Here is today’s Eighth Circuit opinion in United States v. White Bull (White Bull).
And here is today’s Tenth Circuit opinion in United States v. Waseta.
Eighth Circuit
Split Eighth Circuit En Banc Panel Upholds Indian Country Crime Sentence
Here is the opinion: Sun Bear v. United States CA8 Opinion
The court split 6-5, possibly inspiring Supreme Court review.
Here is an excerpt from the majority:
Marlon Dale Sun Bear pleaded guilty to the second-degree murder of his uncle in Indian country. At sentencing, the district court departed upward three levels based upon Sun Bear’s extensive and violent criminal history, resulting in a sentencing range of 292 to 365 months in prison under the then-mandatory Sentencing Guidelines. The court further ruled that Sun Bear’s prior felony convictions for attempted escape, attempted theft of a vehicle, and attempted burglary of a commercial building were “crimes of violence” under U.S.S.G. § 4B1.2(a), resulting in a career offender enhancement that increased the guidelines range to 360 months to life. The court sentenced Sun Bear as a career offender to 360 months in prison. Sun Bear appealed, arguing that he should not have been sentenced as a career offender because his three prior felonies were not crimes of violence. We affirmed, concluding that he was properly sentenced as a career offender because, although the attempted escape offense was not proved to be a felony, the felony convictions for attempted auto theft and attempted burglary constituted two crimes of violence
warranting the career offender enhancement. United States v. Sun Bear, 307 F.3d 747, 753 (8th Cir. 2002) (Sun Bear I), cert. denied, 539 U.S. 916 (2003).
Divided Eighth Circuit Panel Affirms Use of Uncounseled Tribal Court Convictions in Federal Sentencing Enhancement
Here is the opinion in United States v. Cavanaugh: CA8 Opinion in Cavanaugh.
Briefs are here.
Eighth Circuit Affirms Conviction of Pine Ridge Man who Shot through Grill of BIA Truck
Here is the opinion in United States v. Wisecarver: Wiscarver CA8 Opinion.
An excerpt:
Marc Wisecarver fired a rifle shot through the front grill of a government owned pickup truck in the custody of a Bureau of Indian Affairs (“BIA”) land assessor. After we vacated his initial conviction for depredation of government property, a second jury found him guilty of the same charge, and the district court sentenced him to 36 months’ imprisonment. We affirm the conviction and term of imprisonment, but we vacate three special conditions of supervised release and remand to the district court for an individualized assessment with respect to those special conditions.
Eighth Circuit Sitting En Banc Affirms Dismissal of Title VII and Section 1981 Discrimination Claim of American Indian Fire Fighter
Here is the opinion in Torgersen v. City of Rochester.
The court’s summary:
Employment Discrimination. Summary judgment is not disfavored and is designed for “every action,” and panel decisions to the contrary are unauthorized and should not be followed; there is no “employment discrimination case exception” to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial; neither of the statements plaintiffs point to in the record were direct evidence of gender or national-origin based discrimination in violation of Title VII; plaintiffs made a prima facie case of discrimination, but the City advanced nondiscriminatory grounds for its hiring decisions, and plaintiffs failed to show the grounds were pretexts for discrimination; fact that plaintiffs and the hired candidates had “relatively similar qualifications” does not create a material issue of fact as to pretext; plaintiff Torgerson alleged he was discriminated against on the basis of national origin, not race, and his Section 1981 claim fails. Judge Colloton, concurring. Smith, with whom Murphy, Bye Melloy and Shepherd join, concurring in part and dissenting in part.
Of note, the majority held that American Indians do not have discrimination claims based on national origin, but only on the basis of race:
Torgerson contends that his claim is based on Native American status, which may be treated as both a race claim and a national-origin claim. See Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117, 1119 n.4 (9th Cir. 1998) (a claim of discrimination based on Native-American status may be a claim based on race). But a race claim based on Native-American status must be stated as a race claim, which Torgerson failed to do. Torgerson’s complaint states, “Defendant has discriminated [ ] against Plaintiff in the formation of an employment contract on the basis of his national origin, in violation of 42 U.S.C. §1981.” (Emphasis added). At no time did he move to amend his complaint to include race discrimination. Torgerson testified in a deposition that he believes he was discriminated against because of his national origin, and until the City’s motion for summary judgment, never referred to race in any court documents. Because Torgerson alleges he was discriminated against based on national origin, not race, his § 1981 claim fails.
Eighth Circuit Affirms Conviction for Embezzlement from Standing Rock Housing Authority
Here is the opinion in United States v. Mees: US v Mees CA8 Opinion.
An excerpt:
Ladarana Mees pleaded guilty to theft concerning programs receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A), and was sentenced to the statutory maximum of 120 months’ imprisonment. Mees appeals his sentence, asserting that the district court committed procedural error when it departed upwards from the advisory U.S. Sentencing Guidelines range and when it considered ethnicity and other improper factors during sentencing. Mees also argues that the sentence is substantively unreasonable. We affirm.
Eighth Circuit Rejects Challenge to Federal Prosecution Based on 1868 Treaty of Fort Laramie
Here is the opinion in United States v. Jacobs: United States v. Jacobs CA8 Opinion.
The court’s syllabus:
Argument that the government’s failure to comply with the provisions of the Fort Laramie Treaty deprived the district court of criminal jurisdiction rejected; even if Articles I and V of the treaty could reasonably be construed as establishing a jurisdictional requirement at the time the Treaty was executed, Congress’s subsequent grant of citizenship to the Indians makes them subject to all restrictions to which any citizen is subject and is evidence of a clear indication to abrogate any contrary treaty provisions.
And the briefs are here.
Owen v. Weber — Eighth Circuit Briefing in Jurisdictional Appeal re: State Criminal Conviction for Crime Committed at Tribal Housing
Here are the materials on Owen v. Weber:
A statement of the case from the appellant:
This appeal arrives from the district court’s order denying a petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by Lance George Owen, who is currently serving a life sentence without the possibility of parole in the South Dakota State Penitentiary. The central question is whether the state court that convicted Owen of committing a murder and aggravated assault at a tribal government housing unit — leased and operated by the Sisseton-Wahpeton Oyate Indian Tribe — had proper jurisdiction to do so, or whether only the federal government had jurisdiction to prosecute the crime under the Indian Major Crimes Act, 18 U.S.C. § 1153.
The district court concluded that the state court had proper jurisdiction over Owen. This conclusion was incorrect, and an unreasonable application of federal law to the record below, because the tribal government housing project qualified as a dependent Indian community and therefore fit within the definition of “Indian country” set forth in 18 U.S.C. § 1151. As a result, Owen’s habeas petition was incorrectly denied and the district court’s order sealing a contrary fate accordingly should be reversed.
Eighth Circuit Affirms Conviction of “Attorney General” of Fake Indian Tribe
Here is the opinion in United States v. Reed: CA8 Opinion in US v Reed
Reed is the self-proclaimed attorney general for the Little Shell Nation, anIndian tribe not recognized by the federal government. Reed is not Native American,similar to many members of the unrecognized tribe, who join the organization via theInternet. Reed was “adopted” by the Little Shell Nation in 2006, when he moved toNorth Dakota. The Little Shell Nation maintains its office and headquarters inRolette, North Dakota.
Eighth Circuit Affirms Use of “Indescribed” Tribal Court Convictions in Federal Sentencing
Here is the unpublished opinion in United States v. Jones, for a crime committed on the Red Lake Reservation:
And the briefs:
An excerpt:
Here, the district court did not procedurally err in considering Jones’s tribal convictions. The Guidelines specifically permit a district court to consider tribal court convictions for the purpose of determining the adequacy of a defendant’s criminal history, see U.S.S.G. § 4A1.3(a)(2)(A), and this court has consistently approved tribal convictions as a permissible basis for departing upward from the advisory Guidelines range. See, e.g.,United States v. Cook, 615 F.3d 891, 893 (8th Cir.2010);United States v. Harlan, 368 F.3d 870, 874-75 (8th Cir.2004).
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