Criminal

Little River Band May Enter Into Law Enforcement Cooperative Agreement with City of Manistee

Matthew L.M. Fletcher2 Comments

From Indianz:

The city council in Manistee, Michigan, voted in favor of a mutual aid agreement with the Little River Band of Ottawa Indians.

The tribe is offering its officers free of charge. The city police chief said the service is crucial.

“There are many times when there’s only one police car working the entire county outside of the city. My concern is someone’s going to dial 9-1-1 and no one’s going to be available to respond,” said chief Dave Bachman, WPBN-TV reported.

The agreement lasts one year.

Get the Story:

Manistee votes in favor of an agreement with tribal police (WPBN-TV 9/2)

Leonard Peltier Denied Parole

Matthew L.M. Fletcher1 Comment

From the NYTs:

The American Indian activist Leonard Peltier, imprisoned since 1977 for the killing of two F.B.I. agents, was denied parole after officials decided that releasing him would diminish the seriousness of his crime, a federal prosecutor in Bismarck said. Mr. Peltier, 64, who says the F.B.I. framed him, will not be eligible for parole again until 2024.

If anyone has the United States Attorney’s 17 page letter, please send it along.

Idaho Court of Appeals Rejects Treaty Right to Travel as Jurisdictional Defense to Criminal Conviction

Matthew L.M. Fletcher

The opinion in State of Idaho v. Oatman is here. An excerpt:

The 1855 Nez Perce Treaty grants the members of that tribe the same right to travel that is enjoyed by all citizens of the United States. The right to travel enjoyed by citizens of the United States may be restricted as a result of criminal incarceration or probation. See, e.g., Jones v. Helms, 452 U.S. 412, 419, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981)(holding that a state many infringe upon the fundamental right to travel when “a person has been convicted of a crime within a State. He may be detained within that State, and returned to it if he is found in another State.”); State v. Pinson, 104 Idaho 227, 231, 657 P.2d 1095, 1099 (Ct. App. 1983) (holding that, “as a condition of granting freedom to a probationer, society has the right to impose . . . restrictions on important liberties such as the right to travel.”). Oatman argues, in effect, that the Treaty grants members of the Nez Perce Tribe an absolute immunity from any criminal prosecution which could result in a term of confinement or probation. Such immunity would not be a rightin common with citizens of the United States.

We are also unconvinced that Oatman’s interpretation was the interpretation contemplated by the parties to the Treaty, for it subsequently provides that the tribe “agrees not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial.” Treaty with the Nez Perces, art. VIII, June 11, 1855, 12 Stat. 957. If the parties intended that members of the tribe not be subjected to criminal proceedings which may result in incarceration or probation, such language would be unnecessary. We conclude that Oatman’s arguments are meritless. Accordingly, Oatman’s judgment of conviction for misdemeanor assault is affirmed.

Bolstering Federal Law Enforcement in Indian Country Nice, but Misplaced

Matthew L.M. Fletcher5 Comments

Indianz (and the SF Chron) report that the Department of Justice and AG Eric Holder will be taking efforts to bolster federal law enforcement capabilities in Indian Country. This is good news, to some extent. The federal government should be focusing on the very, very serious problem of Indian Country crime. But we suspect increasing federal law enforcement still has serious limitations and will not do a whole lot to reduce Indian Country crime.

Consider last year’s testimony from Drew Wrigley, Tom Heffelfinger, and others on the reasons why Indian Country U.S. Attorney’s Offices are forced to decline to prosecute most Indian Country crimes.

Several points:

  • AUSAs decline many Indian Country cases because of the difficulty in proving additional elements of Indian identity and Indian Country status. Additional resources won’t improve that much.
  • AUSAs decline many cases because they don’t meet statutory requirements like the extent of serious injury in assault cases.
  • AUSAs decline cases because of the time and distance required to secure evidence needed to convict. Resources could help, but we believe they would have be sufficient to actually house a federal law enforcement agency on the doorsteps of every reservation to be effective.
  • According to Drew Wrigley, “The issue of resources is never a basis for a declination of a case in North Dakota, but violent Indian crime cases, we never decline any cases for resources.” If so (something Tom Heffelfinger rebutted somewhat), then more federal resources seems an unusual solution.
  • Nothing in the federal project does much to reduce the epidemic of violent crime against Indian women. Like Sen. Dorgan’s Tribal Law and Order Act, we think AG Holder’s initiative will focus on drugs, immigration, and the like. And that’s what the DOJ is best at doing, not violent person-to-person on-reservation cime.  Hopefully, tribal leaders will point the government to other serious crime problems. We’ll see.

Frankly, the real solution is tribal criminal jurisdiction. Once federal and state policymakers quit focusing on irrelevancies like the qualifications of tribal judges and the difficulty in finding tribal law or civil rights protections — all of which can be solved by recourse to the habeas remedy in the Indian Civil Rights Act — then we’ll see a real reduction in Indian Country crime.

ACS Advance Publishes Tribal Domestic Violence Paper

Matthew L.M. Fletcher

My paper on domestic violence in Indian Country will appear in the American Constitution Society publication “Advance” Spring 2009 edition.

Federal Court Denies Injunction in Muscogee Cigarette Seizure Case

Matthew L.M. Fletcher1 Comment

Thanks to Mike for this. Here’s a news article on this case.

A federal court dismissed a request for an injunction against the Oklahoma Tax Commission for seizing tobacco products owned by the Muscogee (Creek) Nation. State law enforcement had seized the smokes on some pretty spurious grounds, pulling the trucks over for “weaving” and “following too close” (not texting!?!). The court rejected most of the Commission’s defenses, including standing and sovereign immunity, but dismissed the claim on the basis that Indian tribes are not “persons” that can sue under Section 1983, per Inyo County.

Sounds to us like a Section 1983 legislative “fix” is in order, too, like all the other problems created by the Supreme Court in the last decade.

Muscogee Injunction DCT Order

More later.

Federal Court Remands State Prosecution of Shinnecock Man to State Court

Matthew L.M. Fletcher1 Comment

Here is the opinion in People v. Smith (E.D. N.Y.), a criminal prosecution of a Shinnecock man for taking fish illegally (People v Smith DCT Order). The defendant sought to remove the prosecution to federal court, asserting treaty and other rights.

Smith Notice of Removal

Motion for Remand to State Court

Letter in Opposition to Motion

Federal Court Allows FTCA Claim to Proceed against BIA Cops

Matthew L.M. Fletcher

Here is the opinion in Garvais v. United States (E.D. Cal.) — Garvais v USA DCT Order

An excerpt:

The United States has now moved for dismissal arguing that the court lacks subject matter jurisdiction over the claims of false imprisonment and malicious prosecution because the only factual basis for such claim were the acts of tribal police officers and the tribal prosecutor, who do not qualify as federal employees for purposes of the FTCA. In response to the motion, Plaintiff concedes that any claim based upon the conduct of the tribal officials could not proceed against the United States. Instead, Plaintiff argues that the United States has misconstrued the factual basis of his claim. Plaintiff argues his claims against the United States are based upon the conduct of the investigating BIA officer, Officer Little. There is no dispute that Officer Little qualifies as an “investigative or law enforcement officer[] of the United States” for purposes of 28 U.S.C § 2680(h). Accordingly, the court DENIES the United States’ Motion to Dismiss based upon lack of subject matter jurisdiction.

Ninth Circuit Reverses Dismissal of Civil Rights Claims against Tribal Officers

Matthew L.M. Fletcher

Here is the opinion in Bressi v. Ford, authored by Judge Canby, which is a sort of companion case to Murgia v. Reed. The court did affirm the dismissal of a Bivens-type action against the officers. Here are the lower court materials in Bressi.

An excerpt detailing what tribal officers may do during a traffic stop of non-Indians:

We conclude that a roadblock on a public right-of-way within tribal territory, established on tribal authority, is permissible only to the extent that the suspicionless stop of non-Indians is limited to the amount of time, and the nature of inquiry, that can establish whether or not they are Indians. When obvious violations, such as alcohol impairment, are found, detention on tribal authority for delivery to state officers is authorized. But inquiry going beyond Indian or non-Indian status, or including searches for evidence of crime, are not authorized on purely tribal authority in the case of non-Indians.

And an excerpt recognizing the implications of the decision:

We recognize that one result of our ruling is that tribal officers who are authorized to enforce state as well as tribal law, and proceed to exercise both powers in the operation of a roadblock, will be held to constitutional standards in establishing roadblocks. That result is consistent with our prior decision inEvans v. McKay, 869 F.2d 1341, 1348(9th Cir.1989), which held that officers acting pursuant to both tribal and city authority in making arrests were subject to a § 1983 claim. This result also appears to us to be an inevitable consequence of the accommodation of tribal authority over rights-of-way within Indian country and the rights of non-Indians to travel those rights-of-way. If a tribe wishes to avoid such constitutional restraints, its officers operating roadblocks will have to confine themselves, upon stopping non-Indians, to questioning to determine non-Indian status and to detention only for obvious violations of state law.

Federal Court Dismisses Civil Rights Claims against Seminole Tribe

Matthew L.M. Fletcher

Here is the opinion in Perry v. Seminole Tribe of Florida (M.D. Fla.) — Perry DCT Order

And the Tribe’s motion to dismiss — Seminole Motion to Dismiss

One of the named defendants is a tribal cop with the coolest name we’ve ever seen for a law enforcement officer — Johnny Nuckles.