Criminal – Page 69 – Turtle Talk

The en banc court affirmed a defendant’s convictions and sentence under the Indian Major Crimes Act, which authorizes federal jurisdiction over certain crimes committed by Indians in Indian country.

The en banc court held in order to prove Indian status under the IMCA, the government must prove that the defendant (1) has some quantum of Indian blood and (2) is a member of, or is affiliated with, a federally recognized tribe. The court held further that under the IMCA, a defendant must have been an Indian at the time of the charged conduct, and
that, under the second prong, a tribe’s federally recognized status is a question of law to be determined by the trial judge. Overruling United States v. Maggi, 598 F.3d 1073 (9th Cir.
2010), the en banc court held that the federal recognition requirement does not extend to the first prong of the Indian status test. The court held that the evidence at trial was sufficient to support the finding that the defendant was an Indian within the meaning of the IMCA at the time of his crimes.

The en banc court held that the defendant’s sentence was not unreasonable because it was mandated by 18 U.S.C. § 924(c), which required the district court to impose consecutive mandatory minimum sentences on the defendant’s convictions for use of a firearm during a crime of violence.

The en banc court agreed with the three-judge panel’s reasons for rejecting the defendant’s other arguments, and it adopted those reasons as its own.

Concurring in the judgment, Judge Kozinski, joined by Judge Ikuta, wrote that under the majority’s holding, the IMCA is a criminal statute whose application, in violation of equal protection, turns on whether a defendant is of a particular race. Judge Kozinski wrote that he would instead affirm the conviction either by applying the IMCA to all members of federally recognized tribes irrespective of their race, or by holding, consistent with Maggi, that the jury had sufficient evidence to infer that the defendant’s ancestry was from a federally recognized tribe.

Concurring in the judgment, Judge Ikuta, joined by Judge Kozinski, wrote that the court should not continue to define an Indian by the “degree of Indian blood” because this definition disrespects tribal sovereignty and perpetuates the “sorry history” of this method of establishing race-based distinctions.

En banc materials here, here, and here. Panel materials and other materials here, here, and here.

Sharply Divided Ninth Circuit Denies En Banc Review in United States v. Bryant

July 6, 2015Matthew L.M. Fletcher2 Comments

Here are the materials:

CA9 Order Denying En Banc Petition + Opinions

US En Banc Petition

NCAI Amicus Brief

Bryant Response

Panel materials and commentary are here.

New Mexico Supreme Court Determines that Parcel Three of Fort Wingate on the Navajo Nation Reservation is Not Indian Country

June 25, 2015Matthew L.M. Fletcher

Here is the opinion in State v. Steven B.:

NM SCT Opinion

Ninth Circuit Rejects Habeas Petition of Navajo Man Sentenced to Death

June 19, 2015Matthew L.M. Fletcher2 Comments

Here is the opinion in United States v. Mitchell.

Brief tk.

Tenth Circuit Sides with Ute Indian Tribe in Dispute with State and Counties over Indian Country Criminal Jurisdiction

June 16, 2015June 16, 2015Matthew L.M. Fletcher4 Comments

Here is the opinion in Ute Indian Tribe v. State of Utah:

14-4028

An excerpt:

In our layered system of trial and appellate courts everyone’s assured at least two chances to air a grievance. Add to this the possibility that a lawsuit might bounce back to the trial court on remand or even rebound its way to appeal yet again — or the possibility that an issue might win interlocutory review — and the opportunities to press a complaint grow abundantly. No doubt our complex and consuming litigation wringer has assumed the shape it has so courts might squeeze as much truth as possible out of the parties’ competing narratives. But sooner or later every case must come to an end. After all, that’s why people bring their disputes to court in the first place: because the legal system promises to resolve their differences without resort to violence and supply “peace and repose” at the end of it all. S. Pac. R.R. Co. v. United States, 168 U.S. 1, 49 (1897). For a legal system to meet this promise, of course, both sides must accept — or, if need be, they must be made to respect — the judgments it generates. Most people know and readily assent to all this. So it’s pretty surprising when a State and several of its counties need a reminder. But that’s what this appeal is all about.

And:

A system of law that places any value on finality — as any system of law worth its salt must — cannot allow intransigent litigants to challenge settled decisions year after year, decade after decade, until they wear everyone else out. Even — or perhaps especially — when those intransigent litigants turn out to be public officials, for surely those charged with enforcing the law should know this much already. Though we are mindful of the importance of comity and cooperative federalism and keenly sensitive to our duty to provide appropriate respect for and deference to state proceedings, we are equally aware of our obligation to defend the law’s promise of finality. And the case for finality here is overwhelming. The defendants may fervently believe that Ute V drew the wrong boundaries, but that case was resolved nearly twenty years ago, the Supreme Court declined to disturb its judgment, and the time has long since come for the parties to accept it.

Briefs here.

Ninth Circuit Evaluates Contours of Migratory Bird Treaty Act in Criminal Appeal for Selling Eagle Fans

June 8, 2015Matthew L.M. Fletcher

Here is the opinion in United States v. Crooked Arm.

From the court’s syllabus:

The panel affirmed in part and reversed in part the district court’s denial of a pretrial motion to dismiss for failure to state a felony claim an indictment charging two defendants with violating the Migratory Bird Treaty Act of 1918, vacated the sentences, and remanded.

The defendants argued that the counts to which they conditionally pled guilty were improperly charged as felonies because it is only a misdemeanor under the MBTA to sell
migratory bird feathers.

The panel held that even under the defendants’ interpretation of the MBTA, Count I, which charges a conspiracy to kill, transport, and offer for sale and sell migratory birds, including bald and golden eagles, charges a felony.

The panel held that in regard to Count II, which charges unlawful trafficking in migratory bird parts, the allegations state a misdemeanor only.

Native America Calling Show on the Death Penalty

May 13, 2015May 13, 2015Matthew L.M. Fletcher

Here.

The show featured two of my favorite people — Catherine Grosso, MSU law prof, and Tamera Begay, a Navajo member who is two days away from graduating from MSU law school.