Here is the opinion in United States v. Bear.
The court’s syllabus:
Defendant's argument that New Town, where his crime occurred, is not part of the Fort Berthold Reservation is rejected, and the district court did not err in determining that defendant was properly subject to federal prosecution.
Here is the opinion in 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.
M. Alexander Pearl has posted “Of ‘Texans’ and ‘Custers’: Maximizing Welfare and Efficiency Through Informal Norms,” forthcoming in the Roger Williams University Law Review, on SSRN.
Here is the abstract:
Professor Robert Ellickson (Yale) theorized that the informal norms of a close-knit community maximize aggregate welfare and Professor Barak Richman (Duke) identified two distinct types of private ordering systems: “shadow of law” and “order without law.” Under the Ellickson-Richman structure, many Indian tribes qualify as close-knit groups where informal norms effectively operate. The additional trait of isolation — both geographic and cultural — makes them ideal communities for the prioritization of informal norms. The imposition of external law, such as state law, is harmful and unnecessary to the maintenance of order in these communities. Recent legislative efforts to ameliorate criminal problems in Indian Country miss the mark and an alternative solution prioritizing the operation of informal norms and private ordering should prevail over application of external law and structures.
This article expands upon Ellickson’s assessment of how social behavior is affected by law and other forces, such as the informal norms in a given social group. Part I explains Ellickson’s theory and analyzes other important contributions made by other scholars. Part II discusses the taxonomy of historical and current examples of communities utilizing informal norms, or private law based mechanisms, to resolve disputes and how efficient results that maximize welfare (as defined by the community) are achieved. Part III, addresses the question of whether government law enforcement interferes with the close-knit community to an extent great enough to diminish the efficacy, or existence, of operative informal norms. Part IV examines anthropological sources to argue that the unique attributes of various Indian tribes and tribal communities warrant definition as the type of close-knit communities contemplated under Ellickson’s theory. Part V explains why the informal norms of certain tribal communities should be allowed to operate without interference from outside legal forces (Custers). Finally, Part VI looks at the relevant provisions in the recently passed Tribal Law and Order Act of 2010 and asks whether they effectively address the criminal justice issues facing Indian tribes subject to State criminal jurisdiction.
The Department of Justice released today a report to Congress entitled Indian Country Investigations and Prosecutions which provides a range of enforcement statistics required under the Tribal Law and Order Act of 2010. The report, based on data compiled from the case management system used by U.S. Attorney’s Offices (USAO) with Indian Country jurisdiction shows among other things a 54 percent increase in Indian Country criminal prosecutions since Fiscal Year 2009.
Press Release here.
Read the report here.
Here are the materials in Magnan v. Trammell:
An excerpt:
Petitioner David Magnan pleaded guilty in Oklahoma state court to three counts of murder in the first degree and one count of shooting with intent to kill. Magnan was sentenced to death for each of the murder convictions and to a term of life imprisonment on the remaining conviction. Magnan argued on direct review that the crimes occurred in “Indian country,” 18 U.S.C. § 1151, and that, as a result, the state trial court lacked jurisdiction over the crimes. The Oklahoma Court of Criminal Appeals (OCCA) held, however, that a 1970 conveyance to the Housing Authority of the Seminole Nation of Oklahoma extinguished all Indian lands restrictions that had previously attached to the surface estate of the property where the crimes occurred. The OCCA further held that, even assuming that restrictions remained on 4/5ths of the mineral estate, such interest wasunobservable and insufficient to deprive the State of Oklahoma of criminal jurisdiction over the surface property at issue. In a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Magnan again asserted that the crimes at issue occurred in “Indian country” and that the state trial court was without jurisdiction. The district court denied Magnan’s petition but granted him a certificate of appealability. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we need only address the status of the surface estate to agree with Magnan that the location where the crimes occurred was “Indian country” because the requirements to extinguish the restrictions placed on Indian lands by Congress were not met and that, as a result, the state trial court lacked jurisdiction over the crimes. Consequently, we reverse the judgment of the district court and remand with instructions to grant Magnan’s petition for writ of habeas corpus.
State court decision, with our commentary, here.
Here is the opinion in State v. Steven B.:
An excerpt:
In State v. Dick, 1999-NMCA-062, 127 N.M. 382, 981 P.2d 796, this Court held that the State does not have jurisdiction to prosecute a criminal defendant within Parcel Three of the former Fort Wingate Military Reservation (Parcel Three). A subsequent decision by the United States District Court for the District of New Mexico, United States v. M.C., 311 F. Supp. 2d 1281 (D.N.M. 2004), decided otherwise. In this appeal, the State asks this Court to agree with the federal court decision and overrule its holding in Dick. Because we continue to believe that Parcel Three is within “Indian country” as defined by 18 U.S.C. § 1151 (1949) and discussed in Alaska v. Native Village of Venetie Tribal Government (Venetie), 522 U.S. 520 (1998), we affirm the ruling of the district court dismissing the State’s prosecution.
The federal court decision referenced in the opinion is here: 311_F.Supp.2d_1281
Here are the available materials in Owen v. Huber:
Here is the flyer: ADR’s Role In Resolving Indian Disputes Announcement
My paper on domestic violence in Indian Country will appear in the American Constitution Society publication “Advance” Spring 2009 edition.
Marren Sanders has posted “Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner as a State” on SSRN. Here is the abstract:
This article examines the “Treatment as a State” (TAS) provision of the Clean Water Act and the requirements that Native nations must satisfy in order to exercise their sovereign right to environmental regulation within the reservation. To gain TAS status and set their own water quality standards (WQS), Native nations must prove that they have a functioning tribal government with authority and capacity to regulate. Therefore, tribes considering taking the TAS step must critically evaluate their internal capacity to do so. The establishment of tribal WQS offers significant advantages to Native nations, but also very real risks as they face legal and legislative uncertainty and jurisdictional challenges. It concludes that despite a history of colonization and assimilation, tribes can and are playing a critical role in the sustainability of clean water in Indian country. Building infrastructure is not an easy task. However, for many tribes the challenge may be worth the risks.
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