Criminal – Page 78 – Turtle Talk

News Coverage of Alaska Legislative Hearing on ILOC Report

April 9, 2014Matthew L.M. Fletcher

Here. Quotes from tribal judge David Voluck:

“One of the courts I work for issues something as controversial as child support orders, for children in need,” Voluck said, a touch of sarcasm in his voice. “We’re not locking up white people, I don’t have an electric chair, I’m not doing anything that’s frightening. I’m not taxing, I’m not zoning, it has nothing to do with land and everything to do with Native children.”

“Your state is battling us tooth and nail and we are now in the Supreme Court over whether it’s kosher for me to issue a child support order for a tribal child. This, ladies and gentlemen of this committee, I posit is a grave waste of your resources.”

B.J. Jones & Christopher Ironroad on Sentencing Disparities for Dakota Citizens

April 3, 2014Matthew L.M. Fletcher1 Comment

Here:

89 N.D. L. Rev. 53
Addressing Sentencing Disparities for Tribal Citizens in the Dakotas: A Tribal Sovereignty Approach
– BJ Jones & Christopher J. Ironroad

The abstract:

Native Americans in the Dakotas can receive criminal sentences in federal courts that are harsher than sentences meted out for similar conduct in state courts. The reason for this is the historical role the federal government has played in determining justice issues in tribal communities. Although the federal government oftentimes sought tribal input into justice issues in tribal communities, that input has not been sought in the area of sentencing of natives for offenses in federal courts, with some limited exceptions (death penalty and career offender sentencing). This Article argues a need to change this practice and that Indian tribes, through an opt-in provision similar to other tribal opt-in provisions in the criminal justice arena, should have a right to dictate more equitable sentencing for their members when the sentencing disparity is stark and exists only because federal jurisdiction lies. Such a remedy to disparate sentencing would not impact the prosecution of crime in tribal communities, but instead would ensure that native persons do not receive more punitive sentences merely because of their status as American Indians. Because of the unique trust relationship between the United States and American Indian tribes, the United States has a legal and moral imperative to address this issue, similar in regards to the disparity in federal sentences for crack versus powder cocaine offenses, which had a disproportionate impact upon African-Americans. In particular, this Article examines the sentencing of a young native woman on the Fort Berthold reservation who was prosecuted for the death of an infant child and sentenced in accordance with federal guidelines that appear to be far out of proportion to similar sentences in state courts. This Article suggests that a remedy for prior sentences be considered by Congress in light of the hesitancy of the executive branch to utilize its clemency powers to correct Native American sentencing injustices.

Federal Court Holds Little River Band Cannot Prosecute Tribal Member Crimes on Tribe-Owned Fee Land Outside of Indian Country

April 1, 2014April 2, 2014Matthew L.M. Fletcher5 Comments

Here are the materials in Kelsey v. Pope (W.D. Mich.):

1 Kelsey Habeas Petition

13 LRB Response to Habeas Petition

16 Kelsey Reply

30 LRB Supplemental Memorandum

Sen. Begish Asks Gov. Parnell to Change Position on Tribal Jurisdiction

March 27, 2014Matthew L.M. Fletcher

Here:

Begich letter Gov Parnell 3 25 14

And press release:

Begich Wants Parnell to Change Stance on Village Public Safety Issues, Violence Against Women Act
“We’ve suffered these problems long enough.”

In a letter sent yesterday, U.S. Senator Mark Begich urged Alaska Governor Sean Parnell to change his stance on tribal jurisdiction issues and to reconsider his support for a provision in the Violence Against Women Act (VAWA) that prevents Alaska tribes from using local authority to protect victims and prevent violent behavior.

“There is a long narrative in Alaska’s history that points to the lack of readily available state law enforcement and judicial systems as key contributors to the public safety problems plaguing rural villages, which is still true today,” Begich wrote. “We’ve suffered these problems long enough. How many national reports documenting horrific conditions in rural villages must we withstand before we choose to solve the local and tribal jurisdiction issues?”

Begich was referring to the recent report from the Indian Law and Order Commission, “A Roadmap for Making Native America Safer” which singled out Alaska’s rural communities and villages for their staggering rates of domestic violence, suicide and sexual assault. The reported pointed to more local and tribal control as a solution to improve the situation in rural communities while calling the State’s approach to criminal justice issues “fundamentally on the wrong track.”

In his letter, Begich noted the good work the Choose Respect campaign has done to raise awareness on the issue of domestic violence and sexual assault prevention. However, he encouraged a full court press for improving village public safety using all available resources. “…as statewide leaders, we must choose to solve rural public safety problems and make tough decisions about greater local control,” said Begich. “I believe the way to truly show respect to the people and families of rural Alaska, is by trusting them with the authority to take responsibility for public safety in their communities.”

In the letter Begich, who sits on the Senate Committee on Indian Affairs, informed Parnell that the committee will hold a legislative hearing on S. 1474, the Alaska Safe Families and Villages Act, on April 2. The bill seeks to improve the delivery of justice in Alaska Native villages by encouraging the State of Alaska and federally recognized tribes to enter into intergovernmental agreements relating to the enforcement and adjudication of State laws dealing with drug and alcohol offenses. The bill also includes the repeal of VAWA section 910, which has been a major point of contention since last spring for its singling out Alaska tribes from the expanded authorities offered to tribes in the Lower-48.

At the request of the Alaska Federation of Natives, the Bristol Bay Native Association, the Tanana Chiefs Conference (TCC) and other groups, Senator Begich has agreed to offer amendments to S. 1474 to strengthen the current bill to clarify tribal authority over matters critical to addressing village public safety.

“TCC appreciates Governor Parnell’s Choose Respect public awareness campaign to prevent domestic violence, but we need to do more to empower villages and tribes to combat these issues,” said Victor Joseph, president of TCC. “Safe Families and Villages would give tribes and tribal courts local control to make their communities safer and reverse these disturbing trends.”

“This is a good first step to address very serious circumstances which are long standing, pervasive, and crippling to our communities,” said Julie Kitka, president of AFN. “AFN looks forward to effective and timely action by the Obama Administration and the Congress.”

Begich has long been a supporter of strengthening local capacity, and introduced the first version of the bill in 2009. Begich introduced a revised version last fall. Sen. Lisa Murkowski (R-AK) is a co-sponsor.

Begich’s letter to Parnell is attached.

Federal Court Holds Tribe May Prosecute Disenrollee

March 25, 2014Matthew L.M. Fletcher

Here are the materials in Las Vegas Tribe of Paiute Indians v. Phebus (D. Nev.):

1 Complaint

1-1 Tribal Court of Appeals Opinion

8 Motion for Declaratory Judgment

10 DCT Order

An excerpt:

The Court DECLARES that the Tribe may assert criminal jurisdiction over any person qualifying as an Indian under the ICRA, as interpreted in cases such as United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), but in such a prosecution the Tribe must prove Indian status beyond a reasonable doubt, and the Tribal Court must submit the question to a jury where the crime is punishable by imprisonment, unless the jury right is properly waived, and there is no evidence that these procedures were followed as to Phebus in the cases cited. Furthermore, if the Tribe seeks to prosecute a non-member whose membership it has revoked or rejected, the Indian status analysis in such a prosecution may not rely upon political affiliation with the Tribe, but only upon actual or de facto membership in another tribe.

Federal Court Requires Exhaustion of Tribal Remedies in ICRA Habeas Claim

March 24, 2014Matthew L.M. Fletcher1 Comment

Here are the materials in Styliest v. Rosebud Sioux Tribe (D.S.D.):

1 Habeas Petition

5 DCT Order Denying Habeas Writ

The Eighth Circuit denied petitioner’s direct appeal of his federal conviction here.

Harvard Law Review Profile of the VAWA Tribal Jurisdiction Provisions

March 20, 2014April 2, 2014Matthew L.M. Fletcher3 Comments

The Harvard Law Review has published “Congress Recognizes and Affirms Tribal Courts’ Special Domestic Violence Jurisdiction over Non-Indian Defendants. — The Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, tit. IX, 127 Stat. 54, 118–26 (to be codified in scattered sections of the U.S. Code)” (PDF).

From the conclusion:

From a practical standpoint, section 904 does not release a substantial amount of power back to the tribes; it is a cautious experiment, not a revolution. Indeed, section 904 is primarily a statement about values — the value of tribal sovereignty, the value of liberal ideals, the proper balance between them, and above all, Congress’s role in fixing that balance. By aligning section 904 so closely with the Court’s previously expressed concerns, Congress leaves the Court with no choice but to accept its calibration of these important values, and consequently, its privileged role in setting federal Indian policy.

N. Carolina COA Affirms Conviction Obtained under State-Tribal Cross-Deputization Agreement

March 20, 2014March 19, 2014Matthew L.M. Fletcher

Here are the materials in State v. Kostick (N.C. App.):

Kostick Brief

State Brief

NC COA Opinion

An excerpt:

Pursuant to the Tribal Code of the Eastern Band of the Cherokee Indians and mutual compact agreements between the Tribe and other law enforcement agencies, the North Carolina Highway Patrol has authority to patrol and enforce the motor vehicle laws of North Carolina within the Qualla boundary of the Tribe, including authority to arrest non-Indians who commit criminal offenses on the Cherokee reservation. Our State courts have jurisdiction over the criminal offense of driving while impaired committed by a non-Indian, even where the offense and subsequent arrest occur within the Qualla boundary of the Cherokee reservation.