Federal Court Concludes Non-Indian May Be Prosecuted for Crime Against Another Non-Indian at IHS Facility

Here are the materials in United States v. Sadekni (D.S.D.):

26-motion-to-dismiss-indictment

35-opposition

42-reply

44-magistrate-order

Tenth Circuit Sides with Ute Indian Tribe in Dispute with State and Counties over Indian Country Criminal Jurisdiction

Here is the opinion in Ute Indian Tribe v. State of Utah:

14-4028

An excerpt:

In our layered system of trial and appellate courts everyone’s assured at least two chances to air a grievance. Add to this the possibility that a lawsuit might bounce back to the trial court on remand or even rebound its way to appeal yet again — or the possibility that an issue might win interlocutory review — and the opportunities to press a complaint grow abundantly. No doubt our complex and consuming litigation wringer has assumed the shape it has so courts might squeeze as much truth as possible out of the parties’ competing narratives. But sooner or later every case must come to an end. After all, that’s why people bring their disputes to court in the first place: because the legal system promises to resolve their differences without resort to violence and supply “peace and repose” at the end of it all. S. Pac. R.R. Co. v. United States, 168 U.S. 1, 49 (1897). For a legal system to meet this promise, of course, both sides must accept — or, if need be, they must be made to respect — the judgments it generates. Most people know and readily assent to all this. So it’s pretty surprising when a State and several of its counties need a reminder. But that’s what this appeal is all about.

And:

A system of law that places any value on finality — as any system of law worth its salt must — cannot allow intransigent litigants to challenge settled decisions year after year, decade after decade, until they wear everyone else out. Even — or perhaps especially — when those intransigent litigants turn out to be public officials, for surely those charged with enforcing the law should know this much already. Though we are mindful of the importance of comity and cooperative federalism and keenly sensitive to our duty to provide appropriate respect for and deference to state proceedings, we are equally aware of our obligation to defend the law’s promise of finality. And the case for finality here is overwhelming. The defendants may fervently believe that Ute V drew the wrong boundaries, but that case was resolved nearly twenty years ago, the Supreme Court declined to disturb its judgment, and the time has long since come for the parties to accept it.

Briefs here.

New Study Examining Indian Country Cases in the Federal Justice System

Here is “Examining Indian Country Cases in the Federal Justice System.”

An excerpt:

IC caseload increased from FY 2009–2011, for both juveniles and adults. The number of IC cases in the federal system increased by 13–18% between 2009 and 2011.3 This growth was seen across all stages of the justice system.

» On average, there were 2,045 IC suspects in criminal matters concluded by U.S. Attorneys each year from 2009–2011; this number increased by 14% over the three-year period, from 1,940 to 2,220 defendants in criminal matters concluded by U.S. Attorneys.

» There was an average of 1,300 IC defendants in criminal cases filed in the 48 federal districts with IC responsibility annually from 2009–2011; this number increased by 13% over the three-year period, from 1,235 to 1,395 defendants in cases filed in U.S. district court.

» From 2009 to 2011, the annual number of IC juvenile offenders processed in the federal system was relatively modest (totaling less than 100 each year), but increased by 20–25% over the three-year period. In comparison, the number of IC adult offenders in the federal system increased by 13– 18% during the period.

Idaho COA Dismisses Jurisdictional Challenge to Indian Country Criminal Conviction on Procedural Grounds

Here is the opinion in State v. Wolfe:

State v. Wolfe

An excerpt:

The district court recognized the possible merit of Wolfe’s contentions that the state courts lacked subject matter jurisdiction over the charged offense. The court ordered further briefing from the State and the tribe. The tribe did not provide any briefing.

When denying the initial Rule 35 motion and later dismissing the second successive post-conviction petition (alleging ineffective assistance of counsel based on the failure to raise the issue of lack of subject matter jurisdiction), the district court addressed only the procedural issues of whether the pleadings were timely. Although the district court concluded “there is a genuine issue of whether the court had had jurisdiction because there is credible admissible evidence that [the victim] was in fact a Native American,” it weighed the policies of fundamental justice with the need for finality of judgments and decided, in this case, that the need for finality of judgments outweighed other considerations. In doing so, it noted the issue of lack of subject matter jurisdiction in Wolfe’s underlying criminal case was long-ripe for consideration and Wolfe had had prior opportunities to assert the claim. Thus, the court applied the limitations of the post-conviction procedures as written. Accordingly, the court concluded Wolfe was time-barred from asserting his claim for relief in a post-conviction petition.

The trial court noted:

There appears to be little doubt that the federal courts had exclusive jurisdiction over Mr. Wolfe’s offense. “Crime in which the victim, but not the perpetrator, is Indian are subject to (a) federal jurisdiction under § 1152, as well as pursuant to federal criminal law of general applicability, and (b) state jurisdiction where authorized by Congress.” United States v. Bruce, 394 F.3d 1215, 1222 (9th Cir.2005); United States v. Johnson, 637 F.2d 1224, 1232 n. 11 [ (1980) ]; see, Duro v. Reina, 495 U.S. 676, 698, 699 (1990). Unlike some states, where jurisdiction over all offenses involving Indians was either granted or assumed, Pub.L. No. 280, § 7, Idaho limited its jurisdiction to the offenses itemized in I.C. § 67–5101. Murder is not included.

VAWA Reauthorization Bill to be Considered by Rules Committee Today at 5PM

Here is the House Bill:

BILLS-112-HR4970RH

H.R. 4970, the VAWA reauthorization bill will be considered by the Rules Committee today at 5pm.  The hearing can be viewed at: http://rules.house.gov/Legislation/hearings_details.aspx?NewsID=834

Instead of the three tribal provisions in S. 1925 that would:

  • Provide Indian tribes criminal jurisdiction over domestic violence, dating violence, and violations of protective orders that occur on Indian lands;
  • Provide Indian courts civil jurisdiction to issue and enforce protection orders. Excludes Indian courts in Alaska from that jurisdiction, except with respect to the Metlakatla Indian Community, Annette Islands Reserve.
  • Amend the federal criminal code to increase the maximum federal penalties for assault convictions.

H.R. 4970 (above) instead includes section 905 that authorizes and encourages the Attorney General to appoint U.S. Attorney Tribal Liaisons in each judicial district that includes Indian Country to serve a domestic violence tribal liaison.  The duties of the tribal liaison include:

  • Encouraging and assisting in arrests and Federal prosecution for crimes, including misdemeanor crimes, of domestic violence, dating violence, sexual assault, and stalking that occur in Indian country.
  • Conducting training sessions for tribal law enforcement officers and other individuals and entities responsible for responding to crimes in Indian country to ensure that such officers, individuals, and entities understand their arrest authority over non-Indian offenders.
  • Developing multidisciplinary teams to combat domestic and sexual violence offenses against Indians by non-Indians.
  • Consulting and coordinating with tribal justice officials and victims’ advocates to address any backlog in the prosecution of crimes, including misdemeanor crimes, of domestic violence, dating violence, sexual assault, and stalking that occur in Indian country.
  • Developing working relationships and maintaining communication with tribal leaders, tribal community and victims’ advocates, and tribal justice officials to gather information from, and share appropriate information with, tribal justice officials.

Program at Seattle Law: DV and Indian Country Criminal Justice

Criminal Justice in Indian Country: Roadblocks for Domestic Violence Survivors
Seattle University School of Law, Sullivan Hall Courtroom
Wednesday, October 12, 2011, 11am-1pm
Jurisdictional issues in Indian Country affect tribal members nationwide. Some types of crime, including domestic violence, often fall into jurisdictional gaps and are not prosecuted. Because tribal courts do not have jurisdiction over non-Indians, tribal members have no recourse through tribal courts when a perpetrator is a non-Indian. Between 2005 and 2010, the federal government refused to prosecute 50% of violent crimes that allegedly took place in Indian Country, and approximately 75% of sexually-based alleged crimes against women and children. However, some tribes are experimenting with creative ways of addressing these problems. This event, hosted by the Seattle University Human Rights Network, the Center for Indian Law and Policy, the Seattle University Native American Law Students Association, and the Seattle University Women’s Law Caucus, will inform attendees about the jurisdictional problems, as well as possible solutions in navigating these legal systems and addressing domestic violence. The enactment of the Tribal Law and Act of 2010, along with horrendous statistics of violence against women and children in Indian Country, makes this issue particularly timely and important for students interested in Indian law and advocacy.

Painter-Thorne Article Criticizing Federal Jurisdiction over Sexual Assault on American Indian Women

Suzianne Painter-Thorne has posted her article “Tangled Up in Knots: How Continued Federal Jurisdiction Over Sexual Predators on Indian Reservations Hobbles Effective Law Enforcement to the Detriment of Indian Women” on SSRN. Here is the abstract:

An Indian woman is two-and-a-half times more likely than any other American woman to be sexually assaulted in her lifetime. Nevertheless, because of a confusing tangle of jurisdictional rules, she is four times less likely to see her assailant arrested. She is even less likely to see him stand trial. Because jurisdiction over most sexual assaults is vested in the federal government, Indian tribes are not allowed to arrest or prosecute most of the suspects who commit sexual assaults on tribal lands. Consequently, tribal lands have become safe havens for sexual predators, who can commit their offenses with impunity and with little fear of prosecution.

This article proposes that federal jurisdiction prevents effective law enforcement on Indian reservations and leaves Indian women at a greater risk of sexual assault. While the recently passed Tribal Law and Order Act seeks to improve reservation law enforcement, it fails to provide meaningful reform because it perpetuates the current law enforcement scheme that leaves Indian women vulnerable to sexual assault. Remote federal officials are not in the best position – geographically, politically, or culturally – to police reservation lands. Instead, Congress needs to reassess tribal jurisdiction, permitting tribes to arrest and prosecute suspects who commit sexual assaults on tribal lands. For too long, tribes have been left powerless to defend their own people against predators who enter reservation lands and commit unspeakable violence against tribal citizens. At the heart of sovereignty is the responsibility of government to protect its citizens. It is time to permit tribes to rise to this responsibility.