Major Crimes Act

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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Ninth Circuit Affirms SORNA Conviction (Major Crimes Act is Underlying Conviction)

Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. George.

An excerpt:

Defendant-Appellant Phillip William George (“George”) was convicted of the federal crime of sexual abuse of a minor on an Indian reservation in violation of 18 U.S.C. §§ 2243(a)and 1153. He served his sentence for that offense, but then he failed to register as a sex offender in violation of the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250. He was convicted of that offense in 2008, pursuant to a conditional guilty plea, and now appeals that conviction. He contends his conviction is invalid because the state where he was required to register, Washington, had not implemented SORNA. He also argues SORNA’s registration requirement is an invalid exercise of congressional power and violates the Ex Post Facto Clause of the Constitution.

U.S. v. Lente Resentencing: Weight Given to Prior Tribal Court Convictions as Issue

Matthew L.M. Fletcher1 Comment

Previously, a badly divided panel of the Tenth Circuit vacated a sentence of 216 months for an Indian woman convicted of vehicular homicide. On remand, the trial judge lessened the sentence to 192 months — DCT Resentencing Order in Lente.

Prior tribal court convictions are an issue in this case:

First, I find that the Guidelines do not adequately represent Lente’s prior criminal history. As noted above, Lente did not receive any criminal history points for her five prior tribal convictions. In four of the five offenses, tribal records show that Lente was intoxicated. In all four, Lente was charged with disorderly conduct, among other things, for starting fights and/or causing property damage. In the last offense, a conviction for assault and battery in 2005, details of the offense were unavailable. Tribal records also show that Lente was arrested three additional times and charged with assault, assault and battery and/or disorderly conduct. None of those three arrests led to convictions. I find that Lente’s criminal history shows a repeated willingness to abuse alcohol and engage in violent and/or reckless behavior. While tribal convictions are not usually taken into account under the Guidelines (although, as noted above, the Guidelines themselves permit tribal convictions to be used as the basis for an upward departure), Lente’s prior convictions should be taken into account in this case. Five prior convictions (and three prior arrests which did not result in convictions) do not constitute an insignificant criminal record. Furthermore, at least four of her five prior convictions involved the use of alcohol. All of her prior convictions involve violent and/or reckless behavior. These prior convictions show a pattern of alcohol abuse and reckless behavior—a pattern which led to Lente’s decision to drink 13 to 19 beers on December 2, 2005 and drive on State Road 47. I recognize that three of Lente’s prior convictions occurred when she was a juvenile and, accordingly, I do not rely on these convictions to enhance Lente’s sentence. However, I find it entirely appropriate to enhance Lente’s sentence on the basis of her two adult tribal convictions—one for assault and battery and one for disorderly conduct. As discussed above, had Lente’s two adult tribal convictions occurred in state or municipal court, Lente would have been placed in criminal history category III and would be facing a Guidelines range of 57 to 71 months—over a year more than the Guidelines range she faces today. Given the patterns in Lente’s offense history, I find it highly unjust that she avoids the consequence of these prior convictions merely because they occurred in tribal court.

One appellate judge before had rejected such an analysis, as the trial judge notes:

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Eighth Circuit Affirms Upward Departure from Sentencing Guidelines Based on Seven Prior Tribal Court Convictions

Matthew L.M. Fletcher

Here is the opinion in United States v. Cook.

The court notes on page 3 that the seven prior tribal court convictions “alone” were enough to justify the upward departure from the sentencing guidelines. Not sure how many, if any, of the tribal court convictions were counseled.

New Scholarship on Major Crimes Act Prosecutions and Race

Matthew L.M. Fletcher

Brian L. Lewis has published his excellent paper, “Do You Know What You Are? You Are What You Is; You Is What You Am: Indian Status for the Purpose of Federal Criminal Jurisdiction and the Current Split in the Court of Appeals,” in the Harvard Journal on Racial and Ethnic Justice (formerly the Harvard BlackLetter Law Journal).

Paper here: Lewis

The paper delves into the recent cases involving Indian status of criminal defendants prosecuted under the Major Crimes Act; and recent cases such as Cruz and Stymiest, where the Ninth and Eighth Circuits, respectively, reached conflicting conclusions on whether nonenrolled Indians are “Indian” under the statute.

Deeply Divided Eighth Circuit Panel Affirms 10-Year Sentence for Neonatcide

Matthew L.M. Fletcher2 Comments

Apparently, this is only the second time in the history of the federal courts that there has been a person convicted of neonatcide. Thank you Major Crimes Act. 😦

The facts in this case are beyond horrible, and we usually don’t post criminal cases like this, but the dissent is so passionate in this case.

Here is the opinion: US v Deegan.

From the dissent (Judge Bright):

In the view of this judge, the procedure followed and the imposition of a ten-year-plus prison sentence on Ms. Deegan, a young American Indian woman, represents the most clear sentencing error that this dissenting judge has ever seen.

* * *

Ms. Deegan’s crime of neonaticide was a unique sort of homicide and completely unlike the usual and ordinary killings that constitute second-degree murder under federal law. As I have already observed, federal courts do not ordinarily deal with these types of cases, which may be grist for the mills of state courts. Only because this neonaticide occurred on an Indian reservation does this case become one of federal jurisdiction. There exists no basis in the statements of the Sentencing Commission or in reviewing federal appellate second-degree murder cases to conclude that the crime of neonaticide comes within the federal second-degree murder sentencing guidelines.

Ninth Circuit Affirms Indian Country Capital Murder Conviction

Matthew L.M. Fletcher1 Comment

Kinda, somewhat interesting case arising on the Colville Reservation, where the defendant wasn’t indicted for more than 10 years after the crime — United States v. Gallaher. Here is the court’s take:

The Federal Death Penalty Act of 1994 conditionally eliminated the death penalty for Native American defendants prosecuted under the Major Crimes Act or the General Crimes Act, subject to the penalty being reinstated by a tribe’s governing body. See 18 U.S.C. § 3598. In 2005, a federal grand jury indicted defendant-appellant James H. Gallaher, Jr., for first degree murder, more than 14 years after he killed Edwin Pooler on the Colville Indian Reservation in eastern Washington. Because the Confederated Tribes of the Colville Reservation have not reinstated the death penalty, Gallaher argues that he is not subject to the death penalty and thus the five year federal statute of limitations for noncapital crimes applies to his offense. See id. §§ 3281-82. We disagree and hold that first degree murder remains a capital offense, regardless of whether capital punishment can be imposed in a particular case.

There was a dissenter (Judge Tashima), who argued:

In my view, the Federal Death Penalty Act removes first degree murder committed within the boundaries of “Indian country” from the realm of offenses punishable by death and delegates to the tribes the authority to determine the availability of the death penalty. See 18 U.S.C. § 3598. The Confederated Tribes of the Colville Reservation has not elected to make the death penalty available for first degree murder on the Colville Reservation. Thus, capital punishment has been clearly eliminated for the crime for which Gallaher was indicted. Because Gallaher has not been indicted for an “offense punishable by death,” see 18 U.S.C. § 3281, the five-year statute of limitations applies, see 18 U.S.C. § 3282.

Here are the materials:

Gallaher Opening Brief

US Appellee Brief in Gallaher

Gallaher Reply Brief

Tenth Circuit Affirms Sentence in Major Crimes Act Conviction

Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. Jim, a case arising on the Navajo Reservation.

U.S. v. White Mountain–Jurisdictional Defense to Federal Prosecution Based on 1868 Fort Laramie Treaty

Matthew L.M. Fletcher

Here are the materials (no decision from the Eighth Circuit yet):

White Mountain Opening Brief

USA Appellee Brief

White Mountain Reply Brief

U.S. v. Maggi — Ninth Circuit Further Refines Who is an “Indian” under the Major Crimes Act

Matthew L.M. Fletcher2 Comments

Here are the materials:

CA9 Opinion

Maggi Opening Brief

Government Brief in US v Maggi

Maggi Reply Brief

Mann Opening Brief

Government Brief in US v Mann

Mann Reply Brief

An excerpt:

Gordon Mann and Shane Maggi appeal from unrelated convictions on the same basis, namely that they are not “Indians” for purposes of prosecution under the Major Crimes Act. Because there is no evidence that Mann has any blood from a federally recognized Indian tribe, his conviction must be vacated. Maggi’s documented blood from a federally recognized tribe is scant-1/64. However, we do not decide the novel question whether Maggi’s Indian blood degree is adequate; rather, because Maggi lacks sufficient government or tribal recognition as an Indian, his conviction must also be vacated. In light of this disposition, we need not consider Maggi’s additional challenges to the sufficiency of the indictment and the reasonableness of the sentence.

The real question here is whether the government thinks this is the right vehicle to test the Ninth Circuit on the means by which it defines “Indian” under the Major Crimes Act. I’d say definitely not Mann (with no Indian blood from a federally recognized tribe), but maybe Maggi (still only 1/64 blood from a federally recognized tribe). I bet they wait for another case (assuming they want one at all).