Criminal

North Dakota SCt to Hear Aboriginal Rights Case Tomorrow

Matthew L.M. Fletcher1 Comment

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

Matthew L.M. Fletcher3 Comments

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.

Report on First Nations Representation on Ontario Juries

Kate Fort

Here is the full report (pdf), but if you’d like to listen to it in Ojibwe, Cree, Mohawk, or Oji-Cree, here is the link.

THUNDER BAY, ON, Feb. 26, 2013 /CNW/ – The Honourable Frank Iacobucci, former Supreme Court Justice and Independent Reviewer, today released his report on First Nations Representation on Ontario Juries. The report finds that the justice system and juries process are in a state of crisis for Ontario’s First Nations peoples, particularly those living in the North, and identifies 17 recommendations to improve the representation of First Nations individuals on juries and enhance their perception of the jury system.

“For Ontario’s First Nations peoples, particularly in the North, the justice system and juries process generally are in a crisis,” said the Hon. Frank Iacobucci. “As a result of our face-to-face meetings with leaders and community members from 32 First Nations from across Ontario, we developed 17 recommendations that will help ensure that the cultural values, laws, and ideologies of First Nations’ are better reflected in the Canadian justice system.”

The Attorney General of Ontario appointed the Hon. Frank Iacobucci in August 2011 to examine, report, and offer recommendations regarding the process for inclusion of First Nation peoples living in reserve communities on the provincial jury roll.

Key recommendations made by the Independent Reviewer include:

Establishing an Implementation Committee with First Nations membership, government officials and individuals (including a youth Aboriginal member) who would be responsible for the implementation of the report.
Establishing a First Nation Advisory Group to the Attorney General on matters relating to First Nations peoples and the justice system.
Providing cultural training for all government officials working in the justice system who have contact with First Nations peoples (e.g. police, court workers, Crown prosecutors, prison guards and other related agencies).
Determining promptly and urgently the feasibility and suitability of using existing government databases or other suitable sources (e.g. band residency information, Ministry of Transportation information, OHIP roles, and other records) to generate a database of First Nations individuals living on reserve for the purposes of compiling the jury roll.
Amending the questionnaire sent to prospective jurors so that it is more appropriate for First Nations communities.
Considering a procedure whereby First Nations people on reserve could volunteer for jury service as a means of supplementing other jury source lists.
Creating an Assistant Deputy Attorney General position responsible for Aboriginal issues, including the implementation of this report.

Certain readers might be interested to know the author of the report, Hon. Frank Iacobucci, also is a member of the board for Tim Horton’s.

 

United States v. Caballero — Obstruction of Shingle Springs Miwok Mail

Matthew L.M. Fletcher1 Comment

Here are the lower court materials in the case, now on appeal in the Ninth Circuit. This criminal case is related to the tribe’s long-running dispute with Cesar Caballero, who apparently posed as an “imposter” tribal leader.

13 – Minutes – magistrate judge trial

55 – Order – district judge affirming conviction

2011-08-30 Transcript – trial before magistrate judge

2012-09-28 Transcript – hearing on appeal of magistrate judge’s conviction to district judge

Related trademark case here.

Two New Papers by Alex Skibine on IGRA and Indian Country Hot Pursuit

Matthew L.M. Fletcher1 Comment

The Indian Gaming Regulatory Act at 25: Successes, Shortcomings, and Dilemmas
 Alexander Tallchief Skibine
University of Utah – S.J. Quinney College of Law
Date Posted: January 14, 2013
Working Paper Series

Hot Pursuit into Indian Country: What Are the Limits?
 Alexander Tallchief Skibine
University of Utah – S.J. Quinney College of Law
Date Posted: January 14, 2013
Working Paper Series

Federal Search Warrant in Seneca-Cayuga’s Skydancer Smoke Shop in Upstate New York

Matthew L.M. Fletcher1 Comment

Here:

Skydancer Search Warrant

News coverage here.

NYTs Article on Oravec v. Cole

Matthew L.M. Fletcher

Here.

An excerpt:

Two families from the Crow Indian Reservation in Montana can proceed with a lawsuit against an F.B.I. agent that accuses him of failing to properly investigate crimes against American Indians on and around the reservation, the United States Supreme Court has ruled.

Ninth Circuit materials here.

Bishop Colony’s Stolen Petroglyphs Recovered

Matthew L.M. Fletcher

Here.

We posted about this a few months back.

Minnesota SCT Affirms State Jurisdiction to Civilly Confine Leech Lake Band Ojibwe Member

Matthew L.M. Fletcher1 Comment

Here is today’s opinion in Beaulieu v. Minnesota Department of Human Services.

Mr. Beaulieu previously challenged his confinement in federal court, materials here.

Michigan Law Review Note on Uncounseled Tribal Court Convictions

Matthew L.M. Fletcher

Christiana M. Martenson has published “Uncounseled Tribal Court Guilty Pleas in State and Federal Courts: Individual Rights Versus Tribal Self-Governance” (PDF) in the Michigan Law Review. Here is the abstract:

Indian tribes in the United States are separate sovereigns with inherent self-governing authority. As a result, the Bill of Rights does not directly bind the tribes, and criminal defendants in tribal courts do not enjoy the protection of the Sixth Amendment right to counsel. In United States v. Ant, a defendant—without the legal assistance that a state or federal court would have provided—pled guilty to criminal charges in tribal court. Subsequently, the defendant faced federal charges arising out of the same events that led to the tribal prosecution. The Ninth Circuit in Ant barred the federal prosecutor from using the defendant’s prior uncounseled tribal court guilty plea as evidence in the federal proceeding, explaining that doing so would violate the Sixth Amendment. This Note argues that Ant is no longer good law. First, Ant’s legal foundation is weak, especially in light of subsequent developments in Sixth Amendment jurisprudence. Second, Ant is poor policy because excluding tribal court guilty pleas from state and federal proceedings undermines tribal self-governance. Even though governments must protect the rights of individual criminal defendants, supporting tribal authority will ultimately lead to decreased violence on Indian land and increased consistency with federal legislation.