Federal Court Requires Exhaustion of Tribal Remedies in ICRA Habeas Claim

Here are the materials in Styliest v. Rosebud Sioux Tribe (D.S.D.):

1 Habeas Petition

5 DCT Order Denying Habeas Writ

The Eighth Circuit denied petitioner’s direct appeal of his federal conviction here.

Minnesota Supreme Court Holds that State May Civilly Commit Minnesota Tribal Members for On-Reservation Crimes

Thanks to N.X.:

Today’s Star Tribune reports that the Minnesota Supreme Court ruled that tribal members aren’t exempt from civil commitment.  The link to the court’s opinion is here.

August 11, 2011 update:

Here is the opinion.

And the briefs:

Appellant’s Brief and Appendix

Appellant’s Reply

Job Posting: Minn. Regional Native Public Defense Corp.

REGIONAL NATIVE PUBLIC DEFENSE CORPORATION

FULL TIME STAFF ATTORNEY

The RNPDC is seeking a full time staff attorney to join our organization.  Candidates with criminal defense experience and knowledge of Indian law are preferred.  Candidates must be licensed to practice law in the State of Minnesota.  Salary depends on qualifications.  The RNPDC has a Native American hiring preference.

The RNPDC seeks justice and fair treatment for White Earth and Leech Lake members facing criminal charges in and around the White Earth and Leech Lake reservations.  The RNPDC acts to respond to historical mistreatment and the racial disparities prevalent for Native people in the criminal justice system today.

To apply, send cover letter and resume to:

Megan Treuer

Executive Director

Regional Native Public Defense Corp.

P.O. Box 487

Cass Lake, MN 56633

(218) 339-5680

(218) 339-5686 fax

megantreuer@yahoo.com

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Minnesota Court of Appeals Holds State Court Has No Civil Confinement Authority over Minnesota Chippewa Members

Here is the opinion in In the Matter of the Civil Confinement of Johnson.

The court’s syllabus:

The state does not have jurisdiction pursuant to Public Law 280 to civilly commit an enrolled member of a federally recognized Indian tribe as a sexually dangerous person under the Minnesota Commitment and Treatment Act.  But in the absence of express congressional consent, the state does have jurisdiction to civilly commit an enrolled member of a federally recognized Indian tribe as a sexually dangerous person under the commitment and treatment act where, as here, federal law does not preempt state jurisdiction and exceptional circumstances exist.

Indian Treaty Rights Showdown in Minnesota Possible

From the Minneapolis Star-Tribune:

LEECH LAKE RESERVATION — The stage is set for an off-reservation treaty rights battle to begin Friday in Bemidji that ultimately could engulf much of northern Minnesota. Some Leech Lake Chippewa band members say they’ll set nets in Lake Bemidji the day before Minnesota’s walleye and northern pike seasons begin.

The Indians are gambling they’ll be busted for violating state angling rules, sparking a legal battle not only over northern Minnesota fish but also its wildlife and perhaps its timber, minerals and other resources.

Citing a treaty more than 150 years old, the Chippewa say most state fish and wildlife rules don’t apply to them across a large section of northern Minnesota — generally north of Interstate 94 — that they ceded to the federal government in 1855.

The stakes are high for everyone. The Leech Lake Chippewa, and those of the White Earth band about an hour away, risk backlashes that could cut into their casino profits and fracture relations with nonband members that in some instances are already tenuous.

And while the state has signaled it will hold fast to its contention that the bands have no off-reservation hunting, fishing and gathering rights, its costly defeat in the U.S. Supreme Court to the Mille Lacs and other Chippewa bands over similar treaty claims in 1999 hasn’t been forgotten.

“We need to exercise our rights or our sovereignty is just a thought,” said Renée Jones-Judkins, 52, of Cass Lake, who with her four sons will net Lake Bemidji on Friday. She was one of about 125 Leech Lake members (out of a tribal enrollment of 9,400) who attended a tribal treaty rights meeting Friday at the band’s Palace Casino in Cass Lake.

The White Earth and Leech Lake tribal councils aren’t sanctioning the protests. Instead, they will sponsor a public forum on Friday in Bemidji to inform nonband members about rights the Chippewa say they hold.

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Who is an Indian under the Major Crimes Act?

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

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.