District of Utah

Federal Court Declines to Dismiss Charges in Indian Artifact Theft Case

Matthew L.M. Fletcher

Here is the opinion on a motion to dismiss in United States v. Smith (D. Utah): US v Smith DCT Order.

An excerpt:

Based on the differences in these statutes, the Court finds the indictment is not multiplicitous. Each charge would require the government to prove an element that is not required in the others. As set forth above, ARPA requires a showing that the item is an archeological resource, that it is over 100 years old, and that its value is more than $500. Under Section 641, the government must show that the property was government property and had a value of over $1,000. Similarly, under Section 1163, the government must show the property belonged to an “Indian tribal organization” and had a value in excess of $1,000. Therefore, because each count requires proof of something the others do not, the indictment is not multiplicitous and the Motion will be denied.

However, even if the Court did find the indictment to be multiplicitous, the government is correct that the discretion in choosing which charge to pursue rests with it. In Jones, the Forest Service officers observed the defendants “digging in Indian ruins located on the federal government land.” The defendants were charged under a general theft statute covered by 18 U.S.C. § 641. The defendants sought to have the charge dismissed, arguing that Congress intended the Antiquities Act to be the only means of prosecuting that type of conduct. The Ninth Circuit rejected this argument stating, “[t]he rule we apply is straightforward: where an act violates more than one statute, the Government may elect to prosecute under either unless the congressional history indicates that Congress intended to disallow the use of the more general statute.” As a result, “[w]here the statute applies to the conduct in question and there is no affirmative evidence that Congress intended to limit the application of the more general statute, the prosecutor is free to elect to prosecute under either.” Because the Court has already found there is no clear Congressional intent, the government is not barred from bringing simultaneous charges based on the three statutes.

Ute Distribution Corp. Wins Case over Amendments to Articles of Incorporation

Matthew L.M. Fletcher

Here: Ute Indian Tribe v. Ute Distribution Corp.

Utah Federal Court Denies Motion to Immediately Return Cherokee Child to Family

Matthew L.M. Fletcher

Earlier, we posted the district court order in In re C.D.K., invalidating the adoption of a Cherokee child. Here is an update — the court has denied the motion to return the child, as well as motions from the respondents to stay the order. Instead, the court denied that continuing jurisdiction exists, and ended the matter altogether. In re CDK Order on Writ of Enforcement

An excerpt:

This matter is before the Court on Petitioner’s Motion for Writ of Execution and Motion to Expedite a Hearing on the Return of Custody, and on Respondents’ Motion for Stay of Execution Pending Appeal and Approval of Supersedeas Bond. Petitioner, in her Motion for Writ, requests that her biological child, C.D.K., be returned to her immediately, pursuant to her reading of the Court’s June 4, 2009 Order granting Summary Judgment. Petitioner also requests, in her Motion to Expedite, that the Court hold a hearing to determine return of custody. Respondents request a stay of execution pending their appeal to the Tenth Circuit. Because the Court finds that it has no further jurisdiction in this case, and because the Court’s previous orders do not provide sufficient grounds for immediate return of C.D.K. to Petitioner, the Court will deny Petitioner’s Motions. Because the Court does not believe that Respondents are entitled to an injunction of state court proceedings pending appeal, the Court will deny Respondents’ Motion, as well.

Indictments in Grave Robbing Cases

Matthew L.M. Fletcher

Here are two of the indictments in the grave robbing cases reported on Indianz and the NYTs — US v Patterson Indictment 1 and US v Patterson Indictment 2.

Utah Federal Court Invalidates Adoption of Cherokee Child for Violation of ICWA

Matthew L.M. Fletcher

Here is the unpublished, so far, opinion in the Matter of C.D.K. (D. Utah): In re CDK DCT Order

An excerpt:

The Court notes with some frustration that Petitioner or Intervenor could have greatly simplified the present inquiry by providing, at any point, documentary evidence that J.G.’s and E.G.’s mothers were original enrollees, listed as members of the Cherokee Nation on the Dawes Rolls. However, there is indirect evidence that J.G. and E.G. were both full-blooded Cherokee, indicating that their mothers would have been eligible for enrollment at the time that the Dawes Rolls were being compiled. The Court, therefore, finds that no reasonable factfinder could conclude that C.D.K. is anything other than a direct descendant of an original enrollee of the Cherokee Nation and that C.D.K. was a member of the Cherokee Nation, pursuant to the Membership Act, at the time of the Relinquishment Hearing. Therefore, C.D.K. was an Indian Child and the procedural requirements of the ICWA are applicable to the Relinquishment Hearing. Because the parties agree that the procedural requirements of the ICWA were not fully complied with, the adoption of C.D.K. by Respondents must be invalidated, pursuant to 25 U.S.C. § 1914.

Pelt v. Utah — Navajo Trust Fund Court Order on State’s Affirmative Defenses

Matthew L.M. Fletcher

Here is the opinion in this ongoing case — dct-order-on-states-affirmative-defenses

An excerpt:

For reasons set forth below, the court vacates the 1999 Order because the State of Utah adequately pleaded the affirmative defenses of laches and statute of limitations in its Answer, which should not have been dismissed on a motion for judgment on the pleadings. But, because both defenses fail as a matter of law and fact, Plaintiffs’ Motion for Summary Judgment 2 is GRANTED and the State’s laches and statute of limitations defenses are dismissed with prejudice on the merits.

Stevens v. McClellan — Fake Indian Tribes Again

Matthew L.M. Fletcher

Yet another claim brought by Dale Stevens and the fake Indian tribe Wampanoag Nation, Tribe of Grayhead, Wolf Band, properly dismissed by the federal district court. Below is the magistrate judge’s report and recommentation, adopted by the district court on Nov. 20.

stevens-v-mcclellan

Indian Country Murder Case: Miranda Waiver of Ute-Speaking Suspect

Matthew L.M. Fletcher

Here is the district court’s order on a motion to suppress statements made by a Ute Indian during a murder investigation.

us-v-dutchie-dct-order

Mixed-Blood Utes Water Rights Found Terminated

Matthew L.M. Fletcher

In Ute Distribution Corp. v. Secretary of Interior, the federal district court in Utah affirmed the Secretary’s decision that the water rights of the mixed-blood (terminated) Utes could be and had been distributed. From the opinion:

For the foregoing reasons, the Court finds that the tribal reserved water rights of the Ute Indian Tribe were both an asset susceptible to equitable and practicable distribution in 1961 and were in fact divided. Although the Court finds that the Secretary’s recent decisions are within the statutory authority provided under the UPA and is thus entitled to deference, under either standard of review, whether it be de novo or arbitrary and capricious, the conclusion is the same. The Secretary’s decision is AFFIRMED.

Slip op. at

dct-opinion

federal-tribal-motion-to-dismiss

udc-opposition-to-motion-to-dismiss

us-tribal-reply-brief

Rule 11 Candidate for the Day – MacArthur v. San Juan County

Matthew L.M. Fletcher1 Comment

In the long-running MacArthur v. San Juan County case, the plaintiffs have filed a motion to reconsider in the district court. That’s not the candidate for a Rule 11 sanction. The response to that motion is. It’s captioned “San Juan County Defendants’ Memorandum Opposing Plaintiffs’ Latest But Not Last Motion to Reconsider.” (emphasis added). But that’s not all. The argument portion of the “brief” includes nothing but a quotation from the King James’ Version of the Bible. Huh?!?!

macarthur-v-san-juan-county-defendants-brief

It reminds me of something a very angry person would email in the middle of the night before they’ve had a chance to collect their thoughts and rethink their position with a calmer mind.