Criminal

NIWRC Urges the Supreme Court to Uphold Firearm Protections for Native Survivors of Domestic Violence

Sarah M Donnelly1 Comment

Link to press release here.

Brief of Amici Curiae in Support of Respondents here.

The National Indigenous Women’s Resource Center submitted an amicus in support of the DOJ’s case against two Maine men who violated federal law for possessing firearms when convicted of domestic violence.  The men argue that their reckless misdemeanors shouldn’t bar them from owning guns.

“Petitioners attempt to conflate ‘reckless’ domestic violence crimes with ‘accidents,’” NIWRC’s attorney, Mary Kathryn Nagle, a partner at Pipestem Law, PC, states.  “Domestic violence crimes prosecuted under tribal law, however, are not accidents.  Tribal Courts that prosecute for ‘reckless’ domestic violence crimes establish a standard that requires demonstrating the defendant acted with a ‘conscious disregard’ for the safety and welfare of the defendant’s intimate partner.  There is no doubt Congress intended for the Lautenberg Amendment to cover these crimes.”

Six Tribes signed onto the brief: Confederated Tribes of the Umatilla Indian Reservation, Eastern Band of Cherokee, Little Traverse Bay Bands of Odawa, Nottaweseppi Huron Band of Potawatomi, Seminole Nation, and Tulalip Tribes.  They are urging the Supreme Court to uphold the convictions for VAWA and Native women, who are more at risk to gun and domestic violence by repeat offenders.

En Banc Petition in Kelsey v. Pope

Matthew L.M. Fletcher1 Comment

Here:

Kelsey Petition for Rehearing en Banc

Panel decision and materials here.

8th Circuit Finds Tribal Cop Working under BIA Contract was Federal Officer when Assaulted

Sarah M Donnelly

Link to memorandum in re U.S. v. Janis (Jan. 15 2016) here.

Defendant’s brief here and reply brief here.

United States’ brief here.

Previous coverage here.

Defendant raised two questions on appeal: (1) whether officers in the Dept. of Public Safety on the Pine Ridge Reservation are federal officers authorized to carry out tribal law and (2) whether the court erred in instructing the jury to find Officer Mousseau a federal officer as a matter of law.

The Eighth Circuit held that through the Indian Law Enforcement Reform Act a “638 contract” between the BIA and the Oglala Sioux Tribe explicitly required officers to enforce both tribal and federal laws.

However, it decided that the district court erred on jury instructions because although it was correct to rule as a matter-of-law that Oglala Sioux’s Public Safety officers were federal officers for the purpose of 18 U.S.C. § 111, it should have been up to the jury to determine whether Officer Mousseau was a Dept. of Public Safety officer at the time of the assault.  The Court determined the error was harmless, though, since evidence on record made it clear beyond a reasonable doubt that a rational jury would find Mousseau an officer when she responded to a complaint of illegal alcohol consumption at a home on the Reservation.

United States Accepts Concurrent Jurisdiction Over Mille Lacs Band of Ojibwe

Leah Jurss

Department of Justice Press Release here.

The decision will take effect on Jan. 1, 2017.  Tribal, state and county prosecutors and law enforcement agencies will also continue to have criminal jurisdiction on the reservation.

“We believe this decision – made after a careful review of the tribe’s application and the facts on the ground – will strengthen public safety and the criminal justice system serving the Mille Lacs Band of Ojibwe,” said Deputy Attorney General Yates.  “This is another step forward in the Justice Department’s commitment to serve and protect American Indian and Alaska Native communities, to deal with them on a government-to-government basis and to fulfill the historic promise of the Tribal Law and Order Act.  Strong law enforcement partnerships with the Tribe, as well as state and local counterparts, will be essential to the success of this effort.”

Mille Lacs is the second tribe to be granted concurrent jurisdiction under the Tribal Law and Order Act of 2010. White Earth received concurrent jurisdiction status in 2013.

Former Federal Official that Stole Indian Ancestors Pleads Guilty

Matthew L.M. Fletcher1 Comment

Here is the press release titled “Former Effigy Mounds National Monument Superintendent Admits to Stealing Human Remains:

Munson Plea PR

Sixth Circuit Rules in Favor of Little River Band in Kelsey v. Pope

Matthew L.M. Fletcher1 Comment

Here is the opinion in Kelsey v. Pope:

59-2 Opinion

59-3 Judgment

Briefs here.

NCAI Cert Stage Amicus Brief in Jury Race Discrimination Challenge in State Court

Matthew L.M. Fletcher

Here is the brief filed in Rodriguez v. Colorado:

NCAI Amicus Brief

SCOTUS Grants Cert in United States v. Bryant

Matthew L.M. Fletcher

Here is today’s order list.

Cert stage briefs are here.

Federal Court Grants Federal Officer Summary Judgment in Excessive Force Suit brought by Deceased Alleged Indian Graverobber

Matthew L.M. Fletcher

Here are the materials in Estate of Redd v. Love (D. Utah):

93 Love Motion for Summary J

102 Estate Opposition

115 Reply

120 DCT Order

An excerpt:

This case arises out of Dr. James D. Redd’s tragic suicide the day after federal agents arrested him and his wife for trafficking in stolen Native American artifacts, theft of government property, and theft of tribal property. Dr. Redd’s Estate brought this Bivens action against Bureau of Land Management Agent Daniel Love. The Estate claims Agent Love violated Dr. Redd’s Fourth Amendment right to be free from the use of excessive force when Agent Love sent over fifty-three federal agents, many of whom were heavily armed and wearing bulletproof vests, to raid and search Dr. Redd’s home.

Agent Love moves for summary judgment, arguing qualified immunity shields him from the Estate’s claim. After careful consideration, the court grants Agent Love’s motion.

The estate previously survived a federal summary judgment motion, and those materials are here.

 

Yet Another Cert Petition: Indian Country Crime, Lesser-Included Offense Instruction

Matthew L.M. Fletcher

Here is the petition in Decker v. United States:

Decker Cert Petition

Question presented:

In a prosecution under 18 U.S.C. §2241, for “aggravated sexual abuse by an Indian in Indian territory,” occurring in Battle Mountain, Nevada, where a victim testifies to unconsented sexual penetration and the defendant denies any sexual contact; and a Nevada case, Crawford v. State, 107 Nev. 345, 351, 811 P.2d 67, 70-71 (1991), mandates that the giving of an attempted sexual assault jury instruction under those circumstances constitutes reversible error; does the Assimilated Crimes Act, 18 U.S.C. § 13(a), or 18 U.S.C. § 1153(b) mandate that federal courts are constrained to follow Crawford and either not give the attempt instruction or be reversed if they do?
The question of whether case law viz. state substantive lesser-included offenses must be assimilated into a prosecution where the state case law prohibits the giving of the instruction, was not addressed either in Keeble v. United States, 412 U.S. 205 (1973) or in Lewis v. United States, 523 U.S. 155 (1998); and United States v. Walkingeagle, 974 F.2d 551 (4th Cir. 1992), cert. denied, 507 U.S. 1019 (1993) presents both sides of the issue. Is the Walkingeagle dissent correct as a matter of law?