Eighth Circuit

Federal Defender Positioning United States v. Drapeau to Force Circuit Split over Use of Prior Uncounseled Tribal Court Convictions in Federal Sentencing Enhancement

Matthew L.M. Fletcher

Here are the briefs in United States v. Drapeau:

Drapeau Opening Brief

US Appellee Brief

Drapeau Reply

An excerpt:

Santana Drapeau was convicted of two counts of domestic assault by an habitual offender. In support of those charges the United States offered evidence of Drapeau’s three prior domestic abuse convictions in Crow Creek Tribal Court. In each instance Drapeau entered a no contest plea; in two of the three he did so without a lawyer. Over Drapeau’s objection under Federal Rules of Evidence 402, 403, and 404, the District Court admitted testimony about the underlying facts giving rise to those convictions. The District Court admitted that evidence based on a flawed understanding of whether the court or the jury decided what was a qualifying predicate offense under 18 U.S.C. § 117.
The District Court denied Drapeau’s motion for judgment of acquittal based on the use of no contest pleas obtained without counsel as qualifying predicate offenses. Drapeau acknowledges that this issue is controlled by United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 2011), but presents it here in order to preserve it for review by this Court en banc and through petition for writ of certiorari.

We’ve commented on this issue extensively here and here. Right now, there is no circuit split as both the Eighth and Tenth Circuits have allowed use of the tribal court convictions under 18 U.S.C. § 117, a habitual offender statute. The cases are Cavanaugh and Shavanaux. There’s a Ninth Circuit case from the 1980s — United States v. Ant (882_F.2d_1389) — that is in disagreement with these cases but in a different context (confessions).

Ah, there is a clean split that I forgot about! United States v. Bryant in the CA9.

A case worthy of watching.

I wrote a short paper about these issues more generally a while back: Sovereign Comity

Eighth Circuit Holds Suit against South Dakota Police Officer for Shooting Indian Suspect in the Back May Proceed

Matthew L.M. Fletcher1 Comment

Here is the opinion in Capps v. Olson.

An excerpt:

Sheriff’s Deputy David Olson shot and killed Christopher Capps (Capps).
Capps’s parents, Jerry and Jaylene Capps, sued Deputy Olson for using excessive
force against their son in violation of 42 U.S.C. § 1983. Deputy Olson alleges Capps
was charging towards him with a weapon at the time of the shooting. Capps’s parents allege Deputy Olson shot Capps in the back when Capps was unarmed. Deputy
Olson moved for summary judgment based on qualified immunity. The district court1
denied Deputy Olson’s motion, holding that outstanding questions of fact precluded
a grant of qualified immunity. For the reasons stated below, we affirm.

  

Eighth Circuit Holds Lacey Act Does Not Bar Minnesota Chippewa Tribe Members from Fishing on Leech Lake Reservation

Matthew L.M. Fletcher

Here is the opinion in United States v. Brown.

An excerpt:

Appellees Michael Brown, Jerry Reyes, Marc Lyons, and Frederick Tibbetts were indicted under the Lacey Act which makes it unlawful to “sell . . . any fish . . . taken, possessed, transported, or sold in violation of . . . any Indian tribal law.” 16 U.S.C. § 3372(a)(1). The indictments alleged that appellees had netted fish for commercial purposes within the boundaries of the Leech Lake Reservation in violation of the Leech Lake Conservation Code, then sold the fish. Appellees are Chippewa Indians, and they moved to dismiss the indictments on the ground that their prosecution violates fishing rights reserved under the 1837 Treaty between the United States and the Chippewa. The district court granted the motions to dismiss. The 1 United States appeals, arguing that its application of the Lacey Act did not infringe on appellees’ fishing rights. We affirm.

Briefs:

US Opening Brief

Appellees Brief

US Reply Brief

Lower court materials here

Eighth Circuit Affirms Major Crimes Act Convictions; Rejects “Indian Status” Claim

Matthew L.M. Fletcher1 Comment

Here is the opinion in United States v. Martin.

Briefs:

Martin Brief

US Brief

Martin Reply

Eighth Circuit Affirms Dismissal of Shakopee Tribal Member’s Prisoner Rights Claim

Matthew L.M. Fletcher

Here is the opinion in Brooks v. Roy.

An excerpt:

According to Brooks, he was placed into a 12-step program at New Dimensions because there is no alternative program at MCF-Faribault for those of a Native American faith. He says that the program “conflicts with his Native American religious faith” because it forces him to “profess beliefs that are inconsistent with his faith, which he does not wish to do.” Brooks does not, however, specify his religion or allege which principles of his religion are compromised or unaccommodated at MCF-Faribault. Instead, he requests to participate in what he asserts is a culturally appropriate treatment program available at the Mash-ka-wisen treatment center in Sawyer, Minnesota, which is 191 miles north of MCF-Faribault. Brooks says the defendants denied his request, and he appealed their decision until, he alleges, he had exhausted his administrative remedies.

Briefs:

Appellant Brief

Appellee Brief

Reply Brief

 

Eighth Circuit Affirms General Crimes Act Conviction

Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. Bear Runner.

Eighth Circuit Rules Omaha Indian Reservation Not Diminished

Matthew L.M. Fletcher3 Comments

Here is the opinion. An excerpt:

Based upon the record evidence, the district court in this matter has done just that–accurately discerned the contemporaneous intent and understanding of the 1882 Act. The court carefully reviewed the relevant legislative history, contemporary historical context, subsequent congressional and administrative references to the reservation, and demographic trends, and did so in such a fashion that any additional analysis would only be unnecessary surplus. Ever mindful to “resolve any ambiguities in favor of the Indians,” there is nothing in this case to overcome the “presumption in favor of the continued existence” of the Omaha Indian Reservation. Yankton Sioux Tribe, 522 U.S. at 344 (quotation omitted); Yankton Sioux Tribe v. Podhradsky, 606 F.3d 985, 991 (8th Cir. 2010) (quotation omitted).

Briefs here.

Lower court materials here.

 

Eighth Circuit Affirms Dismissal of Lee v. Cleve Her Many Horses

Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion.

Briefs are here.

Lower court materials here.

Ninth Circuit Reaffirms that Uncounseled Tribal Court Convictions Resulting in Jail Time May Not Be Used to Enhance Federal Sentences

Matthew L.M. Fletcher4 Comments

Here is the opinion in United States v. Bryant.

From the court’s syllabus:

The panel reversed the district court’s denial of a motion to dismiss an indictment charging the defendant, an Indian, with two counts of domestic assault by a habitual offender, in
violation of 18 U.S.C. § 117(a).

Applying United States v. Ant, 882 F.2d 1389 (9th Cir. 1989), the panel held that, subject to the narrow exception recognized in case law for statutes that serve merely as enforcement mechanisms for civil disabilities, tribal court convictions may be used in subsequent prosecutions only if the tribal court guarantees a right to counsel that is, at minimum, coextensive with the Sixth Amendment right. Because the defendant’s tribal court domestic abuse convictions would have violated the Sixth Amendment had they been obtained in federal or state court, the panel concluded that it is constitutionally impermissible to use them to establish an element of the offense in a subsequent prosecution under § 117(a), which is an ordinary recidivist statute and not a criminal enforcement scheme for a civil disability.

Concurring, Judge Watford wrote separately to highlight
why Ant warrants reexamination.

Judge Watford correctly notes that a circuit split on this issue has arisen with the Eighth and Tenth Circuits:

It’s perhaps unsurprising that our decision in this case conflicts with decisions from two of our sister circuits. Faced with almost identical scenarios—prior, uncounseled tribal court convictions that would have violated the Sixth Amendment in state or federal court and that were used as predicate offenses under 18 U.S.C. § 117—the Eighth and Tenth Circuits pointedly disagreed with us. See United States v. Cavanaugh, 643 F.3d 592, 595, 604 (8th Cir. 2011); United States v. Shavanaux, 647 F.3d 993, 995–98 (10th Cir. 2011). As our colleagues on the Eighth Circuit noted, “Supreme Court authority in this area is unclear; reasonable decisionmakers may differ in their conclusions as to whether the Sixth Amendment precludes a federal court’s subsequent use of convictions that are valid because and only because they arose in a court where the Sixth Amendment did not  apply.” Cavanaugh, 643 F.3d at 605. Given this circuit split and the lack of clarity in this area of Sixth Amendment law, the Supreme Court’s intervention seems warranted.

If nothing else, the case at least may generate support for en banc review. We posted materials on these two cases here (the Supreme Court denied cert). I wrote about this issue a few years ago in a paper titled “Sovereign Comity.“

Here are the briefs:

Bryant Opening Brief

US Brief

Bryant Reply Brief

Bryant Supplemental Brief

US Supplemental Brief

“Dinosaur 13” is Bullshit

Matthew L.M. Fletcher

According to Slate, anyway, in its article, “Don’t Believe the Anti-Government Tale Spun by This New Dinosaur Documentary.”

The doc is from the POV of a losing party in a famed Indian property case, Black Hills Institute v. South Dakota School of Mines and Technology.

An excerpt from the third and final opinion:

Black Hills Institute of Geological Research and Black Hills Museum of Natural History Foundation (collectively, “Black Hills”) appeal the district court’s1 judgment in favor of the United States. The district court found that the United States holds title to a valuable Tyrannosaurus rex skeleton (“the fossil” or “Sue”) in trust for Maurice Williams (“Williams”), an individual Indian who is the beneficial owner of trust land on which Black Hills discovered the fossil. Joseph M. Butler appeals separately from the district court’s order imposing Rule 11 sanctions on Butler for naming an improper party as a defendant. We affirm the district court’s judgment that the United States holds trust title to the fossil and reverse its Rule 11 order.