Here:
Appellant Opening Brief + Appendices
Lower court materials here.
Criminal
Tenth Circuit Refuses to Vacate Conviction under Indian Status Theory
Here is the opinion in Nowlin v. United States.
An excerpt:
Our case law employs a two-part test to determine who is an “Indian” under § 1153: a person must (1) have “some Indian blood” and (2) be “recognized as an Indian by a tribe or by the federal government.” United States v. Prentiss, 273 F.3d 1277, 1280 (10th Cir. 2001). Mr. Nowlin argues that the first half of this test was not met. But his plea colloquy established that his mother is an enrolled member of the Shoshone tribe. And, as a previous panel recognized in an unrelated case involving Mr. Nowlin, the fact that one of his parents was “clearly identified as an Indian” is enough to satisfy this part of the test. United States v. Nowlin, 555 F. App’x 820, 823 (10th Cir. 2014) (quoting United States v. Maggi, 598 F.3d 1073, 1077 (9th Cir. 2010)) (internal quotation mark omitted).
Briefs later, when we get them.
Ninth Circuit Reaffirms that Uncounseled Tribal Court Convictions Resulting in Jail Time May Not Be Used to Enhance Federal Sentences
Here is the opinion in United States v. Bryant.
From the court’s syllabus:
The panel reversed the district court’s denial of a motion to dismiss an indictment charging the defendant, an Indian, with two counts of domestic assault by a habitual offender, in
violation of 18 U.S.C. § 117(a).Applying United States v. Ant, 882 F.2d 1389 (9th Cir. 1989), the panel held that, subject to the narrow exception recognized in case law for statutes that serve merely as enforcement mechanisms for civil disabilities, tribal court convictions may be used in subsequent prosecutions only if the tribal court guarantees a right to counsel that is, at minimum, coextensive with the Sixth Amendment right. Because the defendant’s tribal court domestic abuse convictions would have violated the Sixth Amendment had they been obtained in federal or state court, the panel concluded that it is constitutionally impermissible to use them to establish an element of the offense in a subsequent prosecution under § 117(a), which is an ordinary recidivist statute and not a criminal enforcement scheme for a civil disability.
Concurring, Judge Watford wrote separately to highlight
why Ant warrants reexamination.
Judge Watford correctly notes that a circuit split on this issue has arisen with the Eighth and Tenth Circuits:
It’s perhaps unsurprising that our decision in this case conflicts with decisions from two of our sister circuits. Faced with almost identical scenarios—prior, uncounseled tribal court convictions that would have violated the Sixth Amendment in state or federal court and that were used as predicate offenses under 18 U.S.C. § 117—the Eighth and Tenth Circuits pointedly disagreed with us. See United States v. Cavanaugh, 643 F.3d 592, 595, 604 (8th Cir. 2011); United States v. Shavanaux, 647 F.3d 993, 995–98 (10th Cir. 2011). As our colleagues on the Eighth Circuit noted, “Supreme Court authority in this area is unclear; reasonable decisionmakers may differ in their conclusions as to whether the Sixth Amendment precludes a federal court’s subsequent use of convictions that are valid because and only because they arose in a court where the Sixth Amendment did not apply.” Cavanaugh, 643 F.3d at 605. Given this circuit split and the lack of clarity in this area of Sixth Amendment law, the Supreme Court’s intervention seems warranted.
If nothing else, the case at least may generate support for en banc review. We posted materials on these two cases here (the Supreme Court denied cert). I wrote about this issue a few years ago in a paper titled “Sovereign Comity.“
Here are the briefs:
WaPo: “Dark side of the boom”
Here.
“North Dakota’s oil rush brings cash and promise to reservation, along with drug-fueled crime”
DEPARTMENT OF JUSTICE RELEASES SECOND REPORT TO CONGRESS ON INDIAN COUNTRY INVESTIGATIONS AND PROSECUTIONS
DEPARTMENT OF JUSTICE RELEASES SECOND REPORT TO CONGRESS ON INDIAN COUNTRY INVESTIGATIONS AND PROSECUTIONS
Report to Congress is Requirement under the Tribal Law and Order Act of 2010
WASHINGTON – The Department of Justice released today its second report to Congress entitled Indian Country Investigations and Prosecutions, which provides a range of enforcement statistics required under the Tribal Law and Order Act of 2010, as well as information about the progress of the Attorney General’s initiatives to reduce violent crime and strengthen tribal justice systems.
The report, based on data compiled from the case management system used by U.S. Attorney’s Offices (USAO), shows prosecutors in 2013 continued to bring substantial numbers of cases to federal court (a 34 percent increase over FY 2009 numbers) and prosecute a substantial majority of all cases referred to them. Of the cases that were declined for federal prosecution, most were declined for insufficient evidence or because they were referred to another prosecuting authority, such as the tribe, for potential prosecution.
“As detailed in this report, the Department of Justice is making good on our commitment to strengthen cooperation with sovereign tribes, reduce violent crime, and ensure justice for every individual,” said Attorney General Eric Holder. “From our work to empower Indian women under the landmark Violence Against Women Reauthorization Act, to the task force we established to safeguard children in Indian country from violence and abuse, we have made significant strides – in close partnership with tribal nations – to bolster the safety and security of all American Indian and Alaska Native communities. As we move forward, we will continue to expand on this critical work; to deepen our ongoing efforts; and to reaffirm our dedication to the promise of equal rights, equal protection, and equal justice for all.”
Although declination rates are an imperfect means of evaluating the effectiveness of criminal justice in Indian country or elsewhere, the report shows that with few exceptions, areas where the largest populations of American Indian people live and suffer from the most serious crime rates, such as the Southwest and the northern plains states (which together handled approximately 70 percent of the 2,542 cases resolved in 2013), federal declination rates were the lowest in the nation. For instance, South Dakota had the second to highest number of cases resolved in the country last year, 470 cases, and one of the lowest declination rates of 26 percent. Arizona resolved the highest number of cases, 733 cases, and had a declination rate of 28 percent.
Associate Attorney General Tony West announced the findings in remarks to the Four Corners Indian Country Conference today on the Navajo Nation in Flagstaff, and met separately with the Attorney General’s advisory subcommittee on Native American issues to discuss the report, among other matters.
“We are witnessing an unprecedented era of collaboration among U.S. Attorneys’ offices and tribal law enforcement and prosecutors across the country,” said Associate Attorney General West. “This report shows the fruits of this continuing partnership between the federal government and American Indian tribes, including enhancing training and capacity building for tribal court systems and improving responses to victims in Indian country.”
“Over the past five years, the Justice Department and our tribal partners have taken important steps forward on our journey toward a safer Indian Country,” said Timothy Purdon, U.S. Attorney for the District of North Dakota and chair of the Attorney General’s advisory subcommittee on Native American issues. “Vigorous enforcement of federal laws is vitally important to strengthening public safety on American Indian reservations. We are pleased to see in this report that U.S. Attorney’s Offices across the country continue to work hard to remove the most dangerous offenders and work closely with tribal law enforcement and prosecutors. These promising numbers are the direct result of this enhanced communication and collaboration.”
“The FBI continues to be committed to public safety in Indian Country,” said FBI Assistant Director Joseph S. Campbell. “Our partnership with federal, state, local, and tribal agencies remains strong as we continue to aggressively address violent crime and victimization in tribal communities.”
The information contained in the report shows the following: Continue reading
U.S. Sentencing Commission Tribal Issues Advisory Group
From Mary Smith at NABA:
The Sentencing Commission recently published a Federal Register notice seeking comment on the possible formation of a Tribal Issues Advisory Group. Links to that notice and a new publication on Native American federal offenders are below:
The group is soliciting comments widely and would welcome comment from the Native American community.
PDFs:
Federal Court Dismisses D.V. Offender’s Challenge to Revocation of Probation for Violation of Tribal Court Exclusion Order…With Concerns
Here are the materials in United States v. Nichols (D. S.D.):
49 DCT Order Denying Motion to Dismiss
An excerpt:
Steven Nichols, a non-Indian, was excluded from the Rosebud Sioux Indian Reservation. While his exclusion was in effect, he was seen driving on a public road within the reservation. Tribal officers stopped and detained him until an FBI agent arrived. The agent then arrested him for criminal trespass. Nichols claims that the tribe did not have the authority to ban him from using the road and that his federal trespass charge — built upon a tribal writ and order of exclusion — should be dismissed. Because (1) there exists latent factual issues that require an evidentiary foundation, (2)there has been no exhaustion of tribal remedies or any showing that some exception to the exhaustion prescription applies, and (3) there is no ambiguity in the language of the revocation petition as amended, Nichols’s dismissal motion must be denied, but without prejudice.
Federal Court Affirms that Tribal Cops Working under BIA Contract May Be Federal Officers for Certain Purposes (Updated)
Here are the materials in United States v. Janis (D. S.D.):
Update (9/4/14):
Washington Appellate Briefs in Yakama Member’s Challenge to State Court Jurisdiction over Crime on Quinault Land
Here are the briefs in State v. Shale (Wash. App.):
UPDATE (additional briefs):
Appellant’s Supplemental Brief
State’s Response to Appellant’s Supplemental Brief
Appellant’s Supplemental Reply Brief
Prosecuting Attorneys Amicus Brief
Turtle Talk 
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