Eighth Circuit

Eighth Circuit Affirms Major Crimes Act Conviction

February 27, 2010Matthew L.M. Fletcher

The case is United States v. Littlewind (opinion here).

Who is an Indian under the Major Crimes Act?

September 23, 2009Matthew L.M. Fletcher6 Comments

The Eighth Circuit’s decision that Matthew Stymiest is an “Indian” under 18 U.S.C. 1153(a) raises possible constitutional questions about due process and vagueness of a criminal statute, and it may be ripe for review by the Supreme Court as a circuit split.

Federal courts have adopted common law “tests” to determine whether a person charged under the statute is an Indian — they have to be in order to be convicted. The Eighth Circuit’s test lists a series of factors for a jury to consider in determining whether the defendant is an Indian.

Stymiest is a descendant of Leech Lake Band members, but he does not have the blood quantum to be eligible for membership himself. He often held himself out to be an Indian when it was to his advantage, such as when he was seeking Indian health clinic services, or in earlier criminal debacles where he probably thought it was to his advantage. But the local IHS people often asked him to produce some ID, which of course he never could. So is he an Indian? Hmmm.

And the wild thing about all of this is that under the statute, a jury of non-Indians (likely) will decide on these facts whether or not defendants like Stymiest are Indians beyond a reasonable doubt. As a matter of law, it is improbable that a jury can make a finding of “Indianness” under such a standard.

The Stymiest case likely conflicts in large part with the Ninth Circuit’s recent decision in United States v. Cruz. There, the court held that Christopher Cruz was not an Indian, despite being nearly quarter blood, although ineligible for tribal membership with the Blackfeet Nation. He worked for the BIA, spent several years of his childhood on the reservation, is eligible for some IHS and treaty hunting and fishing benefits, and was even once prosecuted in tribal court for a minor violation. In other words, Cruz is spectacularly similar to Stymiest.

Cruz isn’t an Indian under the Major Crimes Act, but Stymiest is. There’s a problem here.

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Eighth Circuit Affirms Conviction of Non-Enrolled Indian under Major Crimes Act

September 23, 2009Matthew L.M. Fletcher2 Comments

Here is the opinion in United States v. Stymiest. An excerpt:

Applying the two-part Rogers test, and viewing this evidence in the light most favorable to the jury’s verdict, we conclude that sufficient evidence supports the jury’s finding that Stymiest was an Indian for purposes of this § 1153(a) offense. Without question, he has the requisite Indian blood-his grandfather is an enrolled member and medicine man in a Minnesota Band. By repeatedly submitting to tribal arrests and prosecutions, and by reporting to the IHS clinic he is an Indian, Stymiest held himself out as an Indian and received forms of official tribal recognition. See Lawrence, 51 F.3d at 152 n. 4; Cruz, 554 F.3d at 850; Bruce, 394 F.3d at 1226-27. He also lived and worked on the Rosebud reservation and repeatedly held himself out as a non-member Indian to his Indian girlfriend and in socializing with other Indians. Although not an enrolled member of any tribe, enrollment “is not the only means [of establishing Indian status] nor is it necessarily determinative.” Pemberton, 405 F.3d at 660; seeAntelope, 430 U.S. at 646 n. 7.

Opening NIGC Appellate Brief in Carter Lake Casino Dispute

August 29, 2009Matthew L.M. Fletcher

Here is the NIGC brief in Nebraska ex rel. Bruner v. Dept. of Interior/NIGC — Federal – NIGC Appellant Brief

Lower court materials are here and here.

Eighth Circuit Decides Yankton Reservation Dispute

August 25, 2009Matthew L.M. Fletcher2 Comments

Here is the opinion in Yankton Sioux Tribe v. Podhrasky. Briefs are here. The holdings:

With respect to the judgment of the district court, we therefore:

(1) affirm insofar as it concluded that the agency trust lands, the outstanding

allotments, and the IRA trust lands are part of the Yankton Sioux Reservation

and are Indian country under § 1151(a),

(2) affirm its alternative holding that the miscellaneous trust lands constitute a

dependent Indian community and are Indian country under § 1151(b),

(3) vacate the district court’s holding that fee lands continuously held in Indian

ownership are reservation under § 1151(a), and

(4) affirm its denial of all other claims for relief.

With respect to the judgment of the district court, we therefore:

(1) affirm insofar as it concluded that the agency trust lands, the outstanding allotments, and the IRA trust lands are part of the Yankton Sioux Reservation and are Indian country under § 1151(a),

(2) affirm its alternative holding that the miscellaneous trust lands constitute a dependent Indian community and are Indian country under § 1151(b),

(3) vacate the district court’s holding that fee lands continuously held in Indian ownership are reservation under § 1151(a), and

(4) affirm its denial of all other claims for relief.

Expect a cert petition or request for en banc review from South Dakota.

Leonard Peltier Loses Document Case in Eighth Circuit

April 29, 2009Matthew L.M. Fletcher

From How Appealing:

“Court rules against Peltier in documents case”: The Associated Press has a report that begins, “Imprisoned American Indian activist Leonard Peltier has lost another round in court in his effort to compel the FBI to disclose about 10,500 pages of documents about his case.” You can access today’s ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.

Case to Watch — Amerind v. Malaterre

March 19, 2009March 19, 2009Matthew L.M. Fletcher2 Comments

The Eighth Circuit will be hearing Amerind v. Malaterre shortly. The appellant’s brief is here (amerind-appellant-brief). Our previous posting, with the district court materials and opinion, and the Turtle Mountain appellate court opinion is here. [Disclosure–I was a sitting appellate judge for the tribal court, but I did not participate in this matter.]

This case is a case to watch because it is a candidate for Supreme Court review under Montana v. United States. Maybe not a great candidate, but anything’s possible in the Roberts Court when it comes to tribal court jurisdiction over nonmembers.

Amerind is an insurance company chartered under federal law (according to my understanding, which could be wrong) that insures tribal housing. This case involves a fire at Turtle Mountain. Plaintiffs sued the Turtle Mountain Housing Authority, which was insured by Amerind. During the tribal court proceedings, the housing authority dropped out as a defendant, leaving Amerind as the insurance company and sole defendant. I suspect there is much confusion on the question of whether an insurance company can be a named defendant as a replacement for the real defendant (or alleged tortfeasor), since it is usually the insurance company that handles the defense and even hires the lawyers. Amerind, like any insurance company, is looking for an out.

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