Eighth Circuit, Over a Dissent, Affirms 48-Year Sentence for Indian Juvenile Convicted of Murder

Here is the court’s opinion in United States v. Boneshirt.

A lengthy excerpt from the dissent:

As a longtime federal judge, I have seen and reviewed scores of cases in which Indian males have been convicted of assaultive crimes, including murder. Alcohol has played a substantial role in the crime in almost every one of those cases. See, e.g., United States v. Jensen, 423 F.3d 851, 853 (8th Cir. 2005), United States v. LeClair, 338 F.3d 882, 884–85 (8th Cir. 2003), United States v. Emeron Taken Alive, 262 F.3d 711, 712 (8th Cir. 2001). And alcohol obviously played a major role in the unfortunate homicide of Ms. Walking Eagle. Yet the sentencing judge chose a sentence well above the average sentence for murder when, in context, the circumstances were not outside of the usual, serious crime by an adult male Indian, particularly on a reservation.

In addition, the district court did not take into consideration Boneshirt’s life expectancy. The sentencing judge specifically expressed the desire to protect the public by ensuring that Boneshirt would be an old man when he was released: “the Court believes that there is just too much of a risk with Mr. Boneshirt being a part of society before the point where he’s of a very mature age.” However, the district court did not properly consider Boneshirt’s background as a Native American male, who has a life expectancy of fifty-eight years. See Christopher J. L. Murray et al., Eight Americas: Investigating Mortality Disparities across Races, Counties, and RaceCounties in the United States, 3 PLoS Med. 1513, 1514 (2006) “Native American males in the cluster of Bennet, Jackson, Mellette, Shannon, Todd, and Washabaugh Counties in South Dakota had a life expectancy of 58 [years] in 1997–2001 . . . .”). Even if he earns all of his good time credit, which the district court was not optimistic about, he will still serve more than forty years in prison. The district court anticipated Boneshirt would be an old man when he was released, but in reality he may be a dead man.

LaBuff v. United States Cert Petition

Here:

LaBuff Petition for Certiorari dated August 26, 2011

Lower court materials here.

Here are the questions presented:

1. Has the Ninth Circuit, contrary to United States v. Rogers, erroneously minimized consideration of the undisputed facts that petitioner is not socially recognized as an Indian, does not participate in Indian social life, and does not hold himself out as an Indian and thereby created a conflict with the Eighth Circuit?

2. Did the government prove beyond a reasonable doubt that petitioner is an Indian person where he is not a member of a tribe, is not socially recognized as an Indian, does not participate in Indian social life, and does not hold himself out as an Indian?

Ninth Circuit Decides Indian Status Case Under Major Crimes Act

I’m still trying to understand how a reasonable jury of non-Indians can decided beyond a reasonable doubt that someone is an “Indian” under the Major Crimes Act. 🙂

Here are the materials in United States v. LaBuff:

LaBuff CA9 Opinion

LaBuff Opening Brief

US Answer Brief — LaBuff

LaBuff Reply

The court originally decided this case without publishing the opinion, but the government successfully petitioned the court to published it. Here are those materials. A cert petition is pending (docket no. 11-6168, definitely one to watch!):

US Request to Publish

LaBuff Opposition

Update with additional Ninth Circuit materials:

Doc 27 Objection filed October 18, 2011

 

 

Eighth Circuit Affirms Oglala Member’s Involuntary Manslaughter Conviction

Here is the opinion in New v. United States:

New v USA CA8 Opinion

Ninth Circuit Affirms Major Crimes Act Conviction (Out of Yakama)

Here is the unpublished opinion in United States v. Gomez.

Ninth Circuit Affirms Major Crimes Act Conviction (2d Degree Murder) Out of Montana

Here is the unpublished opinion in United States v. Goodbear.

Eighth Circuit Affirms Major Crimes Act/SORNA Convictions

Here is the opinion in United States v. Poitra:

US v Poitra

Eighth Circuit Affirms Major Crimes Act — Domestic Violence — Sentencing

The court relied at least in part on prior tribal court convictions, but didn’t note whether they were counseled or uncounseled.

Here is the opinion:

US v Strong CA8 Opinion

Eighth Circuit Affirms Major Crimes Act Conviction of Juvenile; Member of Cheyenne River Sioux Tribe

Here is the opinion in United States v. B.A.D.:

US v BAD CA8 Opinion

Tenth Circuit Vacates Sentence (Again) in Major Crimes Act Conviction

Here is the opinion in United States v. Lente.

Here is our prior post on the case, which at one time turned on the import of prior tribal court DUI convictions. Here is our post on the prior CA10 opinion.