Criminal

Sexual Assault Conviction of Former President of Nunatsiavut Government Upheld – Sentence Increased

Peter Scott Vicaire

In R. v. Andersen, the Newfoundland and Labador Supreme Court upheld the sexual assault conviction of William Andersen III, former President of the Nunatsiavut Government in Labrador.   He was convicted on January 25, 2010.  He appealed the conviction and the Crown cross-appealed the (unconditional discharge) sentence.

Andersen represented the Torngat Mountains district in the house of assembly between 1993 and 1996 and later became president of the Nunatsiavut government. He stepped down from that position in November 2007, while the charge was being investigated.

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Wellington v. Ontario: Right To Sue Police Investigators For Negligent Investigation?

Peter Scott Vicaire

Recently the Ontario Court of Appeal allowed an appeal on the issue of whether victims of crime committed by police officers have the right to sue the Special Investigation Unit (SIU) for negligent investigation.  The judge determined that there was no such right.  The Aboriginal Legal Services of Toronto was an intervenor.  Here’s the decision.

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Briefs in People v. Jensen — Motion to Dismiss State Prosecution of Treaty Fishers for Tribal Fishing Regulation Violations

Matthew L.M. Fletcher

Here are the materials:

Jensen Motion to Dismiss

Jensen Brief in Support of Motion to Dismiss

Jensen Motion for Leave to File Supp. Brief

Jensen Supp. Brief in Support of Motion

Jensen Motion to Take Judicial Notice of US v Mich Proceeding

Major Crimes Act and Voting Rights Act Linkage — Jury Pools and Voter Registration in Indian Country

Matthew L.M. Fletcher

A federal court denied an American Indian prisoner habeas claim recently on grounds that he could not support his Batson argument with any evidence. Batson being the case that requires a jury of one’s peers. As anyone in Indian country knows, rarely if ever (I posit virtually never) will an American Indian being prosecuted in federal court be tried by a jury that includes even one other American Indian (articles by Doyle/Eid and Washburn).

In this order (US v Bordeaux), the court rejects claims that American Indians even in South Dakota have a Batson claim:

There can be little doubt that Native Americans constitute a distinctive group in South Dakota. The record is undeveloped as to the second prong although there was at least one Native American in the venire; the removal of juror F.C. was the subject of Bordeaux’s Batson challenge. But even if Bordeaux could establish that the representation of Native Americans in the venire was not fair and reasonable, he has failed to show that Native Americans are systematically excluded. The District of South Dakota’s Plan for the Random Selection of Grand and Petit Jurors calls for potential jurors to be called exclusively from a list of registered voters provided by the South Dakota Secretary of State. See Docket No. 7-1. The Eighth Circuit has consistently upheld the use of voter registration lists to select jury pools. Morin, 338 F.3d at 844; Sanchez, 156 F.3d at 879. Bordeaux has presented no evidence whatsoever that Native Americans living in South Dakota face obstacles in the voter registration process. Although Bordeaux argues the lack of Native Americans in the jury pool proves his case, simple statistical disparities between the number of Native Americans represented in the general population and jury pools do not by themselves establish systematic exclusion. Sanchez, 156 F.3d at 879.

There is some evidence in the continuing cases in South Dakota of Voting Rights Act violations (see Laughlin McDonald’s fine American Indians and the Fight for Equal Voting Rights, ch. 5). Maybe the ACLU Voting Rights Project and the South Dakota public/appellate defenders should get together. Ah, they probably already are.

Federal Court Enjoins Muscogee Prosecution of Tribal Members for Theft

Matthew L.M. Fletcher3 Comments

Here are the materials in Fife v. Moore (E.D. Okla.):

20110422 Order

Fife PI Motion

Moore Motion to Dismiss

Fife Response

The court concluded that the Muscogee District Court had no jurisdiction to prosecute tribal members for theft against the tribal government because the crime did not occur in Indian country (which until recently would have been considered preposterous).

This case implicates two important issues (one at Muscogee and one involving many Oklahoma tribes). The first is the continuing dispute over the tribal district court at Muscogee (see our posts here and here). The other involves Indian Country in Oklahoma, the subject of a cert petition involving the Supreme Court (most recent post here).

The Trial of Ned Christie — Cherokee Nation — June 10-11, 2011

Matthew L.M. Fletcher

Here is the flyer:

Ned Christie Trial Outline 2011

Ninth Circuit Affirms Supervised Release Condition on Indian Convict: Ban on Residing in Town on Crow Reservation

Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. Yellow Mule.

State v. Joseph: Washington Cannot Prosecute Tribal Members for Illegally Harvesting Geoducks

Matthew L.M. Fletcher

Here is the opinion from King County District Court:

Joseph crim decision 4.4.11

Thanks to M.T. for sending this along.

Federal Court Filings to Stop State Prosecution of Sault Tribe Members for Treaty Fishing Violations

Matthew L.M. Fletcher1 Comment

As usual, Friday is the most exciting time of the week for Indian law events.

Here are the materials in the most recent proceedings in United States v. Michigan, an effort to enjoin State v. Jensen in Delta County court (John Petoskey doing the heavy lifting in state court for Jensen and Bruce Greene in federal court for the Sault Tribe):

Doc. No. 1819 (Motion for Relief)

Doc. No. 1820 Memo in Support of Motion for Relief

Doc. No. 1820-1 (Exh A-E)

Doc. No. 1820-2 (Exh F-H)

Doc. No. 1820-3 (Certif of Compliance with 2000 Consent Decree

Doc. No. 1821 (Motion to Expedite)

Tenth Circuit: Fed. Courts Have No Jurisdiction over Non-Indian, Victimless Crime in Indian Country

Matthew L.M. Fletcher1 Comment

Here is the opinion in United States v. Langford.

All this despite language in the Oklahoma Constitution appearing to disclaim state jurisdiction over crimes like these:

Although the McBratney line of cases establishes that the states, not the federal government, possess exclusive jurisdiction over non-Indian perpetrators of victimless crimes, the Oklahoma Constitution appears to disclaim any state jurisdiction over crimes committed in Indian country.  Article I, Section 3 of the Oklahoma Constitution provides: The people inhabiting the State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public land shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United States. Notwithstanding the plain text, the Oklahoma courts have construed this provision “to disclaim jurisdiction over Indian lands only to the extent that the federal government claimed jurisdiction.”  Goforth v. State, 644 P.2d. 114, 116 (Okla. Crim. App. 1982) (citing Currey v. Corp. Comm’n, 617 P.2d 177 (Okla. 1979)).  As the Oklahoma Court of Criminal Appeals observed in Goforth, to construe this provision otherwise would result in a jurisdictional vacuum in which neither the federal government (due to McBratney) nor Oklahoma could punish crimes committed by non-Indians against non-Indians in Indian country.  Consequently, the Oklahoma courts have asserted jurisdiction over crimes by non-Indians in Indian country.  See Goforth, 644 P.2d at 117.

Here are the briefs:

Langford Opening Brief

US Answer Brief (Langford)

Langford Reply

Lower Court Record