Major Crimes Act

ICT Article on Tribal Law and Order Commission

Matthew L.M. Fletcher

Here. An excerpt:

Federal justice on reservations is discriminatory and harsh, especially for youth, but recently enhanced tribal justice systems – a potential remedy – may not be easy to implement, says a noted advocate for Native rights.

The 2010 Tribal Law and Order Act (TLOA) initiated a nine-member Indian Law and Order Commission that includes Denver-based Troy Eid, a former U.S. Attorney, who has worked with a number of tribes. He and other Commission members have held informal discussions pending full Commission funding.

The Major Crimes Act of 1855, which covers Indian perpetrators and victims on tribal lands, is discriminatory in that it provides harsher penalties for Indian offenders than for non-Natives for essentially the same crimes, he said. It strikes hard at teenaged Indian offenders, about one-third of whom are sentenced as adults as compared to only one to two percent of non-Native youth.

The federal system the Native youth enter requires them to serve about 85 percent of their sentences and there is no parole, while in the state of Colorado, for example, the average proportion of sentences served is 32 percent. There are no juvenile diversion programs, alternative sentencing, restorative justice or other federal rehabilitative programs comparable to those at state level, he said.

Enter TLOA: It reauthorizes substance abuse programs and grants for summer youth programs, constructs youth shelters and detention and treatment centers, develops long-term plans for Indian juvenile detention and substance abuse treatment centers, and supports tribal juvenile delinquency prevention services and care of juvenile offenders.

The Tribal Youth Program would authorize $25 million annually through 2015 for juvenile delinquency prevention services and the care of juvenile offenders.

South Dakota Rep. Kevin Killer (D -Pine Ridge) hailed the potential of the youth programs for his district, where more than half of residents are under age 18, and his state, where nearly 40 percent of those in the juvenile justice system are Native youth. Restorative programs are probably among those the Oglala Lakota would be interested in pursuing, he said.

Other major TLOA provisions allow participating tribal courts to impose penalties of up to three years’ imprisonment compared to the existing one-year limit and require tribal courts to provide court-funded licensed defense attorneys for indigent defendants, with more stringent qualifications for both attorneys and judges.

TLOA offers some financial support for enhanced tribal justice systems – a cost, which Eid himself says is “substantial” and which the Congressional Budget Office estimated at about $1 billion over the first five years.

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Fay v. Chester: Tenth Circuit Rejects Pro Se Challenge to Constitutionality of Major Crimes Act

Matthew L.M. Fletcher

Here is that unpublished opinion.

An excerpt:

Mr. Fay asserts that he “is a[n] enrolled member of the Sioux Tribe . . .and has maintained his Traditional standing in the Tribe with TraditionalMembers.”  Aplt. Opening Br. at 5a.  Construing his appellate brief liberally, Mr.Fay raises three grounds in support of his argument that the United States—morespecifically, the Commission—lacked jurisdiction over him because he is anAmerican Indian and the Sioux Nation is a sovereign: (1) the Major Crimes Act isunconstitutional; (2) the Sioux Nation did not relinquish its sovereignty under the Fort Laramie Treaty of 1851; and (3) the Fourteenth Amendment recognizesAmerican Indian tribes as sovereigns.

Eighth Circuit Briefs in Treaty-Based Challenge to Major Crimes Act Prosecution

Matthew L.M. Fletcher1 Comment

Here are the materials so far in United States v. Jacobs:

Jacobs Opening Brief

US Brief in Jacobs

Jacobs Reply Brief

Eighth Circuit Affirms Sentence in Major Crimes Act Conviction at MHA Nation

Matthew L.M. Fletcher

Here is the opinion in United States v. Lone Fight.

Ninth Circuit Vacates Major Crimes Act Conviction on Sixth Amendment Grounds

Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. War Club.

An excerpt:

We conclude that bylimiting cross-examination of Green’s brother, the district court precluded War Club from developing evidence that Green’s brother had a motive to commit the murder. The court thereby deprived War Club of the “meaningful opportunity to present a complete defense” guaranteed by the Constitution. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690(1986)). Because we cannot say that the error was “harmless beyond a reasonable doubt,” United States v. Boulware, 384 F.3d 794, 808 (9th Cir. 2004) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)), we vacate the conviction and remand for a new trial.

Tenth Circuit Affirms Sentence in Major Crimes Act Conviction

Matthew L.M. Fletcher

The case is United States v. Warrior, and here is the unpublished opinion.

The case apparently involves the Tonkawa Tribe of Oklahoma.

 

Ninth Circuit Panel Issues Amended Order in Colville Death Penalty Case

Matthew L.M. Fletcher

Well, it’s complicated. Colville has not reinstated the death penalty in accordance with the Federal Death Penalty Act, which removes capital murder from the Major Crimes Act unless the tribe “reinstates” it. But apparently a split panel of the Ninth Circuit held (and holds) that federal prosecutors can still pursue the crime of capital murder under the Major Crimes Act, they just can’t impose the death penalty. And the CA9 panel majority says that therefore the 5-year statute of limitations for capital crimes is therefore waived. Interesting. Here is the opinion (and the earlier opinion).

The majority panel writes:

If we were to limit the federal statute of limitations for murder to five years when a tribe has not opted to permit imposition of the death penalty against its members under the Federal Death Penalty Act, we would in fact be limiting sovereignty by burdening the choice created by the Act. “[T]here is typically no statute of limitations for first-degree murder — for the obvious reason that it would be intolerable to let a cold-blooded murderer escape justice through the mere passage of time . . . .” United States v. Quinones, 196 F. Supp. 2d 416, 418 (S.D.N.Y. 2002), rev’d on other  grounds, 313 F.3d 49 (2d Cir. 2002); see also Story v. State, 721 P.2d 1020, 1026-27 (Wyo. 1986) (stating that no state has adopted a limitations period for murder). If the statute of limitations for murder were to shorten so dramatically as a consequence of a tribe’s decision not to reinstate the death penalty, tribal governments would be forced to choose between capital punishment — to which they may have religious or political objections — and justice for the most heinous of crimes.

Judge Tashima disagreed:

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Ninth Circuit Affirms Major Crimes Act Conviction for Murder at Lummi

Matthew L.M. Fletcher

Here is the opinion in United States v. Redlightning. No Indian law issues apparent.

LVD Shooting Indictment — U.S. v. Richard McGeshick

Matthew L.M. Fletcher

Here are the materials:

McGeshick Indictment

Motion for Pretrial Detention

Federal Court Declines to Dismiss Major Crimes Act Indictment on Indian Status Question

Matthew L.M. Fletcher

The case is United States v. Delacruz-Slavik (E.D. Mich.), and the court held that whether the defendant is an “Indian” is an element of the crime to be decided by a jury. An excerpt:

Defendant notes that he is not an enrolled tribal member and thus does not satisfy the first, and most important, of the Bruce factors. As noted above, this is not an absolute requirement. The government alleges that Defendant has received government recognition through receipt of assistance reserved only to Indians and has enjoyed benefits of tribal affiliation. Namely, Defendant took seven parenting classes at the Nimkee Memorial Wellness Center in 2008, and has had many Nimkee dental, medical and behavior health/mental health and substance abuse appointments between 1996 and 2009. Gov’t’s Response & Brief to Def.’s Mot. to Dismiss Indictment 5. These services allegedly are not available to non-Indians. Id. The government estimates that Defendant has had 100 or more tribal-related organization appointments. The government alleges that Defendants records identify Defendant as an “Indian” and “Native American,” as well as Defendant identifying himself as an “Indian” and “Native American.” Id. Defendant states that he only received some tribal services allowed to him as an immediate family member of a Tribal Member, but that he himself has never qualified for membership and is not a recognized member. Def.’s Mem. in Supp. of Mot. to Dismiss Indictment 2. There is also evidence that Defendant has social recognition as an Indian through residence on a reservation and participation in Indian social life.

Still seems to be an interesting constitutional question whether a jury empaneled in Detroit is really competent to decide beyond a reasonable doubt that a person with the above factors, and who is not an enrolled tribal member, is an “Indian.” Without much doubt, that Detroit jury will consist entirely of non-Indians (and any Detroit Indians will be excluded from the jury, to be sure).

Here are the materials:

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