Criminal

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.

Yellowbear Redux — Federal Court Finds Wind River Reservation Diminishment

Matthew L.M. Fletcher1 Comment

Here is the District of Wyoming’s 40-page decision in Yellowbear v. Wyoming Attorney General — Yellowbear DCT Order

The Wyoming Supreme Court’s opinion to which the federal court gives deference is here.

The briefs:

Yellowbear Motion for Summary Judgment

Wyoming Attorney General Motion for Summary Judgment

Federal Court Dismisses Civil Rights Claim against Menominee Jail

Matthew L.M. Fletcher

Here is the opinion in Lyons v. Menominee Tribal Jail (E.D. Wis.) — DCT Order Dismissing Lyons Complaint

The petitioner claimed to have been jailed for four months without seeing a judge — Lyons Pro Se Complaint. One hopes that isn’t true.

An excerpt from the order (technically, an order refusing the petitioner to waive filing fees):

Moreover, the complaint does not appear to state a claim upon which relief may be granted. Section 1983, the civil rights statute, imposes liability on individuals who act under color of state law, but it does not apply to those acting under color of tribal law. Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir.2006) (“A § 1983 action is unavailable ‘for persons alleging deprivation of constitutional rights under color of tribal law.’ ”) (quoting R.J. Williams Co. v. Ft. Belknap Hous. Auth., 719 F.2d 979, 982 (9th Cir.1983)). Accordingly, it will be dismissed for that additional reason. “Because plaintiff does not allege that defendant acted under color of state law, the district court was correct to grant summary judgment to defendant on that basis.” Pounds v. Killion, 35 Fed. Appx. 819, 821, 2002 WL 1038774, *1 (10th Cir.2002).

The court also noted that no jurisdiction existed under the Indian Civil Rights Act:

Similarly, the Indian Civil Rights Act (“ICRA”) does not provide a remedy. The only remedy provided in ICRA is that of habeas-style relief (i.e., release from custody)-it does not authorize damages actions after release. United States v. Becerra-Garcia, 397 F.3d 1167, 1171 (9th Cir.2005) (“We acknowledge that in the civil context, habeas corpus relief generally is the sole federal remedy for a violation of ICRA.”); Stevens v. Skenandore, 2000 WL 1069404, * 1 (7th Cir.2000) (“Stevens cannot sue the individual Oneida defendants under the ICRA because the only remedy authorized by the statute is a habeas corpus proceeding brought against the tribe pursuant to 42 U.S.C. § 1303.”)

Tenth Circuit Holds Indian Felons Lose Treaty Right to Carry Firearms

Matthew L.M. Fletcher

Here is the opinion in United States v. Fox. Fox is Navajo.

An excerpt:

Dionysius Fox, a member of the Navajo Nation, was arrested on the Navajo Reservation on an unrelated charge and found in possession of a shotgun and a rifle. Mr. Fox is a convicted felon, subject to the provisions of 18 U.S.C. § 922(g)(1), which prohibits the possession of firearms by those previously adjudged guilty of felonies. Although he acknowledges that he is prohibited from possessing firearms beyond Navajo Reservation land, Mr. Fox asserts that he is entitled to possess guns for the limited purpose of hunting on the Navajo Reservation, pursuant to an 1868 Treaty between the United States and the Navajo Nation. We conclude, however, that Mr. Fox has relinquished any treaty right to use firearms for hunting purposes, and therefore affirm the judgment of the district court.

This case is interesting in part because another Tenth Circuit judge (see concurring opinion in U.S. v. McCane) raised a question about whether the Supreme Court’s recent Second Amendment decision D.C. v. Heller actually may make the federal statute in question in Fox unconstitutional.

Here are the briefs:

Continue reading →

Former Tribal Gaming Operations CEO Indicted for Theft from a Tribal Organization

Matthew L.M. Fletcher4 Comments

Here is the indictment in United States v. Jeff Livingston (E.D. Cal.). And an excerpt from the California AG’s office press release about the case:

The joint investigation revealed that Livingston made unauthorized purchases with the casino’s corporate credit card, including: 
– A $20,000 down payment on a new Ford Mustang Shelby; 
– A $5,000 down payment on a new Ford Fusion for the casino’s former Vice President of Marketing; and 
– A $7,000 Mercedes Benz PGA National Golf Championship package in Maui, Hawaii. 

Livingston attempted to conceal the down payments by making it appear as if they were part of a ten car purchase he made for a casino giveaway.

Tenth Circuit Affirms Conviction of Ute Juveniles for Church Burning

Matthew L.M. Fletcher

Here is the opinion in U.S. v. Doe. An excerpt:

Defendants’ appeals center on the definition of “person” in 18 U.S.C. § 1153(a)’s phrase: “Any Indian who commits against the person or property of another Indian or other person any of the following offenses ….“ (emphasis added). First, defendants argue that context and statutory construction dictate that “person” is restricted to only living individuals. Second, and alternatively, defendants contend that at its broadest, “person” can only include living individuals or corporations, public and private. Under this definition, defendants argue that there was insufficient evidence to establish that the arson victim was a corporation. Third, defendants argue that the district court abused its discretion by permitting the prosecution to reopen its cases to present evidence related to the corporate status of the arson victim. Fourth, defendants argue that the charging information was insufficient because it failed to provide sufficient identification of the arson victim and its status.

The court actually split on what definition to use to define “person” — the Major Crimes Act or the Dictionary Act. either way, the entire panel reached the same result.

Tenth Circuit Dismisses Criminal Appellant’s Appeal

Matthew L.M. Fletcher1 Comment

Here is the opinion in the long-running case Reber v. Steele. An excerpt:

Petitioner Colton Reber, a descendant of the Uintah Band Indians, was convicted in Utah state juvenile court of felony wanton destruction of wildlife, in violation of Utah Code § 23-20-4. Having exhausted his remedies through the state courts, Mr. Reber filed the present 28 U.S.C. § 2254 action in the United States District Court for the District of Utah. Mr. Reber’s § 2254 petition contends that because he is an Indian, and because the offense occurred on Indian land, the Indian tribe-not the State of Utah-is the victim of the offense. Thus, neither the Eighth District Juvenile Court, nor the State of Utah, possessed jurisdiction over the offense. The federal district court dismissed Mr. Reber’s habeas petition because “it plainly appear [ed] from the petition and any attached exhibits that the petitioner [wa]s not entitled to relief.” Aplt’s App. at 60.

We granted Mr. Reber a certificate of appealability on August 18, 2008, concluding that he had made the requisite “substantial showing of the denial of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2). Upon further review, however, we find that the premature filing of Mr. Reber’s § 2254petition deprived the district court of jurisdiction, and thus precludes our review. Accordingly, we vacate the district court’s ruling on the merits of the petition, and remand to the district court with instructions to dismiss the petition without prejudice.

Ninth Circuit Rejects Equal Protection Challenge to Indian Country Criminal Sentencing

Matthew L.M. Fletcher

Though one judge did strongly criticize the sentence, for a separate reason. Here is the opinion in U.S. v. Lamere (unpublished), and a separate concurrence.