Criminal

Cert Petition in Kelsey v. Pope

July 11, 2016Teresa Walrod2 Comments

Cert Petition regarding the question of the Little River Band’s criminal jurisdiction over off-reservation crimes affecting core tribal government interests.

Questions presented:

1. Whether Indian tribes can prosecute their members for acts that occur outside the tribe’s territory absent Congressional authorization; and

2. Whether the Band’s retroactive expansion of a narrow and precise jurisdictional statute to encompass an extraterritorial act previously outside its plain terms violates the due process protections of the Indian Civil Rights Act, 25 U.S.C. § 1302(a), and Bouie v. City of Columbia, 378 U.S. 647 (1964).

No. 16-5120 Kelsey Cert Petition

Prior posts on Kelsey v. Pope, including lower court decisions, are here.

Eighth Circuit Affirms DV Recidivist Conviction

July 5, 2016Matthew L.M. Fletcher

Here is the opinion in United States v. Drapeau.

Tribal Issues Advisory Group’s Final Report on Impact of Sentencing Guidelines

June 29, 2016Sarah M Donnelly1 Comment

Link to final report (PDF) here.

Link to previous coverage here.

Some key recommendations:

Adding commentary to guide when tribal court convictions may be considered for a possible upward departure in the defendant’s criminal history category.
Establishing a standing advisory group on tribal issues to assist the Commission on changes to the Guidelines impacting American Indian defendants, to advise on and assist in tribal consultation, and to form the basis for a new TIAG when appropriate.
Creating a process for the collection of better data on federal court sentencing to allow for study of the protection order provisions of the Guidelines and analysis of sentencing disparity concerns as detailed herein;
Considering the recommendations of other working groups regarding juvenile offenders, including possibly collapsing sentencing zones A, B, and C into a single zone.

Albuquerque Journal Op-ed on U.S. v. Bryant by Barbara Creel and John LaVelle

June 27, 2016Sarah M Donnelly

Link to “High Court Denies Rights of Natives” here.

Excerpt:

Most disturbing is the court’s disregard of the racial inequity left in the wake of Bryant. Federal prosecutors are now licensed to target Indians – and only Indians – who faced prosecution without assistance of counsel in tribal court proceedings. This is because ICRA allows tribal courts to imprison Indians without the benefit of counsel but does not impact non-Indians, who are entitled to court-appointed counsel in state, federal, and now tribal court, thanks to a recent amendment to ICRA.

Justice Ruth Bader Ginsburg, who wrote Bryant, denigrates Indian people’s civil rights, citing the need to protect Native women from domestic violence. But Department of Justice statistics show most domestic violence perpetrators in Indian country are non-Indians, and the Bryant decision leaves intact their constitutional rights, including the right to appointed counsel.

Commentaries on Bryant Decision

June 16, 2016June 17, 2016Matthew L.M. Fletcher

SCOTUSBlog and Bloomberg (Noah Feldman) and the Atlantic (Garrett Epps)

Takeaways from the Bryant Decision

June 14, 2016Matthew L.M. Fletcher

As observers might have predicted from the oral argument in United States v. Bryant (opinion here), the government’s victory was not surprising. Of course, even a few years ago, this outcome was far from a foregone conclusion, as the 2005 Canby-Washburn-Sands debates in the Federal Sentencing Reporter suggested.

A few takeaways:

1. Remarkable that the Court heaps some of the blame on states for failure to prosecute DV offenses in Indian country, citing to the now-mammoth studies supporting what people in PL280 states have been saying for more than a half-century:

Even when capable of exercising jurisdiction, however, States have not devoted their limited criminal justice resources to crimes committed in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–1637 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7–8 (2007)…. [slip op. at 5]

2. We all know it’s coming — the constitutional challenge to VAWA’s tribal jurisdictional provisions:

In the Violence Against Women Reauthorization Act of 2013, Congress amended ICRA to authorize tribal courts to “exercise special domestic violence criminal jurisdiction” over certain domestic violence offenses committed by a non-Indian against an Indian. Pub. L. 113–4, §904, 127 Stat. 120–122 (codified at 25 U. S. C. §1304). Tribal courts’ exercise of this jurisdiction requires procedural safeguards similar to those required for imposing on Indian defendants sentences in excess of one year, including the unqualified right of an indigent defendant to appointed counsel. See §1304(d). We express no view on the validity of those provisions. [slip op. at 4 n. 4]

3. As is true most of the time, the Court does not acknowledge the disconnect between the terrible rates of crime in Indian country with the lack of effective law enforcement in Indian country, a reality created by Congress and made worse by the Court itself over the decades. Compare:

“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” [slip op. at 2]

With:

That leaves the Federal Government. * * * As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of §117(a), faced at most a year’s imprisonment per offense—a sentence insufficient to deter repeated and escalating abuse. To ratchet up the punishment of serial offenders, Congress created the federal felony offense of domestic assault in Indian country by a habitual offender. [slip op. at 5, 6]

And:

[Bryant] has a record of over 100 tribal-court convictions, including several misdemeanor convictions for domestic assault. Specifically, between 1997 and 2007, Bryant pleaded guilty on at least five occasions in Northern Cheyenne Tribal Court to committing domestic abuse in violation of the Northern Cheyenne Tribal Code. [slip op. at 10]

The feds already don’t have the capacity to prosecute all the repeat DV offenders who are Indians like Bryant, then add in the non-Indians — there’s a problem that 117(a) doesn’t fix.

3. Tribal criminal convictions on Indians in compliance with the Indian Civil Rights Act are all right for Congress, and therefore okay for the Supreme Court:

Proceedings in compliance with ICRA, Congress determined, and we agree, sufficiently ensure the reliability of tribal-court convictions. [slip op. at 16]

Let’s hope that statement applies to non-Indians, too.

4. Tribes start funding those criminal defender offices!!!!! This Lakota woman spent two months in jail because she couldn’t pay a $250 bond, let alone afford an attorney:

Angie told me that she had bought, not sold, marijuana that day. She should have been charged only with possession. She had pleaded not guilty at her arraignment, during which she had no representation. But because of the severity of her alleged crime — selling drugs to a minor — her bond was set at $250. Unable to pay, Angie was expected to sit in jail for the full two months until her next scheduled court appearance.

Indian country talks about taking care of kids and talks about changing the criminal justice system into a system of restorative justice, well, this doesn’t look it it to me.

Ninth Circuit Rules against Testimony Submitted on Historical Trauma to Show Navajo Defendant was Coerced into Confessing

June 14, 2016June 14, 2016Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. Woody.

An excerpt:

The district court’s factual findings regarding “historical trauma” and the impact of Native American culture on the voluntariness of Woody’s statements were clearly erroneous. A “‘finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). Here, the district court relied on expert testimony from Dr. David McIntyre, who opined that Native Americans are susceptible to coercion during questioning because of cultural differences and “historical trauma.” Yet during crossexamination, Dr. McIntyre acknowledged that his “very broad generalizations about Native Americans” could not be attributed to Woody specifically and conceded that Woody had not been diagnosed with historical trauma because “[t]here is no such diagnosis.” Because these characteristics could not be attributed to Woody individually, the district court erred in relying on them to support its finding that Woody’s will had been overborne.

Briefs:

Answer Brief

Opening Brief

From the syllabus:

Because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution.

Background materials, briefs, etc. here.

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