Criminal

Idaho Supreme Court Rejects “Church” of Marijuana Defense to Criminal Conviction

Matthew L.M. Fletcher

Here is the opinion in State v. Fluewelling.

An excerpt:

Defendant  relies  upon the phrase, “nor shall any preference be given by law to any religious denomination or mode of worship.”  He contends that a preference has been granted to another religion by Idaho Code § 37-2732A.  That statute exempts from the criminal sanctions in the Uniform Controlled Substances Act the transporting, delivery, or possession of peyote by“persons of native American descent who are members or eligible for membership in a federally recognized Indian tribe” when such peyote is “to be used as the sacrament in religious rites of a bona fide native American religious ceremony conducted by a bona fide religious organization.” Defendant argues that “[t]he government may not allow the use of peyote as  ‘the sacrament inreligious rites of a bona fide native American religious ceremony’ while at the same time punishing [Defendant] for his sacramental use of marijuana in the privacy of his home.”

Assuming that Idaho Code § 37-2732A grants a preference to certain native Americans in the practice of their religion, that would be a basis for invalidating that statute.  It is not a basis for invalidating Idaho Code § 37-2732(a)(1)(B) under which Defendant was convicted.  The statute under which he was convicted is of general application and it does not proscribe any conduct because it is engaged in for religious reasons or because of the religious belief it portrays.  It is entirely neutral with respect to religion.  It does not directly or indirectly give a preference to any religious denomination or mode of worship.  The district court did not err in denying Defendant’s motion to dismiss.

Ontario Judge Adjourns Murder Trial For Lack of Aboriginal Jurors

Peter Scott Vicaire

A judge has adjourned a murder trial in Thunder Bay after ruling it was impossible to convene a jury representative of the northern Ontario city’s aboriginal population.

It has been postponed until November.

Here’s the story from cbs.ca.

Shavanaux Brief in Appeal of Dismissal of Federal Indictment Using Uncounseled Prior Tribal Court Convictions

Matthew L.M. Fletcher

Important case to watch. The appellant brief and lower court materials are posted here.

The appellee’s brief: Shavanaux Appellee Brief.

My own short article on this question is here.

Tenth Circuit Dismisses Appeal of Indian Challenging Constitutionality of Title 18

Matthew L.M. Fletcher

Here is the opinion in United States v. Tony.

And here is Tony’s brief: Tony Opening Brief

Update in Utah Stolen Indian Artifacts Case — Defendants’ “Expert” Allowed to Testify on Value of Objects

Matthew L.M. Fletcher

Here is an interesting development in United States v. Smith, the criminal case in Utah regarding the theft of Indian artifacts and other objects.

The defendants’ proposed expert witness (Dace Hyatt) on the value of the materials collected allegedly in violation of federal law will be allowed to testify, despite having no formal training on anthropology, archaeology, or anything else (not to mention lying in an affidavit about reviewing evidence in person when that evidence is locked away deep in the bowels of the BLM). Assuming the defendants still use this expert, cross-examination at trial will be very interesting. His testimony is that each object is valued at slightly less than $500, the jurisdictional minimum.

Here are the materials:

DCT Order on Daubert Motion

US Motion to Exclude Expert Testimony

US Second Motion to Exclude Expert Testimony

Defendants Opposition to Motion

 

Gladue and the Aboriginal Criminal Sentencing Discount

Peter Scott Vicaire

Last week, in R. v. Collins, the Ontario Court of Appeal lessened the sentence an Aboriginal woman received from 16 months incarceration and two years probation to 10 months incarceration and two years probation. 

Susan Collins was a participant in a scheme to defraud Ontario of money from social assistance benefits.  The amount directly attributed to Collins was in excess of $96,000.  But Collins was only one part of a larger scheme and the total estimated financial loss due to the fraudulent activity while the scheme was operating is $1.285 million.  Collins’ role was to provide identities for which false claims were created and to then cash the cheques issued on those files.  She processed 67 cheques in the total amount of $96,298.   

Her sentence was reduced by six months because the Gladue principle, originating from R. v. Gladue, [1999] 1 S.C.R. 688, was in play.

Continue reading →

State v. Yallup — Wash. Court of Appeals Decides PL 280 Criminal Jurisdiction Case

Matthew L.M. Fletcher

Here is the opinion.

An excerpt:

Elon Yallup challenges his conviction for felony driving while under the influence (DUI), arguing that the State cannot enforce the implied consent laws against an enrolled member of the Yakama Nation driving on state highways on the reservation. We conclude that the implied consent statute is primarily a criminal statute rather than a civil regulatory statute as that distinction is applied by the United States Supreme Court in cases interpreting Public Law 280.

Appellant brief is here.

Respondent brief is here.

GAO Report on Tribal Justice Systems

Matthew L.M. Fletcher

Here is the report, and the highlights.

The description:

The Department of Justice (DOJ) reports from the latest available data that from 1992 to 2001 American Indians experienced violent crimes at more than twice the national rate. The Department of the Interior (DOI) and DOJ provide support to federally recognized tribes to address tribal justice issues. Upon request, GAO analyzed (1) the challenges facing tribes in adjudicating Indian country crimes and what federal efforts exist to help address these challenges and (2) the extent to which DOI and DOJ have collaborated with each other to support tribal justice systems. To do so, GAO interviewed tribal justice officials at 12 tribes in four states and reviewed laws, including the Tribal Law and Order Act of 2010, to identify federal efforts to assist tribes. GAO selected these tribes based on court structure, among other factors. Although the results cannot be generalized, they provided useful perspectives about the challenges various tribes face in adjudicating crime in Indian country. GAO also compared DOI and DOJ’s efforts against practices that can help enhance and sustain collaboration among federal agencies and standards for internal control in the federal government.

The 12 tribes GAO visited reported several challenges in adjudicating crimes in Indian country, but multiple federal efforts exist to help address some of these challenges. For example, tribes only have jurisdiction to prosecute crimes committed by Indian offenders in Indian country. Also, until the Tribal Law and Order Act of 2010 (the Act) was passed in July 2010, tribes could only sentence those found guilty to up to 1 year in jail per offense. Lacking further jurisdiction and sentencing authority, tribes rely on the U.S. Attorneys’ Offices (USAO) to prosecute crime in Indian country. Generally, the tribes GAO visited reported challenges in obtaining information on prosecutions from USAOs in a timely manner. For example, tribes reported they experienced delays in obtaining information when a USAO declines to prosecute a case; these delays may affect tribes’ ability to pursue prosecution in tribal court before their statute of limitations expires. USAOs are working with tribes to improve timely notification about declinations. DOI and the tribes GAO visited also reported overcrowding at tribal detention facilities. In some instances, tribes may have to contract with other detention facilities, which can be costly. Multiple federal efforts exist to help address these challenges. For example, the Act authorizes tribes to sentence convicted offenders for up to 3 years imprisonment under certain circumstances, and encourages DOJ to appoint tribal prosecutors to assist in prosecuting Indian country criminal matters in federal court. Federal efforts also include developing a pilot program to house, in federal prison, up to 100 Indian offenders convicted in tribal courts, given the shortage of tribal detention space. DOI, through its Bureau of Indian Affairs (BIA), and DOJ components have taken action to coordinate their efforts to support tribal court and tribal detention programs; however, the two agencies could enhance their coordination on tribal courts by strengthening their information sharing efforts. BIA and DOJ have begun to establish task forces designed to facilitate coordination on tribal court and tribal detention initiatives, but more focus has been given to coordination on tribal detention programs. For example, at the program level, BIA and DOJ have established procedures to share information when DOJ plans to construct tribal detention facilities. This helps ensure that BIA is prepared to assume responsibility to staff and operate tribal detention facilities that DOJ constructs and in turn minimizes potential waste. In contrast, BIA and DOJ have not implemented similar information sharing and coordination mechanisms for their shared activities to enhance the capacity of tribal courts to administer justice. For example, BIA has not shared information with DOJ about its assessments of tribal courts. Further, both agencies provide training and technical assistance to tribal courts; however, they are unaware as to whether there could be unnecessary duplication. Developing mechanisms to identify and share information related to tribal courts could yield potential benefits in terms of minimizing unnecessary duplication and leveraging the expertise and capacities that each agency brings. GAO recommends that the Secretary of the Interior and the Attorney General direct the relevant DOI and DOJ programs to develop mechanisms to identify and share information related to tribal courts. DOI and DOJ concurred with our recommendation.

 

State v. Bullplume — Mont. SCT Affirms Conviction for Blackfeet Reservation Murder

Matthew L.M. Fletcher

Here is the opinion.

Eighth Circuit Affirms Conviction of “Attorney General” of Fake Indian Tribe

Matthew L.M. Fletcher

Here is the opinion in United States v. Reed: CA8 Opinion in US v Reed

Reed is the self-proclaimed attorney general for the Little Shell Nation, anIndian tribe not recognized by the federal government.  Reed is not Native American,similar to many members of the unrecognized tribe, who join the organization via theInternet.  Reed was “adopted” by the Little Shell Nation in 2006, when he moved toNorth Dakota.  The Little Shell Nation maintains its office and headquarters inRolette, North Dakota.