Criminal

New Student Scholarship on Tribal Criminal Jurisdiction to Crimes Against Children

Matthew L.M. Fletcher

The Harvard Civil Rights-Civil Liberties Law Review has published “What about the Children? Extending Tribal Criminal Jurisdiction to Crimes Against Children” by Alison Burton.

An excerpt:

As explained in Part IV, if Congress extends tribal criminal jurisdiction to non-Indian crimes against children, challenges to this legislation are un- likely to succeed as long as Congress explicitly enacts such jurisdiction through inherent tribal sovereignty.11 Non-Indian defendants’ United States Constitutional rights will be somewhat diminished in tribal courts. How- ever, extending tribal criminal jurisdiction is still justified because criminal defendants’ rights always vary according to the sovereign state in which the crime is committed.12 Furthermore, Part IV demonstrates how tribal crimi- nal jurisdiction can be analogized to court-martial,13 another arena in which the accused is not entitled to full constitutional protections. Just as court- martial is limited to members of the military who have commited crimes, tribal jurisdiction would be limited to non-Indians who have close ties to a tribe and have commited crimes in Indian country.

Tenth Circuit Rejects Bivens Suits against Federal Officers in “Operation Cerebus”

Matthew L.M. Fletcher

Here is the opinion in Estate of Redd v. Love.

Briefs:

Appellant Brief

US Brief

Reply

Lower court materials here.

Federal Court Suppresses Key Evidence Procured in Stop of Non-Indian by Tribal Police

Matthew L.M. Fletcher

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

34 Motion to Suppress

41 Response

46 Reply

48 DCT Order

An excerpt:

Normally, under Bressi, Officer Saylor would be required to determine whether Cooley was non–Indian shortly after seizing him. 575 F.3d at 896. However, Officer Saylor determined Cooley was non–Indian when Cooley initially rolled his window down. Because Cooley was non–Indian, Officer Saylor had the authority to detain Cooley only if it was “apparent” Cooley had violated state or federal law. Bressi, 575 F.3d at 896. Officer Saylor’s observations up to that point fell considerably below an “apparent” state or federal law violation. When Officer Saylor seized Cooley, he had observed bloodshot and watery eyes, no odor of alcohol, possible but unconfirmed slurred speech, two semi-automatic rifles, wads of cash in Cooley’s pocket, and answers to questions that seemed untruthful to him. Officer Saylor had also heard Cooley explain that he pulled over because he was tired—an occurrence Officer Saylor acknowledged was common on Highway 212—and that the vehicle did not belong to him but instead to a Thomas Spang or Thomas Shoulderblade, one of whom Officer Saylor suspected of drug activity and one of whom was a former probation officer. None of Cooley’s actions, whether taken individually or cumulatively, establish an obvious state or federal law violation. The Court holds Officer Saylor exceeded the scope of his authority when he detained Cooley. All evidence obtained subsequent to Cooley’s seizure is suppressed because it is “fruit of the poisonous tree.” United States v. Ramirez–Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989) (citing Nardone v. United States, 308 U.S. 338, 341 (1939)).

Eighth Circuit Affirms Major Crimes Act Child Abuse Conviction

Matthew L.M. Fletcher

Here is the opinion in United States v. White Plume.

Minnesota Public Radio Show: “What criminal justice looks like in Native American communities”

Matthew L.M. Fletcher

From yesterday, here.

Free CLE on Stand-Your-Ground Laws and Indian Country at ASU on Monday

Ann Tweedy

Registration is at 2:30 and the event begins at 3 pm. The agenda is here, and more info. is here.

Justice Dept. Cements Position on Concurrent Federal Criminal Jurisdiction in “Optional” P.L. 280 States

Matthew L.M. Fletcher1 Comment

Here:

oaag-80488-v1-optional_pl_280_memo_to_u_s__attorneys

An excerpt:

For decades, conflicting judicial decisions and Department of Justice statements have led to uncertainty about whether the United States has concurrent jurisdiction under 18 U.S.C. §§ 1152 and 1153 over Indian-country crimes that fall within an “optional P.L. 280” State’s jurisdiction under Section 7 of Public Law No. 83-280, 67 Stat. 588, 590 (1953). The Acting Solicitor General, after reviewing prior positions of the Department and the underlying legal materials, has now concluded that the litigating position of the United States is that the United States does have this concurrent criminal jurisdiction. Your Offices therefore can bring prosecutions under 18 U.S.C. §§ 1152 and 1153, in accordance with 28 C.F.R. § 50.25(a)(2), notwithstanding any contrary view about optional P.L. 280 jurisdiction that the United States or the Office of the Solicitor General (OSG) may have previously expressed.

Tenth Circuit Rejects Challenge to State Criminal Jurisdiction on Strawberry Valley Project Area of Ute Reservation

Matthew L.M. Fletcher1 Comment

Here is the opinion in Hackford v. State of Utah.

Briefs:

hackford-brief

wasatch-county-brief

state-brief

reply-brief

Tulalip Member/Company Seek Mandamus to Bar Searches by Fish and Wildlife Officers

Matthew L.M. Fletcher

Here is the petition in Paul v. Gain (Wash. S. Ct.):

pet-writ-mandamus

An excerpt:

The novel twist in this case is the “gag order” in the Search Warrant. Because recipients of the Search Warrants risk violating a court order if they disclose the Search Warrants, their silence is secured. The Order sealing in perpetuity the Search Warrants Files guarantees that no public scrutiny can ever occur. The “gag-order” and the Order, in combination, create a Star Chamber within which law enforcement officers can operate without accountability, to the extreme detriment of their targets and the public, who may never know who invades their personal affairs, or why. This is particularly true here where Petitioners have already successfully sued the law enforcement agency to secure return of personal property seized via an earlier search warrant arising from the same investigation.

Leonard Peltier Denied Clemency

Matthew L.M. Fletcher

Here:

https://www.democracynow.org/2017/1/18/breaking_leonard_peltier_denied_clemency_by

http://www.nydailynews.com/news/politics/obama-won-commute-native-american-activist-leonard-peltier-article-1.2949762

http://heavy.com/news/2017/01/leonard-peltier-clemency-pardon-denied-obama-freed-sentence-commuted-commutation-american-indian-petition-reaction-twitter/

http://www.washingtontimes.com/news/2017/jan/18/leonard-peltier-denied-clemency-obama-killing-fbi-/