Indian status – Page 2

Motions to Dismiss State Prosecutions under McGirt

October 26, 2020Matthew L.M. Fletcher

A flurry of motions has come in. Here is the motion to dismiss a criminal complaint on the Cherokee reservation in State of Oklahoma v. Nichols (Tulsa County Dist. Ct.):

Nichols Brief

Here is the motion to dismiss in a case involving a Creek reservation crime where the defendant marked “I” on the racial identity box, State of Oklahoma v. Williams (Tulsa County Dist. Ct.):

Williams Brief

And here is the motion to dismiss in State of Oklahoma v. Shaffer (Tulsa County Dist. Ct.), where the defendant was unenrolled at the time of the crime and is now seeking enrollment at Cherokee:

Shaffer Brief

Oklahoma Trial Court Confirms Chickasaw Reservation Remains Extant

October 15, 2020Matthew L.M. Fletcher

Here are the materials in Bosse v. State of Oklahoma (McClain Dist. Ct.):

9-23-2020 Bosse Brief

9-23-2020 Chickasaw Nation Amicus Brief

9-29-2020 State Brief

10-13-2020 DCT Order

This case is on remand from the appellate court, materials here.

Oklahoma Criminal Appellate Court Asked to Address Impact of McGirt on Crime Committed on Chickasaw Reservation with Chickasaw Victims

August 5, 2020August 5, 2020Matthew L.M. Fletcher

Here are materials in Bosse v. State (Okla. Ct. Crim. App.):

Bosse Petition

Order Allowing McGirt Briefing

Bosse Brief

State Brief

Federal Court Holds Prosecution under 18 U.S.C. § 117 for Indian Country D.V. Does Not Require Indian Victim or Perpetrator

May 27, 2020May 27, 2020Matthew L.M. Fletcher

Here are the materials in United States v. Unzueta (E.D. Mich.):

18 Magistrate Report

24 US Response

29 Defendant Response

30 DCT Order

2018 PLSIers Already Know What the Idaho Supreme Court Just Decided — 22% Indian Blood Means You’re an Indian

July 30, 2018Matthew L.M. Fletcher3 Comments

Here is the opinion in State v. George.

Ninth Circuit Reverses Major Crimes Act Conviction on Indian Status Grounds

August 2, 2016Matthew L.M. Fletcher

Here is the opinion in United States v. Alvirez.

The court’s syllabus:

The panel reversed a conviction for assault resulting in serious bodily injury on an Indian reservation, in violation of 18 U.S.C. §§ 1153 and 113(a)(6), and remanded.

The panel held that the district court abused its discretion when it determined that a Certificate of Indian Blood offered into evidence by the government in order to establish Indian status, an essential element of § 1153, was a self-authenticating document under Fed. R. Evid. 902(1). The panel held that this error was not harmless.

The panel held that the district court did not abuse its discretion in denying the defendant’s motion in limine to exclude references to polygraph evidence, where the defendant, who elected not to present his multiple-interrogation defense as a legal strategy, was not denied the opportunity to present his defense.

The panel held that the district court cannot show plain error in the district court’s application of enhancement under U.S.S.G. § 2A2.2 for infliction of permanent or life-threatening injury.

The panel held that double jeopardy does not bar retrial after reversal in this case because the erroneously-admitted Certificate of Indian Blood was nevertheless sufficient evidence to support the conviction.

Briefs here.

Federal Court Issues Interesting Post-Zepeda Indian Status Decision

June 8, 2016Matthew L.M. Fletcher

Here are the materials in United States v. Loera (D. Ariz.):

7 Loera Opening Brief

16 Loera Revised Opening Brief

24 US Response

25 Reply

26 DCT Order

An excerpt:

Loera does not meet the first two and most important factors of Bruce’s second prong. And while evidence supports finding that he did satisfy the third and fourth Bruce factors, the Government has successfully demonstrated that Loera’s satisfaction of those factors is weak. In the end, accounting for the descending level of importance given to each Bruce factor, and viewing the evidence in the light most favorable to the Government, a rational trier of fact could have found beyond a reasonable doubt that Loera does not qualify as an Indian. See Cruz, 554 F.3d at 844. Accordingly, the Court affirms the decision of the magistrate court below; the exercise of federal jurisdiction over this case was appropriate pursuant to § 1152.

US Cert Opposition Brief in Zepeda

March 23, 2016Matthew L.M. Fletcher

Here:

US Cert Opp Brief

An excerpt:

Petitioner contends (Pet. 11-22) that the Ninth Circuit’s definition of an “Indian” for purposes of 18 U.S.C. 1153 violates equal protection. Petitioner further asserts (Pet. 22-23) that the Ninth Circuit’s decision conflicts with a decision from the Utah Supreme Court. Those claims lack merit. The court of appeals’ decision – which follows this Court’s precedent – is fully consistent with the Constitution, and no conflict exists on the question presented. Moreover, this case would be a poor vehicle to consider the meaning of “Indian” in Section 1153 because petitioner qualifies under any conceivable definition, including the one he proposes. Further review is not warranted.

Cert petition is here.

Zepeda v. United States Cert Petition

November 24, 2015Matthew L.M. Fletcher1 Comment

Here:

Zepeda Cert Petition

Questions presented:

The Indian Major Crimes Act, 18 U.S.C. § 1153, makes it a federal crime for an “Indian” to commit any one of thirteen enumerated acts in “Indian country.” In this case, the en banc Ninth Circuit held that an element of the offense in prosecutions under this statute is proof that the defendant has “Indian blood,” whether or not that blood tie is to a federally recognized tribe. The question presented is: