Here is the unpublished opinion in United States v. Commanche.
Major Crimes Act
Major Crimes Act and Voting Rights Act Linkage — Jury Pools and Voter Registration in Indian Country
A federal court denied an American Indian prisoner habeas claim recently on grounds that he could not support his Batson argument with any evidence. Batson being the case that requires a jury of one’s peers. As anyone in Indian country knows, rarely if ever (I posit virtually never) will an American Indian being prosecuted in federal court be tried by a jury that includes even one other American Indian (articles by Doyle/Eid and Washburn).
In this order (US v Bordeaux), the court rejects claims that American Indians even in South Dakota have a Batson claim:
There can be little doubt that Native Americans constitute a distinctive group in South Dakota. The record is undeveloped as to the second prong although there was at least one Native American in the venire; the removal of juror F.C. was the subject of Bordeaux’s Batson challenge. But even if Bordeaux could establish that the representation of Native Americans in the venire was not fair and reasonable, he has failed to show that Native Americans are systematically excluded. The District of South Dakota’s Plan for the Random Selection of Grand and Petit Jurors calls for potential jurors to be called exclusively from a list of registered voters provided by the South Dakota Secretary of State. See Docket No. 7-1. The Eighth Circuit has consistently upheld the use of voter registration lists to select jury pools. Morin, 338 F.3d at 844; Sanchez, 156 F.3d at 879. Bordeaux has presented no evidence whatsoever that Native Americans living in South Dakota face obstacles in the voter registration process. Although Bordeaux argues the lack of Native Americans in the jury pool proves his case, simple statistical disparities between the number of Native Americans represented in the general population and jury pools do not by themselves establish systematic exclusion. Sanchez, 156 F.3d at 879.
There is some evidence in the continuing cases in South Dakota of Voting Rights Act violations (see Laughlin McDonald’s fine American Indians and the Fight for Equal Voting Rights, ch. 5). Maybe the ACLU Voting Rights Project and the South Dakota public/appellate defenders should get together. Ah, they probably already are.
Ninth Circuit Affirms Supervised Release Condition on Indian Convict: Ban on Residing in Town on Crow Reservation
Here is the unpublished opinion in United States v. Yellow Mule.
U.S. v. Pego: Indictment of Saginaw Chippewa Member
Here are the materials in United States v. Pego (E.D. Mich.):
Tenth Circuit Dismisses Appeal of Indian Challenging Constitutionality of Title 18
Here is the opinion in United States v. Tony.
And here is Tony’s brief: Tony Opening Brief
ICT Article on Tribal Law and Order Commission
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.
Fay v. Chester: Tenth Circuit Rejects Pro Se Challenge to Constitutionality of Major Crimes Act
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
Here are the materials so far in United States v. Jacobs:
Eighth Circuit Affirms Sentence in Major Crimes Act Conviction at MHA Nation
Here is the opinion in United States v. Lone Fight.
Ninth Circuit Vacates Major Crimes Act Conviction on Sixth Amendment Grounds
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.
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