Criminal

Federal Court Issues Interesting Post-Zepeda Indian Status Decision

Matthew L.M. Fletcher

Here are the materials in United States v. Loera (D. Ariz.):

7 Loera Opening Brief

16 Loera Revised Opening Brief

24 US Response

25 Reply

26 DCT Order

An excerpt:

Loera does not meet the first two and most important factors of Bruce’s second prong. And while evidence supports finding that he did satisfy the third and fourth Bruce factors, the Government has successfully demonstrated that Loera’s satisfaction of those factors is weak. In the end, accounting for the descending level of importance given to each Bruce factor, and viewing the evidence in the light most favorable to the Government, a rational trier of fact could have found beyond a reasonable doubt that Loera does not qualify as an Indian. See Cruz, 554 F.3d at 844. Accordingly, the Court affirms the decision of the magistrate court below; the exercise of federal jurisdiction over this case was appropriate pursuant to § 1152.

 

Tlingit & Haida Tribes of Alaska’s Written Testimony to Senate Indian Affairs Committee

Sarah M Donnelly

Download the Tribe’s May 31st letter here.

Previous posts on S.2785 and S.2920 here and here.

Tulalip Tribe’s Written Testimony Submitted to Senate Indian Affairs Committee

Sarah M Donnelly1 Comment

Download Tulalip’s June 1st letter and attachments here.

Link to previous coverage of S.2785 and S.2920 here.

Materials on Federal Seizure of $741,480 from Hopi Cultural Preservation Board Bank Account

Matthew L.M. Fletcher

Here are the materials so far in United States v. $741,480.00 (D. Ariz.):

1 Complaint

17 Application for Default Judgment

21 Application for Partial Default Judgment

Calls of Justice for Aboriginal Women Echo Down Canada’s Highway of Tears

Teresa Walrod

From the New York Times:

Dozens of Canadian women and girls, most of them indigenous, have disappeared or been murdered near Highway 16, a remote ribbon of asphalt that bisects British Columbia and snakes past thick forests, logging towns and impoverished Indian reserves on its way to the Pacific Ocean. So many women and girls have vanished or turned up dead along one stretch of the road that residents call it the Highway of Tears.

More HERE.

 

Menominee Tribe Loses Hemp Suit

Matthew L.M. Fletcher

Here is the decision in Menominee Indian Tribe of Wisconsin v Drug Enforcement Administration (E.D. Wis.):

26 DCT Order

Briefs here.

Pascua Yaqui Tribe’s Testimony Submitted to Senate Indian Affairs Committee

Sarah M Donnelly2 Comments

Download transcript of PYT’s oral testimony here.

Link to written testimony and meeting video here.

Links to legislation: S.2785, S.2916, S.2920.

Nebraska State Bar Indian Law Section CLE

Sarah M Donnelly

Nebraska Bar ILS CLE

The Nebraska State Bar Indian Law Section will be hosting an Indian Law CLE that will focus on Indian Law 101 information for jurisdiction, ICWA, and tribal court practice.

The CLE will be webcast, so other attorneys from other states can register and gain CLE credit.

Ninth Circuit Affirms Conviction for Theft from a Tribe

Matthew L.M. Fletcher

Here is the opinion in United States v. Tadios.

The court’s syllabus:

The panel affirmed the district court’s inclusion in its loss calculation at sentencing the estimated salary paid to the defendant, the CEO of a federally-funded health care clinic located on the Chippewa Cree’s Rocky Boy Reservation, for time she spent visiting her husband when she claimed to be traveling on business. The defendant was convicted for converting federal funds for personal use, using federal funds for personal benefit, and misapplying clinic funds. The panel rejected the defendant’s argument that because she was an exempt employee, the Chippewa Cree suffered no loss in paying her full salary for when she was visiting her husband instead of performing clinic duties. The panel held that including in the loss calculation under U.S.S.G. § 2B1.1 the estimated value of the time the defendant should have reported as annual leave was not clear error. The panel addressed the defendant’s remaining arguments concerning her conviction and sentencing in a memorandum disposition

The Ninth Circuit’s unpublished memorandum decision on jurisdiction is here.

An excerpt:

Tadios first argues that the federal courts lack jurisdiction because Tadios is an Indian and the acts took place on tribal land. We review criminal jurisdiction de novo. United States v. Begay, 42 F.3d 486, 497 (9th Cir. 1994). Tadios’s argument fails in light of more than a century of jurisprudence concluding that generally applicable provisions of the Federal Criminal Code govern prosecutions of crimes committed by Indians in Indian territory. See, e.g., United States v. Kagama, 118 U.S. 375, 384-85 (1886) (finding that federal courts have jurisdiction over crimes committed by Indians on Indian territory).

 

Addie Rolnick on Juvenile Justice in Indian Country

Matthew L.M. Fletcher

Addie Rolnick has published “Untangling the Web: Juvenile Justice in Indian Country,” forthcoming from the NYU Journal of Legislation & Public Policy. [PDF]

Here is the abstract:

The juvenile justice system in Indian country is broken. Native youth are vulnerable and traumatized. They become involved in the system at high rates, and they are more likely than other youth to be incarcerated and less likely to receive necessary health, mental-health, and education services. Congressional leaders and the Obama administration have made the needs of Indian country, especially improvement of tribal justice systems, an area of focus in recent years. The release of two major reports—one from a task force convened by the Attorney General to study violence and trauma among Native youth and the other from a bipartisan commission appointed to recommend improvements to criminal justice in Indian country—has further trained this focus on improving juvenile justice. Two recommendations appear again and again in every report and article: give tribes more control over their juvenile justice systems and reduce the reliance on secure detention. Yet, implementing these recommendations seems next to impossible.

Taking as its starting point these two devastating reports, this Article provides a thorough description and diagnosis of the reasons that the Indian country juvenile justice system continues to fail Native youth, one that has been missing from the legal and policy literature. It provides a careful analysis of the law governing juvenile delinquency jurisdiction in Indian country. While it echoes others’ observations that the confusing jurisdictional web is part of the reason Native youth remain neglected and invisible in federal and state systems, and ill-served by tribal systems, this Article’s detailed analysis of the law reveals much greater potential for tribal control under current laws than others assume exists. More importantly, the Article moves beyond the familiar complaint about the jurisdictional web to examine the inner workings of each sovereign’s approach to Indian country justice, providing the fuller picture necessary to identify and implement both large-scale and small-scale solutions. As federal and tribal leaders debate legal and policy changes to the Indian country juvenile justice system, including potential amendments to the Federal Juvenile Delinquency Act, the Juvenile Justice and Delinquency Prevention Act, federal criminal laws, and Public Law 280, this Article’s timely investigation of barriers to improvement will elucidate a better path to healing, not harming, Native youth.