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. 1820-3 (Certif of Compliance with 2000 Consent Decree
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:
Here are the materials in United States v. Pego (E.D. Mich.):
Here are the opinions in Reber v. Payne and Atkins v. Payne (D. Utah):
Here is the opinion:
Here are the materials:
Order on Motion for Partial SJ 03-31-11
An excerpt:
The Court concludes that, for purposes of § 1302(7), two charges are differentoffenses if each “requires proof of a fact which the other does not,” regardless of whetherthey arise from the same transaction. See Blockburger, 284 U.S. at 304. Applying thisdefinition to Petitioner’s case, § 1302(7) has not been violated by his convictions andpunishment. Petitioner’s own description suggests that each offense required proof of a factthat the others did not. The Court will accept the R&R and deny Petitioner’s motion forpartial summary judgment.
Here is today’s decision in United States v. Wilgus.
The conclusion:
We are sensitive to the sincerity of Wilgus’ religious beliefs, and we do not question either the authenticity or the weight of his religious experience among Native Americans. We recognize that this litigation has now been pending for more than a decade, and that both sides have put forward many meritorious arguments and reams of evidence. The district court performed yeoman’s service in sorting through that evidence in an attempt to determine whether the Eagle Act permitting requirements are the least restrictive means of forwarding the government’s dual compelling interests. The district court concluded in the negative, and we respect the work that went into it, but we cannot agree. We are convinced that, in light of the options before the federal government, the regulations at issue are the least restrictive means available to advance its compelling interests. We therefore REVERSE the conclusion of the district court to the contrary and hold that Wilgus’ conviction did not violate RFRA.
Norman Bevis Many Fingers, of the Blood Reserve in southern Alberta, shot and killed two dogs engaged in a dogfight. Witnesses estimate that there were 15-30 people, mostly children, in the immediate vicinity of the shooting. Interestingly, Many Fingers attempted to claim that his aboriginal and treaty rights were violated after he was charged with unsafe use of a firearm under ss. 86(1) and 88(1) of the Criminal Code and failure to register a firearm under s. 91(1). He was found guilty under s. 91(1) and appealed.
Here is the opinion in State v. Kurtz. The tribal amicus brief is here: Kurtz Amicus Brief (final as filed)
From the court’s press release:
Today, in a criminal case involving tribal police officers in Oregon and their status under state law, the Oregon Supreme Court held that, with regard to the crimes of attempting to elude a police officer, ORS 811.540, and resisting arrest by a peace officer, ORS 162.315, the legislature intended the statutory terms “police officer” and “peace officer” to include members of tribal law enforcement departments.
Here are the materials on Owen v. Weber:
A statement of the case from the appellant:
This appeal arrives from the district court’s order denying a petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by Lance George Owen, who is currently serving a life sentence without the possibility of parole in the South Dakota State Penitentiary. The central question is whether the state court that convicted Owen of committing a murder and aggravated assault at a tribal government housing unit — leased and operated by the Sisseton-Wahpeton Oyate Indian Tribe — had proper jurisdiction to do so, or whether only the federal government had jurisdiction to prosecute the crime under the Indian Major Crimes Act, 18 U.S.C. § 1153.
The district court concluded that the state court had proper jurisdiction over Owen. This conclusion was incorrect, and an unreasonable application of federal law to the record below, because the tribal government housing project qualified as a dependent Indian community and therefore fit within the definition of “Indian country” set forth in 18 U.S.C. § 1151. As a result, Owen’s habeas petition was incorrectly denied and the district court’s order sealing a contrary fate accordingly should be reversed.
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