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.
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The Ninth Circuit’s unpublished memorandum decision on jurisdiction is here.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 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.
The Office for Victims of Crime and the Tribal Law and Policy Institute are extending this invitation to participate as a presenter at the 15th National Indian Nations Conference. Workshop presentations should demonstrate methods and strategies to improve safety, as well as promote justice and healing for crime victims through cooperation, and collaboration between Tribal, Federal, State, local and private entities in American Indian and Alaska Native communities. Target Audience: The target audience is all persons interested in assisting victims of crime in Indian country including:
Indian Country Service Providers (Tribal, State, and Federal):
Tribal Community Members:
We welcome presentation ideas for all levels of experience/knowledge. Presenters must demonstrate expertise in working with Native American communities. Selection Criteria for Workshops will include:
Workshops must conform to the Conference Theme “Harnessing Our Collective Wisdom: Strengthening the Circle of Safety, Justice and Healing” and one or more of the Conference Goals (below):
Formal Justice Department Conference Approval Pending.
Questions: Tribal Law and Policy Institute, P: 3236505467 ~ F: 3236508149
Email: Conference@TLPI.org, Website: http://www.OVCINC.org
Mailing address:
Tribal Law and Policy Institute
8235 Santa Monica Blvd., Suite 211
West Hollywood, CA 90046
Here are the materials in United States v. Makwa (D. Minn.):
Here:
Violence Against American Indian and Alaska Native Women and Men_NNIJ_20…
The NIJ released new survey results this week, and things are as bad as they’ve ever been. The results say that 4 out of 5 women and men are victims of violence:
More than 4 in 5 American Indian and Alaska Native women (84.3 percent) have experienced violence in their lifetime. This includes —
■■ 56.1 percent who have experienced sexual violence.
■■ 55.5 percent who have experienced physical violence by an intimate partner.
■■ 48.8 percent who have experienced stalking.
■■ 66.4 percent who have experienced psychological aggression by an intimate partner.
Overall, more than 1.5 million American Indian and Alaska Native women have experienced violence in their lifetime.
More than 4 in 5 American Indian and Alaska Native men (81.6 percent) have experienced violence in their lifetime. This includes —
■■ 27.5 percent who have experienced sexual violence.
■■ 43.2 percent who have experienced physical violence by an intimate partner.
■■ 18.6 percent who have experienced stalking.
■■ 73.0 percent who have experienced psychological aggression by an intimate partner.
Overall, more than 1.4 million American Indian and Alaska Native men have experienced violence in their lifetime.
Link to letter here.
“I made a personal commitment to bring new leadership and a new tone to Ottawa. We made a commitment to Canadians to pursue our goals with a renewed sense of collaboration. Improved partnerships with provincial, territorial, and municipal governments are essential to deliver the real, positive change that we promised Canadians. No relationship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.”
Some top priorities:
The majority and dissent opinions address when the argument as to Indian status must be raised in a state prosecution. State v. Hill
Briefs here:
Here.
Background materials here.
Quick commentary:
This was a dramatically less intense argument (reading from a cold transcript) than in Dollar General. Again, as in DG, much of the commentary about tribal courts depended on how much work Congress did in enacting the Indian Civil Rights Act. So long as the rights contained in that statute satisfy the Supreme Court, tribal court convictions may be used as prior convictions under 18 U.S.C.§ 117.
If that is the case, Justices on the Court concerned about the use of uncounseled tribal court convictions must wrestle with precedents (mainly Scott and Argersinger) that affirmed there is not an absolute right to counsel in misdemeanor convictions where imprisonment is possible but not imposed.
Again, reading from a cold transcript, I was shocked that Bryant’s counsel noted that Bryant was not indigent. (p. 36, line 10) Moreover, Bryant apparently waived his right to counsel, which happens much of the time in state and federal court where incarceration is not on the table. Bryant also apparently waived a claim that the tribal court convictions were invalid, putting him a somewhat similar position to Billy Jo Lara. Bryant’s counsel was left arguing that ICRA does not confer any “rights” at all as a mere federal statute, and so there is no right to counsel at all in tribal court. So then the only way I see Bryant prevailing is if the Court holds that ICRA is a dead letter, and that there really is no federally guaranteed right to counsel in tribal courts (which I guess would mean tribes can deny counsel if they so choose). That seems like a particularly difficult holding to garner four votes (which would be enough to affirm by 4-4 split). Moreover, it’s simply not the case — I am aware of no tribal court that refuses to allow counsel to appear for criminal defendants.
The Chief Justice mentioned the National Association of Criminal Defense Lawyers brief that strongly criticized tribal court convictions (p. 12, lines 1-4), but that gave the government’s attorney a chance to note that the federal habeas right is a meaningful remedy (much as GRIC did in its controversial letter).
Here:
An excerpt:
I am writing to you to express the Gila River Indian Community’s concerns regarding the Brief Amici Curiae of the National Association of Criminal Defense Lawyers and Experienced Tribal Court Litigators in Support of Respondent (“Brief’) recently filed with the Supreme Court of the United States in United States v. Bryant (No. 15-420). The Brief makes numerous attacks on the Community’s criminal justice system, hasty generalizations regarding tribal justice systems, and omits relevant facts and conclusions regarding the Community.
The stated purpose of the Brief is “to draw upon amici’s knowledge and experience with tribal-court criminal litigation to give this Court an informed perspective from which to assess these claims.” Brief at 4 (emphasis added). Unfortunately, the Brief does not do so. Instead, it reads as a narrative and anecdotal attack on tribal justice systems, prominently including the Community. These attacks on the Community’s criminal justice system have often come in a third-party form, such as letters from the National Association of Criminal Defense Lawyers and National Association of Federal Defenders to members of Congress regarding proposed legislation. Despite prominent mention of the Community, these letters- and the Brief-were not provided to the Community when sent or filed. We suspect it may have to do with the favorable outcomes to the Community in the cases discussed in the Brief.
Briefs and other materials in this case are here.
Turtle Talk 
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