Here is the opinion in United States v. Garza, and a news article (via Pechanga) on the case.
Another Mario Gonzales sighting!
Criminal
Federal Court Dismisses Indictment in Indian Country Domestic Violence; Questions Constitutionality of Statute
Here is United States v. Cavanaugh (D. N.D.), where the court dismissed an indictment under the federal domestic violence by a habitual offender in Indian Country statute (18 U.S.C. 117), holding that the use of prior uncounseled tribal court D.V. convictions to establish the “habitual” element of the crime was unconstitutional. See my paper on how state courts should use, if at all, uncounseled tribal court convictions. The court rejected claims that the statute itself was unconstitutional under Morrison and Lopez.
Here are the materials:
Cavanaugh DCT Order on Motion to Dismiss
News Profile of Barriers to Justice for Indian Women
From the Lincoln Journal Star:
She needs to call 911. She needs police to arrest the drunken boyfriend who assaulted her. She needs to go to the hospital, because she might be pregnant and he might be HIV-positive. And she needs a lawyer.
She could be one of so many women on Native reservations, where alcoholism and domestic violence often are rampant. In fact, Amnesty International reported in 2007 that Native women were 2 1/2 times more likely to be sexually assaulted.
Yet when a Native woman dials 911, a series of legal obstacles arise. Many stem from laws governing tribes — laws that can amplify the horror of sexual assault on Native reservations.
Among them is a 1950s federal regulation allowing government agencies, such as Indian Health Services, to avoid testifying in state and tribal courts.
The perceived benefit: Less courtroom involvement keeps agencies neutral.
But critics say information being withheld can include forensic evidence that could convict a rapist.
“So we have serial rapists that stalk our women,” said Charon Asetoyer, whose South Dakota-based group fights for Native women’s reproductive rights. Continue reading
Shooting at Barona Band Gaming Commission
From the San Diego Union-Tribune via Pechanga:
LAKESIDE — A Barona Gaming Commission employee who was fired last month walked into a commission office armed with a shotgun Tuesday morning and shot and killed a manager, then turned the gun on himself, authorities said.
San Diego County Sheriff Bill Gore identified the shooter in the murder-suicide as Donnell Roberts, 38, of El Cajon. He worked as an investigator for the commission before he was terminated in November.
Roberts’ ex-wife, Maria Small of Racine, Wis., said Roberts was a former Marine who was discharged from the service in 1994 after serving in the Gulf War. She described him as a man who was sometimes violent and “always angry.”
The name of the victim was not immediately released.
The bodies of both men were found about 2:30 p.m. inside the manager’s office, Gore said. Continue reading
Omaha Tribe Member’s Challenge to the Eagle Act Fails
The lesson learned, once again, is to request a permit to take eagles. Here are the materials in U.S. v. Bertucci (D. Neb.):
Report on Sex Trafficking of Indian Women and Girls in Minnesota
Devastating.
Here is the report from the Minnesota American Indian Women’s Resource Center, titled, “Shattered Hearts: The Commercial Sexual Exploitation of American Indian Women and Girls in Minnesota.”
Via Feminist Law Blog, and here and here and here.
Washington Court Reverses Conviction of Non-Indian Who Fished Under Tribal Law
Interesting case. Here is the opinion in State of Washington v. Guidry, a split court (2-1). Here are links to the briefs:
An excerpt:
Larry Guidry appeals his convictions for first degree fish dealing without a license, first degree fish trafficking without a license, four counts of participation of a non-Indian in an Indian fishery for commercial purposes, and four counts of first degree commercial fishing without a license. He argues that the trial court should have dismissed the charges against him because he lawfully fished under the Nisqually Tribal Code. He also argues that insufficient evidence supports his convictions for fish dealing and fish trafficking and that the trial court erred in imposing restitution. We reverse his convictions, vacate the restitution order, and remand.
ICT Special Report on Domestic Violence in Indian Country
From ICT:
Part 1 of 4
Native American women experience the highest rates of Intimate Partner Violence of any ethnic group in the United States. Knowledge of the prevalence of IPV in Native American communities is an important starting point to understand the pervasiveness and importance of domestic violence in American Indian communities.
This article, the first in a series of four on IPV against Native women, explores the prevalence of IPV among Native Americans from the national to tribe-specific level, focusing on Native American communities in the Southwest. Although numbers will vary from community to community, health care personnel and prominent community members must be aware of the high prevalence in order to adequately respond to the needs of Native American women. The rates of domestic violence will not begin to decrease until the problem is recognized so resources can be mobilized in response.
A review of statistical research on the prevalence of intimate partner violence in Native populations provides the justification for studying this problem. However, a literature review can prove difficult because many studies are based on small reservation samples and cannot be extrapolated to a general population. In addition, national surveys often do not include a sufficient representative sample of Native women to provide reliable numbers according to an article in a 2006 American Journal of Public Health. Each study notes differences in study design, the definition of IPV, and the demographic characteristics of the study population, which complicates comparison and analysis. Because of these issues, this article uses a variety of sources, from national to tribe-specific, to provide a statistical base for the importance of the study on IPV in Native populations.
Continue reading
Profile on Criminal Justice at Colville
From the Wenatchee News:
NESPELEM — Charlene Bearcub looks out her office window in Nespelem and does not see justice.
A probation officer for the Confederated Tribes of the Colville Reservation, Bearcub lost her son to a gun nearly five years ago.
A few blocks away, she can see the small, gray house where her oldest son, Ronald D. Thomas Jr., was shot and killed Jan. 12, 2005.
Next to her office sit two pale yellow prefabricated buildings which house Colville Tribal Court, where a tribal jury acquitted the teenager arrested and charged with her son’s homicide.
They were both 18, and best friends.
Even if he had been convicted, the boy would have spent only a year in jail for the crime, at most, because he was tried in tribal court. Under terms of the Indian Civil Rights Act of 1968, no tribe may impose punishment greater than one year imprisonment. Serious crimes — like rape and murder — are supposed to fall to federal agents to investigate, and the U.S. Attorney for prosecution. But when the U.S. Attorney declines to prosecute, the only other option is tribal court.
Miranda v. Nielson — Tribal Court Authority to Stack Consecutive Sentences
A federal magistrate has issued a report and recommendation (something not yet binding until the federal judge signs it) holding that Indian tribes do not have authority to sentence convicted criminals to consecutive sentences amounting to more than 1 year (the limit set by the Indian Civil Rights Act).
Here is the report and recommendation — Magistrate Report
Turtle Talk 
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