Here is the opinion, issued today (5-4).
The petitioner is a member of the Mescalero Apache Tribe.
Prior postings with briefs here.
Criminal
Ninth Circuit Affirms Conviction and Rejects Efforts to Inquire into Tribal Court Judge’s “Neutral[ity] and Detach[ment]”
Here are the materials in United States v. Wahtomy, out of the Shoshone-Bannock reservation:
An excerpt:
With regard to whether Judge Coby was “neutral and detached,” Wahtomy failed to proffer any description of Judge Coby’s testimony beyond stating that Judge Coby was his former wife’s daughter. He did not proffer even basic details of the relationship that were within his personal knowledge, such as whether Wahtomy and Judge Coby were personally acquainted or the extent and frequency of their interaction. He did not proffer any specific evidence of bias, nor why the relationship might have made Judge Coby biased against him in his case. Wahtomy also sought to inquire into Judge Coby’s relationship to law enforcement, but made no showing of any basis for so inquiring. Speculation based on the fact of a relationship or relationships alone is not sufficient to make out a showing of materiality. See Valenzuela-Bernal, 458 U.S. at 873-74; United States v. Heffington, 952 F.2d 275, 279 (9th Cir. 1991). Moreover, this case arose on an Indian reservation of several thousand people, where the likelihood that the on-call tribal judge has a relationship to the subject of a requested warrant is greater than in a more populous jurisdiction. In the absence of concrete evidence of partiality, we have expressed wariness to “disqualify small-town judges on demand” unless the appearance of partiality is “extreme.” Id.
Wahtomy also failed to proffer evidence of why Judge Coby might not have been competent to determine whether probable cause existed. Laypersons may properly issue warrants, including search warrants. See Illinois v. Gates, 462 U.S. 213, 235-36 (1983). Wahtomy acknowledged that he had no specific basis to question Judge Coby’s competency to make a “nontechnical, common-sense judgment[]” as to whether law enforcement had demonstrated probable cause. Id. In the absence of an appropriate proffer, the district court properly declined to permit Wahtomy to subpoena Judge Coby to inquire into her qualifications.
Judge Rawlinson concurred, but apparently refused to join this unpublished memorandum opinion.
New Mexico Supreme Court Upholds State Hot Pursuit Criminal Search in Indian Country
But recognizes that the tribal government could enact legislation to prohibit such hot pursuits.
Here is the opinion in State v. Harrison: New Mexico Supreme Court Opinion.
Indian Smokeshop Cert Petition Filed in Challenge to Tobacco MSA
The case is Maybee v. Idaho: Maybee Cert Petition
Lower court materials here.
Question presented:
In 1998, the Attorneys General of 46 states, five U.S. territories and the District of Columbia (the “Settling States”) settled various legal actions involving antitrust, product liability and consumer protection claims against the nation’s four largest tobacco companies. In exchange for substantial sums of monies, tied in part to sales volume, to be paid by settling manufacturers, each Settling State agreed to enact and diligently enforce a qualifying escrow statute that would artificially inflate costs for other tobacco manufacturers and which “effectively and fully neutralizes the cost disadvantage that the Participating Manufacturers experience vis-a-vis Non-Participating Manufacturers.” The question presented to the Court is whether a Settling State may prohibit the sale of certain brands of cigarettes manufactured by tobacco companies that have never been sued, or otherwise alleged or found culpable for conduct giving rise to liability.
Saginaw Chippewa Briefs Struck in Reservation Boundary Case as Not Being Timely
Here is the order: DCT Order Striking Sag Chip Briefs
The remaining materials are here.
Deeply Divided Eighth Circuit Panel Affirms 10-Year Sentence for Neonatcide
Apparently, this is only the second time in the history of the federal courts that there has been a person convicted of neonatcide. Thank you Major Crimes Act. 😦
The facts in this case are beyond horrible, and we usually don’t post criminal cases like this, but the dissent is so passionate in this case.
Here is the opinion: US v Deegan.
From the dissent (Judge Bright):
In the view of this judge, the procedure followed and the imposition of a ten-year-plus prison sentence on Ms. Deegan, a young American Indian woman, represents the most clear sentencing error that this dissenting judge has ever seen.
* * *
Ms. Deegan’s crime of neonaticide was a unique sort of homicide and completely unlike the usual and ordinary killings that constitute second-degree murder under federal law. As I have already observed, federal courts do not ordinarily deal with these types of cases, which may be grist for the mills of state courts. Only because this neonaticide occurred on an Indian reservation does this case become one of federal jurisdiction. There exists no basis in the statements of the Sentencing Commission or in reviewing federal appellate second-degree murder cases to conclude that the crime of neonaticide comes within the federal second-degree murder sentencing guidelines.
Court Orders Exhaustion of Tribal Court Remedies in Speedy Trial Case at Oglala
Here are the available materials in Chipps v. Oglala Sioux Tribal Court (D. S.D.):
Ninth Circuit Affirms Indian Country Capital Murder Conviction
Kinda, somewhat interesting case arising on the Colville Reservation, where the defendant wasn’t indicted for more than 10 years after the crime — United States v. Gallaher. Here is the court’s take:
The Federal Death Penalty Act of 1994 conditionally eliminated the death penalty for Native American defendants prosecuted under the Major Crimes Act or the General Crimes Act, subject to the penalty being reinstated by a tribe’s governing body. See 18 U.S.C. § 3598. In 2005, a federal grand jury indicted defendant-appellant James H. Gallaher, Jr., for first degree murder, more than 14 years after he killed Edwin Pooler on the Colville Indian Reservation in eastern Washington. Because the Confederated Tribes of the Colville Reservation have not reinstated the death penalty, Gallaher argues that he is not subject to the death penalty and thus the five year federal statute of limitations for noncapital crimes applies to his offense. See id. §§ 3281-82. We disagree and hold that first degree murder remains a capital offense, regardless of whether capital punishment can be imposed in a particular case.
There was a dissenter (Judge Tashima), who argued:
In my view, the Federal Death Penalty Act removes first degree murder committed within the boundaries of “Indian country” from the realm of offenses punishable by death and delegates to the tribes the authority to determine the availability of the death penalty. See 18 U.S.C. § 3598. The Confederated Tribes of the Colville Reservation has not elected to make the death penalty available for first degree murder on the Colville Reservation. Thus, capital punishment has been clearly eliminated for the crime for which Gallaher was indicted. Because Gallaher has not been indicted for an “offense punishable by death,” see 18 U.S.C. § 3281, the five-year statute of limitations applies, see 18 U.S.C. § 3282.
Here are the materials:
Minnesota Court of Appeals Holds State Court Has No Civil Confinement Authority over Minnesota Chippewa Members
Here is the opinion in In the Matter of the Civil Confinement of Johnson.
The court’s syllabus:
The state does not have jurisdiction pursuant to Public Law 280 to civilly commit an enrolled member of a federally recognized Indian tribe as a sexually dangerous person under the Minnesota Commitment and Treatment Act. But in the absence of express congressional consent, the state does have jurisdiction to civilly commit an enrolled member of a federally recognized Indian tribe as a sexually dangerous person under the commitment and treatment act where, as here, federal law does not preempt state jurisdiction and exceptional circumstances exist.
DOJ Issues SORNA Implementation Guidelines
Here.
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