Criminal

Written Testimony in SCIA Hearing on Tribal Law and Order Act

Matthew L.M. Fletcher2 Comments

THE HONORABLE TOM PERRELLI
Associate Attorney General, U’S. Department of Justice, Washington, DC

THE HONORABLE LARRY J. ECHO HAWK
Assistant Secretary for Indian Affairs, U.S. Department of the Interior, Washington, DC

THE HONORABLE ALONZO A. COBY
Chairman, Fort Hall Business Council, Shoshone-Bannock Tribes, Fort Hall, Idaho

THE HONORABLE ANTHONY J. BRANDENBURG
Chief Judge of the Intertribal Court of Southern California, Valley Center, CA

MR. TROY EID
Partner, Greenberg Traurig, LLP, Denver, CO

MR. TED QUASULA
President, Quasula Consulting, Henderson, NV

BLT: DOJ Promises Increased Crime-Fighting in Indian Country

Matthew L.M. Fletcher

From BLT:

The Justice Department announced today a renewed effort to improve law enforcement on tribal land through a partnership among Native American leaders and the federal government.

Associate Attorney General Thomas Perrelli, addressing more than 500 attendees at the National Congress on American Indians in New York, said the department later this year will convene a Tribal Nationals Listening Conference to address public safety concerns on tribal land. Click here for a copy of Perrelli’s prepared remarks, provided by the Justice Department.

The listening conference and a planned series of regional summits are expected to address, among other topics, federal prosecution in Indian country, development of tribal courts, domestic violence, substance abuse, civil rights and litigation involving tribes. The initiative, Perrelli says, is “tremendously important.”

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Indictments in Grave Robbing Cases

Matthew L.M. Fletcher

Here are two of the indictments in the grave robbing cases reported on Indianz and the NYTs — US v Patterson Indictment 1 and US v Patterson Indictment 2.

Tenth Circuit Affirms Conviction of Tribal Embezzler

Matthew L.M. Fletcher

Here is the opinion in United States v. Oldbear, affirming the conviction of a tribal employee for embezzlement of tribal funds. An excerpt:

Louella Oldbear, a member of the Cheyenne-Arapaho Indian Tribes, used tribal funds to repair one of her personal vehicles and to purchase another. A federal jury convicted her of five counts of embezzling Indian tribal funds in violation of 18 U.S.C. § 1163 and one count of making a false statement to a government agent in violation of 18 U.S.C. § 1001(a)(2).

New Mexico’s Sex Offender Law Not Applicable in Indian Country

Kate Fort

The New Mexico Court of Appeals ruled that Indians living in Indian Country, not employed or in school outside of Indian Country who were convicted of sex offenses in a court other than a New Mexico court, are not required to register on the New Mexico sex offender list as required by New Mexico law.

The specific question presented then is whether the two statutes [42 U.S.C. § 14071 (1998), as amended by “Megan’s Law” ]can be deemed an express statement by Congress that state sex offender registration laws shall apply in Indian country. We hold that they cannot. The language of the statutes betrays no indication that Congress intended the term “resident” by itself to override historically recognized and accepted limits on the reach of state criminal and regulatory law in Indian country. The type of language specifically referring to Indians and Indian
tribes which would support a conclusion that Congress intended to override tribal sovereignty is simply missing.

New York Times coverage

Opinion

U.S. v. St. Cyr — Sentencing American Indians in Federal Offenses

Matthew L.M. Fletcher

Here is an interesing sentencing memorandum out of the District of Nebraska. Apparently, the court refused to adopt an argument by the United States to sentence American Indians for longer terms than they would otherwise be sentenced under state law, at least in this case. Seems to recall footnote 11 in United States v. Antelope. Luke St Cyr Sentencing Memorandum

An excerpt:

In connection with the need to avoid unwarranted sentencing disparities, the court notes that these crimes, if committed by a non-Native American outside a reservation, are prosecuted in state court. The court acknowledges the Sentencing Commission’s finding that the Sentencing Guidelines result in longer sentences for Native Americans than they would otherwise receive. There is no way to compare sentences for non-Native Americans who commit these crimes without reference to state court sentences. The court finds no principled reason to subject this defendant to a substantially longer sentence than his state court non-Native American counterpart would serve. Although state court sentences would not ordinarily be considered in connection with federal court sentencing, such consideration is necessary when it is the only basis on which to assess the sentencing goal of avoiding disparity. Although there are arguably situations in which the disparate impact on a group of defendants could be justified by legitimate sentencing goals that target the shared characteristics that define the group, such as recidivists, it is hard to imagine that any legitimate sentencing purpose would justify the imposition of significantly higher sentences on Native Americans by reason of their status as Native Americans.

Federal/Tribal Convictions Withstand Double Jeopardy Challenge

Matthew L.M. Fletcher

The case is White Body v. Mukasey, out of the District of North Dakota.

White Body v Mukasey DCT Order

Vagueness Challenge to Major Crimes Act Fails

Matthew L.M. Fletcher

The case is United States v. Nahwahquaw, out of the Eastern District of Wisconsin — NAHWAHQUAW Report and Recommendation (the district court judge adopted the recommendation). An excerpt:

Even if the court were to conclude that the defendant can maintain a facial challenge to § 1153(a), which it does not, the term “Indian” is not unconstitutionally vague on its face. Although “Indian” is not defined in the statute, the test for determining “Indian” status has been judicially defined over the years and is well established under federal law. The test, first suggested in United States v. Rogers, 45 U.S. 567 (1846) and generally followed by the courts, considers: “(1) the degree of Indian blood; and (2) tribal or governmental recognition as an Indian.” United States v. Torres, 733 F.2d 449, 456 (7th Cir.1984) (quoting United States v. Broncheau, 597 F.2d 1260, 1263 [9th Cir.1979] ) (emphasis supplied by Torres ); See also, United States v. Keys, 103 F.3d 758, 760 (9th Cir.1996); United States v. Dodge, 538 F.2d 770, 786 (8th Cir.1976). Tribal enrollment is “the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative.” United States v. Bruce, 394 F.3d 1215, 1224 (9th Cir.2005) (quoting Broncheau, 597 F.2d at 1263); accord, United States v. Antelope, 430 U.S. 641, 646 n. 7 (1977).

Anna Mae Aquash Murder Suspect Indictments Partially Dismissed

Matthew L.M. Fletcher

Here is the April 29, 2009 order from the D. S.D. dismissing Count III in United States v. Graham — DCT Order Dismissing Graham Indictment