Here is the opinion in United States v. St. John.
Eighth Circuit Affirms Conviction under Federal Habitual Offender Law in Indian Country DV Case
Here is the opinion in United States v. St. John.
Criminal
Eastern District of Michigan Ranks 6th in Charging Indian Country Criminal Cases
Here.
Hoopa Tribe Starts Banishment Process of Non-Tribal Member Sex Offenders
The Hoopa Valley Tribal Council voted unanimously to begin the process of banishing all non Hoopa tribal member sex offenders from Hoopa.
The article can be found here.
Op-Ed on Indian Country Prosecutions and Investigations
Authored by:
Michael W. Cotter, U.S. Attorney, District of Montana
Calvin Wilson, Chief Prosecutor, Northern Cheyenne Tribal Court
Glen Littlebird, Sr., Prosecutor, Northern Cheyenne Tribal Court
This week the United States Department of Justice released a 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. The report, based on data compiled from the case management system used by U.S. Attorney’s Offices (USAO) with Indian Country jurisdiction, and FBI crime data from reservations, shows among other things a 54 percent increase in Indian Country criminal prosecutions since Fiscal Year 2009.
Here in the District of Montana, justice in Indian Country is achieved through both tribal and federal courts. Currently, under the Indian Civil Rights Act, a tribal court’s authority to sentence a defendant is limited to a term of imprisonment of 1 year and a fine of $5000 per offense. Because tribal court penalties are limited, the most serious of crimes are prosecuted in federal court by the USAO. In Montana, the USAO shares prosecutorial responsibilities with tribal prosecutors on all of the reservations in the state, except the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation.
The Indian Country Investigations and Prosecutions report released this week by the Department of Justice previews a new era of partnership between the federal government and American Indian tribes. The report documents an unprecedented level of collaboration with tribal law enforcement, regular consultation on a crime fighting strategy, joint federal/tribal task forces, information sharing, training of investigators, and cross deputizing tribal police and prosecutors to enforce federal and tribal law. We certainly have seen the changes described by the report in the USAO’s relationships with its tribal partners in Montana.
Since 2010, the District of Montana USAO has implemented a bi-monthly meeting involving the federal prosecutors assigned to each reservation, the tribal prosecutors for the reservation and tribal and federal law enforcement officers. During these meetings, cases arising on a particular reservation during the preceding two-week period are discussed and a joint decision is made concerning which jurisdiction – Federal or tribal or both – will prosecute a particular case. Between 2010 and the present, the USAO in Montana has devoted six prosecutors to Indian Country. With these additional resources, over the last two years, 76% of all cases staffed have been resolved in either federal or tribal court. During the last two years, the Montana USAO has averaged 30 jury trials each year. Each of the approximately 60 trials involved violent crimes committed in Indian Country. In addition, numerous trials have occurred in tribal courts across Montana resulting in convictions of defendants that have committed less serious crimes.
Tribal courts play an integral role in providing public safety in our Indian communities. In Montana, federal and tribal prosecutors recognize and respect each other and the courts in which they work. Tribal courts, like tribal governments, are important federal partners. The members of federal law enforcement and the USAO Montana support partners in tribal law enforcement and the tribal court system, and vice versa. That is why federal prosecutors and agents share investigative files with their counterparts in Indian Country. Just as tribal law enforcement respond to federal court subpoenas, special agents from the FBI routinely respond to tribal court subpoenas to provide testimony in criminal proceedings and trials.
Tribal communities as a whole, and defendants as well as victims of crime in Indian country must have confidence that their tribal court systems are capable of delivering justice. When that confidence is lacking for whatever reason, the Department of Justice and the USAOs must do all we can to develop that confidence. The federal and tribal governments need a true partnership. It is only through this “court to court” relationship that justice truly may be achieved in Indian Country for victims of crimes. We agree that the process in place is way better than it has ever been before. It’s real. It’s working. It is also important to remember that often tribal court can provide quicker and better answers in various criminal matters.
Although it will take some time before we can understand the full impact of the recent efforts on crime in Indian Country, some things are clear. The increase in enforcement will bolster the faith and confidence that American Indian communities have in the criminal justice system. The increase in collaboration and communication strengthens the bond of trust between federal and tribal investigators, prosecutors, and other personnel in both federal and tribal criminal justice systems. Finally, the efforts undertaken in the last few years by the men and women of the federal and tribal criminal justice systems will make communities safer in Montana.
Michael W. Cotter was nominated by President Barack Obama to serve as the United States Attorney for the District of Montana. He was sworn in as Montana’s 39th United States Attorney on December 30, 2009.
Calvin Wilson has been licensed to practice law in the State of Montana since 1977. He is currently the Chief Prosecutor for the Northern Cheyenne Tribal Court. He has also served as a tribal judge, a tribal attorney, an elected Country Attorney for Big Horn County and a prosecutor for the City of Hardin.
Glen Littlebird, Sr., who is also a prosecutor for Northern Cheyenne Tribal Court, has served as a special agent for the BIA, a tribal judge, and a tribal councilman.
DOJ Press Release on Tribal Law and Order Act Report
Report to Congress is Requirement under the Tribal Law and Order Act of 2010
WASHINGTON – The Department of Justice released today a 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. The report, based on data compiled from the case management system used by U.S. Attorney’s Offices (USAO) with Indian Country jurisdiction shows among other things a 54 percent increase in Indian Country criminal prosecutions since Fiscal Year 2009.
“Across the country, U.S. Attorneys have been focused on fighting crime in Indian Country and reinforcing the bond between federal and tribal law enforcement, which also strengthens the faith that people have in their criminal justice system,” said Attorney General Eric Holder. “This report on federal law enforcement efforts in Indian Country is beginning to show the fruits of this labor with an increase in Indian Country cases prosecuted in federal courts over the past three years, but we have more work to do. The department will continue in its commitment to working with our tribal partners to build safe, sustainable, and healthy communities in American Indian and Alaska Native communities.”
“Every day, the men and women from U.S. Attorney’s Offices who prosecute violent crimes in Indian Country work hard to improve public safety in those communities,” said Timothy Purdon, U.S. Attorney for the District of North Dakota and Chairman of the Attorney General’s Advisory Subcommittee on Native American Issues. “The notable increase in prosecutions of Indian Country crime described in this report are the result of the many initiatives led by U.S. Attorney’s Offices across the country, including community prosecution strategies that place federal prosecutors on the reservations on a frequent basis to enhance criminal investigations and communication, and Tribal Special Assistant U.S. Attorney programs that have enhanced coordination with cross-deputized tribal prosecutors. These efforts and the resulting increase in prosecutions are a testament to the Justice Department’s commitment to public safety in Indian Country and they are an encouraging step toward safer, stronger native communities.”
“The FBI has a sustained commitment to enhancing public safety in Indian Country,” said FBI Assistant Director Ron Hosko. “As this report demonstrates our investigative strategy is focused on fully leveraging vital partnerships with federal, state, local and tribal agencies to address violent crime and victimization in tribal communities. This approach not only produces investigative results in the short term but also develops the trust and collaboration necessary to ensure sustained enhancements to public safety in the long term.”
The information contained in the report shows the following:
• The Justice Department’s prioritization of Indian country crime has resulted in a notable increase in commitment to overall law enforcement efforts in Indian country. Caseloads have increased overall from 1,091 cases filed in fiscal year (FY) 2009 to 1,138 in FY 2010 to 1,547 in FY 2011 to 1,677 in FY 2012. This represents a nearly 54 percent increase in the Indian country crime caseload.
• USAO data for calendar year (CY) 2011 indicate that just under 37 percent (1,041) of all Indian Country submissions for prosecution (2,840) were declined by USAOs. In CY 2012, USAOs declined approximately 31 percent (965) of all (3,145) Indian Country submissions for prosecution. Overall, a substantial majority of Indian Country criminal cases opened by USAOs were prosecuted.
• The most common reasons for declination by USAOs were insufficient evidence (61 percent in CY 2011 and 52 percent in CY 2012) and referral to another prosecuting authority (19 percent in CY 2011 and 24 percent in CY 2012).
• The most common reasons investigations during calendar years CY 2011 and 2012 were not referred included deaths determined to be due to non-criminal causes (e.g., natural causes, accidents, suicides) and allegations in which there was insufficient evidence to prove criminal activity.
•The report shows a new era of partnership between the federal government and American Indian tribes, including an unprecedented level of collaboration with tribal law enforcement. The increase in collaboration and communication strengthens the bond of trust between federal and tribal investigators, prosecutors, and other personnel in both federal and tribal criminal justice systems, and it will make communities safer as a result.
Read the entire report at www.justice.gov/tribal/tloa-report-cy-2011-2012.pdf
Read about the Justice Department’s efforts to increase public safety in Indian County at http://www.justice.gov/tribal/accomplishments.html
Barbara Creel on the the Right to Counsel in Indian Country
Barbara Creel has posted “The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative,” published in the Michigan Journal of Race & Law (my law school journal!), on SSRN. Here is the abstract:
Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it presents for Indians and tribal sovereignty.
While an Indian has the right to defense counsel in federal criminal court proceedings, he does not in tribal court. This distinction makes a grave difference for access to justice for Americans Indians not only in tribal court, but also in state and federal courts. The Article provides in-depth analysis, background, and context necessary to understand the right to counsel under the ICRA and the U.S. Constitution. Addressing serious civil rights violations that negatively impact individual Indians and a tribe’s right to formulate due process, this Article ultimately supports an unqualified right to defense counsel in tribal courts.
Defense counsel is an indispensable element of the adversary system without which justice would not “still be done.” Tribes, however, were forced to embrace a splintered system of justice that required the adversary system but prohibited an adequate defense. The legacy of colonialism and the imposition of this fractured adversary system has had a devastating impact on the formation of tribal courts. This legacy requires tribal and congressional leaders to rethink the issue of defense counsel to ensure justice and fairness in tribal courts today. The Article concludes that tribes should endeavor to provide counsel to all indigent defendants appearing in tribal courts and calls upon Congress to fund the provision of counsel to reverse the legacy of colonialism and avoid serious human rights abuses.
Highly recommended!
Washington COA Decision Involving Tribal Immunity from State Criminal Subpoenas
Here is the opinion in State v. Youde:
An excerpt:
This case involves a prosecution for delivery of marijuana. The investigating agency was the police department of the Tulalip Tribes. The Tribes asserted sovereign immunity in response to a defense subpoena for information the Tribes deemed immaterial. Recognizing that a sovereign entity is not subject to compulsory process, the superior court quashed the subpoena. The court then granted the defendant’s motion to dismiss the prosecution under CrR 8.3(b). The State appeals the dismissal. We hold the court abused its discretion by dismissing the case without first determining whether the subpoenaed information was material. Because the record does not support a finding of materiality, we reverse the order of dismissal.
Briefs are here:
Interesting Tenth Circuit Appeal on Confessions at Kewa Pueblo
Here are the materials in United States v. Aguilar:
From the opinion, which in part dealt with a motion to suppress under the Fourth Amendment’s voluntariness requirement:
Aguilar argues his consent to the agents to enter his home and view the eagle feathers was involuntary when considering the totality of the circumstances. In particular, Aguilar argues the district court understated the significance of his belief that the agents were acting under the authority of the Pueblo Governor, whom, he argues, he was bound to obey according to Pueblo custom and tradition. In response, the government argues Aguilar’s subjective beliefs are irrelevant to the issue of voluntariness of consent insofar as there is no indication the agents were aware of or took advantage of them.
***
The district court arrived at this finding by noting that, prior to the agents’ arrival, Aguilar had already spoken with the Governor about his having killed eagles on tribal land. From this, the court found it was possible Aguilar thought the Governor informed the USFWS about his killing of eagles, but that it was equally likely Aguilar considered the matter to have been resolved to the Governor’s satisfaction during their meeting.
Columbia Law Review Article on Constitutionality of VAWA/TLOA-Type Statutes
Zachary S. Price has published “Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction” in the Columbia Law Review.
Here is the abstract:
In both federal Indian law and the law regarding United States territories, the Supreme Court in recent decades has shown increasing skepticism about previously tolerated elements of constitutionally unregulated local governmental authority. This Article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in these areas. Focusing on the criminal context, where the stakes are highest both for individual defendants and for the affected communities, this Article considers three issues: (1) whether and under what circumstances Congress may confer criminal jurisdiction on tribal and territorial governments without requiring that those governments’ enforcement decisions be subject to federal executive supervision; (2) whether double jeopardy should bar successive prosecution by both the federal government and a tribal or territorial government exercising federally authorized criminal jurisdiction; and (3) what, if any, constitutional procedural protections apply when a tribal or territorial government exercises criminal jurisdiction pursuant to such federal authorization.
Through close examination of these three questions, this Article aims to show that framing the analysis in terms of divided sovereignty, and recognizing the close parallels between tribal, territorial, and related federal-state contexts, may yield the most attractive resolutions that are viable in light of the Supreme Court’s recent decisions. This Article contrasts this approach with an alternative framework that would organize the analysis around a distinction between “inherent” and “delegated” governmental authority.
Looks like a fascinating paper from a former OLC attorney. Will study with interest.
NIJ Study: “Understanding the Intelligence Practices of State, Local, and Tribal Law Enforcement Agencies”
Abstract here:
Annotation: This study examined the experiences of State, local, and tribal (SLT) law enforcement agencies and fusion centers in building an intelligence capacity; understanding critical gaps in the sharing of intelligence information; and identifying obstacles related to other key intelligence issues, such as measuring performance and communication between agencies.
Abstract: In addition, the study examined the activities of three fusion centers in order to identify strategies that are successful in increasing the information flow across agencies, the major obstacles to effective intelligence-gathering and information-sharing, and identify key practices for integrating domestic intelligence into the information-sharing environment and overcoming these obstacles. The study found that although significant progress has been made since 9/11 in installing fundamental policy and procedures related to building the intelligence capacity of law enforcement, there is significant room for improvement and a need to move agencies forward to be consistent with key requirements. Also, fusion centers are further along in instituting intelligence policies and practices than are individual law enforcement agencies. This is most likely because there has been a focus on developing fusion center operations and expertise by both the Department of Homeland Security and the Department of Justice. In addition, both samples of respondents emphasized that they have worked at building relationships with a diverse range of agencies, but they also indicated that they are not completely satisfied with these relationships. Further, there is a significant amount of information coming into and going out of these agencies. It is likely that without sufficient analysts within the organizations or poorly trained analysts, there are missed opportunities for strategic and tactical understanding of homeland security and criminal threats. Assessing the performance of analysts is difficult, but respondents emphasized the need to focus on the quality of strategic and tactical products produced. 60 references
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