Criminal

DOJ Meeting with AUSAs/Tribal Liaisons re: Indian Country Crime

Matthew L.M. Fletcher2 Comments

On September 11, 2009, Department of Justice Leadership, including the Deputy Attorney General, Associate Attorney General, and Director Jarrett, met with a group of AUSAs and AUSA Tribal Liaisons from around the country. The discussion focused on public safety concerns in Indian country, the federal response to criminal justice and social service issues on reservations, and proposed solutions for improving the Department’s response to crime in Indian country. The session was one in a series of Indian country stakeholder listening sessions being conducted by DOJ in advance of the Tribal Nations/Justice Department Listening Session: A Dialogue to Make a Difference, scheduled for October 28-29 in the Twin Cities area in Minnesota.

AUSAs in Indian Country

Left to Right – Bottom Row: Arvo Mikkanen(Kiowa/Comanche), Jeff Davis (Turtle Mtn. Chippewa), Jan Morley (Turtle Mtn. Chippewa), Executive Office for U.S. Attorneys Director – Marshall Jarrett, Deputy Attorney General – David Ogden, Associate Attorney General – Tom Perrelli, Leslie Hagen, Vincent Kirby, Kerry Jacobson, Tricia Tingle (Choctaw). Top Row: Scott Kerin, Vince Carroll, Traci Whelan, Randy Seiler, Tom Rice, Jan Sharp, Kyle Nayback (Sault Ste. Marie Chippewa).

Federal Court Upholds SORNA Under Indian Commerce Clause

Matthew L.M. Fletcher2 Comments

Here is the opinion in U.S. v. Coho (D. N.M.), in which the court held that SORNA is constitutional as applied to Indians under both the interstate and Indian commerce clauses acting independently — Coho DCT Order

An excerpt:

Indian Commerce Clause. It is well-settled that Congress has exclusive and plenary authority to regulate matters involving Indians and Indian lands pursuant to the Indian Commerce Clause. See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989) (“[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs.”); United States v. Lara, 541 U.S. 193, 200, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004) (“[T]he Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and exclusive.’ ”). This plenary authority permits Congress to enact even criminal laws regulating the conduct of Indians in Indian territory. United States v. Kagama, 18 U.S. 375, 383-84 (1886). Congress has exercised its exclusive jurisdiction in this area by enacting the Indian Major Crimes Act. That Act stipulates that, with respect to offenses committed in Indian Country, FN4 “any Indian who commits against the person or property of another Indian … a felony under Chapter 109A FN5 … shall be subject to the same laws and penalties as to all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153(a). Coho, an Indian, is charged with aggravated sexual assault against Jane Doe, also an Indian, which occurred on the Navajo reservation in Indian Country. The charge against Coho falls squarely within the terms of 18 U.S.C. § 1153(a), and therefore the United States has exclusive jurisdiction over the underlying crime.

The same power that Congress exercised to enact the Indian Major Crimes Act also allows Congress to enact the civil commitment statute of § 4248 at least as applied to Indians who commit crimes in Indian Country. Congress has a protectorate or trust relationship with Indian tribes and possesses broad power to legislate in the tribes’ best interest. The civil commitment statute clearly lies within Congress’ plenary authority to regulate matters involving Indians and Indian land. While the Fourth Circuit recently struck down the civil commitment provisions of § 4248 as unconstitutional when applied to non-Indian defendants, United States v. Comstock, 551 F.3d 274 (4th Cir.2009), it noted that the law may remain constitutional with respect to “persons within exclusive federal jurisdiction (e.g. residents of the District of Columbia and members of the military).” Id. at 278 n. 4. By virtue of the Indian Commerce Clause, Indians belong in the category of persons over which Congress exercises exclusive jurisdiction. For these reasons, I hold that 18 U.S.C. § 4248 is constitutional under the Indian Commerce Clause with respect to this defendant.

Arizona Bar Journal Article on DV in Tribal Courts

Matthew L.M. Fletcher

Sylvia Struss, a DNA attorney, published “DV Cases in Tribal Court” in the October 2009 issue of Arizona Attorney.

Article link.

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.

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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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