Criminal

Kansas Appellate Court Orders Resentencing of Kickapoo Tribal Member

Matthew L.M. Fletcher

Here is the opinion in State v. Horselooking:

State v Horselooking

An excerpt:

Alvin P. Horselooking, Jr., appeals his sentence following his convictions of aggravated battery and driving under the influence of alcohol (DUI). The district court assigned Horselooking a criminal history score of B based in part on his Kickapoo Nation tribal conviction of residential burglary, which the district court scored as a person felony for criminal history purposes. However, the Kickapoo Nation Tribal Code does not designate burglary as being either a felony or a misdemeanor offense. As his sole issue on appeal, Horselooking claims the district court erred when it scored his prior Kickapoo tribal conviction as a felony for criminal history purposes. Because we agree with Horselooking’s claim, we vacate his sentence and remand for the district court to resentence Horselooking using the correct criminal history score.

Eighth Circuit Affirms Major Crimes Act DV/Sexual Assault Conviction

Matthew L.M. Fletcher

Here is the opinion in United States v. Johnson.

ICRA Habeas Petition Dismissed for Failure to Exhaust Tribal Remedies

Matthew L.M. Fletcher1 Comment

Here are the materials in Adams v. Elwell (D.N.M.):

1 Habeas Petition

8 DCT Order

Arizona COA Vacates Gila River Member’s Conviction for Crime Committed Entirely On-Rez, Affirms Conviction for Fleeing Police

Matthew L.M. Fletcher

Here is the unpublished opinion in State v. Carpio (Ariz. Ct. App.):

State v Carpio

An excerpt:

Manuel Carpio appeals his convictions and sentences for one count of disorderly conduct and one count of unlawful flight from a law enforcement vehicle. Carpio, a member of the Gila River Indian Community (the Community), argues the superior court did not have subject matter jurisdiction over the disorderly conduct offense because he committed it entirely within the Gila River Indian Reservation (the Reservation). He also argues the superior court did not have personal jurisdiction because he was removed from the Reservation in violation of tribal extradition procedures after he was pursued onto the Reservation following a “hot pursuit” that began in the City of Chandler (the City). For the following reasons, we vacate Carpio’s conviction and sentence for disorderly conduct and affirm his conviction and sentence for unlawful flight from a law enforcement vehicle.

Federal Manslaughter Conviction Stands over Alleged Bad Acts by Rocky Boy’s Police Officer

Matthew L.M. Fletcher

Here are the materials in United States v. Henderson (D. Mont.):

74 Motion to Set Aside Verdict

80 Response

87 DCT Order

An excerpt:

The Court agrees with Henderson that if the jury would have heard the undisclosed impeaching evidence relating to Cabanas, they may have changed the way they viewed Cabanas’s testimony. The Court finds, however, that the absence of such evidence had no impact on the jury’s verdict given the relative insignificance of Cabanas’s testimony compared to the other witnesses, and the overwhelming weight of evidence against Henderson provided by other witnesses.

Materials in Kickapoo Tribe of Kansas ICRA Habeas Matter

Matthew L.M. Fletcher

Here are the materials so far in Darnell v. Merchant (D. Kan.):

1 Habeas Petition

10 DCT Order to Show Cause

12 Motion to Disqualify Counsel

15 Response to 1 & 10

16 Response to 12

18 Reply in Support of 1 & 10

20 Magistrate Order

An excerpt:

Darnell was convicted on March 9, 2017 in two cases before the Tribal Court of tampering with records, fraudulent handling of recordable instruments, and misuse of tribal funds. Although initially released on a cash bond pending sentencing, Darnell was subsequently arrested and has been incarcerated in the Brown County, Kansas Jail since March 31, 2017. On April 14, 2017, Darnell filed her petition for a writ of habeas corpus (the “Petition”). On April 24, 2017, Darnell was sentenced to 18 months and 22 months incarceration, to run concurrently, on her conviction in the two cases. On May 4, 2017, Darnell filed a supplement to her Petition. In her Petition and supplement, Darnell alleges that the Tribal Court committed a number of errors and improprieties with regard to her trial, sentencing, and incarceration, and that she was deprived of her liberty without due process of law as required under the Indian Civil Rights Act. Lemon served as Special Prosecutor for the Kickapoo Tribe in prosecuting Darnell and tried her jury trial that is the subject of this habeas corpus action.

New Article on Racial Bias in Evidence Rules

Ann Tweedy1 Comment

Jasmine Gonzales Rose has posted Toward a Critical Race Theory of Evidence on ssrn. The article is forthcoming in the Minnesota Law Review.

Here’s the abstract:

Scholars, judges, and lawyers have long believed that evidence rules apply equally to all persons regardless of race. This Article challenges this assumption and reveals how evidence law structurally disadvantages people of color. A critical race analysis of stand-your-ground defenses, cross-racial eyewitness misidentifications, and minority flight from racially-targeted police profiling and violence uncovers the existence of a dual-race evidentiary system. This system is reminiscent of nineteenth century race-based witness competency rules that barred people of color from testifying against white people. I deconstruct this problem and introduce the original concept of “racialized reality evidence.” This construct demonstrates how evidence of people of color’s lived experiences of systemic racism are regularly excluded at trial, while evidence of white norms and beliefs receives “implicit judicial notice.” Finally, I advocate for a new critical race theory of evidence law and offer solutions — including a reinterpretation of Federal Rule of Evidence 403 — to increase equality in the courtroom.

Tulalip Tribal Court Denies Summary Judgment, Affirms In Rem Jurisdiction Versus State over Items Seized Pursuant to Search Warrant

Matthew L.M. Fletcher

Here are the materials in Shopbell v. Washington Dept. of Fish and Wildlife (Tulalip Tribal Court):

4-6-17 Defendants’ Motion for Summary Judgment and Memorandum in Support of Motion

4-24-17 Plaintiff’s Cross Motion for Partial Summary Judgment Re Probable Cause

5-2-17 Plaintiff’s Response in Opposition to Defendants’ Motion for Summary Judgment

5-4-17 Defendants’ Response to Plaintiff’s Cross Motion for Summary Judgment Re Probable Cause

5-12-17 Defendants’ Reply in Support of Their Motion for Summary Judgment

5-15-17 Plaintiff’s Reply in Support of Cross-Motion for Partial Summary Judgment

6-14-17 Ruling on Summary Judgment Motions

Federal Court Holds State Highway on Sandia Pueblo is Indian Country

Matthew L.M. Fletcher

Here are the materials in United States v. Antonio (D.N.M.):

62 Motion to Dismiss

68 Response

84 DCT Order

An excerpt:

THIS MATTER comes before the Court on the Defendant’s Motion to Dismiss for Lack of Federal Subject Matter Jurisdiction, filed April 10, 2017 (Doc. 62)(“Motion”). The Court held an evidentiary hearing on April 11, 2017, and a hearing on April 12, 2017. The primary issue is whether the Court has jurisdiction over this matter under the Indian Pueblo Land Act Amendments of 2005, Pub. L. No. 109-133, 119 Stat. 2573 (Dec. 20, 2005), codified at 25 U.S.C. § 331 Note, because the automobile collision giving rise to Plaintiff United States of America’s criminal prosecution against Defendant Jeffrey Antonio, which occurred on private land, nonetheless occurred within the exterior boundaries of the 1748 Spanish land grant to the Sandia Pueblo, which Congress confirmed in the Act of December 22, 1858, 11 Stat. 374, 374 (1859). The Court concludes: (i) the automobile collision giving rise to this criminal cause of action occurred within the exterior boundaries of the 1748 Spanish land grant; and, consequently, (ii) under 25 U.S.C. § 331 Note, the Court has jurisdiction over this matter. Accordingly, the Court denies Antonio’s Motion.

Inquest Examining Police Killing at Muckleshoot Comes to an End

Ann Tweedy

Here.

Previous coverage here.