Ninth Circuit Issues Amended Opinion in Zepeda — Same Outcome, Different Reasoning

Here are the new materials:

CA9 Amended Opinion

US En Banc Petition

Zepeda Response to En Banc Petition

From Judge Watford’s now-much-shortened dissent:

I agree with much of the majority’s analysis, particularly its conclusion that whether a tribe has been recognized by the federal government is a question of law. But I disagree with the majority’s ultimate determination that the government failed to present sufficient evidence from which a rational jury could infer that Zepeda has a blood connection to a federally recognized tribe. Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), a rational jury could certainly infer that the reference in Zepeda’s tribal enrollment certificate to “1/4 Tohono O’Odham” is a reference to the federally recognized Tohono O’odham Nation of Arizona.

Panel materials are here.

Materials on affected appeals are here.

Federal Court Dismisses Federal Assault Indictment — Denies Effort to Assimilate State Law

Here is the opinion in United States v. Kydney (D. Neb.):

DCT Order Dismissing Count I of Indictment

An excerpt:

Even if the threatened crime of violence were simple assault under federal law, the same analysis would hold true. The Nebraska third-degree assault crime is the statutory corollary to the common-law crime of simple assault. Under both Nebraska and Federal law, simple assault is a misdemeanor and the elements are similar.

Evidence of Prior Navajo DUI Conviction Excluded from Federal Prosecution

Here are the materials in United States v. Bundy (D. N.M.):

US Motion to Introduce Evidence of Navajo Conviction

Bundy Response

DCT Order Denying Motion

From the order:

As previously noted, Defendant has provided the Court with a copy of the transcript of her guilty plea proceeding. [Doc. 194-1] Since there is no indication in the transcript that Defendant was represented by counsel, the Court will not assume that Defendant was informed of her rights by counsel. Rule 12(c) of the Navajo Rules of Criminal Procedure required the judge, prior to accepting Defendant’s plea, to explain to Defendant that she had the rights (1) to remain silent, (2) to have counsel at her own expense or appointed counsel if defendant cannot afford counsel, (3) to plead not guilty, (4) to confront and cross-examine witnesses; (5) to be released on bail unless certain findings are made, (6) to trial by jury, (7) to a speedy and public trial, (8) to call witnesses, and (9) to file a writ of habeas corpus. Instead of the detailed enumeration of her trial rights contemplated by the Navajo Rules of Criminal Procedure, the page-and-a-half transcript shows a cursory, rudimentary colloquy. Although Defendant was asked “Do you understand your rights as explained to you?” the transcript does not include any enumeration of those rights, nor does the record show that Defendant was told that she was giving up those rights by pleading guilty. Under the Navajo Rules of Criminal Procedure, the advisement of rights pursuant to Rule 12(c) is the sole procedure for advising a defendant of her rights. Further, Defendant’s counsel has represented to the Court that an examination of the tape of the proceedings before the tribal court for April 22, 2009 fails to show any explanation of rights to Defendant or any other person. [Doc. 194 at 3, n.1] It appears that this prerequisite to a valid guilty plea was entirely overlooked in Defendant’s case. The Court finds that Defendant was not advised of key rights guaranteed by ICRA–the privilege against self-incrimination, the right to confront her accusers and to compulsory process, the right to counsel at her own expense, and the right to trial before a jury of not less than six persons. Section 1302 (4) (6) and (10). The transcript also shows that there was no inquiry into the factual basis of Defendant’s plea. Defendant has made a compelling showing that her guilty plea was not knowing and voluntary. Under ICRA due process of law is itself a right. Section 1302(8). The Court concludes that Defendant’s guilty plea was obtained in violation of the due process provision of ICRA, and under Shavanaux is inadmissible as substantive evidence in a subsequent federal prosecution.

In a footnote, the court added:

Given the solicitude of the Navajo Supreme Court for the rights of accused tribemembers, e.g. Eriacho v. Ramah District Court, 6 Am. Tribal Law 624 (Navajo Sup. Ct. 2005); Navajo Nation v. Curley, 6 Am. Tribal Law 697 (Navajo Sup. Ct. 2005); Curley v. Navajo Nation, 4 Am. Tribal Law 622 (Navajo Sup. Ct. 2002), the Court has considerable doubt whether a prior conviction based on a demonstrably invalid guilty plea would be admissible in Navajo tribal court over the defendant’s objection.

New Scholarship on Major Crimes Act Prosecutions, Tribal Sovereignty, and Jury Vicinage & Venue Selection

Shannon Rogers has published “Comment: Giving Meaning to Empty Words: Promoting Tribal Self-Governance by Narrowing the Scope of Jury Vicinage and Venue Selection in MCA Adjudications” in the Wyoming Law Review.

An excerpt:

A practical step to solving the federal-tribal disconnect and involving the Indian community is to narrow the MCA adjudication procedures. As discussed below, the MCA, unlike any other criminal statute, explicitly draws geographic and racial-political boundaries. The adjudication process, through venue and jury venire selection reform, needs to be limited in consideration of the MCA’s constraints. This comment discusses two proposals for modifying MCA adjudications to better involve the Indian community: (1) moving the venue for MCA adjudications closer to the Indian community, and (2) shrinking the jury venire used. To exemplify these proposals, the discussion herein focuses on Wyoming because the state geography, proximity of the federal courts to the reservation, and tribal population provide a perfect case study for general issues faced in MCA prosecutions. The ultimate intent of this comment is to highlight the practical implications of ignoring venue problems and the over-inclusion of non-Indians in MCA adjudications. In doing so, the proposals presented in this comment will help further the federal  government’s policy of self-governance for tribes.

White House Blog Post on VAWA 2013 and Indian Health

Here.

An excerpt:

Because of the successful 2013 Reauthorization of the Violence Against Women Act, which President Obama signed into law on March 7, 2013, tribal courts and law enforcement will soon be able to exercise the sovereign power to investigate, prosecute, convict, and sentence those who commit acts of domestic violence or dating violence or violate certain protection orders in Indian country, regardless of the defendant’s Indian or non-Indian status. The tribal provisions of this landmark legislation were originally proposed by the Department of Justice in 2011 to address alarming rates of violence against native women.  We believe today, as we did then, that this is not only constitutionally sound law, but it is also a moral prerogative and an essential tool to ensure that non-Indian men who assault Indian women are held accountable for their crimes.

Ninth Circuit Holds Interior Does Not Violate ISDEAA When Denying Law Enforcement Funds to PL280 Tribes

Here is the opinion in Los Coyotes Band of Cahuilla & Capuño v. Jewell.

From the court’s syllabus:

The panel reversed the district court’s summary judgment in favor of the Los Coyotes Band of Cahuilla and Cupeño Indians, and the court’s finding that the U.S. Secretary of the Interior violated the Indian Self-Determination and Education Assistance Act, the Administrative Procedure Act, and the Fifth Amendment’s guarantee of equal protection  when the Secretary declined to enter into a self-determination contract with the Tribe to fund law enforcement on the Los Coyotes Reservation.

The panel held that the Secretary properly rejected the Tribe’s contract request. The panel also held that the Tribe’s reliance on the Indian Self Determination and Education Assistance Act was misplaced because the Act allows the Tribe to take control of existing programs and obtain funds that the Bureau of Indian Affairs (“BIA”) would otherwise spend on those programs, but here there was no existing BIA program, and therefore  nothing to transfer to the Tribe. The panel further held that the Administrative Procedure Act did not authorize the court to review the BIA’s allocation of law enforcement funding in Indian Country. Finally, the panel held that the BIA’s funding policy did not violate the Fifth Amendment’s equal protection guarantee.

And the briefs:

Interior Opening Brief

Los Coyotes brief

Interior Reply Brief

Lower court materials here.

Update in Carnel Chamberlain Murder Prosecution — Motion to Change Venue to Detroit Denied

Here are the materials in United States v. Bennett (E.D. Mich.):

11 Bennett First Superceding Indictment

21 Bennett Motion to Change Venue

25 US Opposition

26 Bennett Reply

28 DCT Order Denying Motion

New York Racial Profiling Case Involving Mohawk Indian and Marijuana

Here.

The opinion in People v. Deer is here (it’s from March). An excerpt:

The court believes that Officer Carrier decided to follow the white SUV and do a radio run because the driver appeared nervous. Her actions were completely consistent with a person who was not engaged in any criminal activity. There was no basis to believe that a vehicle with a NYS license plate and registration had crossed the border or was engaged in any way with smuggling persons or contraband across the border. He drove up behind the SUV, coming close enough on a dark night in a rural area to see her license. As he overtook her or followed her, she swerved, a not unexpected result of having someone come up quickly, not pass and start to follow you. The radio run advised him that the person who owned and registered the vehicle lived at an address on or near the Mohawk reservation and had a name that might be consistent with a person of Mohawk heritage. It could, of course, also be a husband’s name and not her own. The officer then drove into Gouverneur, not for the purpose of stopping the vehicle immediately, but to further observe it, according to his testimony. He placed himself in a position to see into the vehicle with street lights, parking lot lights and his headlights. He had the opportunity at that point to observe Corene Deer with her clearly Native American features. He then stopped the vehicle. He was handed the registration sticker which should have been on the windshield. He wrote his report without even mentioning it, clearly indicating to the court that it was in no way the basis for his stop. Although he testified about observing that the sticker was not on a windshield at a point in his narrative of events that might have led the court to believe he observed it prior to the stop, his testimony on cross examination made it clear that he did not observe it prior to the stop, nor was it the basis for the stop.

News Coverage of Yakama-DOJ-FBI Agreement

Here.

Yakama Nation Reaches Settlement with DOJ/FBI re: 2011 Reservation Raid

YAKAMA NATION STRIKES HISTORIC AGREEMENT WITH DOJ, FBI TO SETTLE LITIGATION OVER 2011 RESERVATION RAID (FBI RECITALS AGREEMENT PRESS RELEASE PDF)

FBI AGREES TO COMMUNICATE WITH YAKAMA POLICE BEFORE ENTERING YAKAMA INDIAN COUNTRY

Toppenish, WA– The Confederated Tribes and Bands of the Yakama Nation have reached an unprecedented, out-of-court settlement with the United States Department of Justice (DOJ), principally the Federal Bureau of Investigation (FBI). 

The settlement fully and finally resolves Yakama’s lawsuit against the FBI and several of its sister law enforcement agencies, as well as various county and municipal police agencies from Washington State, Mississippi and Virginia.  That suit arose from a federal task force raid of Yakama Reservation trust lands that commenced at dawn on February 16, 2011.  Upon reported word of the settlement on August 15, 2013, U.S. District Court Judge Rosanna Peterson closed the case.

“Today is historic.  The United States has agreed to honor the law enforcement protocols set forth in the Yakama Treaty of 1855.  That is unprecedented.” said Yakama Nation Tribal Council Chairman and former police chief Harry Smiskin.  “From today forward the FBI will communicate with Tribal Police before they enter Yakama Indian Country.  I am confident that the resulting cooperation between federal and tribal cops will greatly improve public safety throughout our territories.”

Through Article II of the Yakama Treaty of 1855, the Yakama Reservation was set apart for the exclusive use and benefit of the Yakama Nation.  To that end, the Yakama Treaty makes clear that no “white man” shall be permitted to reside upon Yakama Indian Country without permission from the Yakama Nation.  Federal Treaty negotiators explained to the Yakama that Article II meant that no one – not even United States agents, with the lone exception of today’s Bureau of Indian Affairs agents – would be permitted to step onto Yakama Reservation lands without the Yakamas’ consent.   

Also, in Article VIII of the Yakama Treaty, the United States and Yakama Nation set forth a process for delivering Yakama criminals or suspects who are in Yakama Indian Country to federal authorities.  Federal Treaty negotiators also explained to the Yakama that Article VIII meant there would be a consultation process between the Head Chief or all of the Yakama Chiefs, and the United States, relative to any Yakama alleged to have committed a wrong, before they might be delivered up to federal authorities. 

The settlement agreement between Yakama and DOJ is called, “Recitals of Joint Law Enforcement Goals.”  It recites that:

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