Criminal

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 →

Texas Kickapoo Embezzlement Convictions Reversed by Fifth Circuit

Matthew L.M. Fletcher

Here is the opinion in United States v. Garza, and a news article (via Pechanga) on the case.

Another Mario Gonzales sighting!

Federal Court Dismisses Indictment in Indian Country Domestic Violence; Questions Constitutionality of Statute

Matthew L.M. Fletcher4 Comments

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

Cavanaugh Motion to Dismiss

US Opposition to Cavanaugh Motion to Dismiss

Cavanaugh Reply Brief

Continue reading →

News Profile of Barriers to Justice for Indian Women

Matthew L.M. Fletcher

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

Matthew L.M. Fletcher

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

Matthew L.M. Fletcher

The lesson learned, once again, is to request a permit to take eagles. Here are the materials in U.S. v. Bertucci (D. Neb.):

Bertucci R&R

Bertucci DCT Order

Report on Sex Trafficking of Indian Women and Girls in Minnesota

Matthew L.M. Fletcher1 Comment

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

Matthew L.M. Fletcher

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

Matthew L.M. Fletcher

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 →