Yet Another Cert Petition: Indian Country Crime, Lesser-Included Offense Instruction

Here is the petition in Decker v. United States:

Decker Cert Petition

Question presented:

In a prosecution under 18 U.S.C. §2241, for “aggravated sexual abuse by an Indian in Indian territory,” occurring in Battle Mountain, Nevada, where a victim testifies to unconsented sexual penetration and the defendant denies any sexual contact; and a Nevada case, Crawford v. State, 107 Nev. 345, 351, 811 P.2d 67, 70-71 (1991), mandates that the giving of an attempted sexual assault jury instruction under those circumstances constitutes reversible error; does the Assimilated Crimes Act, 18 U.S.C. § 13(a), or 18 U.S.C. § 1153(b) mandate that federal courts are constrained to follow Crawford and either not give the attempt instruction or be reversed if they do?
The question of whether case law viz. state substantive lesser-included offenses must be assimilated into a prosecution where the state case law prohibits the giving of the instruction, was not addressed either in Keeble v. United States, 412 U.S. 205 (1973) or in Lewis v. United States, 523 U.S. 155 (1998); and United States v. Walkingeagle, 974 F.2d 551 (4th Cir. 1992), cert. denied, 507 U.S. 1019 (1993) presents both sides of the issue. Is the Walkingeagle dissent correct as a matter of law?

Federal Court Dismisses Federal Assault Indictment — Denies Effort to Assimilate State Law

Here is the opinion in United States v. Kydney (D. Neb.):

DCT Order Dismissing Count I of Indictment

An excerpt:

Even if the threatened crime of violence were simple assault under federal law, the same analysis would hold true. The Nebraska third-degree assault crime is the statutory corollary to the common-law crime of simple assault. Under both Nebraska and Federal law, simple assault is a misdemeanor and the elements are similar.

Tenth Circuit Affirms Dismissal of Suit against Kiowa Court of Indian Offenses

The plaintiff wanted the CIO to enjoin his state court prosecution for violation of anti-cockfighting statutes. Here are the materials in Turner v. McGee:

Turner Opening Brief

CIO Motion to Dismiss

Turner Reply

And the briefs after the CA10 appointed counsel for Turner:

Turner Supplemental Brief

CIO Supplemental Brief

And the Tenth Circuit’s opinion.

A related cockfighting case out of the Tenth Circuit, United States v. Langford, holding federal courts had no jurisdiction.

Tenth Circuit: Fed. Courts Have No Jurisdiction over Non-Indian, Victimless Crime in Indian Country

Here is the opinion in United States v. Langford.

All this despite language in the Oklahoma Constitution appearing to disclaim state jurisdiction over crimes like these:

Although the McBratney line of cases establishes that the states, not the federal government, possess exclusive jurisdiction over non-Indian perpetrators of victimless crimes, the Oklahoma Constitution appears to disclaim any state jurisdiction over crimes committed in Indian country.  Article I, Section 3 of the Oklahoma Constitution provides: The people inhabiting the State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public land shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United States. Notwithstanding the plain text, the Oklahoma courts have construed this provision “to disclaim jurisdiction over Indian lands only to the extent that the federal government claimed jurisdiction.”  Goforth v. State, 644 P.2d. 114, 116 (Okla. Crim. App. 1982) (citing Currey v. Corp. Comm’n, 617 P.2d 177 (Okla. 1979)).  As the Oklahoma Court of Criminal Appeals observed in Goforth, to construe this provision otherwise would result in a jurisdictional vacuum in which neither the federal government (due to McBratney) nor Oklahoma could punish crimes committed by non-Indians against non-Indians in Indian country.  Consequently, the Oklahoma courts have asserted jurisdiction over crimes by non-Indians in Indian country.  See Goforth, 644 P.2d at 117.

Here are the briefs:

Langford Opening Brief

US Answer Brief (Langford)

Langford Reply

Lower Court Record


Federal Court Decision re: Interaction of Indian Country Crimes and State Law

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

Lesmeister Brief

US Appellee Brief

Lesmeister Reply

DCT Order Affirming Lesmeister Conviction

Federal Court Upholds Indian Country Crimes Act Conviction but Holds State Law Punishments Control

Here is the opinion in United States v. Langford (us-v-langford-dct-opinion), and its companion case, United States v. McHone (us-v-mchone-dct-opinion), out of the Western District of Oklahoma. The claimant, a non-Indian prosecuted under the Indian Country Crimes Act and the Assimilative Crimes Act, unsuccessfully argued that the federal court had no criminal jurisdiction over him (the underlying crime was cock-fighting, illegal under Oklahoma law).

However, the court also held that the magistrate judge erred in sentencing the defendant to a fine larger than that allowable under Oklahoma law.

Finally, the court dropped an interesting footnote in the Langford opinion:

In his brief, defendant asserts that pursuant to the Indian Civil Rights Act, he is entitled to all rights afforded to tribal members. The Indian Civil Rights Act, however, undertakes to single out the more important civil rights contained in the United States Constitution and to make those applicable to tribal members. See Martinez v. Santa Clara Pueblo, 540 F.2d 1039, 1042 (10th Cir.1976). Because defendant is not a tribal member, the Court finds the Indian Civil Rights Act is inapplicable in this case.

The citation is to the Martinez panel opinion, not the Supreme Court opinion. I wonder if other circuits have found the same.