Criminal

Ninth Circuit Partially Reverses Conviction for Theft from Fort Peck Tribe

Matthew L.M. Fletcher1 Comment

Here is the opinion in United States v. White Eagle.

The court’s summary:

The panel affirmed in part and reversed in part a criminal judgment in a case arising out of the involvement by the Bureau of Indian Affairs Superintendent at the Fort Peck Indian Reservation in a scheme to obtain money from a tribal credit program.

Reversing convictions on counts charging conspiracy to convert tribal credit program proceeds (18 U.S.C. § 371) and theft and conversion from an Indian Tribal Organization (18 U.S.C. §§ 1163, 2), the panel held that the government’s misapplication theory, predicated at best on an employer directive and a civil regulation, cannot support a conviction; and that the government’s embezzlement and conversion theories also fail because the defendant never controlled or had custody of the funds that she later borrowed.

Affirming a bribery conviction (18 U.S.C. § 201(b)(2)), the panel held that a jury could easily infer a quid pro quo and had ample evidence to conclude that the defendant’s actions were “corrupt.”

Because the government did not show that the defendant violated a specific duty to report credit program fraud, the panel reversed her conviction of concealment of public corruption (18 U.S.C. § 1001(a)(1)).

And the briefs:

White Eagle Opening Brief

US Answer Brief

White Eagle Reply Brief

Federal Magistrate Decides (Non-)Indian Status of Defendant in General Crimes Act Case

Matthew L.M. Fletcher

Here are the materials in United States v. Loera (D. Ariz.):

DCT Order Denying Motion to Dismiss

Loera Motion to Dismiss — Indian Status

USA Response

An excerpt:

Defendant’s motion and the government’s response raise matters for the Court’s consideration which other courts have left for another day. See Means v. Navajo Nation, 432 F.3d 924, 934–35 (9th Cir.2005). The resolution of the issues requires the Court to journey into the world of “Indian Law” which has been described as a “complex patchwork of federal, state and tribal law, which is better explained by history than by logic.” United States v. Bruce, 394 F.3d 1215, 1218 (9th Cir.2005) (internal quotations omitted). Indian law has also been described as “schizophrenic”: “Federal Indian policy is, to say the least, schizophrenic. And the confusion continues to inform federal Indian law …” United States v. Lara, 541 U.S. 193, 219, 124 S.Ct. 1628, 1644–45 (2004) (Thomas, J., concurring).

Another:

This case presents a unique factual and jurisdictional conundrum apparently of first impression. Notwithstanding the 1990 amendments to the Indian Civil Rights Act, codified at 25 U.S.C. § 1301 et seq., the Fort Mojave Indian Tribe has declined to prosecute a defendant who may be an “Indian” and the Tribe’s decision is apparently based solely on the defendant’s lack of tribal membership, i.e., the Tribal Court has determined it does not have jurisdiction under its laws.

And finally:

Since its first enactment in 1817 (3 Stat. 383), additions added in 1854 (10 Stat. 270), sequent codification in 18 U.S.C. § 1152, and the enactment and amendment of the Indian Civil Rights Act, the language of section 1152 has never been amended, yet the government has entered into nine separate treaties with thirteen separate and distinct tribes obligating the federal government to remove all “bad men” from those tribes’ lands and prosecute them in federal courts when requested by the Tribe, exactly what occurred in this matter. In order to give validity to those treaties, as the Court is obligated to do, and which Congress has not repealed, and even though the treaties are with tribes other than the Fort Mojave Indian Tribe, the use of the term “Indian” in section 1152 must, as Judge Sneed concluded, mean an Indian who is a tribal member. As such, should this Court have concluded Defendant was an “Indian” section 1152 would not grant him immunity from federal prosecution as he is not a tribal member.

Effort to Remove State Fishing Controversy Involving Shinnecock Member to Federal Court Fails

Matthew L.M. Fletcher1 Comment

Here are the materials in People v. Smith (E.D. N.Y.):

DCT Order Granting Remand

Smith Notice of Removal

NY Motion for Remand

Smith Response

Ninth Circuit Affirms Murder Conviction Arising at Navajo

Matthew L.M. Fletcher

Here is the unpublished opinion.

Yakama Settles Federal Suit with Counties and Out-of-State Jurisdictions over Unauthorized Raid on Tribal Lands

Matthew L.M. Fletcher1 Comment

Here is the press release:

YAKAMA-COUNTIES SETTLEMENT PRESS RELEASE

News coverage, where county attorney says “we’re sorry.”

Text from the Yakama press release:

The Confederated Tribes and Bands of the Yakama Nation have reached out-of-court settlements with Yakima County, Benton County, and local governments from Virginia and Mississippi, to resolve the Nation’s lawsuit against those governments for a February 16, 2011, dawn raid of Yakama Reservation trust lands.  Upon the first of two joint dismissal requests filed with the U.S. District Court, Judge Rosanna Peterson has already dismissed most of the claims between the parties.

“We are pleased and proud that governments from here in the Yakima Valley and Columbia River Basin, to as far away as the east coast, have all agreed to honor the Yakama Treaty of 1855,” said Yakama Nation Tribal Council Chairman Harry Smiskin.  “Each of them will seek our blessing before every again returning to Yakama lands.  They will also cooperate with our Tribal Police, Tribal Jail and Tribal Court to improve public safety on our reservation.”

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.  The federal Treaty negotiators explained to the Yakama that Article II meant that no one would be permitted to step onto Yakama Reservation lands without the Yakamas’ consent. 

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 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.

In March 2011, the Yakama Nation sued federal law enforcement agencies and several local governments for violating these federal Treaty provisions when raiding a Yakama member-owned business on Yakama trust lands without providing any advance notice to Yakama authorities, and in turn barring Yakama Nation cops who arrived at the scene of the raid to help keep the peace. 

Since the spring of 2012, all of the parties to the litigation have engaged in a multi-track mediation process.  The Yakama Nation and Department of Justice defendants remain in settlement negotiations.

Suit materials are here, here, here, and here.

 

Tenth Circuit Decides Seminole Indian Country Habeas Appeal (Effectively Reversing Oklahoma Criminal COA)

Matthew L.M. Fletcher1 Comment

Here are the materials in Magnan v. Trammell:

CA10 Opinion

Magnan Opening Brief

Seminole Tribe Amicus

Oklahoma Answer Brief

Magnan Reply Brief

An excerpt:

Petitioner David Magnan pleaded guilty in Oklahoma state court to three counts of murder in the first degree and one count of shooting with intent to kill. Magnan was sentenced to  death for each of the murder convictions and to a term of life imprisonment on the remaining conviction. Magnan argued on direct review that the crimes occurred in “Indian country,” 18 U.S.C. § 1151, and that, as a result, the state trial court lacked jurisdiction  over the crimes. The Oklahoma Court of Criminal Appeals (OCCA) held, however, that a  1970 conveyance to the Housing Authority of the Seminole Nation of Oklahoma extinguished all Indian lands restrictions that had previously attached to the surface estate of the property where the crimes occurred. The OCCA further held that, even assuming that restrictions remained on 4/5ths of the mineral estate, such interest wasunobservable and insufficient to deprive the State of Oklahoma of criminal jurisdiction over the surface property at issue. In a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Magnan again asserted that the crimes at issue occurred in “Indian country” and that the state trial court was without jurisdiction. The district court denied Magnan’s petition but granted him a certificate of appealability. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we need only address the status of the surface estate to agree with Magnan that the location where the crimes occurred was “Indian country” because the requirements to extinguish the restrictions placed on Indian lands by Congress were not met and that, as a result, the state trial court lacked jurisdiction over the crimes. Consequently, we reverse the judgment of the district court and remand with instructions to grant Magnan’s petition for writ of habeas corpus.

State court decision, with our commentary, here.

VAWA Pilot Project Notice in Federal Register, Plus Supporting Materials

Matthew L.M. Fletcher1 Comment

Here is the link to the notice. And a pdf: Federal Register Notice on DOJVAWA Tribal Pilot Project June 14 2013

VAWA 2013 and Tribal JurisdictionOver Crimes of Domestic Violence (revised 06-14-13)

VAWA Tribal Pilot Project FAQs June 13 2013

 

Alaska COA Remands Criminal Sentencing to Address Claims of Bias against Defendant Named “Osceola”

Matthew L.M. Fletcher

Here is the opinion in State v. Osceola.

An excerpt:

The superior court referred to Osceola’s Native American heritage during its sentencing remarks and when it later issued its order denying Osceola’s request to modify the judgment to reflect only the name “Michael Draco Osceola”. The court remarked that Osceola had shown little pride in his heritage because one of the targets of his thefts was a business run by Alaska Natives. The court further remarked that the original Seminole chief Osceola had been one of the judge’s boyhood heroes, and the court expressed disappointment that a namesake of Chief Osceola would engage in criminal behavior.

DOJ Publishes Notice of VAWA Pilot Program

Matthew L.M. Fletcher

Here.

Description:

This notice proposes procedures for an Indian tribe to request designation as a participating tribe under section 204 of the Indian Civil Rights Act of 1968, as amended, on an accelerated basis, pursuant to the voluntary pilot project described in section 908(b)(2) of the Violence Against Women Reauthorization Act of 2013 (“the Pilot Project”), and also proposes procedures for the Attorney General to act on such a request. This notice also invites public comment on the proposed procedures and solicits preliminary expressions of interest from tribes that may wish to participate in the Pilot Project.

New Oregon Law Review Article on (Tribal) Criminal Jurisdiction and the Nation-State

Matthew L.M. Fletcher

David Wolitz has published “Criminal Jurisdiction and the Nation-State: Toward Bounded Pluralism” in the Oregon Law Review.

An excerpt:

In this Part, I argue that criminal jurisdiction on tribal lands already reflects major elements of the Bounded Pluralism approach I support, but that criminal justice in Indian Country could be improved if tribes had greater functional jurisdiction and if the federal government had greater supervisory authority to set fundamental-rights constraints on that jurisdiction.