Criminal

NYTs on Tohono O’odham Nation and Mexican Drug Cartels

Matthew L.M. Fletcher

Here.

An excerpt:

A long-insular tribe of 28,000 people and its culture are paying a steep price: the land is swarming with outsiders, residents are afraid to walk in the hallowed desert, and some members, lured by drug cartel cash in a place with high unemployment, are ending up in prison.

“People will knock on your door, flash a wad of money and ask if you can drive this bale of marijuana up north,” said Marla Henry, 38, chairwoman of Chukut Kuk district, which covers much of the border zone.

The tightening of border security to the east and west, which started in the 1990s and intensified after the Sept. 11 attacks, funneled more drug traffic through the Tohono O’odham reservation, federal officials said, and especially more marijuana, which is hard to slip through vehicle crossings because of its bulk.

A record 319,000 pounds of marijuana were seized on the reservation in 2009, up from 201,000 pounds the previous year, along with small amounts of cocaine, heroin and methamphetamine.

Hundreds of tribal members have been prosecuted in federal, state or tribal courts for smuggling drugs or humans, taking offers that reach $5,000 for storing marijuana or transporting it across the reservation. In a few families, both parents have been sent to prison, leaving grandparents to raise the children.

“People are afraid that if they say no, they’ll be threatened by the cartel,” Ms. Henry said.

Dean Washburn Testimony on Tribal Law and Order Act before the U.S. Sentencing Commission — Updated

Matthew L.M. Fletcher1 Comment

Dean Kevin Washburn has posted the abstract of his written testimony on the Tribal Law and Order Act before the United States Sentencing Commission on SSRN. He will be appearing later today. Testimony is here.

Here is the abstract:

Under longstanding policy, the U.S. Sentencing Commission takes the position that tribal court convictions ought not be counted for purposes of evaluating a convicted defendant’s criminal history. Because in some cases this policy underestimates a defendant’s criminal history, it undermines the utilitarian and retributive purposes of federal sentencing. The Tribal Law and Order Act, currently pending in Congress and supported by the President, should cause the United States Sentencing Commission to reconsider its position on tribal convictions. The Act would provide clear federal authorization for tribal court felony sentences of up to three years per offense as long as tribal governments provide counsel to indigent defendants. I stop short of recommending a particular outcome because I believe that the Commission ought to consider the views of tribal governments before deciding. However, if the Act becomes law, the Commission should take this opportunity to re-open the question and consult with tribes about the future of this provision.


United States v. Fred Paquin Indictment

Matthew L.M. Fletcher2 Comments

As reported on Indianz yesterday, former Sault Tribe chief of police and board member Fred Paquin has been indicted in federal court. Here is the indictment:

Fred Paquin Indictment

Banishments at Mashantucket Pequot

Matthew L.M. Fletcher1 Comment

From local news:

In banishing Christopher Pearson, the former tribal official facing sentencing on federal wire-fraud charges, the Mashantucket Pequot Tribal Elders Council meted out an ancient form of punishment employed by Indian tribes across the country.

Within weeks of his Nov. 19 conviction in U.S. District Court in Hartford, Pearson was ordered off the Mashantucket reservation, where he owns a home, and to surrender his tribal badge, having “forfeited all rights and privileges of Tribal membership with the exception of services provided by Tribal Health Services.”

The elders council also directed the tribe’s finance department to cut off Pearson’s monthly “incentive” payments — the distributions of Foxwoods Resort Casino revenue that all tribal members in good standing receive.

While the tribe would provide no information about banishments, it’s believed that their frequency has increased since the tribe’s constitution and by-laws granted the elders council “the authority and responsibility” to impose them.

Mashantucket Pequot Tribal Council resolutions show that 12 people were banished by the tribal council prior to the establishment of the elders council in 1996. Currently, several people are banished each year, maybe more, according to Thomas Weissmuller, chief judge of the Mashantucket Pequot Tribal Court. Continue reading →

Companion Case to Miranda on Tribal Court Authority to Issue Consecutive Sentences

Matthew L.M. Fletcher1 Comment

This one is called Bustamante v. Valenzuela, and will be decided by a different judge than the Miranda case. Here are the materials:

PYT Motion for Summary Judgment

Bustamante Response and Cross Motion

PYT Reply

Bustamante Reply

Supreme Court Grants Cert in Criminal Restitution Case Involving Mescalero Apache Man

Matthew L.M. Fletcher

From Indianz:

The U.S. Supreme Court has agreed to hear a restitution case involving a member of Mescalero Apache Nation of New Mexico.

Brian Russell Dolan pleaded guilty to a violent attack on the reservation. He was sentenced to prison time and parole but restitution wasn’t determined by a federal judge until months later.

Dolan says the Mandatory Victims Restitution Act requires a judge to act within 90 days. The 10th Circuit Court of Appeals did not agree but the Supreme Court will review the decision.

The case is Dolan v. US, No. 09-367.

Continue reading →

News Article on Possible Cross-Dep between GTB and Grand Traverse County

Matthew L.M. Fletcher

From local TV:

Grand Traverse County could be getting new officers, but without hiring any new ones. It’s part of a cross deputization proposal from the Grand Traverse Band of Ottawa and Chippewa Indians. What are the implications and how might it give a boost to the sheriff’s department budget?

The details are tonight’s Fact Finder Report.

We may all live in northern Michigan, but a complicated past has left some of us in different legal territory.

John Petoskey, General Council for the Grand Traverse Band of Ottawa and Chippewa Indians says, “Because of the history of the relationship between tribes in the U.S. tribes do not have criminal jurisdiction over non tribe members and the state does not have criminal jurisdiction over tribal members.”

One aspect of that relationship may be changing.

The Grand Traverse Band and Grand Traverse County are discussing a cross deputization agreement.

Petoskey says, “What the cross deputization agreement would provide is the ability of the officer on the ground to make the arrest and sort out who has jurisdiction the next day.”

Right now if there’s a non tribal member breaks the law on property owned by the tribe, like Turtle Creek Casino, right now tribal officers can kick them off the property for trespassing, but that’s about it.

Petoskey says, “If we had a cross deputization agreement the tribe would be acting as deputies of Grand Traverse County to affect the arrest. The prosecution would still take place in Grand Traverse County though.”

Currently the Grand Traverse Band has similar agreements in 4 area counties; Charlevoix, Antrim, Benzie and Leelanau counties. He says those agreements are each for a number of years, but can be rescinded with a 30 day notice. And tribal leaders are using that model as the proposal for Grand Traverse County.

But why is Grand Traverse County the only county in the greater Grand Traverse Region without this kind of agreement?

You might blame it on previous administrations. Continue reading →

Federal Court Rejects Stacked Sentences in Tribal Courts — UPDATED

Matthew L.M. Fletcher4 Comments

Here is the order in Miranda v. Nielson [Pascua Yaqui Tribe] (D. Ariz.): Order MSJ Granted.

The Magistrate’s report is here.

Briefs are here:

Tribes X Motion Summary Judgment Habeas-Miranda

Miranda Motion for Summary J

PYT Objection to Magistrate Report

Federal Objections to Magistrate Report

PYT Court of Appeals Brief

Deputy AG Memorandum re: Indian Country Crime Initiative

Matthew L.M. Fletcher

Here, with text:

This memorandum implements a critical component of the Attorney General’s initiative to improve public safety in tribal communities by setting forth new policy for U.S. Attorneys’ Offices (USAOs) with Indian Country jurisdiction, and by identifying as a Justice Department priority the goal of combating violence against women and children in tribal communities.

The Department of Justice recognizes the unique legal relationship that the United States has with federally recognized tribes. As one aspect of this relationship, in much of Indian Country, the Justice Department alone has the authority to seek a conviction that carries an appropriate potential sentence when a serious crime has been committed. Our role as the primary prosecutor of serious crimes makes our responsibility to citizens in Indian Country unique and mandatory. Accordingly, public safety in tribal communities is a top priority for the Department of Justice.

Indian Country Law Enforcement Initiative Continue reading →

UCLA Law Student Note on Oliphant Fix

Matthew L.M. Fletcher3 Comments

Samuel E. Ennis published his Comment, “Reaffirming Indian Tribal Court Criminal Jurisdiction over Non-Indians: An Argument for Statutory Abrogation of Oliphant,” (pdf) in the UCLA Law Review. The abstract:

This Comment challenges Oliphant v. Suquamish Indian Tribe, which precludes Indian tribal courts from criminally prosecuting non-Indians. Given that non-Indians often comprise the majority of reservation populations, and that the current upswing in tribal gambling enterprises brings scores of non-Indians onto reservations, it is no longer feasible for the federal or state governments to maintain the predominant criminal jurisdictional authority over Indian country. Non-Indian authorities are often situated far from reservations and do not have the manpower to thoroughly investigate and prosecute the high number of reservation crimes that fall under their jurisdiction post-Oliphant. In response, this Comment proposes a politically and constitutionally acceptable statute that would abrogate Oliphant and return criminal jurisdiction to the tribes. Continue reading →