Criminal

Connecticut Law Review Note Profiles GTB and Criminal Jurisdiction

Matthew L.M. Fletcher

Benjamin J. Cordiano published “Unspoken Assumptions: Examing Tribal Jurisdiction over Nonmembers Nearly Two Decades after Duro v. Reina” in the Connecticut Law Review. Here is an excerpt from the abstract:

This Note examines the Supreme Court’s reasoning in Duro and uses nearly twenty years of anecdotal evidence, case law, and congressional findings to show that the Court relied on flawed assumptions about the nature of nonmember criminal jurisdiction in the modern tribal context. By examining the modern realities of two tribes, the Grand Traverse Band of Ottawa and Chippewa Indians and the Confederated Tribes of the Colville Reservation, this Note concludes that the Supreme Court’s reasoning in Duro is flawed and that criminal jurisdiction over nonmember Indians is crucial to tribal self-governance and maintenance of reservation life.

Student Comment on Adam Walsh Act and Tribal Sovereignty

Matthew L.M. Fletcher

Brian Dimmer published “How Tribe and State Cooperative Agreements Can Save the Adam Walsh Act from Encroaching upon Tribal Sovereignty” in the Marquette Law Review. Here is an excerpt:

This Comment proposes that because the AWA threatens the tribal sovereignty of both non-Public Law 280 and Public Law 280 tribes, Congress should amend the AWA to require tribe and state cooperative agreements to carry out AWA sex offender registration and notification functions.

US v. Watchman — Indian Country SORNA Case

Matthew L.M. Fletcher

Here are the materials in United States v. Watchman, out of the District of Arizona. The case involves a SORNA/Adam Walsh Act violation by a Navajo Nation member. The defendant made an interesting argument that may recur in Indian Country, which is that the tribe had not yet implemented its sex offender registration statute.

watchman-motion-to-dismiss

us-response-to-motion-to-dismiss

watchman-reply-brief

us-v-watchman-dct-order

Federal Court Upholds Indian Country Crimes Act Conviction but Holds State Law Punishments Control

Matthew L.M. Fletcher1 Comment

Here is the opinion in United States v. Langford (us-v-langford-dct-opinion), and its companion case, United States v. McHone (us-v-mchone-dct-opinion), out of the Western District of Oklahoma. The claimant, a non-Indian prosecuted under the Indian Country Crimes Act and the Assimilative Crimes Act, unsuccessfully argued that the federal court had no criminal jurisdiction over him (the underlying crime was cock-fighting, illegal under Oklahoma law).

However, the court also held that the magistrate judge erred in sentencing the defendant to a fine larger than that allowable under Oklahoma law.

Finally, the court dropped an interesting footnote in the Langford opinion:

In his brief, defendant asserts that pursuant to the Indian Civil Rights Act, he is entitled to all rights afforded to tribal members. The Indian Civil Rights Act, however, undertakes to single out the more important civil rights contained in the United States Constitution and to make those applicable to tribal members. See Martinez v. Santa Clara Pueblo, 540 F.2d 1039, 1042 (10th Cir.1976). Because defendant is not a tribal member, the Court finds the Indian Civil Rights Act is inapplicable in this case.

The citation is to the Martinez panel opinion, not the Supreme Court opinion. I wonder if other circuits have found the same.

Tenth Circuit Vacates Sentence of Tribal Member and Remands

Matthew L.M. Fletcher1 Comment

The case is U.S. v. Pappan, involving a Wind River Reservation resident and member of the Northern Arapaho Tribe. He was already sentenced at the low end of the range, but appealed anyway. Now it’s all up for grabs.

Minnesota Court of Appeals Affirms State Criminal Jurisdiction over Tribal Members

Matthew L.M. Fletcher

The Minnesota Court of Appeals affirmed the conviction of a tribal member (Minnesota Chippewa Tribe, Fond du Lac Band, Leech Lake resident) for firearms violations, holding that the court had jurisdiction under PL 280 in State v. Roy (opinion). Here is the court’s syllabus:

Under Public Law 280, Minnesota has jurisdiction to prosecute a tribal member for a violation of the felon-in-possession statute, Minn.Stat. § 609.165 (2004), because: (a) the inability to possess a firearm under Minn.Stat. § 609.165 is the result of the individual’s criminal conduct; (b) the prosecution does not affect the tribe’s treaty hunting rights; and (c) Minn.Stat. § 609.165 is criminal/prohibitory.

U.S. v. Janis — CA8 Affirms Conviction for Embezzlement from Tribe

Matthew L.M. Fletcher

Here is the opinion in United States v. Janis, affirming a conviction under 18 USC 1163 for embezzling funds from an Indian tribe, the Oglala Sioux Tribe — us-v-janis-ca8-opinion

Wisconsin Supreme Court Justice Warns of Constitutional Problems in a Potential “Oliphant Fix”

Matthew L.M. Fletcher

The Honorable Patience Drake Roggensack has published “Plains Commerce Bank’s Potential Collision with the Expansion of Tribal Court Jurisdiction by Senate Bill 3320” in the University of Baltimore Law Review. She concludes:

Congress should deliberate carefully on Senate Bill 3320. While crime on tribal land is a real problem that must be addressed, increasing the subject matter jurisdiction of tribal courts has the potential to create additional problems of constitutional dimension. Therefore, even though Plains Commerce Bank involves the examination of subject matter jurisdiction in a civil law context, it provides a well-reasoned framework for significant constitutional concerns. Consideration of Plains Commerce Bank will aid the examination of Senate Bill 3320’s proposed changes in the subject matter jurisdiction of tribal courts in criminal cases. It should not be overlooked in Congress’ deliberative process.

New Sixth Amendment Case Out of Indian Country re: Lay Counsel and Miranda

Matthew L.M. Fletcher

Here is yet another case holding that the appointment of tribal lay advocates/counsel to defend an Indian in tribal court does not trigger Sixth Amendment protections under Miranda.

cottier-dct-order

cottier-report-and-recommendations

Here is an important footnote in the R&R (n. 4):

There is a split of authority among the circuits as to whether, in cases involving an allegation of a Sixth Amendment violation, the Texas v. Cobb decision incorporates the full panoply of double jeopardy analysis–specifically the dual sovereign analysis–or whether only the Blockburger test applies. This would be of significance where, for example, state and federal officials charged a defendant with offenses having identical elements. If the defendant had already appeared in state court and asserted his Sixth Amendment right to counsel, and federal officials subsequently interrogated the defendant before the institution of federal charges with the same essential elements as the state charges, courts disagree on whether this would constitute a Sixth Amendment violation. See United States v. Coker, 433 F.3d 39, 43 (1st Cir. 2005). The Second Circuit does not apply the dual sovereign analysis to allegations of Sixth Amendment violations. United States v. Mills, 412 F.3d 325 (2d Cir. 2005). The Eighth Circuit is in accord with this approach at least where the other sovereign is an Indian tribe. See Red Bird, 287 F.3d at 715. The First and Fifth Circuits apply the dual sovereign analysis to Sixth Amendment violations. See Coker, 433 F.3d at 43; United States v. Avants, 278 F.3d 510 (5th Cir. 2002).

U.S. v. Perez — Sixth Amendment Right to Counsel when Tribe Appoints Lay Advocate Defender

Matthew L.M. Fletcher

Here are the materials in U.S. v. Perez:

perez-r-and-r

dct-order-denying-perez-motion-to-suppress

The interesting excerpt from the district court’s denial of the motion is here:

After a careful review of the parties’ arguments, the facts, and relevant caselaw, the court adopts the magistrate judge’s recommendation and finds that Perez’s Sixth Amendment right to counsel was not violated. While Perez is correct that United States v. Red Bird, 287 F.3d 709 (8th Cir. 2002), would likely require this court to find a Sixth Amendment violation if he had been represented by an attorney on his tribal charges, the court agrees with Magistrate Judge Duffy and other judges in the District of South Dakota that Red Bird is distinguishable when it is lay counsel, not an attorney, who represented the defendant in tribal court. Red Bird, 287 F.3d at 716; see also Docket 54, page 25-27; United States v. Tools, CR 07-30109-01-KES, 2008 U.S. Dist. LEXIS 49490 (D.S.D. June 27, 2008); United States v. Killeaney, 2007 U.S. Dist. LEXIS 92763, 2007 WL 4459348, *5-*8 (D.S.D. Dec. 17, 2007) (stating that “[t]here is a clear distinction between licensed legal counsel and lay representation under the Sixth Amendment” and concluding that “the appointment of ‘counsel’ pursuant to the Rosebud Constitution does not in all circumstances cause Sixth Amendment protections to attach” when that “counsel” is lay counsel); United States v. Dupris, 2006 DSD 4, 422 F. Supp. 2d 1061, 1068 (D.S.D. 2006); see also United States v. Whitefeather, 2006 U.S. Dist. LEXIS 17237, 2006 WL 763204, *2 (D. Minn. Mar. 24, 2006). Because Perez’s Sixth Amendment right to counsel had not “attached” as discussed in McNeil, statements made during Agent Cresalia’s conversation with Perez on January 11, 2008, are admissible. Perez’s motion is denied.