Here is the complaint in Different Horse v. Salazar — different-horse-v-salazar-complaint — referenced here.
If I were the government, I’d file a Rule 19 motion to dismiss, naming the eight tribes as indispensable sovereigns. 🙂
District of South Dakota
Challenge to Tribal Implementation of SORNA Rejected
The case is United States v. Lafferty, out of the District of South Dakota. The defendant was convicted in Indian Country of a sex crime, and now argues that since the Rosebud Sioux Tribe allegedly has not implemented its sex offender registry system, he should be let off the hook for failing to register. Not so, says the court.
District Court Denies Preliminary Injunction — Oglala Sioux v. C&W Enters.
Indianz reported here. Our previous posting with links to materials is here.
Here is the opinion — dct-order-denying-preliminary-injunction
And the brief filed opposing the injunction from C&W — cw-opposition-to-motion-for-injunction
Flandreau v. South Dakota IGRA Case
Here are the materials in Flandreau Sioux v. South Dakota, out of the District of South Dakota.
flandreau-v-south-dakota-dct-order
south-dakota-motion-to-dismiss
Here is the tribe’s claim:
Yankton Sioux Indian Country Case
Yet another Yankton case involving the fallout from the continuing Podhradsky litigation. This one is captioned Yankton Sioux Tribe Head Start Concerned Parents v. Longview Farms, out of the District of South Dakota. Here is the opinion: yankton-head-start-v-longview-farms-dct-order
An excerpt:
The Tribe does not have regulatory authority over the construction of the farrowing facility by Defendant, a non-Indian entity, because such facility is located on land which is not within reservation boundaries. Any claim by Plaintiffs that Defendant need present the farrowing operation to Yankton Sioux Tribe in accordance with the Article 1, section 1 of the Bylaws or Yankton Sioux Constitution is therefore without merit and must be dismissed.
Oglala Sioux Tribe Wins TRO in Sovereign Immunity Case
The case is Oglala Sioux Tribe v. C&W Enters., on remand to the District of South Dakota from the Eighth Circuit. Here is the order on the TRO — ost-v-cw-dct-order-on-tro
The case involves a contract waiver of immunity through an arbitration clause. Here are the Eighth Circuit materials.
Suit Against Yankton Sioux Tribal Court Dismissed
Here are the materials in Moss v. Bossman, from the District of South Dakota.
An excerpt:
New Sixth Amendment Case Out of Indian Country re: Lay Counsel and Miranda
Here is yet another case holding that the appointment of tribal lay advocates/counsel to defend an Indian in tribal court does not trigger Sixth Amendment protections under Miranda.
cottier-report-and-recommendations
Here is an important footnote in the R&R (n. 4):
There is a split of authority among the circuits as to whether, in cases involving an allegation of a Sixth Amendment violation, the Texas v. Cobb decision incorporates the full panoply of double jeopardy analysis–specifically the dual sovereign analysis–or whether only the Blockburger test applies. This would be of significance where, for example, state and federal officials charged a defendant with offenses having identical elements. If the defendant had already appeared in state court and asserted his Sixth Amendment right to counsel, and federal officials subsequently interrogated the defendant before the institution of federal charges with the same essential elements as the state charges, courts disagree on whether this would constitute a Sixth Amendment violation. See United States v. Coker, 433 F.3d 39, 43 (1st Cir. 2005). The Second Circuit does not apply the dual sovereign analysis to allegations of Sixth Amendment violations. United States v. Mills, 412 F.3d 325 (2d Cir. 2005). The Eighth Circuit is in accord with this approach at least where the other sovereign is an Indian tribe. See Red Bird, 287 F.3d at 715. The First and Fifth Circuits apply the dual sovereign analysis to Sixth Amendment violations. See Coker, 433 F.3d at 43; United States v. Avants, 278 F.3d 510 (5th Cir. 2002).
U.S. v. Perez — Sixth Amendment Right to Counsel when Tribe Appoints Lay Advocate Defender
Here are the materials in U.S. v. Perez:
dct-order-denying-perez-motion-to-suppress
The interesting excerpt from the district court’s denial of the motion is here:
After a careful review of the parties’ arguments, the facts, and relevant caselaw, the court adopts the magistrate judge’s recommendation and finds that Perez’s Sixth Amendment right to counsel was not violated. While Perez is correct that United States v. Red Bird, 287 F.3d 709 (8th Cir. 2002), would likely require this court to find a Sixth Amendment violation if he had been represented by an attorney on his tribal charges, the court agrees with Magistrate Judge Duffy and other judges in the District of South Dakota that Red Bird is distinguishable when it is lay counsel, not an attorney, who represented the defendant in tribal court. Red Bird, 287 F.3d at 716; see also Docket 54, page 25-27; United States v. Tools, CR 07-30109-01-KES, 2008 U.S. Dist. LEXIS 49490 (D.S.D. June 27, 2008); United States v. Killeaney, 2007 U.S. Dist. LEXIS 92763, 2007 WL 4459348, *5-*8 (D.S.D. Dec. 17, 2007) (stating that “[t]here is a clear distinction between licensed legal counsel and lay representation under the Sixth Amendment” and concluding that “the appointment of ‘counsel’ pursuant to the Rosebud Constitution does not in all circumstances cause Sixth Amendment protections to attach” when that “counsel” is lay counsel); United States v. Dupris, 2006 DSD 4, 422 F. Supp. 2d 1061, 1068 (D.S.D. 2006); see also United States v. Whitefeather, 2006 U.S. Dist. LEXIS 17237, 2006 WL 763204, *2 (D. Minn. Mar. 24, 2006). Because Perez’s Sixth Amendment right to counsel had not “attached” as discussed in McNeil, statements made during Agent Cresalia’s conversation with Perez on January 11, 2008, are admissible. Perez’s motion is denied.
Lending Discrimination Complaint against Wells Fargo Survives Summary Judgment
Here is the opinion in Torgerson v. Wells Fargo — dct-order-torgerson-v-wells-fargo-summary-judgment-denied
And here is our post with the complaint and an earlier opinion in the matter.
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