Criminal

PBS Frontline: Where Tribal Justice Works

Matthew L.M. Fletcher

Here.

An excerpt:

In 2011, a man in northeastern Oregon beat his girlfriend with a gun, using it like a club to strike her in front of their children.

Both were members of the Confederated Tribes of the Umatilla Indian Reservation. The federal government, which has jurisdiction over major crimes in Indian Country, declined to prosecute.

So the tribes stepped in. The man was convicted in their courts and sentenced to 790 days in federal prison.

But had the assault happened a week earlier, the case could never have gone to trial.

The Umatilla tribes had recently enacted new provisions from a federal law, the Tribal Law and Order Act, that allowed Native American courts to try their own people for felony crimes instead of relying on the federal authorities.

Without those provisions, once federal prosecutors declined the case, the woman would have had no other legal recourse.

Brent Leonhard, the general counsel for the Umatilla tribes, is proud of the conviction: “I personally was concerned that the victim at some point would end up dead,” he said.

“People here were pretty happy to see the person held accountable.”

Wisconsin COA Reverses Conviction of American Indian After Prosecutor Struck Only Indian Juror

Matthew L.M. Fletcher

Here is the opinion in State v. Snow:

Wisconsin v. Snow

An excerpt:

Karen Lynne Snow appeals from a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration and an order denying her motion for a new trial. Snow argues that she was denied equal protection under the United States and Wisconsin Constitutions when the prosecutor used a peremptory strike to remove the only Native American prospective juror and referenced that prospective juror’s “Ho-Chunk culture” when explaining the strike. I conclude that the circuit court clearly erred when it ruled that the prosecutor’s peremptory strike of the prospective juror did not violate Snow’s right under the Equal Protection Clause and therefore reverse the conviction and remand the case for a new trial.

New Mexico Court of Appeals Reaffirms Holding that Fort Wingate Military Reservation (Navajo) is Indian Country

Matthew L.M. Fletcher

Here is the opinion in State v. Steven B.:

CA31,322

An excerpt:

In State v. Dick, 1999-NMCA-062, 127 N.M. 382, 981 P.2d 796, this Court held that the State does not have jurisdiction to prosecute a criminal defendant within Parcel Three of the former Fort Wingate Military Reservation (Parcel Three). A subsequent decision by the United States District Court for the District of New Mexico, United States v. M.C., 311  F. Supp. 2d 1281 (D.N.M. 2004), decided otherwise. In this appeal, the State asks this Court to agree with the federal court decision and overrule its holding in Dick. Because we continue to believe that Parcel Three is within “Indian country” as defined by 18 U.S.C. § 1151 (1949) and discussed in Alaska v. Native Village of Venetie Tribal Government (Venetie), 522 U.S. 520 (1998), we affirm the ruling of the district court dismissing the State’s prosecution.

The federal court decision referenced in the opinion is here: 311_F.Supp.2d_1281

Ninth Circuit Decides Competency Question in Criminal Case Involving Tohono O’odham Nation Juvenile

Matthew L.M. Fletcher

Here is the opinion in United States v. LKAV.

From the court’s syllabus:

Reversing an order committing a juvenile for a study of his competency to stand trial, the panel held that the district court erred by committing the juvenile under 18 U.S.C. § 4241(d), rather than proceeding pursuant to Federal Juvenile Delinquency Act.

Seventh Circuit Affirms Conviction for Theft from Sokaogon Ojibwe Tribe

Matthew L.M. Fletcher

Here is the opinion:

US v McGeshik

An excerpt:

Dori McGeshick, a tribal employee, helped administer a federal grant to build 11 new homes on a Native American reservation. Tasked with acquiring appliances for the new homes, McGeshick took the opportunity to improve her lifestyle, using federal funds to buy $13,000 worth of high‐end appliances for her own home. After a bench trial, the district court convicted her of the offense of theft by an employee of an Indian tribal government, see 18 U.S.C. § 666(a)(1)(A), and sentenced her to 15 months’ imprisonment. On appeal McGeshick argues that the district court clearly erred when it found that she had abused a position of trust. See U.S.S.G. § 3B1.3. Because she was entrusted with considerable discretion and responsibility, we affirm.

“Is Texas Hold ‘Em a Game of Chance?”: Georgetown Law Journal

Matthew L.M. Fletcher

Here’s a new article in the Georgetown Law Journal asking whether poker is a game of chance or skill, with implications on the enforcement of the Unlawful Internet Gambling Enforcement Act. Here is the abstract:

In 2006, Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA), prohibiting the knowing receipt of funds for the purpose of unlawful gambling. The principal consequence of the UIGEA was the shutdown of the burgeoning online poker industry in the United States. Courts determine whether a game is prohibited gambling by asking whether skill or luck is the “dominant factor” in the game. We argue that courts’ conception of a dominant factor— whether chance swamps the effect of skill in playing a single hand of poker—is unduly narrow. We develop four alternative tests to distinguish the impact of skill and luck, and we test these predictions against a unique data set of thousands of hands of Texas Hold ‘Em poker played for sizable stakes online before the passage of the UIGEA. The results of each test indicate that skill is an important influence in determining outcomes in poker. Our tests provide a better framework for how courts should analyze the importance of skill in games, and our results suggest that courts should reconsider the legal status of poker.

View .pdf for full Article.

Now we’ll have to fend off the online gaming spammers inundating our comments….

DOJ One-Pager on the Tribal Jurisdiction Provisions of the VAWA Reauthorization

Matthew L.M. Fletcher

Here:

VAWA 2013 and Tribal Jurisdiction Over Non-Indian Perpetrators of Domestic Violence (FINAL – 03-26-13)

Fifth Amendment Order in Criminal Case Arising on Fort Apache Reservation

Matthew L.M. Fletcher

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

DCT Order on Motion to Suppress

Dehose Motion to Suppress

 

Federal Court Refuses to Dismiss Bribery Charges against Former 29 Palms Attorney

Matthew L.M. Fletcher

Here are the newest materials in United States v. Kovall (C.D. Cal.):

Omnibus Motion to Dismiss Indictment

US Opposition

Omnibus Reply

No order yet, but news coverage here.

New Scholarship on Domestic Violence and Alaska Natives

Matthew L.M. Fletcher1 Comment

Laura S. Johnson has published “Frontier of Injustice: Alaska Native Victims of Domestic Violence” (PDF) in American University Law School’s “The Modern American.”

An excerpt:

This paper will present three pieces of a strategy to better combat domestic violence in Alaska Native communities. First, cooperation among sovereigns is critical to ensure that laws are enforced. Second, effective law enforcement can be enhanced by creative, community-based, culturally-sensitive models that respond to domestic violence through alternate forms of dispute resolution in Alaska Native communities such as tribal courts. The State of Alaska should actively encourage the development of tribal courts to offer victims alternative forms of dispute resolution because they can offer victims more immediate, culturally-sensitive and community-based remedies. And finally, Alaska Native tribes should exercise regulatory civil jurisdiction over domestic violence crimes in their communities to help Alaska Native victims of domestic violence achieve justice and be protected from their abusers. Part I lays the foundation for a discussion of legal remedies available to Native Alaskans by briefly examining the limitations on tribal jurisdiction in Alaska. Part II presents the remedies that are currently available to Alaska Native victims of domestic violence. Part III expands from the Alaska Supreme Court’s monumental decision in John v. Baker to argue that Alaska’s courts should recognize tribal jurisdiction in domestic violence cases just as Alaska’s Supreme Court recognized tribal adjudicatory jurisdiction in the family law context.