Eighth Circuit – Page 10

A misdemeanant like Michael Long is forbidden to possess a firearm only if he was “represented by counsel in the case” in which he sustained the misdemeanor conviction, or if he “waived the right to counsel in the case.” 18 U.S.C. § 921(a)(33)(B)(i)(I). It is undisputed that Long did not waive the right to counsel and that he was not represented by a lawyer in the case. The court concludes, however, that because Long was represented in the case by a nonlawyer, dubbed a “lay counsel” by the Rosebud Sioux Tribe, he was “represented by counsel in the case.” I believe that this conclusion is inconsistent with the meaning of the word “counsel” in the statute, so I would reverse Long’s conviction for possession of a firearm as a prohibited person.

Eighth Circuit Vacates Sentence in United States v. Spotted Horse

August 11, 2017Matthew L.M. Fletcher

Here.

Eighth Circuit Enjoins Pursuit of Tribal Remedies in Minerals Royalties Dispute

August 2, 2017Matthew L.M. Fletcher1 Comment

Here is the opinion in Enerplus Resources (USA) Corporation v. Wilkinson.

Materials here.

Have Any Indians Served on a Federal Criminal Jury, Ever?

July 28, 2017Matthew L.M. Fletcher1 Comment

Three Indians were struck from the jury during voir dire in United States v. Harding, including one who was struck because he was struck in a prior case. And that’s okay under federal law, apparently:

The prosecutor gave these reasons for the strikes: He said that Lacroix worked with Harding at Dakota Paneling, where Lacroix was a supervisor, and that Lacroix knew Harding. He stated that Cottier was a registered nurse and was a member of a venire in the recent case of United States v. High Wolf. In response to questions from the court, the prosecutor clarified that Cottier had been excused from service in High Wolf, and that the prosecutor was drawing on Cottier’s responses during voir dire in the past.

Eighth Circuit Affirms Major Crimes Act DV/Sexual Assault Conviction

June 29, 2017June 29, 2017Matthew L.M. Fletcher

Here is the opinion in United States v. Johnson.

Oglala Sioux v. Fleming Update and Briefs in the Eighth Circuit

June 12, 2017June 20, 2017Kate Fort1 Comment

Oglala Sioux v. Fleming (previously Van Hunnik) is the class action suit initiated by the Oglala Sioux and Rosebud Sioux Tribes and the ACLU/Stephen Pevar arguing that Pennington County, SD is violating the due process rights and ICWA rights of Indian families. The case is complex and on-going. Since the suit was originally filed in 2013, the tribes and individual tribal members represented in the class have strung together a series of compelling district court orders in their favor. Recently, the state appealed those orders to the Eighth Circuit. You can find those orders, and some of the briefing collected here.

Here is the current briefing in the Eighth Circuit:

Appellant Brief–Vargo (March 24, 2017)

Appellant Brief–Fleming and Valenti, DSS (March 24, 2017)

Appellant Brief–Pfeifle (March 30, 2017)

Appellee Brief–Oglala Sioux and Rosebud Sioux

Tribal Amici Curiae Brief