tribal courts

Materials in Federal DV Prosecution under Major Crimes Act (Colville)

Matthew L.M. Fletcher1 Comment

Here are the materials so far in United States v. Flett (E.D. Wash.):

DCT Order re Pretrial Motions

Flett Indictment

Flett Motion to Dismiss

US Response

An excerpt:

On June 5, 2012, Tommie Joe Flett allegedly assaulted his estranged girlfriend at a residence that is located within the boundaries of the Colville Indian Reservation. The Colville Confederated Tribes charged Mr. Flett in tribal court with violations of tribal law. On August 24, 2012, Mr. Flett pleaded guilty in tribal court to the crime of “Battery (Domestic Violence).” During the process, he allegedly admitted assaulting his estranged girlfriend on June 5, 2012. The tribal judge sentenced Mr. Flett to a term of 360 days incarceration with credit for time served. The matter did not end there. The United States sought, and obtained, an indictment charging Mr. Flett with violations [2] of federal law. The federal indictment is based upon the same conduct that the 2012 tribal conviction is based upon. Counts one, two, and three allege Mr. Flett committed the crime of assault in Indian Country.18 U.S.C. §§ 1153(a)and113(a). Count four alleges he is subject to enhanced punishment based upon prior domestic violence convictions.18 U.S.C. § 117(a). The parties have filed a number of pretrial motions.

Eastern Band of Cherokee Indians Issues Four Year Sentence in DV Case

Kate Fort

Here

Russell McKinley Wolfe, 35, was convicted on Nov. 16, 2012, in the Cherokee Court for Domestic Violence Assault on a Female, Violation of a Domestic Violence Protective Order, Driving While Impaired, and Injuring Public Property. He was sentenced to four years imprisonment. The sentence, issued by the Honorable Kirk G. Saunooke, Cherokee Court Judge, was one of the longest sentences ever issued by the Cherokee Court and comes after the enactment of the Tribal Law and Order Act which authorized criminal sentences of greater than one year in tribal courts.

Since the sentence was handed down in Wolfe’s case, the Office of the Tribal Prosecutor, in conjunction with the Cherokee Court and Cherokee Police Department, worked together with the Federal Bureau of Prisons to authorize Wolfe’s sentence to be served in a Federal Detention Facility with the Bureau of Prisons.

Federal Court Rejects Double Jeopardy-Related Habeas Petition from Prisoner Previously Convicted in Tribal Court

Matthew L.M. Fletcher

Here are the materials in Jacobs v. United States (D. S.D.):

2255 Motion

Government’s Response

Jacobs’ Response

DCT Order Denying Habeas Relief

Materials from Mr. Jacobs’ direct appeal of his conviction based on the 1868 Fort Laramie treaty is here.

New Student Scholarship on VAWA’s Tribal Jurisdiction Provisions

Matthew L.M. Fletcher

Laura Saylor has posted “Back to Basics: Special Domestic Violence Jurisdiction in the Violence Against Women Reactivation Act of 2013 and the Expansion of Inherent Tribal Sovereignty” on SSRN.

Here is the abstract:

Indian Country is home to some of the highest rates of violent crime in the United States. Specifically, Indian women are at least twice as likely as women in any other demographic in the United States to be victims of domestic violence, dating violence, and sexual violence, and most Indian women report that their attacker was non-Native. On March 7, 2013, President Obama signed the Violence Against Women Reactivation Act of 2013, which contained provisions to help alleviate this crisis in Indian County. These provisions include Sections 904 and 905, which outline special criminal jurisdiction over certain non-Indian perpetrators of domestic violence, dating violence, and sexual violence in Indian Country. This Student Note proposes a method of interpretation of Sections 904 and 905 and argues that, upon a constitutional challenge to this special domestic violence jurisdiction, the Supreme Court should find that that these provisions validly expand inherent tribal sovereignty and do not represent a delegation of Congressional power. To reach this conclusion, Court should first return to the texts that form the foundation of tribal sovereignty, namely the Constitution and the Marshall Trilogy. Incorporating these early principles of robust inherent tribal sovereignty, the Court should then look to the legislative intent of Congress, as it has many times in Federal Indian law, to confirm that Congress has validly exercised its power to expand inherent tribal sovereignty. However, in explicating Congress’ power to enact such legislation, this Note further proposes that the Court should clarify that Sections 904 and 905 are consistent with a more limited understanding of Congress’ power to legislate in Indian Country that requires legislation to be rationally related to Congress’ unique obligations to the Indian tribes. Thus, on a constitutional challenge, this Note argues that the Court should uphold Sections 904 and 905 because they are both a valid exercise of Congress’ power to expand tribal inherent sovereignty and consistent with Congress’ unique obligations to the tribes.

Update on Eastern Band Cherokee Election Dispute

Matthew L.M. Fletcher

Here is the response to the petition:

Response to Petition for Writ of Mandamus

The petition is here.

MSU-E (Emily Proctor): “How VAWA Impacts Tribal Nations in Michigan”

Matthew L.M. Fletcher

Here. H/T Pechanga.

An excerpt:

Each of the 12 federally recognized tribes of Michigan have their own tribal court and social service departments that assist women and families who are in violent situations. Michigan State University Extension continues to work with Michigan tribal nations to address the needs of communities in the area of government and public policy.

For more information, please contact Emily Proctor, MSU Extension educator on tribal nations, with questions or comments at 231-439-8927 or proctor8@anr.msu.edu.

This article was published by Michigan State University Extension. For more information, visit http://www.msue.msu.edu. To contact an expert in your area, visit http://expert.msue.msu.edu, or call 888-MSUE4MI (888-678-3464).

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.”

Interesting Election Challenge at Eastern Band Cherokee

Matthew L.M. Fletcher1 Comment

Here is the petition for a writ of mandamus in the Cherokee Supreme Court:

Petition for a Writ of Mandamus 3262013

The dispute centers around a new election code, of which the parties disagree as to when the next election for Principal Chief will be — in 2013 or 2015.

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.

Appellant’s Brief in Thlopthlocco Tribal Town v. Stidham

Kate Fort1 Comment

This case involves the authority of the Muscogee (Creek) Nation courts’ authority to hear internal government disputes of the Thlopthlocco Tribal Town.

Lower court materials and order of dismissal here.

Appellant’s Brief to the 10th Circuit here.