Criminal – Page 12 – Turtle Talk

Tenth Circuit Rejects Habeas Petition from Prisoner Asserting McGirt-Type Claims

May 30, 2023Matthew L.M. Fletcher

Here is the opinion in McGill v. Rankin.

Available brief here:

We don’t post many of these post-McGirt prisoner cases, but this is exemplary of the numerous rejected habeas petitions filed by prisoners claiming to be Indian and convicted of crimes inside of Indian country. This person was convicted of a crime in 2001. This was his fifth habeas petition, filed in 2023, and the first raising McGirt-related claims. This footnote is as close as these late habeas petitioners get to relief:

We note that another Oklahoma prisoner also successfully made the same argument as Mr. McGirt, which the Supreme Court recognized in its decision. See McGirt, 140 S. Ct. at 2460 (“While Oklahoma state courts have rejected any suggestion that the lands in question remain a reservation, the Tenth Circuit has reached the opposite conclusion.” (citing Murphy v. Royal, 875 F.3d 896, 907-09, 966 (10th Cir. 2017)). In Murphy, we issued a writ of habeas corpus after agreeing with the petitioner that he should not have been tried in state court but instead “should have been tried in federal court because he is an Indian and the offense occurred in Indian country.” 875 F.3d at 903.

It’s not much, eh? Remember Oklahoma in 2017-18?

*Oklahoma’s cert petition in* Royal v. Murphy *(later* Sharp v. Murphy).

Maybe yes (maybe?) on the pending prosecutions, but not so much the existing convictions, eh? Hmmmm.

Ninth Circuit Briefs in Constitutional Challenge to MCA as Unjustified Racial Classification

May 30, 2023Matthew L.M. Fletcher

Here are the briefs in United States v. Gordon:

Gordon Opening Brief.pdf Download

Ok, so there’s only that brief so far. Also, since the defendant stipulated to tribal membership with Nez Perce, I doubt this has legs, but it’s the kind of full-throated attack on the Indian status cases arising under the Indian country criminal jurisdiction statutes that we should expect more regularly — i.e., the kind that relies a LOT on single-authored concurrences and dissents from a certain SCT Justice that tends to rely on discredited historical research.

Here’s the lower court judgment (nothing terribly helpful here since the defendant stipulated to tribal membership):

DCT Docket No. 85 — Judgment.pdf Download

Supplemental Briefs on Standing in Hooper v. Tulsa

May 25, 2023Matthew L.M. Fletcher

Here:

Hooper Supplemental Brief on Standing.pdf Download

Tulsa Supplemental Brief.pdf Download

Hooper Supplemental Reply.pdf Download

Oral argument audio here.

Briefs here.

Oklahoma Federal Court Dismisses Pro Se Civil Rights Suit Brought by Cherokee Prisoners

May 15, 2023Matthew L.M. Fletcher

Here are the materials in Hogshooter v. Cherokee Nation (E.D. Okla.):

1 Complaint.pdf Download

3 DCT Order.pdf Download

Oklahoma Court of Criminal Appeals Finds Ottawa and Miami Reservations Remain Extant

May 12, 2023Matthew L.M. Fletcher

Here are the materials in State of Oklahoma v. Brester:

OCCA Decision.pdf Download

Appellant Brief.pdf Download

Appellee Brief.pdf Download

Miami and Ottawa Tribes Amicus Brief.pdf Download

Peoria Tribe Amicus Brief.pdf Download

South Dakota Federal Court Dismisses Federal Gun Possession Indictment Relying on Rosebud’s D.V. Conviction

May 4, 2023Matthew L.M. Fletcher

Here are the available materials in United States v. Peneaux (D.S.D.):

31 Motion to Dismiss.pdf Download

38 DCT Order.pdf Download

An excerpt from the order:

Federal law prohibits the possession of a firearm by a person “who has been convicted in any court of a misdemeanor crime of domestic violence.” 18 U.S.C. § 922(g)(9). Defendant Hunter Peneaux pleaded guilty to domestic abuse in Rosebud Sioux Tribal Court on three separate occasions. He was later indicted by a grand jury for violating § 922(g)(9). Peneaux now moves to dismiss the indictment, arguing that his tribal court convictions do not qualify as misdemeanor crimes of domestic violence because they did not have” as an element, the user attempted use of physical force.” 18 U.S.C. § 921(a)(33)(A)(ii). Under the sometimes-frustrating analys is required by the Supreme Court, this Court must dismiss Peneaux’s indictment.

Eighth Circuit Affirms Indian Country Drug Conviction over Potentially Interesting Jurisdictional Objections

May 3, 2023Matthew L.M. Fletcher

Here is the opinion in United States v. Milk.

Briefs:

Opening Brief

Federal Answer Brief

An excerpt from the opinion:

Milk, who is Native American and an enrolled member of the Oglala Sioux Tribe, contends that the district court lacked jurisdiction because (1) he was convicted of crimes that are not enumerated under the Major Crimes Act, 18 U.S.C. § 1153,4 and (2) under the General Crimes Act, 18 U.S.C. § 1152, the alleged unlawful acts in this case occurred on the Pine Ridge Reservation and only involved American Indian people. But Milk’s arguments are foreclosed by precedent.

New Student Scholarship on Indian Country Criminal Sentencing

May 2, 2023Matthew L.M. Fletcher

Nasrin Camilla Akbari has published “The Gladue Approach: Addressing Indigenous Overincarceration Through Sentencing Reform” in the NYU Law Review. PDF

Here is the abstract:

In the American criminal justice system, individuals from marginalized communi- ties routinely face longer terms and greater rates of incarceration compared to their nonmarginalized counterparts. Because the literature on mass incarceration and sentencing disparities has largely focused on the experiences of Black and Hispanic individuals, far less attention has been paid to the overincarceration of Native peo- ples. Yet there are clear indications that Native peoples are both overrepresented within the criminal justice system and subject to unique sentencing disparities as compared to other ethnicities. While these issues are partly motivated by traditional drivers of criminal behavior, including access barriers to housing, employment, and education, this Note argues that there is a greater systemic issue at play: the enduring legacy of colonialism. Accounting for—and correcting—this legacy in the criminal justice system is a complex task, though not an impossible one. For example, over the past twenty years, the Canadian criminal justice system has implemented a novel, remedial sentencing approach to address the overincarcera- tion of Aboriginal offenders: the Gladue approach. Recognizing the extent to which the Canadian legal system has failed to account for the unique needs, exper- iences, and circumstances of Aboriginal offenders, the Gladue approach mandates an individualized and contextualized approach to sentencing, one which prioritizes community-based alternatives to incarceration and emphasizes restorative justice. This Note proposes two legal pathways by which to transplant the Gladue approach to the American criminal justice system. In so doing, it offers the first comprehensive analysis of the normative and constitutional implications of applying the Gladue approach to the sentencing of Native peoples within the United States. While the approach has challenges and shortcomings, it is neverthe- less a powerful tool by which the American criminal justice system can begin to reckon with its colonial past and present.