Here.
Materials here.
Criminal
Split Ninth Circuit Orders Federal Prosecutors to Prove Federal Recognition Status of Tribes in Major Crimes Act Prosecutions…
… to a jury beyond a reasonable doubt.
Here are the materials in United States v. Zepeda:
CA9 memorandum (related opinion on other issues)
The court’s summary:
The panel reversed jury convictions under the Major Crimes Act, 18 U.S.C. § 1153, which provides for federal jurisdiction over certain crimes committed by Indians in Indian country.
The panel held that whether a given tribe is federally recognized, as required for jurisdiction under § 1153, is a question of fact for the jury, not a question of law for the court; and rejected the government’s request that this court take judicial notice of the Bureau of Indian Affairs’s list of federally recognized tribes in 2008 and 2010.
The panel held that a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties’ stipulation, is insufficient evidence for a rational juror to find beyond a reasonable doubt that a defendant is an Indian for purposes of § 1153, where the government offers no evidence that the defendant’s bloodline is derived from a federally recognized tribe.
Dissenting, Judge Watford would hold that federal recognition of an Indian tribe is a question of law for the court to resolve.
Sexual Harassment Complaint against King County, Wash. Sheriff’s Office Alleges Blasé re: Indian Country Sexual Assaults
Here is the complaint in Ferguson v. King County (Pierce County Superior Court):
King County Sexual Harassment Complaint
From page 9:
Provenzo regularly told Belinda not to fully investigate rape or sexual assault cases that occurred on the Muckleshoot Indian reservation, because rape happens on the reservation “all the time.”
Thanks to Trent Crable and Diana Bob for the find.
NPR on Slow Pace of Criminal Justice Reform in Indian Country
Here. Via the excellent North Dakota Supreme Court site.
An excerpt:
The Hopi of northern Arizona were among the first in the nation to increase criminal sentences under the law. The tribe spent 18 months updating criminal codes to create a new class of felonies that could result in more jail time for convicted offenders.
Few tribes have put together all the pieces required to boost jail time, but progress is being made on other fronts. The Southern Utes in Colorado are now contracting with the federal government to hold detainees. On South Dakota’s Rosebud Sioux reservation, tribal officials worked with the U.S. attorney’s office to create a diversion program to keep juveniles out of trouble.
In Montana, special teams made up of tribal and federal officials were established last summer to investigate sexual assault cases.
Ontario Appeals Court Refuses to Extradite Aboriginal Drug Couriers to US because of Harsh Sentences and Prisoner Abuses
Here is the opinion in :
The court’s summary:
L and M were Aboriginal Canadians whose extradition was sought by the United States of America to stand trial on drug charges. Their aboriginality and the systemic factors identified by the Supreme Court of Canada in R. v. Gladue would not be considered in U.S. sentencing proceedings. Land M could both be prosecuted in Canada for the conduct that gave rise to the U.S. charges. L entered the United States with approximately 46,000 ecstasy pills. He was 18 years old at the time of the offence and had no criminal record. If convicted, he would probably receive a sentence of between 15 years, 8 months’ to 19 years, 7 months’ imprisonment with no prospect of release until 85 per cent of the sentence had been served. The U.S. prisons to which he would likely be assigned if convicted lacked culturally appropriate programs for Aboriginal inmates. If tried and convicted in Canada, L would likely receive a conditional or relatively short prison sentence. M was allegedly involved in importing oxycodone into the United States from Canada. If convicted in the United States, he faced a sentence of between six and ten years. He submitted that, in Canada, the sentencing range was three to five years and that consideration of his Aboriginal status and the Gladue principles could yield a lower sentence. L and M were committed forextradition. In considering whether to surrender them, the Minister of Justice found that their Aboriginal status and the Gladue principles were not relevant to an analysis under s. 6 of the Canadian Charter of Rights and Freedoms. He found that the Gladue factors were relevant in assessing the applicants’ claims that surrender would violate their rights under s. 7 of the Charter, but concluded that surrendering them would not shock the conscience. He also found that surrender would not be ”unjust or oppressive” under s. 44(1)(a) of the Extradition Act, S.C. 1999, c. 18. He ordered their surrender. The applicants applied for judicial review of that decision. L also appealed his committal order. [The court granted the application]
Washington SCt Briefs in State v. Clark — Authority of State Law Enforcement on Indian Trust Land
Here are the briefs in State v. Clark:
- Amicus of Colville Confederated Tribes
- Amicus Tulalip Tribes
- ALCU amicus brief
- Appellant Brief
- Appellant’s Answer to WAPA Amicus
- Petition for Review
- Petitioner’s Supplemental Brief
- Respondent’s Brief
- Respondent’s Supplemental Brief
- State’s Response to ACLU and Cct Amicus Briefs
- WAPA Amicus
Lower court materials here.
News Coverage of Eastern Band Cherokee Statute Imposing Fines on DV Offenders
Here. An excerpt:
The Eastern Band of Cherokee Indians is hitting domestic violence abusers in their pocketbooks.
People convicted of domestic violence-related charges must now pay a $1,000 fine, in addition to other penalties handed down by tribal court. Tribal council approved of the measure at its meeting last week.
“We are hoping this will make them stop and think,” said Iva Key, the Eastern Band’s Domestic Violence program manager. “A lot of these are repeat offenders,” Key said later.
Money collected from the fine will be split 50-50 between services for victims of domestic violence and other tribal initiatives such as education.
A possible downside to the fine, however, is the financial hardship it might cause, especially if a family is trying to reunite and rebuild after an incident of abuse. Not everyone has $1,000 of disposable income, which means that money cannot be spent on necessities for the family.
ALT Coverage of Federal Indictments related to Blackfeet Nation Moose Hunt
Eighth Circuit Affirms Kickbacks Conviction of Duane Big Eagle, former Crow Creek Sioux Chair
Here are the materials in United States v. Big Eagle:
Ninth Circuit Affirms Holding that Major Crimes Act Juvenile Defendants May Be Tried as an Adult
Here is today’s opinion in United States v. Juvenile Male.
From the court’s summary:
The panel affirmed the district court’s order granting the government’s motion to transfer juvenile proceedings for adult prosecution under 18 U.S.C. § 5032 in a case in which the defendant is charged with second-degree murder and using a firearm during a crime of violence. Agreeing with sister circuits that a psychological evaluation is not a prerequisite to approving a transfer motion, the panel held that the district court did not abuse its discretion in making a finding about the defendant’s intellectual development by relying solely on lay-witness testimony. The panel also held that although the district court did not explicitly address the staff-to-offender ratio or specific counseling programs, the district court did not abuse its discretion in making findings about the treatment programs available at adult and juvenile facilities where the defendant might serve any sentence imposed. The panel wrote that the district court consistently presumed for purposes of the transfer decision that the defendant would be convicted of one or both charges, and that the presumption of guilt for this purpose does not violate the defendant’s due-process rights.
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