Criminal

Tenth Circuit Affirms Conviction for Embezzlement from C&A Tribes

Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. Island from the Tenth Circuit, in which a tribal council member’s secretary had used wire transfers from a gaming revenue checking account to gamble in Vegas, apparently.

Of note, the court mentioned how the Cheyenne & Arapho Tribes had handled their gaming revenues:

In 2001, Ms. Island was hired as a secretary/assistant by Robert Tabor, the chairman of the business committee and elected representative of Arapaho District A-2. Initially, the committee used a single checking account for net gaming proceeds from which any of the eight members could write checks. Later, the committee implemented a system by which its treasurer and Cheyenne District C-4 representative, Eddie Whiteskunk, would divide the proceeds among individual committee members, including himself and Mr. Tabor.

Beginning in 2002, Ms. Island worked exclusively for Messrs. Whiteskunk and Tabor and ran their offices on a daily basis. Part of her duties included writing checks from their respective gaming proceeds checking accounts to tribal members who needed financial assistance – authorized expenditures under § 2710(b)(2)(B). During this same time and on trips to Las Vegas, Nevada,and Albuquerque, New Mexico, Ms. Island obtained money from those checking accounts (wire transfers) for her and others’ personal use, which formed the basis of her ensuing indictment for conspiracy and embezzlement. The evidence was that she obtained more than $15,000 that was later divided among the participants. Following a two-day trial, the jury found her guilty of five counts of embezzlement of less than $1,000 under 18 U.S.C. § 1163, and one count of conspiracy to commit an offense against the United States under 18 U.S.C. § 371.

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Op-Ed Supporting Michigan DNR

Matthew L.M. Fletcher

From the Traverse City Record-Eagle:

The State Department of Natural Resources is used to taking its lumps. It gets its share and more in the media, in deer hunting and fishing publications, from bloggers and even on this page in the form of editorials and letters to the editor.

It comes with the territory. The DNR, after all, is a taxpayer-supported agency and deals with some pretty volatile issues and individuals.

The agency oversees fishing, hunting, trapping and outdoor activities of all sorts, all of which have passionate adherents not shy about their opinions.

Too often, however, the agency and individual DNR officers don’t get the credit they deserve. Many spend untold hours in the heat and cold watching for poachers or monitoring fishermen. They’ve been shot at, punched and worse in the line of duty. They don’t often hear someone say “thanks.”

But without their efforts there’d be a lot fewer deer and fish for those who pay for the privilege of hunting and fishing.

Recently the DNR, with help from officers from the Sault Ste. Marie Tribe of Chippewa Indians, said they would charge six men with running an illegal commercial fishing operation on Lake Michigan’s Little Bay de Noc. The poachers may have claimed more than 20,000 pounds of walleye in just the last two months and thousands more over several previous winters.

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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.