Here. The actual rule starts at 81 Fed. Reg. 38864.
Also, now word searchable and only 100 pages (well, with three columns on each page and a font size that makes me happy I finally got reading glasses).
Two Shields En Banc Petition
Here is the en banc petition in Two Shields v. United States (Fed. Cir.):
Panel materials here.
Takeaways from the Bryant Decision
As observers might have predicted from the oral argument in United States v. Bryant (opinion here), the government’s victory was not surprising. Of course, even a few years ago, this outcome was far from a foregone conclusion, as the 2005 Canby-Washburn-Sands debates in the Federal Sentencing Reporter suggested.
A few takeaways:
1. Remarkable that the Court heaps some of the blame on states for failure to prosecute DV offenses in Indian country, citing to the now-mammoth studies supporting what people in PL280 states have been saying for more than a half-century:
Even when capable of exercising jurisdiction, however, States have not devoted their limited criminal justice resources to crimes committed in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–1637 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7–8 (2007)…. [slip op. at 5]
2. We all know it’s coming — the constitutional challenge to VAWA’s tribal jurisdictional provisions:
In the Violence Against Women Reauthorization Act of 2013, Congress amended ICRA to authorize tribal courts to “exercise special domestic violence criminal jurisdiction” over certain domestic violence offenses committed by a non-Indian against an Indian. Pub. L. 113–4, §904, 127 Stat. 120–122 (codified at 25 U. S. C. §1304). Tribal courts’ exercise of this jurisdiction requires procedural safeguards similar to those required for imposing on Indian defendants sentences in excess of one year, including the unqualified right of an indigent defendant to appointed counsel. See §1304(d). We express no view on the validity of those provisions. [slip op. at 4 n. 4]
3. As is true most of the time, the Court does not acknowledge the disconnect between the terrible rates of crime in Indian country with the lack of effective law enforcement in Indian country, a reality created by Congress and made worse by the Court itself over the decades. Compare:
“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” [slip op. at 2]
With:
That leaves the Federal Government. * * * As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of §117(a), faced at most a year’s imprisonment per offense—a sentence insufficient to deter repeated and escalating abuse. To ratchet up the punishment of serial offenders, Congress created the federal felony offense of domestic assault in Indian country by a habitual offender. [slip op. at 5, 6]
And:
[Bryant] has a record of over 100 tribal-court convictions, including several misdemeanor convictions for domestic assault. Specifically, between 1997 and 2007, Bryant pleaded guilty on at least five occasions in Northern Cheyenne Tribal Court to committing domestic abuse in violation of the Northern Cheyenne Tribal Code. [slip op. at 10]
The feds already don’t have the capacity to prosecute all the repeat DV offenders who are Indians like Bryant, then add in the non-Indians — there’s a problem that 117(a) doesn’t fix.
3. Tribal criminal convictions on Indians in compliance with the Indian Civil Rights Act are all right for Congress, and therefore okay for the Supreme Court:
Proceedings in compliance with ICRA, Congress determined, and we agree, sufficiently ensure the reliability of tribal-court convictions. [slip op. at 16]
Let’s hope that statement applies to non-Indians, too.
4. Tribes start funding those criminal defender offices!!!!! This Lakota woman spent two months in jail because she couldn’t pay a $250 bond, let alone afford an attorney:
Angie told me that she had bought, not sold, marijuana that day. She should have been charged only with possession. She had pleaded not guilty at her arraignment, during which she had no representation. But because of the severity of her alleged crime — selling drugs to a minor — her bond was set at $250. Unable to pay, Angie was expected to sit in jail for the full two months until her next scheduled court appearance.
Indian country talks about taking care of kids and talks about changing the criminal justice system into a system of restorative justice, well, this doesn’t look it it to me.
Chronicle of Social Change Article on Native Foster Home(s) in L.A.
Here.
In 1978, Congress passed the Indian Child Welfare Act (ICWA), which was meant to keep Native American families together, after foster care and adoption practices had seen thousands of Native children taken from their families, ancestral lands and culture to be placed in non-native homes. That law created a system of “preferred placements” for Native children who enter care. The first choice is to place children with family members, followed by members of the same tribe and finally Native foster parents from other tribes. The last resort is placement in non-native homes.
But the federal government has never compelled states to share how well they satisfy that “preference,” leaving little or no data to indicate who is doing a good job placing Native children in Native homes.
The reporting that does exist is spotty at best.
In 2005, the United States Government Accountability Office (GAO) surveyed all 50 states and Washington D.C. about their ability to identify Native children in the system who were subject to ICWA in 2003.
“Only five states—Oklahoma, Oregon, Rhode Island, South Dakota, and Washington—were able to provide these data,” according the GAO report.
It doesn’t appear that reporting on ICWA compliance improved much in the subsequent years.
In 2015, Casey Family Programs, one of the largest charitable foundations in all of child welfare, tried to ascertain ICWA compliance in a brief entitled “Measuring Compliance with the Indian Child Welfare Act.”
“Although cross-jurisdictional and collaborative efforts are emerging, compliance measurement remains characterized by relatively small, idiosyncratic efforts,” the thin report reads. “Empirical study results are scattered, inconsistent, and highly specific to the state and jurisdiction being examined.”
Ninth Circuit Rules against Testimony Submitted on Historical Trauma to Show Navajo Defendant was Coerced into Confessing
Here is the unpublished opinion in United States v. Woody.
An excerpt:
The district court’s factual findings regarding “historical trauma” and the impact of Native American culture on the voluntariness of Woody’s statements were clearly erroneous. A “‘finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). Here, the district court relied on expert testimony from Dr. David McIntyre, who opined that Native Americans are susceptible to coercion during questioning because of cultural differences and “historical trauma.” Yet during crossexamination, Dr. McIntyre acknowledged that his “very broad generalizations about Native Americans” could not be attributed to Woody specifically and conceded that Woody had not been diagnosed with historical trauma because “[t]here is no such diagnosis.” Because these characteristics could not be attributed to Woody individually, the district court erred in relying on them to support its finding that Woody’s will had been overborne.
Briefs:
The Dark Side of the Bryant Victory
From the Marshall Project, “Poor on a Native American Reservation? Good Luck Getting a Lawyer.”
Commentary on the Native American Children’s Safety Act
Last week, the Department of the Interior published final regulations implementing the Indian Child Welfare Act, along with a legal opinion from the Solicitor of the Department of the Interior regarding the authority to issue such regulations. The Department’s regulations, and the accompanying legal opinion, garnered a lot of attention across Indian country and Indian child welfare advocates, and may prove to be the capstone on the Administration’s work for Native children.
However, last week the President also signed of the “Native American Children’s Safety Act” (S.184 or “NACSA”). NACSA amended 25 U.S.C. § 3207 – requiring character investigations for certain individuals who have regular contact with Indian children.
As its title suggests, NACSA is intended to protect Indian children in tribal foster care by doing several things:
- Prohibiting child placement in foster care, or licensing foster homes, unless the tribe has completed a criminal background check on each individual residing in the foster home and certified that each of those individuals meets the requirements of the statute;
- Requiring tribes to adopt placement standards in accordance with the statute;
- Requiring tribes to recertify existing foster homes to ensure that they meet the new standards required under the statute; and,
- Requiring the Department of the Interior to issue guidance on appropriate placement standards (and subjecting tribal standards to the Department’s guidance).
Given its subject matter and intent, NACSA moved through Congress with little opposition and broad support. But, the details of the statute’s mandates seem to have caught a number of tribal courts and social services agencies off-guard. Some tribal judges (including one of the authors of this post), tribal social services agencies, and Indian child welfare advocates are concerned about unintended consequences that could flow from the mandates in this new law. Those mandates include the following:
- Tribal courts and agencies are required to conduct fingerprint-based checks of national crime databases, as well as checks of state abuse and neglect databases in every state where any adult in the foster home resided for the past five years.
- If those checks reveal that any adult in the home has been convicted of a felony in any federal, state, or tribal court for crimes listed in 42 U.S.C. § 671(a)(20)(A)(i) or (ii), tribal courts and agencies are prohibited from placing children in the foster home. Those crimes are a host of felonies, but also include “drug-related offenses.” Because the statute makes a cross-reference rather than specifically enumerating the crimes, it’s not clear whether the five-year limit in the referenced statute carries over as a limit on this provision.
- The Department of the Interior is required to issue “guidance” sometime in the next two years that is binding on Indian tribes regarding placement standards. That guidance must address “self reporting requirements” for the head of the household if he/she knows that another adult in the house is listed on any tribal or state abuse registry, or has been convicted of any of the crimes listed above.
While well intended, these provisions will leave tribal foster care agencies and tribal courts without any discretion to certify foster homes and make placements within their communities. It is likely to further limit the availability of eligible foster homes in tribal communities.
As people across Indian country know, many households on the reservation include temporary residents – including extended family members, adult children, family friends, or other community members in need. A member of the household may have gone through the tribe’s healing to wellness court. NACSA does not leave tribal agencies much flexibility to account for these homes or living arrangements. Where tribal courts and agencies previously had discretion to make those judgment calls, NACSA removes that discretion. Any adult living in the home with a prior drug-related offense may automatically disqualify that home from being approved as a foster care placement.
In addition, NACSA requires the Department of the Interior to issue binding guidance on implementation of the statute, including procedures for “self-reporting” by the head of the household if he/she has knowledge that any other adult in the home was convicted of a crime listed above. Tribes will be required to enforce this mandate, but it is unclear how.
NACSA’s mandate that tribes conduct background checks on state databases presumes that state agencies will cooperate with tribal agencies in their efforts to conduct such searches. The statute does not provide Indian tribes with any legal tools, other than the authority to enter into “voluntary agreements with State entities,” to require such cooperation. It is not difficult to imagine a scenario in which state agencies are uncooperative in conducting those searches, thus slowing down foster care placement in Indian country. It is one thing for a tribe to have solid relationships with a local county or even the state—it is quite another to have to reach out to every state where an individual lived in the past five years (let’s say, Ohio, for example) for cooperation.
Perhaps most importantly, NACSA does not provide tribal courts and social services agencies with any additional resources to carry out these new mandates. The courts and agencies with the least amount of resources will now have to spend more money to remain in compliance with federal law. Failure to remain in compliance with these new mandates will likely jeopardize the already meager federal funds that flow into tribal courts and child welfare agencies.
None of this is to say tribal judges or social services agencies don’t have an interest in making sure that foster children are placed in safe homes, or that the proponents of NACSA had bad intentions. As a tribal court judge and ICWA advocate, we applaud the fact that Congress and policy makers care about the importance of safe foster homes in Indian country.
But NACSA may turn out to be a law with drastic unintended consequences (we hope not). This statute could benefit from some amendments to allow tribal courts and agencies to have more discretion to solve problems at the local level, as well as authorization of funding to help tribes meet these new requirements. Absent those amendments, the Department of the Interior must work closely with tribal judges and social services workers to ensure that the law is implemented in a way that prevents unintended consequences.
Tenth Circuit Affirms Major Crimes Act Conviction arising at Navajo (Church Rock)
Here is the opinion in United States v. Singer.
New Volume of UCLA Law School’s Indigenous Peoples’ Journal of Law, Culture & Resistance
Here:
Distant Thunder
Walden, Dawn Nichols
What Then Remains of the Sovereignty of the Indians? The Significance of Social Closure and Ambivalence in Dollar General v. Mississippi Choctaw
Beardall, Theresa Rocha; Escobar, Raquel
Gallery
Church, Kelly
Creating a Culture of Traffic Safety on Reservation Roads: Tribal Law & Order Codes and Data-Driven Planning
Hill, Margo L.; Myers, Christine S.
Crickets
Locklear, Lydia
SCOTUS Decides U.S. v. Bryant — Tribal Court Convictions May Be Used
Here is the opinion in United States v. Bryant.
From the syllabus:
Because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution.
Background materials, briefs, etc. here.
Turtle Talk 
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