Eighth Circuit

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

Kate 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

Eighth Circuit Briefs in Sisseton-Wahpeton Effort to Save Burial Mounds

Matthew L.M. Fletcher1 Comment

Here are the materials in Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. United States Corps of Engineers:

Opening Brief

Federal Answer Brief

Reply

Lower court materials here.

Eighth Circuit Holds in Criminal Jurisdiction Matter Red Lake Reservation Not Diminished by 1905 Act

Matthew L.M. Fletcher

Here are the materials in United States v. Jackson:

Opinion

Appellant Brief

US Brief

Red Lake Amicus Brief

Reply Brief

Prior opinion in this case here.

Order Denying Stay Pending Appeal in Oglala Sioux v. Fleming (Van Hunnik)

Sarah M Donnelly

Download(PDF): Doc. 332 – Order (2/9/2017)

Link: Previous posts

Eighth Circuit Affirms Major Crimes Act Child Abuse Conviction

Matthew L.M. Fletcher

Here is the opinion in United States v. White Plume.

Eighth Circuit Rejects Challenge to North Dakota Jury Selection Process (No Native Jurors, Usually)

Matthew L.M. Fletcher

Here is the opinion in United States v. Garcia.

The syllabus:

Defendant failed to avail himself of the 
   right to inspect jury selection records, and the district court did not 
   err in failing to order sua sponte that those records be made available to 
   him; claim that the jury did not represent a fair cross section of the 
   community and that the jury selection process used by the district court 
   improperly excluded Native Americans from the venire is rejected; this 
   court has previously upheld North Dakota's jury selection plan, which 
   draws its pools of prospective jurors randomly from lists of persons who 
   voted in the last presidential election; jury administrator's testimony 
   that there were not usually one or two Native Americans on the potential 
   jury panel did not constitute a prima facie showing that Native Americans 
   have been substantially under-represented on venires over a significant 
   period of time.

 

Eighth Circuit Holds New Town is “Indian Country”

Matthew L.M. Fletcher

Here is the opinion in United States v. Bear.

The court’s syllabus:

Defendant's argument that New Town, where his 
   crime occurred, is not part of the Fort Berthold Reservation is rejected, 
   and the district court did not err in determining that defendant was 
   properly subject to federal prosecution.

Eighth Circuit Materials in Challenge to Tribal Court Jurisdiction over Trust Land Minerals Royalties

Matthew L.M. Fletcher1 Comment

Here are the materials in Enerplus Resources (USA) Corporation v. Wilkinson:

Appellant Brief

Appellee Brief

District of North Dakota materials:

4 Enerplus Motion for PI

10 Wilkinson Opposition

10-3 MHA Nation SCT Opinion

19 Enerplus Response

48 DCT Order

Eighth Circuit Rejects Employment Discrimination Claim against Shakopee

Matthew L.M. Fletcher

Here is the unpublished order in Nawls v. Shakopee Mdewakanton Sioux Community Gaming Enterprise – Mystic Lake Casino.

Briefs here:

nawls-brief

shakopee-brief

reply-brief

Eighth Circuit Affirms Major Crimes Act Conviction; Judge Bright Dissents on Race Discrepancy in Sentencing Issue

Matthew L.M. Fletcher

Here is the opinion in United States v. Lasley.

Briefs:

Lasley Brief

US Brief

An excerpt from Judge Bright’s dissent:

I write to protest the sentencing disparity in this case and the heavy disparity in sentences for other similarly-situated individuals based purely on their race and residence. Appellant-defendant Gordon Lasley (Lasley), an Indian and twenty-six-years old at the time of sentencing, will spend the rest of his life in prison for a conviction of two counts of second-degree murder, but a sentence imposed as though the conviction was for two counts of first-degree murder. This result comes about because our precedent: (1) purports to allow the imposition of the federal sentencing regime to cases under the Major Crimes Act, 18 U.S.C. § 1153 without consideration of sentences imposed and actual time served for similar state-law crimes; and (2) authorizes federal district courts to find a defendant committed a greater offense for the purpose of sentencing when a jury expressly convicts a defendant of the lesser-included offense. The consequence of both precedents is a high probability Lasley will serve a longer sentence than a white citizen because Lasley is an Indian who committed a crime in Indian Country. This disparity resting on Lasley’s status as an Indian is unjust, unfair, and improper for the reasons set forth herein. Thus, Lasley’s sentence should be reversed and remanded.