Here is the opinion in United States v. B.A.D.:
Criminal
GTB and LTBB among Nine Tribes Nationally that have Substantially Complied with Sex Offender Registration Laws
Here is the press release. An excerpt:
The States of Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, South Carolina, South Dakota, and Wyoming; as well as the Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes and Bands of the Yakama Nation, Grand Traverse Band of Ottawa and Chippewa Indians, Iowa Tribe of Oklahoma, Kootenai Tribe of Idaho, Little Traverse Bay Bands of Odawa Indians, Pueblo of Isleta, Tohono O’odham Nation, Upper Skagit Indian Tribe; and the United States territory of Guam have been found by the SMART Office to have substantially implemented SORNA. Tribes that have not implemented SORNA by the deadline and can show that they will be able to do so “within a reasonable amount of time,” as determined by the Attorney General, may submit a request to the SMART Office.
Tenth Circuit Vacates Sentence (Again) in Major Crimes Act Conviction
Here is the opinion in United States v. Lente.
Here is our prior post on the case, which at one time turned on the import of prior tribal court DUI convictions. Here is our post on the prior CA10 opinion.
Eighth Circuit Holds Fee Land Leased to Indian Housing Authority Not Indian Country in Habeas Appeal
Here are the available materials in Owen v. Huber:
ICT on Shavanaux Reversal
Here.
An excerpt:
The dismissal of a federal domestic violence charge against a 37-year-old enrolled member of the Northern Ute Tribe was reversed and sent back to the lower court by a three-judge panel of the U.S. 10th Circuit Court of Appeals on July 26.
The justices ruled that neither the absence of counsel in two prior domestic violence convictions in Ute Tribal Court nor differences between tribal and U.S. law violated the rights of Adam Ray Shavanaux of Fort Duchesne, Uintah and Ouray Reservation, Utah.
Shavanaux was arrested in January 2010 after Ute tribal police officers were called to aid an assault victim who was able to escape from a home in Fort Duchesne and seek assistance. The victim was later taken to the hospital, according to the U.S. Attorney in Utah.
More on Uncounseled Tribal Court Convictions
Recently, two federal circuits — the Eighth and the Tenth — have affirmed trial courts’ use of uncounseled tribal court convictions to increase prison sentences under the federal habitual offender statute (18 U.S.C. § 117). The cases are Cavanaugh and Shavanaux.
Both circuits reversed trial court decisions ruling that the portion of § 117 allowing the use of uncounseled tribal court convictions for sentencing purposes was unconstitutional. Both circuits held that since the uncounseled tribal court conviction did not violate either the U.S. Constitution (under Talton v. Mayes) or the Indian Civil Rights Act (which does not require tribes to provide indigent defendants paid counsel), the tribal court convictions were valid.
Frankly, I’m surprised, and to a considerable extent pleased. I’m pleased that the federal courts are so deferential to tribal courts as a matter of comity. I’m surprised because there is some federal constitutional infirmity in using such convictions to enhance a federal sentence, though apparently not enough to trouble these circuits. Both courts agree that the uncounseled convictions could not be used to prove an element of a federal offense, for example.
Conceivably, both could be reversed en banc, assuming petitions for rehearing are filed (especially, the CA8 decision, where the panel was split). There’s no circuit split … yet … though it seems at least possible that Ninth Circuit or another circuit would come out the other way in the next 5, 10 years.
One possible outcome, even if the Supreme Court never reviews these cases, is a big impact on tribal court criminal justice. More and more tribal defendants will, the theory goes, refuse to plea bargain given these cases. Regardless, the need for full-scale tribal public defender offices grows daily.
Tenth Circuit Affirms Use of Uncounseled Tribal Court Convictions in Federal Court
Here are the materials in United States v. Shavanaux:
Government Opening Brief in Shavanaux
Government Reply Brief in Shavanaux
Lower court materials are here.
Eighth and Tenth Circuits Decide Appeals Involving Major Crimes Act Convictions
Here is today’s Eighth Circuit opinion in United States v. White Bull (White Bull).
And here is today’s Tenth Circuit opinion in United States v. Waseta.
DOJ Native American Issues Subcommittee Agenda — July 26, 2011
Forbes Article on DOJ Plan to Expand Prosecutorial Authority in Indian Country
Here.
An excerpt:
Lorena Halwood, who works with domestic violence victims on the Navajo Nation, said family abuse violates not only the law but the traditional Navajo way of life, which preaches harmony and talking with one another to mitigate problems. She stood with others in the Navajo Nation’s capital this week, asking tribal lawmakers to support legislation that would specifically criminalize domestic violence for the first time on the reservation.
“A lot of the victims have come to accept there’s nothing anybody can do,” she said.
Halwood’s work with domestic violence spans 16 years, creating a network of safe houses for victims awaiting transport to one of two shelters on the 27,000-square-mile reservation, the size of West Virginia. She’s seen broken jaws and noses, sexual assault and rape cases, and has made 2 a.m. visits to the emergency room.
Tribal police often are late in arriving to the scene because of the remoteness of the reservation. Halwood said women’s in-laws often blame them for the abuse, and women find it difficult to leave without transportation or a support system.
She welcomed any change that would make offenders realize they’re not getting off with what she says commonly is a slap on the wrist and a warning not to hit a woman again.
“If we have harsher penalties, stiffer sentences, then maybe they’ll see `I’m not supposed to be doing this. The next time I might spend more time in jail away from my family, my children,'” she said.
Turtle Talk 
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