPDATE

Matthew L.M. Fletcher

Here is the report.

Here is the full press release (PDF). An excerpt:

Minnesota Indian Women’s Sexual Assault Coalition
and Prostitution Research & Education
Release Landmark Report on Native Women in Minnesota
Garden of Truth: The Prostitution and Trafficking of Native Women in Minnesota

St. Paul, Minnesota – The Minnesota Indian Women’s Sexual Assault Coalition and Prostitution Research & Education have released the landmark report, Garden of Truth: The Prostitution and Trafficking of Native Women in Minnesota, the first study to detail the personal experiences of Native women who have been prostituted and trafficked in the state, as well as the specific resources and support they need to escape prostitution and trafficking. The report follows on earlier studies by Amnesty International and the US Justice Department which found that Native women experience the highest rates of sexual assault in the US.

Garden of Truth is based on interviews with more than 105 Native women in the Twin Cities, Duluth, and Bemidji, and finds a common thread of poverty and extreme and frequent violence throughout these women’s lifetimes, including child sexual abuse, rape, and beatings and traumatic brain injuries obtained during prostitution. A majority of the women experience symptoms of post-traumatic stress disorder. 98% have been homeless at some point during their lives, and 92% say they want to escape prostitution but believe they have no other options. About half of the women interviewed met a conservative legal definition of sex trafficking, which involves third-party control by pimps or traffickers.

“Native women are at exceptionally high risk for poverty and sexual violence, which are both elements in the trafficking of women,” says report co-author Nicole Matthews, Executive Director of the Minnesota Indian Women’s Sexual Assault Coalition. “The specific needs of Native women are not being met. Our goal was to assess the life circumstances of Native women in prostitution in Minnesota, a group of women not previously studied in research such as this.”

Garden of Truth calls prostitution a sexually exploitive, often violent economic option most often entered into by those with a lengthy history of sexual, racial, or economic victimization. “Prostitution is only now beginning to be understood as violence against women and children,” says report co-author Melissa Farley, founder of Prostitution Research & Education. “It has rarely been included in discussions of sexual violence against Native women. It is crucial to understand the sexual exploitation of Native women in prostitution today in its historical context of colonial violence against Native nations.”

Barbara Creel on Tribal Court Convictions and Federal Sentencing

Matthew L.M. Fletcher2 Comments

Barbara Creel (who will be one of our distinguished speakers this weekend) has posted her paper, “Tribal Court Convictions and the Federal Sentencing Guidelines: Respect for Tribal Courts and Tribal People in Federal Sentencing,” on SSRN. It is forthcoming in the USF Law Review.

Here is the abstract:

This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendant’s criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an “upward departure” to increase the Native defendant’s overall federal sentence.

Washburn’s proposal seeks to gain “respect” for tribal courts, based upon a premise that tribal convictions must be afforded the same weight and treatment as federal and state criminal convictions under the Federal Sentencing Guidelines. This Article explores the idea of respect for tribal courts and convictions in the context of their history and connection to tribal peoples and communities. Ultimately, this Article concludes that respectful treatment would not tolerate placing a tribal defendant in such a powerless position within the federal sentencing hierarchy.

A proposal that would negatively impact only Native American defendants in a foreign justice system in the name of respect warrants critical review. As an Assistant Federal Public Defender, I had the opportunity to view the application of federal criminal laws from the front and the back end of the criminal justice system, from trial to post-conviction. As a Native woman, I have seen the impact of crime, justice, and federal sentencing on tribal people, families, and whole communities.

It is from this perspective that I focus the lens of respect on the work of tribal courts and criminal justice in Indian Country, and ultimately oppose any amendment in federal sentencing to count tribal court convictions to increase federal sentences for Native criminal defendants. A review of the historical diminishment of tribal authority over crime and punishment on the reservation, as well as the disparate impact of crime and punishment on Native peoples, leads to a rejection of counting tribal court convictions in federal sentencing. This Article proposes an alternative view that both respects Native American individuals caught in the criminal justice system and elevates tribal sovereignty.

Ninth Circuit Affirms Conviction in U.S. v. Has the Eagle

Matthew L.M. Fletcher

Here is the unpublished opinion.

DOJ Seeks Tribal Leader Input on Eagle Feathers

Matthew L.M. Fletcher

Here:

Eagle Feathers – DOJ Request for Tribal Input

Violence Against Native Women gaining global attention

Kirsten Matoy Carlson2 Comments
Native women face greater rates of violence than any other group in the United States.

WASHINGTON, D.C. — The epidemic proportions of violence against Native women in the United States continues to gain global attention.   The Inter-American Commission on Human Rights will hold a hearing on Oct. 25, 2011 at 10:15 a.m. at the General Secretariat Building of the Organization of American States (OAS) in Washington, D.C.  The Commission is an autonomous organ of the OAS, created by countries to protect human rights in the Americas.

Continue reading →

LaBuff v. United States Cert Petition

Matthew L.M. Fletcher

Here:

LaBuff Petition for Certiorari dated August 26, 2011

Lower court materials here.

Here are the questions presented:

1. Has the Ninth Circuit, contrary to United States v. Rogers, erroneously minimized consideration of the undisputed facts that petitioner is not socially recognized as an Indian, does not participate in Indian social life, and does not hold himself out as an Indian and thereby created a conflict with the Eighth Circuit?

2. Did the government prove beyond a reasonable doubt that petitioner is an Indian person where he is not a member of a tribe, is not socially recognized as an Indian, does not participate in Indian social life, and does not hold himself out as an Indian?

Ninth Circuit Decides Indian Status Case Under Major Crimes Act

Matthew L.M. Fletcher3 Comments

I’m still trying to understand how a reasonable jury of non-Indians can decided beyond a reasonable doubt that someone is an “Indian” under the Major Crimes Act. 🙂

Here are the materials in United States v. LaBuff:

LaBuff CA9 Opinion

LaBuff Opening Brief

US Answer Brief — LaBuff

LaBuff Reply

The court originally decided this case without publishing the opinion, but the government successfully petitioned the court to published it. Here are those materials. A cert petition is pending (docket no. 11-6168, definitely one to watch!):

US Request to Publish

LaBuff Opposition

Update with additional Ninth Circuit materials:

Doc 27 Objection filed October 18, 2011

 

 

Ninth Circuit Affirms Conviction Arising out of Search at Tribal Detention Facility

Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. Bear.