Tamera Begay has published “A Day in the Life of a Tribal Prosecutor” in the January/February issue of the Federal Lawyer [starts on page 14].
HIGHLY RECOMMENDED.
Tamera Begay: A Day in the Life of a Tribal Prosecutor [Federal Lawyer]
Criminal
Oklahoma Federal Court [with New Mexico Judge] Dismisses Cherokee Citizens Claims against Oklahoma on State Court Exhaustion Grounds
Here are the materials in Pickup v. District Court of Nowata County (N.D. Okla.):
24 District Attorneys Motion to Dismiss
71 Clerk Edwards Motion to Dismiss
72 Clerk Newberry Motion to Dismiss
143 Tribes Motion to File Amicus Brief
Complaint here.
Emily Harwell on the Effects of McGirt
Emily N. Harwell has published “Judicial Discretion Across Jurisdictions: McGirt’s Effects on Indian Offenders in Oklahoma” in the Cornell Law Review. PDF.
HIGHLY RECOMMENDED.
Here is the abstract:
Oklahoma’s exercise of criminal jurisdiction over crime committed on tribal reservations remained unchecked until 2020. In McGirt v. Oklahoma, the Supreme Court held that the Muscogee Creek Nation’s reservation had in fact never been disestablished and remains in existence today. In doing so, the Court restored criminal prosecution authority to tribal and federal courts. McGirt received praise throughout the United States from tribal nations and federal Indian Law practitioners for Justice Gorsuch’s strong affirmation of the Muscogee Creek’s sovereignty over its reservation and the honoring of treaties made between the United States and the Muscogee Creek Nation. Similarly situated tribes in Eastern Oklahoma including the Cherokee, Choctaw, and Chickasaw have already joined the Muscogee Creek Nation in asserting the changes that McGirt brings.
In the wake of this change, legal and political discussion has centered around practical matters: Does the Tribe have adequate resources for managing criminal jurisdiction within its reservation? Will the increase in cases overload the federal court system? The question of how the change in prosecutorial authority will affect Native American criminal defendants has yet to be asked, though. This Note assesses the effects of McGirt on the sentencing of Native Americans who commit crimes on a reservation in Oklahoma. Oklahoma state court judges exercise discretion in areas of sentencing different from federal court judges. Existing empirical studies suggest federal sentencing produces harsher, lengthier sentences than state courts. By comparing Oklahoma and federal court sentencing data, this study attempts to answer whether McGirt‘s celebration of tribal sovereignty is simultaneously a devastating blow to Native American criminal defendants committing crimes on tribal reservations in Oklahoma.
Angela Riley & Sarah Glenn Thompson on Dual Sovereignty and Indian Country Crimes
Angela Riley & Sarah Glenn Thompson have posted “Mapping Dual Sovereignty and Double Jeopardy in Indian Country Crimes,” recently published in the Columbia Law Review, on SSRN.
Here is the abstract:
The Double Jeopardy Clause guarantees no individual will be put in jeopardy twice for the same offense. But, pursuant to the dualsovereignty doctrine, multiple prosecutions for offenses stemming from the same conduct do not violate the Clause if the offenses charged arise under the laws of separate sovereigns, even if the laws are otherwise identical. The doctrine applies to tribal prosecutions, but its impact in Indian country is rarely studied. Such an inquiry is overdue, particularly as the scope of crimes potentially subject to dual tribal and federal prosecutions has broadened in recent years. This Article is the first to undertake a preliminary examination of the dual-sovereignty doctrine in the tribal–federal context and describe the complex interplay between the doctrine and the rest of the criminal law fabric in Indian country. Perhaps most significantly, it includes an original typology highlighting when a defendant may be subject to the doctrine, which sovereigns have the authority to prosecute, pursuant to what source of power each sovereign operates, and when and how the sequence of prosecutions matters, if at all. This leads to the Article’s central thesis: Indian tribes are separate sovereigns with inherent sovereignty, and, under current conditions, the dual-sovereignty doctrine plays a central role in ensuring safety in Indian country. The doctrine’s application in Indian country, however, creates unique complexities that may threaten tribal sovereignty and raise issues of unfairness for defendants. This Article offers numerous reforms—some highly ambitious and others more modest—to address these issues.
Mille Lacs Ojibwe Prevails on Criminal Jurisdiction against County Sheriff’s Office
Here are the materials in Mille Lacs Band of Chippewa Indians v. County of Mille Lacs (D. Minn.):
California Federal Court Issues Detention Order of Fake Tribal Judge Who Threatened and Harassed Woman
Here are the materials so far in United States v. Peterson (N.D. Cal.):
Montana Federal Court Dismisses Native Inmates’ Suit over Jail Conditions that Allegedly Violate Hellsgate Treaty Because 11th Amendment Makes State Officials Immune (which a textualist would know says nothing like that whatsoever)
Here are the materials in Black Crow v. Lake County Jail, recaptioned In re Conditions at Lake County Jail (D. Mont.):
SCOTUS Denies Cert in Oklahoma Indian Status Case
Here is yesterday’s order list.
The Oklahoma case was Oklahoma v. Wadkins. Lower court materials here.
The Court also denied cert in the Clarkson case.
Michigan SCT Denies Leave to Review LTBB Reservation Boundaries Matter over Dissent
Here is the order in People v. Covey:
Can’t post briefs because Michigan’s courts do not make them available online.
Grant Christensen on Cooley and Tribal Law Enforcement
Grant Christensen has posted “Getting Cooley Right: The Inherent Criminal Powers of Tribal Law Enforcement,” forthcoming in the UC Davis Law Review, on SSRN.
Abstract:
While the Supreme Court regularly decides cases defining the limits of the criminal jurisdiction of tribal courts, when it heard United States v. Cooley in 2021 it had not decided a case about the procedural powers of tribal law enforcement in more than a century. Across more than five decades lower courts at all levels struggled to decide whether the inherent criminal powers of tribal law enforcement are coterminous with the jurisdiction of tribal courts or whether tribal officers may have their own set of inherent powers distinct from the power to prosecute. This Article examines the inconsistent split in authority that existed before Cooley and anticipates the future misreading of inherent criminal power by lower courts. It argues that now that the Court has divorced the inherent criminal power of tribal law enforcement from the criminal jurisdictional power of tribal courts, tribal officers may stop, detain, search, and investigate anyone whose criminal conduct poses a danger to the health and welfare of the tribal community. The Article bolsters its application by using the first cases decided by lower courts in the post-Cooley era as artifacts to examine the full implications of the recognition of inherent criminal power exercised by tribal law enforcement.
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