Here.
Our post on these cases is here. Here are the decisions:
Criminal
Ninth Circuit Holds Unauthenticated Tribal Membership Card Insufficient for Proving Indian Status under Major Crimes Act
Here are the materials in United States v. Alvirez (opinion here):
From the court’s syllabus:
Reversing a conviction for assault resulting in serious bodily injury on an Indian reservation in violation of 18 U.S.C. §§ 1153 and 113(a)(6), the panel held that the district court abused its discretion when it admitted an unauthenticated Certificate of Indian Blood issued by the Colorado River Indian Tribes as evidence that the defendant has tribal or federal government recognition as an Indian. The panel wrote that because Indian tribes are not listed among the entities that may produce self-authenticatingdocuments, the district court abused its discretion in admitting the Certificate pursuant to Fed. R. Evid. 902(1) as a self-authenticating document.
Walking on Common Ground — New Publications on Tribal Courts & PL 280
Promising Strategies: Tribal State Court Relations
Tribal courts and state courts interact across an array of issues, including child welfare, cross jurisdictional enforcement of domestic violence orders of protection, and civil commitments. Since the early 1990s, initiatives by judges’ organizations within both judicial systems have focused on an agenda of greater mutual understanding and cooperative action. This publication spotlights some of the most successful strategies within these initiatives. Click here to read full document.
Promising Strategies: Public Law 280
In PL 280 jurisdictions, the concurrent jurisdiction of state and tribal courts over criminal prosecutions and civil actions arising in Indian Country creates many interactions and complications. Tribal and state authorities encounter one another across an array of issues, including government-to-government recognition, concurrent jurisdiction, cross-jurisdictional enforcement of domestic violence orders of protection, cross-deputization, and civil commitments. Tensions and misunderstandings have been common features of tribal and state policing relations in the past, sometimes erupting in jurisdictional conflicts. This publication highlights unique ways in which tribal and state jurisdictions have entered into collaborations to overcome barriers to effective justice provision. Click here to read full document.
NYTs: Timothy Egan on Indian Country Crime (“Science and Sensibility”)
Here.
An excerpt:
For American Indians, living nearly invisible lives on archipelagos of native culture, irrational Republican philosophy has been particularly cruel. There are more than 300 reservations throughout the land — nations within a nation, sovereign to a point.
Non-Indians are responsible for most of the domestic violence in Indian country. The tribes can’t prosecute them — without the blessing of Congress — and the distant and detached feds usually won’t. Thus, the need for the change written into the renewed Violence Against Women law.
“We have serial rapists on the reservation,” Charon Asetoyer, a Native rights health advocate in South Dakota, has pointed out, “because they know they can get away with it.”
Oh, but bringing these brutes to justice in the jurisdictions where they commit their crimes would be unconstitutional, says Representative Eric Cantor, the House Majority leader. A jury of Indians, well — they’re incapable of giving a white man a fair trial. Such was the view expressed by Senator Charles Grassley, the mumble-voiced Iowa senator known for his 19th-century insight.
Both men voted against the act, and both are flat-out wrong in their interpretation. The Sixth Amendment guarantees the accused a right to a jury trial in “the state or district” where the crime was committed. It says nothing about ethnicity. The latest census found that almost half of people living on reservations were non-Indians. And more than half of Indian women are married to men who are not tribal members by blood.
Tracing the Right to Counsel in the VAWA Reauthorization Act
Been asked this so here goes. Does the new statute require tribes to guarantee counsel to indigent defendants in special tribal domestic violence prosecutions of non-Indians? Yes, the answer is (as Yoda would say) (and assuming President Obama doesn’t veto).
Here is the new statute, of which section 904(d) reads:
In a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction, the participating tribe shall provide to the defendant—
(1) all applicable rights under this Act;
(2) if a term of imprisonment of any length may be imposed, all rights described in section 202(c);
The section 202(c) to which VAWA references is the current version of the Indian Civil Rights Act requiring tribes that choose to assert expanded sentencing authority to provide counsel to indigent defendants (25 U.S.C. § 1302):
(c) Rights of defendants
In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall—(1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and(2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
Tenth Circuit Affirms Conviction for Theft from a Tribal Organization (Northern Arapahoe Tribe)
Here are the materials in United States v. Addison:
An excerpt:
Amanda Addison and Melody St. Clair were on trial for embezzling or converting funds from the Northern Arapahoe Tribe’s Department of Social Services (DSS). On July 7, 2011, the third day of trial, the trial judge declared a mistrial as to St. Clair only and excluded her from the courtroom for the remainder of the trial. Addison was convicted. She brings two issues for our consideration, whether: (1) the exclusion of St. Clair violated Addison’s Sixth Amendment right to a public trial and (2) the evidence was sufficient to demonstrate criminal intent. Because the district court had a substantial reason for excluding St. Clair, no Sixth Amendment violation occurred. The evidence was sufficient to prove her knowing and intentional taking of DSS funds. We affirm.
On Federal Juries and American Indian Defendants
Commentators (for example, here and here) have been noting in response to Grassley’s concern that white male perpetrators will not benefit from a jury of their peers in tribal courts that Indian defendants (almost) never stand trial before federal juries with American Indians in the jury box. Let us not forget ASIA Kevin Washburn’s Michigan Law Review article from a few years back that made that perfectly clear. He wrote:
Despite the normative principle of representativeness, Indians tend not to be well represented in federal juries in Indian country cases. Even in states with large Indian populations, Indians remain a very small fraction of the population. As a result, Indians would be expected to have minimal representation in the jury venire. However, the statistics indicate lower numbers than one would expect.
Louise Erdrich NYTs Op\Ed on Violence against Indian Women
Here.
A excerpt:
What seems like dry legislation can leave Native women at the mercy of their predators or provide a slim margin of hope for justice. As a Cheyenne proverb goes, a nation is not conquered until the hearts of its women are on the ground.
If our hearts are on the ground, our country has failed us all. If we are safe, our country is safer. When the women in red shawls dance, they move with slow dignity, swaying gently, all ages, faces soft and eyes determined. Others join them, shaking hands to honor what they know, sharing it. We dance behind them and with them in the circle, often in tears, because at every gathering the red shawls increase, and the violence cuts deep.
North Dakota SCt to Hear Aboriginal Rights Case Tomorrow
Here is the website linking to the materials in State v. Delorme.
Here are the materials:
And a description of the issues from each party:
Appellant’s Statement of the Issues:
The district court erred when they denied the Appellant’s Motion to Dismiss due to lack of subject matter jurisdiction of the Court based on Appellant’s aboriginal usufructuary rights as guaranteed and preserved in the 1863 Treaty of Old Crossing.
The district court erred when they granted the State’s Motion in Limine concerning reference to any land in Eddy County where these offenses are alleged to have occurred as being part of an Indian reservation or Indian Country, that the Appellant was licensed by the tribe as a guide and outfitter.Appellee’s Statement of the Issues:
Issue 1 Whether an outfitting license issued by the Spirit Lake Sioux Tribe to one of its members, which is then transferred to a non-member, precludes state jurisdiction over the non-member’s off-reservation outfitting activities?
Issue 2 Whether an aboriginal right to hunt can be a defense to a non-hunting charge?
Issue 3 Whether North Dakota will be the only jurisdiction to expand aboriginal hunting rights to include “ancillary,” non-hunting activities?
Issue 4 Whether the land on which the violations occurred constitutes either aboriginal land or Indian country?
Issue 5 Whether an 1863 treaty, which conveyed “all” Indian interests, preserved a right to hunt?
Issue 6 Whether any right to hunt established by the 1863 treaty terminated as a result of Indian Claims Commission proceedings and, if not, is the right enforceable through an Indian group that has not maintained a political identity and is the right subject to state regulation?
David Perez on Why GOP is Wrong on Constitutionality of Tribal Court Provisions in VAWA Reauthorization
Here. An excerpt:
First, let’s be clear: Senator Grassley’s bold assertion that Native Americans cannot serve as impartial jurors is simply racist. The Sixth Amendment’s right to jury grants you the right to have a jury selected from the community in which the crime took place. If a Native American committed an act of violence in Senator Grassley’s own Butler County, Iowa, chances are he’d face an all-White jury. That’s because Butler County is 98.95 percent White, and only 0.05 percent Native American. But I doubt Senator Grassley thinks that a Native American defendant couldn’t get a fair shake from his hometown Hawkeyes. And there’s no reason to think that Native American jurors would act differently.
The other purportedly constitutional objection to the tribal protection provision stems from a 1978 Supreme Court case that originated right here in Washington state: Oliphant v. Suquamish Indian Tribe. Suquamish tribal authorities arrested two men, Mark Oliphant and Daniel Belgarde, for crimes committed on Suquamish tribal lands. The defendants argued that the tribe could not charge them with any crime, no matter where it was committed, because they weren’t Indians. The Supreme Court agreed, but its reasoning is what’s most important: the Court never held that it was unconstitutional for tribal authorities to charge and try non-Indians, but rather that Congress’s “various actions and inactions in regulating criminal jurisdiction on Indian reservations demonstrated an intent to reserve jurisdiction over non-Indians for the federal courts.” Put differently, Congress just had to change its mind.
In a similar case about ten years later, Duro v. Reina, the Supreme Court determined that under existing federal law one tribe could not exercise criminal jurisdiction over an enrolled member of another tribe. So what happened? Congress simply changed its mind—and the law—to allow tribes to prosecute members of other tribes, explicitly overruling the Duro decision. Most recently, in 2004, the Supreme Court echoed this point by concluding, in United States v. Lara, that Congress has the power to “lift or relax” restrictions on tribal jurisdiction over criminal matters.
That’s what Congress is trying to do with these new VAWA provisions. It’s not a constitutional hurdle—it’s a legislative one. And the Senate just voted to remove that hurdle.
Turtle Talk 
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