Criminal

U.S. v. Lente — On-Reservation Federal Criminal Sentencing

Matthew L.M. Fletcher2 Comments

A badly divided panel of the Tenth Circuit vacated the sentence of an Indian woman convicted of vehicular homicide in United States v. Lente (unpublished). She was given a sentence of 216 months, more than four times the federal guidelines upper limit.

Of note, the lower court took judicial notice of her five tribal court convictions:

The court essentially gave seven reasons for the sentence: … 3) Ms. Lente had five Tribal Court convictions and three additional arrests—most of which involved the excessive use of alcohol and violence—and these convictions, along with her five separate probations, had failed to deter her from abusing alcohol and breaking the law….

NPR on Congressional Efforts to Stop Rape in Indian Country

Matthew L.M. Fletcher

From NPR (miigwetch to A.K.):

The federal government has recently announced plans to spend hundreds of millions of dollars to improve medical clinics, buy more rape kits and bolster the police response to what authorities say is an epidemic of rapes on Indian land.

The February stimulus bill injected $500 million into Indian Health Services, the agency that handles most medical needs for Native Americans, while the appropriations bill that passed in March is also adding funds. The March bill increases the budget for the Bureau of Indian Affairs by $85 million to provide additional law enforcement on reservations.

Meanwhile, Congress is attempting to strengthen the authority of tribal police with a new bill that would grant Native American tribes greater police powers.

Advocates say it would be a sea change for tribes, which are largely dependent on the federal government when it comes to law enforcement on their lands.

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Leonard Peltier Loses Document Case in Eighth Circuit

Matthew L.M. Fletcher

From How Appealing:

“Court rules against Peltier in documents case”: The Associated Press has a report that begins, “Imprisoned American Indian activist Leonard Peltier has lost another round in court in his effort to compel the FBI to disclose about 10,500 pages of documents about his case.” You can access today’s ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.

Yurok Juvenile Wins Ineffective Assistance of Counsel Claim

Matthew L.M. Fletcher

The case is In re Edward S., from the California appellate court, first district. An excerpt:

We shall conclude that Hauschild’s performance was deficient in that he (1) failed to investigate potentially exculpatory evidence, (2) sought an inadequate continuance based on a mistake of law, and, (3) failed to move for a substitution of counsel knowing he was unable to devote the time and resources necessary to properly defend appellant. Further concluding that these deficiencies were prejudicial, we shall reverse the judgment.

Oklahoma Ct. of Criminal Appeals Holds that Seminole Parcel Not Indian Country

Matthew L.M. Fletcher1 Comment

In Magnan v. State, the Oklahoma Court of Criminal Appeals concluded that a parcel of land in which Seminole Indians retained 4/5 of mineral rights was still no longer Indian Country. The case is interesting for two reasons. First, the whole debate about Indian Country:

This Court considered a similar question in Murphy v. State, 2005 OK CR 25, 124 P.3d 1198.  In Murphy, a murder occurred on a state road that at one time had been Indian allotted land.  Over time, the surface estate on which the road was located, and 11/12ths of the mineral estate, had been conveyed to non-Indians.  Applying a contacts and interests analysis analogous to the familiar “minimum contacts” test set out in International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), the Murphy court concluded that the Oklahoma’s contacts and interests in the surface property overwhelmed any fractional interest the Indian heir of the original allottee owned in the unseen mineral estate.  According to Murphy, that conclusion was necessary because allowing an unobservable fractional interest to control the enforcement of laws on the surface of a property would lead to a checkerboard of alternating jurisdictions that would seriously burden the administration of state and local governments.  Murphy, ¶¶ 42-43, 1206.  Murphy held, therefore, that a fractional interest in an unobservable mineral interest is a contact with the surface estate that is insufficient to deprive the State of Oklahoma of criminal jurisdiction.  Id. ¶ 42, 1206.

But more amazingly, the court had the benefit of a federal court case reaching the same outcome 10 years earlier regarding the same property!:

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Seventh Circuit Affirms Convictions for Bilking HCN in Casino Fraud

Matthew L.M. Fletcher

Here is the opening paragraph in United States v. Moore, one of the more entertaining introductions lately:

The time: 6 p.m. The place: Ho-Chunk casino in Baraboo, Wisconsin. The event: a drawing to determine who would walk off with $10,000. Undoubtedly, excitement was in the air. Realistically, the average schlemiel had only a .000067 percent chance of winning. But another participant in the drawing had to like his chances: Bruce Knutson had a 30 percent chance of coming up a winner. And when the winning entry form was pulled from the barrel-ta da-the winner was Bruce Knutson! The lucky winner then posed for a publicity picture, signed off on a tax form, received a check for $5,000, and pocketed $5,000 in cash. It was, we suspect, a night to remember. But all was not, as we shall see, quite as it seemed. The rest of the story explains why Knutson and his buddy, Darwin Moore, are here appealing their convictions after they were found guilty of bilking the casino out of $10,000.

Interlochen Public Radio Segment on Indian Country Crime

Matthew L.M. Fletcher

INTERLOCHEN PUBLIC RADIO (2009-04-21) In the US, we’ve come to expect that if someone does something wrong – and they’ve been found out – the crime won’t go unpunished. But that’s not always true in Indian Country, where there are complicated laws about which governments are allowed to deliver what punishments, against whom. Some even say, on some reservations, a white person might do just about anything and get away with it. But not in West and Northern Michigan. IPR’s Linda Stephan reports.

Listen here.

Federal Magistrate Judge Recused from American Indian Religious Freedom Case

Matthew L.M. Fletcher

The case is United States v. Baca, out of the Eastern District of California. The defendant, Baca, is being charged by the federal government for filming on government property without a permit and trespassing on a cultural resource. He was filming a tribal ceremony at Yosemite (Yosemite Big Time). He was convicted in a bench trial before a federal magistrate, but the district court vacated the conviction on the grounds that the magistrate should have recused himself for bias. Apparently, the judge has a hangman’s noose in his office, prominently featured in a local newspaper article.

It’ll be interesting to see how Baca’s defense (religious freedom, assertion that he is a religious leader, etc.) will play out in the next trial….

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Tribal Law and Order Act’s Limitations

Matthew L.M. Fletcher2 Comments

The ICT piece quoting Sarah Deer notes that the Tribal Law and Order Act (text here) could go further. I agree. The way it’s drafted now, it wouldn’t do a whole lot for Indian women. It’s a statute designed to combat drug trafficking more than anything. A statute designed to cut into crime rates against women would have improved tribal court authority, such as authority to prosecute all on-reservation perpetrators.

There are good steps in the right direction re: crimes against women, such as improved training and cooperation, more funds for tribal law enforcement. But the key provisions to the statute would increase the capacity of federal not tribal prosecutors in Indian Country. I tend to agree that the feds should be dealing with major drug trafficking in Indian Country, but the law doesn’t do anything to solve the practical limitations that federal prosecutors face in prosecuting crimes against women.

First, they have to prove additional elements to the crime — jurisdiction and the Indian identity of the perpetrator and victim. Second, the distance between the federal courts and the crimes is often too far for a proper prosecution, let alone investigation. The best jurisdiction to deal with these local crimes are Indian tribes, and until Congress recognizes tribal court jurisdiction over non-Indian criminal defendants in these crimes, everything is a half-measure.

ICT on Tribal Law and Order Act

Matthew L.M. Fletcher

From ICT:

Sen. Byron Dorgan, D-N.D., introduced major bipartisan legislation April 2 aimed at strengthening law enforcement and justice in Indian communities. Some Indian justice advocates said it could be strengthened, but generally agree it is a step in the right direction.

Congressional officials said the legislation is needed in response to violent crime that has reached extreme levels on some reservations due to chronic underfunding of law enforcement and justice programs, and a broken, divided system for policing Indian lands.

“The increase in violence on some reservations is epidemic,” said Dorgan, chairman of the Senate Committee on Indian Affairs, upon introducing the bill to Congress.

“Violence against women is growing and now one in three women on Indian reservations will be a victim of rape or sexual assault during their lifetime. That is intolerable and we have to stop it.

“We cannot ignore the fact that drug traffickers are now targeting Indian reservations as safe havens because of the lack of police presence and the disjointed system of justice that is in place.”

Thirteen senators from both parties joined Dorgan in offering the legislation, which is called the Tribal Law and Order Act. Similar legislation was introduced last summer, but did not pass Congress.
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