Criminal

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.

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