Eighth Circuit – Page 8

Eight Circuit Affirms Conviction of Habitual D.V. Offender

August 1, 2019Matthew L.M. Fletcher

Here is the opinion in United States v. Oka.

Split Eighth Circuit Panel Affirms Constitutionality of North Dakota Election Law Designed to Dilute the Indian Country Vote

July 31, 2019Matthew L.M. Fletcher

Here is the opinion in Brakebill v. Jaeger.

Materials and other coverage here.

Eighth Circuit Decision Upholding Tribal Jurisdiction in Watso v. Piper [ICWA, PL 280]]

July 16, 2019Kate Fort

Decision here.

This settles a long running string of cases out of the Minnesota federal courts in which the non-Indian parents of tribal member children argued there was no tribal jurisdiction over their children when they lived on the tribal reservation due to ICWA and PL 280.

ICWA holding:

Watso and Dietrich believe this provision means that “the tribe does not have jurisdiction over a child held by the state until the state court transfers jurisdiction to the tribe, which can only occur after a state court ICWA hearing.” To the contrary, § 1911(b) does not require a state court hearing. Section 1911(b) addresses the transfer of proceedings from state court to tribal court. Here, there were no state court proceedings. There was no transfer from state court to tribal court. Section 1911(b) does not apply.

PL 280 holding:

Public Law 280 does not require a state court hearing or any state court proceedings. See Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990) (“Nothing in the wording of Public Law 280 or its legislative history precludes concurrent tribal authority.”); Doe v. Mann, 415 F.3d 1038, 1063 n. 32 (9th Cir. 2005) (“Public Law 280 states have only concurrent jurisdiction with the tribes over child custody proceedings involving Indian children.”), citing Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548, 562, 559–62 (9th Cir. 1991) (rejecting argument that Public Law 280 vested enumerated states with exclusive jurisdiction). The SMSC Court’s jurisdiction over C.P. and C.H.’s child custody proceedings is consistent with Public Law 280.

And a succinct due process holding:

Lastly, Watso and Dietrich allege that the absence of a state court proceeding violated their due process rights, based on parents’ fundamental right “to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (invalidating state law that allowed any third party to petition state courts for child visitation rights over parental objections). They allege due process rights “to object and to stop the transfer, a right to notice and a right to a meaningful court hearing.” Watso and Dietrich had sufficient notice of the tribal court proceedings. They were heard in tribal court. They have presented no evidence of a due process violation.

Split Eighth Circuit Reinstates MCA Manslaughter Indictment of Mother of Newborn Killed by Drug Toxicity

July 5, 2019July 7, 2019Matthew L.M. Fletcher

Apparently the first time the federal government has prosecuted a drug addicted mother for the death of a newborn.

Here is the opinion in United States v. Flute.

Briefs:

Appellant Brief

Appellee Brief

District Court materials (D.S.D.):

2 Redacted Indictment

Oglala Sioux Tribe v. Fleming Cert Petition

April 3, 2019Matthew L.M. Fletcher

Here:

cert petition

Questions presented:

1. Whether the Eighth Circuit erred in holding, in conflict with decisions of this Court and three other courts of appeals, that the possibility of filing a separate mandamus action was in and of itself “sufficient” to provide an “adequate opportunity” requiring Younger abstention, where plaintiffs had no opportunity to challenge the constitutionality of the preliminary hearing procedure in the course of the state’s abuse and neglect proceedings?
2. Whether the court of appeals erred in holding, in conflict with three courts of appeals, that the “extraordinary circumstances” exception to Younger abstention applies only to flagrantly and patently unconstitutional statutes, but not to flagrantly and patently unconstitutional policies, and in concluding that separating children from their parents for sixty days with no notice or opportunity to be heard inflicted no irreparable harm?

Lower court materials here.

Eighth Circuit Decides Stanko v. Oglala Sioux Tribe

February 22, 2019Matthew L.M. Fletcher

Here is the opinion.

Briefs here.

Eighth Circuit Affirms Upward Depature in Sentence of Habitual Indian Country D.V. Offender

January 8, 2019January 8, 2019Matthew L.M. Fletcher

Here is the opinion in United States v. Eagle Pipe.

Eighth Circuit Asks Defendants for Response to En Banc Petition

October 31, 2018Matthew L.M. Fletcher

Here is the order:

JUDGE ORDER:A petition for rehearing has been filed by the appellees in the above cases. The court requests a response to the petition. The response is limited to 3900 words and must contain a word count certificate. The response should be filed electronically. Response due on 11/08/2018 by Appellants Mark Vargo, Craig Pfeifle and Lisa Fleming. Hrg Feb 2018 [4720385] [17-1135, 17-1136, 17-1137] (JPP)

The petition is here.