Criminal – Page 120 – Turtle Talk

Fletcher at ACSBlog on the DOJ Legislative Proposal to Combat Violence against Indian Women

August 5, 2011August 4, 2011Matthew L.M. Fletcher

Here is the link to the post, titled “DOJ Takes Step Toward Addressing Violent Crime Against American Indian Women.”

An excerpt:

The United States Department of Justice (DOJ) has, for the first time, proposed a dramatic expansion of American Indian tribal criminal jurisdiction in its recommendations to Congress on the reauthorization of the Violence against Women Act. After decades of declining to support expanded tribal criminal jurisdiction, this proposal is a major watershed in the fight against Indian country crime. DOJ finally supports the reaffirmation of at least limited authority to prosecute such crime by the first responders in Indian country – Indian tribes.

In its narrative proposal (available here), DOJ acknowledges the epidemic of violence against American Indian women occurring daily in the United States, and especially in Indian country. Recent studies by university researchers and Amnesty International, among others, conclude that American Indian women suffer possibly the highest rates of violent crime – most notably, sexual assaults – of any demographic in the United States.

The proposal is a limited one, given the political climate, but symbolically important. It recognizes inherent tribal jurisdiction to enforce civil protection orders against all persons, Indian and non-Indian, an open question in current law. It also recognizes limited tribal criminal jurisdiction authority over non-Indians who commit domestic violence-related crimes. Sexual assaults are not included in the proposal. Despite these limitations, DOJ’s recommendations – coming on the heels of 2010’s Tribal Law and Order Act, which was the first significant expansion of tribal sentencing authority since 1986 – may pave the way toward greater ability of Indian tribes to respond to violent crime against Indian women in the future.

Eighth Circuit Affirms Major Crimes Act — Domestic Violence — Sentencing

August 2, 2011August 1, 2011Matthew L.M. Fletcher

The court relied at least in part on prior tribal court convictions, but didn’t note whether they were counseled or uncounseled.

Here is the opinion:

US v Strong CA8 Opinion

Eighth Circuit Affirms Major Crimes Act Conviction of Juvenile; Member of Cheyenne River Sioux Tribe

August 1, 2011Matthew L.M. Fletcher

Here is the opinion in United States v. B.A.D.:

US v BAD CA8 Opinion

GTB and LTBB among Nine Tribes Nationally that have Substantially Complied with Sex Offender Registration Laws

July 29, 2011Matthew L.M. Fletcher

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

July 29, 2011Matthew L.M. Fletcher

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

July 28, 2011Matthew L.M. Fletcher1 Comment

Here are the available materials in Owen v. Huber:

CA8 Unpublished Opinion in Owen v. Huber

Owen Opening Brief

Owen Reply Brief

ICT on Shavanaux Reversal

July 28, 2011July 27, 2011Matthew L.M. Fletcher

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. 10^th 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

July 27, 2011Matthew L.M. Fletcher3 Comments

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.