Criminal

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

Matthew L.M. Fletcher

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

31 Motion to Dismiss.pdfDownload
38 DCT Order.pdfDownload

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

Matthew L.M. Fletcher

Here is the opinion in United States v. Milk.

Briefs:

Opening Brief

Federal Answer Brief

Reply

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

Matthew 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.

The Whitney’s effort to get you to feel good about giving them zhoonya.

Oklahoma Federal Court Denies Discovery into Allegation of Collusion between Federal and State Prosecutors in Indian Country Murder Case

Matthew L.M. Fletcher

Here are materials in United States v. Buzzard (N.D. Okla.):

16 Indictment.pdfDownload
154 Motion for Discovery.pdfDownload
165 Response.pdfDownload
174 Magistrate Order.pdfDownload

Hawai’i State Court Agrees to Extradite Prisoner to Pascua Yaqui

Matthew L.M. Fletcher

Here are the briefs in In the Matter of the Extradition of Moreno (Haw. Cir. Ct.):

Motion to Dismiss – Carlos Moreno

Moreno MIO

Moreno Reply

Seneca-Cayuga Sues Oklahoma Officials over Reservation Boundaries Post-McGirt

Matthew L.M. Fletcher

Here is the complaint in Seneca-Cayuga Nation v. Drummond (N.D. Okla.):

1 Complaint.pdfDownload
Maybe time for some burn barrel protesting.

Update: Here is the complaint in Eastern Shawnee Tribe v. Drummond:

2 Complaint.pdfDownload

Tenth Circuit Oral Argument Audio in Hooper v. City of Tulsa

Matthew L.M. Fletcher

Here.

Briefs here.

Teepee incense here:

Colorado Federal Court Refuses to Accept Plea Deal for Lesser Included Offense in Major Crimes Act Prosecution

Matthew L.M. Fletcher

Here are the materials in United States v. English (D. Colo.):

1 Indictment

33 Joint Memorandum in Support of Plea Agreement

36 Magistrate Minute Order: “This Court does not have jurisdiction over the charge in the proposed Plea Agreement. . . .”

37 Government Objection

39 English Objection

41 DCT Order

An excerpt:

The Major Crimes Act represents one way in which Congress has permitted federal courts to exercise jurisdiction over crimes occurring on tribal lands which otherwise would be subject to the exclusive jurisdiction of the tribal courts. Now codified at 18 U.S.C. § 1153, the Act gives federal courts exclusive federal jurisdiction over certain enumerated felonies occurring between Indians in Indian Country, including, specifically, “a felony assault under section 113.” 18 U.S.C.A. § 1153(a). See also United States v. Burch, 169 F.3d 666, 669 (10th Cir. 1999). Prosecution of crimes not expressly designated in section 1153, including, specifically, simple assault – is reserved to the tribal courts, in recognition of their inherent sovereignty over such matters. United States v. Antelope, 430 U.S. 641, 643 n.1, 97 S.Ct. 1395, 1397 n.1, 51 L.Ed.2d 701 (1977); United States v. Quiver, 241 U.S. 602, 700-01, 36 S.Ct. 699, 605-06, 60 L.Ed. 1196 (1916); United States v. Burch, 169 F.3d 666, 668-69 (10thCir. 1999). See also United States v. Lara, 541 U.S. 193, 199, 124 S.Ct. 1628, 1632-33, 158 L.Ed.2d 420 (2004) (“[25 U.S.C. § 1301] says that it ‘recognize[s] and affirm[s]’ in each tribe the ‘inherent’ tribal power … to prosecute nonmember Indians for misdemeanors.”).

South Dakota Federal Court Declines to Dismiss Federal Indictment for Assaulting a Police Officer Where Chase Started in Indian Country

Matthew L.M. Fletcher

Here are the materials in United States v. Blue Bird (D.S.D.):

1 Indictment

23 Motion to Dismiss

26 DCt Order

Student Note on the Exclusionary Rule and the Indian Civil Rights Act

Matthew L.M. Fletcher

Seth E. Montgomery has published “ICRA’s Exclusionary Rule” in the Boston University Law Review.

The abstract:

The Fourth Amendment does not limit the actions of the 574 federally recognized Indian tribes. In an affront to tribal sovereignty, Congress enacted the Indian Civil Rights Act (“ICRA”) in 1968. The ICRA provides limitations on tribal governments that parallel the Bill of Rights. For example, the ICRA provides that no Indian tribe shall “violate the right of the people to be secure . . . against unreasonable search and seizures.”
But the ICRA—like the Fourth Amendment—does not state what happens when police obtain evidence from an unreasonable search or seizure and prosecutors seek to introduce that evidence in a criminal trial. Federal courts have developed an exclusionary rule for evidence obtained in violation of the Fourth Amendment: subject to myriad exceptions, if police obtain evidence unconstitutionally, then that evidence may not be introduced in a criminal trial. This Note asks whether the ICRA’s search-and-seizure provision incorporates such an exclusionary rule.
This Note advances an interpretation of the ICRA based on the statute’s 1968 meaning: the ICRA’s text compels an exclusionary rule, conditioned on deterring tribal police misconduct, but not subject to the myriad exceptions that apply in the Fourth Amendment context. And, with important qualifications, this Note explains why a court applying this interpretation should turn to tribal law. A deterrence-based exclusionary rule requires courts to consider whether exclusion deters police misconduct, how to measure the benefits of deterrence against the harms of excluding probative evidence, and how much deterrence is necessary for exclusion. Comity, self-determination, and federalism all compel deference to tribal law in answering these questions. Thus, tribal law can and should guide the application of the ICRA’s search-and-seizure provision in a criminal prosecution.
This Note contributes to the legal and academic landscape in three ways. First, it adds to an ever-growing body of literature advocating for federal and state deference to tribal law. Second, this Note fills a gap in the literature by addressing a remedy that the ICRA does not expressly provide—namely, exclusion. Most academics and courts describe federal habeas review as the ICRA’s only available remedy outside of tribal courts. Finally, this Note provides a roadmap for litigants arguing for or against a suppression motion based on an ICRA violation. Only a limited number of reported cases address whether the ICRA incorporates an exclusionary rule, and even fewer provide a full analysis. This Note thus answers an open question in a way that harmonizes constitutional criminal procedure with deference to tribal legal precedent.