Criminal

On a Proposed U.S. Attorney for Indian Country

Matthew L.M. Fletcher3 Comments

Some commentators have proposed that there should be a United States Attorney’s Office for Indian Country (h/t Indianz). Any kind of dedicated law enforcement structure for Indian Country would be a dramatic improvement, but there are still serious issues that must be addressed. This is an interesting proposal, and it should be looked at from a historical perspective.

The proposal recalls Title 4 of H.R. 7902 of the 73rd Congress, the original bill of the Indian Reorganization Act, in which the drafters (primarily Felix Cohen) proposed a Federal Court of Indian Affairs. As we all know, that part of the bill went nowhere. As Vine Deloria and Clifford Lytle noted in 1984, the federal court of Indian affairs would bring the federal courts to Indian Country, the framers of the bill recognizing that Indians had extreme practical difficulty in appearing in federal court due to georgraphic isolation.

That geographic isolation remains, as does the difficulty in traveling to appear in federal court. Part of the reason, according to present and former U.S. Attorneys, that the declination rates in Indian Country crime are so high is this geographic isolation. Any proposal must acknowledge this factor and take steps to respond.

Another practical diffculty, not present in the same degree in the 1930s as it is now, are the jurisdictional quandries created by the checkerboarding of lands and jurisdiction. Questions about the jurisdiction of the proposed USAIC will be raised by the USAs already in Indian Country (ND, MI, WA, ID, AZ, NM, and so on). Declinations also result from the added difficulty of proving Indian Country status as an element of the crime committed. The new USAIC will not help this problem.

We continue to firmly believe that any Indian Country law enforcement program must involve the reaffirmation of tribal criminal jurisdiction. Expansion of federal capacities, while an improvement, cannot solve the problem.

Umatilla Confederated Tribes First Tribes to Implement SORNA

Matthew L.M. Fletcher

Here is the tribal press release — SORNA first tribe in nation

And the Dept. of Justice press release.

From the tribal press release:

The Confederated Tribes of the Umatilla Indian Reservation learned this week from the US Department of Justice that it is the first tribe in the nation to comply with, and implement, the Sex Offender Registration and Notification Act (SORNA) passed by Congress in 2006. The CTUIR and the state of Ohio are the first two jurisdictions in the country to comply with SORNA (commonly known as the Adam Walsh Act),  according to information released this week by the US Department of Justice.

Fake Indians Convicted in Southern Florida of Selling Tribal Memberships

Matthew L.M. Fletcher1 Comment

Here is the magistrate report and recommendations detailing the indictments — US v Watson

An excerpt:

On August 27, 2008, the undersigned Magistrate Judge reviewed an Application and Affidavit for Search Warrant and, based on that review, signed a Search Warrant (DE 121-2) for the premises located at 7500 N.W. 73rd Avenue, Tamarac, Florida. The Application and Affidavit for Search Warrant (DE 121-2) describes in considerable detail Defendant’s alleged criminal activity, as well as the affiant’s grounds for believing that an enumerated list of 13 items evidencing that activity could be found at the search premises.

The Affidavit asserts that Universal Service Dedicated to God, Inc. (“USDG”) was incorporated in Florida in 1996 and that since USDG’s incorporation, Defendant has been listed as its President. Id. at P 4 (DE 121-2). Law enforcement investigation revealed that from August 2005, Defendant and employees of USDG sold memberships in the Pembina Nation Little Shell Indian Tribe (“the Tribe”) by falsely representing to their clients, who were illegal aliens, that they would become United States citizens through their membership in the tribe and thereby resolve their immigration problems. Id. at P 5 (DE 121-2). Charging clients $ 1,500 per individual and $ 2,000 per couple, Defendant and the USDG employees completed applications for membership into the Tribe; they then issued identification documents, fraudulently stating that the applicants were members of the Tribe. Id. at PP 6, 7 (DE 121-2).

Who is an Indian under the Major Crimes Act?

Matthew L.M. Fletcher6 Comments

The Eighth Circuit’s decision that Matthew Stymiest is an “Indian” under 18 U.S.C. 1153(a) raises possible constitutional questions about due process and vagueness of a criminal statute, and it may be ripe for review by the Supreme Court as a circuit split.

Federal courts have adopted common law “tests” to determine whether a person charged under the statute is an Indian — they have to be in order to be convicted. The Eighth Circuit’s test lists a series of factors for a jury to consider in determining whether the defendant is an Indian.

Stymiest is a descendant of Leech Lake Band members, but he does not have the blood quantum to be eligible for membership himself. He often held himself out to be an Indian when it was to his advantage, such as when he was seeking Indian health clinic services, or in earlier criminal debacles where he probably thought it was to his advantage. But the local IHS people often asked him to produce some ID, which of course he never could. So is he an Indian? Hmmm.

And the wild thing about all of this is that under the statute, a jury of non-Indians (likely) will decide on these facts whether or not defendants like Stymiest are Indians beyond a reasonable doubt. As a matter of law, it is improbable that a jury can make a finding of “Indianness” under such a standard.

The Stymiest case likely conflicts in large part with the Ninth Circuit’s recent decision in United States v. Cruz. There, the court held that Christopher Cruz was not an Indian, despite being nearly quarter blood, although ineligible for tribal membership with the Blackfeet Nation. He worked for the BIA, spent several years of his childhood on the reservation, is eligible for some IHS and treaty hunting and fishing benefits, and was even once prosecuted in tribal court for a minor violation. In other words, Cruz is spectacularly similar to Stymiest.

Cruz isn’t an Indian under the Major Crimes Act, but Stymiest is. There’s a problem here.

Continue reading →

Eighth Circuit Affirms Conviction of Non-Enrolled Indian under Major Crimes Act

Matthew L.M. Fletcher2 Comments

Here is the opinion in United States v. Stymiest. An excerpt:

Applying the two-part Rogers test, and viewing this evidence in the light most favorable to the jury’s verdict, we conclude that sufficient evidence supports the jury’s finding that Stymiest was an Indian for purposes of this § 1153(a) offense. Without question, he has the requisite Indian blood-his grandfather is an enrolled member and medicine man in a Minnesota Band. By repeatedly submitting to tribal arrests and prosecutions, and by reporting to the IHS clinic he is an Indian, Stymiest held himself out as an Indian and received forms of official tribal recognition. See Lawrence, 51 F.3d at 152 n. 4; Cruz, 554 F.3d at 850; Bruce, 394 F.3d at 1226-27. He also lived and worked on the Rosebud reservation and repeatedly held himself out as a non-member Indian to his Indian girlfriend and in socializing with other Indians. Although not an enrolled member of any tribe, enrollment “is not the only means [of establishing Indian status] nor is it necessarily determinative.” Pemberton, 405 F.3d at 660; seeAntelope, 430 U.S. at 646 n. 7.

Washington Supreme Court Holds that Tribal Police have “Inherent Authority” to Engage in Fresh Pursuit Off the Reservation

Matthew L.M. Fletcher

Here’s the opinion in State v. Eriksen. An excerpt:

A Lummi Nation tribal police officer witnessed a motorist on
the reservation driving at night with high beams and drifting across the center divider.
Did the officer have authority to continue pursuing this vehicle beyond the
reservation’s borders and then detain the non-Indian driver until authorities with
jurisdiction to arrest for DUI1 arrived? This is an issue of first impression. We hold
tribal officers have inherent sovereign authority and statutory authority to continue
“fresh pursuit” of motorists who break traffic laws on the reservation and then drive
off the reservation. Therefore we affirm the trial court.

A Lummi Nation tribal police officer witnessed a motorist on the reservation driving at night with high beams and drifting across the center divider. Did the officer have authority to continue pursuing this vehicle beyond the reservation’s borders and then detain the non-Indian driver until authorities with jurisdiction to arrest for DUI1 arrived? This is an issue of first impression. We hold tribal officers have inherent sovereign authority and statutory authority to continue “fresh pursuit” of motorists who break traffic laws on the reservation and then drive off the reservation. Therefore we affirm the trial court.

All the briefs are here.

NYTs: No Prison for Theft of Indian Artifacts

Matthew L.M. Fletcher2 Comments

“Culturally accepted pastime”?!?!

From the NYTs:

SALT LAKE CITY (AP) — A defendant in the sweeping federal prosecution of theft and illegal trafficking of American Indian artifacts received leniency Wednesday when a judge rejected the government’s request for imprisonment.

Prosecutors sought a minimum 18 months in prison for the defendant, Jeanne Redd, who instead got three years of probation and a $2,000 fine for her conviction on seven felony counts of plundering artifacts from tribal and federal lands. Ms. Redd, 59, pleaded guilty in July and surrendered 812 boxes of artifacts.

The judge, Clark Waddoups of Federal District Court here, also sentenced Ms. Redd’s 37-year-old daughter, Jericca Redd, to two years of probation on three similar felony counts. She was not fined.

The women, of Blanding, Utah, were the first to plead guilty among more than two dozen defendants caught up in a two-and-a-half-year sting operation. They were also the first to be sentenced.

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Minnesota Supreme Court Affirms State Jurisdiction over Tribal Traffic Offenses

Matthew L.M. Fletcher1 Comment

…over a dissent from Justice Alan Page. The case is State v. Davis. An excerpt:

State court has subject-matter jurisdiction over appellant‟s traffic violations because Congress has not preempted Minnesota from enforcing its traffic laws against appellant in state court.

And from the dissent:

The MCT is the governing unit federally recognized by the Bureau of Indian Affairs, and the individual bands such as the Leech Lake Band and the Mille Lacs Band are merely “component reservations” of the MCT. Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 73 Fed. Reg. 18,553, 18,555 (Apr. 4, 2008). Yet the court concludes with little explanation that the MCT has no tribal interest in self-governance. Nor does the court cite any authority for the distinction it makes between Indian tribes and Indian bands. I would also note that there is no indication in this record that the MCT has no interest in self-governance or has chosen to relinquish its interest in self-governance. Absent a showing that the MCT has chosen to relinquish its interest in self-governance, it is presumptuous for us to impose such a choice on the MCT. Because we held in Stone that no exceptional circumstances exist requiring a preemption analysis for tribal members who are alleged to have been speeding on tribal territory and because Davis is an MCT member whose alleged speeding offense occurred within the MCT‟s territory, I conclude that the state has no jurisdiction over Davis.

Missouri Prisoner Has No Standing to Challenge Indian Arts & Crafts Board Decision

Matthew L.M. Fletcher

Here are the relevant orders in Griggs v. Missouri:

Griggs DCT Order

Griggs Report and Recommendations

An excerpt from the R&R:

Plaintiff Griggs’ complaint challenges defendants’ application of 25 U.S.C. § 305(e)(d), upon request of the Federal Indian Arts and Crafts Board, in its determination that the Indian tribe of which plaintiff is a member, the Northern American Cherokee of Missouri and Arkansas, is not an officially recognized Indian tribe by the State of Missouri for purposes of the Indian Arts and Crafts Act. Plaintiff alleges that the tribe is, in fact, officially recognized by the State of Missouri, and thus, defendants should have indicated accordingly in their response to the Federal Indian Arts and Crafts Board. Plaintiff, who is incarcerated in federal prison, attempts to bring this action on behalf of his entire tribe, stating he is a member and his father was at one time the Principal Chief. Plaintiff alleges that as a result of defendants’ actions, the United States Department of Interior has advised his tribe that they cannot sell their arts and crafts as authentic “Indian,” “Native American” or “Cherokee” goods.

Tenth Circuit Affirms Conviction of Former Cheyenne-Arapahoe Tribes Official

Matthew L.M. Fletcher

The crime was theft from a tribal organization — United States v. Bullcoming. An excerpt:

Roy Dean Bullcoming was indicted in the United States District Court for
the Western District of Oklahoma on seven counts of embezzlement and theft
from Indian tribal organizations, see 18 U.S.C. § 1163, and eight counts of theft
from gaming establishments on Indian lands, see id. § 1167. He entered into a
plea agreement in which he agreed to plead guilty to one count of embezzlement.
In exchange, the government dropped the other 14 counts and entered into several
stipulations relating to restitution and his offense level under the United States
Sentencing Guidelines (USSG). At sentencing, the government—without any
objection from Mr. Bullcoming—presented testimony from a witness who claimed
that Mr. Bullcoming had shown no remorse for his actions, and it also argued in
favor of an upward variance, suggesting that it could probably never prove the
full amount of money he took. The district court varied upward from the
guidelines range, sentencing him to 36 months’ imprisonment. On appeal
Mr. Bullcoming contends that the government breached the plea agreement and
that the court abused its discretion in varying upward. We have jurisdiction under
28 U.S.C. § 1291 and affirm.

Roy Dean Bullcoming was indicted in the United States District Court for the Western District of Oklahoma on seven counts of embezzlement and theft from Indian tribal organizations, see 18 U.S.C. § 1163, and eight counts of theft from gaming establishments on Indian lands, see id. § 1167. He entered into a plea agreement in which he agreed to plead guilty to one count of embezzlement. In exchange, the government dropped the other 14 counts and entered into several stipulations relating to restitution and his offense level under the United States Sentencing Guidelines (USSG). At sentencing, the government—without any objection from Mr. Bullcoming—presented testimony from a witness who claimed that Mr. Bullcoming had shown no remorse for his actions, and it also argued in favor of an upward variance, suggesting that it could probably never prove the full amount of money he took. The district court varied upward from the guidelines range, sentencing him to 36 months’ imprisonment. On appeal Mr. Bullcoming contends that the government breached the plea agreement and that the court abused its discretion in varying upward. We have jurisdiction under 28 U.S.C. § 1291 and affirm.