Major Crimes Act

Briones v. U.S. Cert Petition

Matthew L.M. Fletcher

This involves crimes committed on and around the Gila River Indian Community, prosecuted under the Major Crimes Act. Here is the petition: Briones v US Cert Petition.

It looks like a pair of interesting questions. There may be a decent shot for review if the petition’s representations are correct.

Questions presented:

1. Whether the District Court and the Circuit Court erred in admitting the out-of-court statements of Arlo Eschief to the jury by the prosecution through testimony of a law enforcement agent constituting hearsay testimony in violation of the Sixth Amendment Confrontation Clause?

2. Whether the District Court had the jurisdiction under the General Crimes Act 18 U.S.C. § 1152 and the Major Crimes Act 18 U.S.C. § 1153, to apply federal statutes of crimes on Indian land not expressly authorized by Federal statute?

Eighth Circuit Affirms Major Crimes Act Murder Conviction

Matthew L.M. Fletcher

Here is the opinion in United States Azure (or Wind)–US v. Wind

Ninth Circuit Affirms Major Crimes Act Conviction

Matthew L.M. Fletcher

Here is the opinion in United States v. Other Medicine (opinion here).

Eighth Circuit Affirms Major Crimes Act Conviction

Matthew L.M. Fletcher

The case is United States v. Littlewind (opinion here).

Challenge to Major Crimes Act Rejected

Matthew L.M. Fletcher

Here are the opinions in United States v. Prentiss (D. Minn.):

Prentiss Magistrate Report

Prentiss DCT Order Adopting R&R

Equal Protection Challenge to Major Crimes Act Fails

Matthew L.M. Fletcher

Here is the Ninth Circuit’s memorandum opinion in United States v. Lyons.

An excerpt:

Lyons contends that the mandatory minimum sentence required by 18 U.S.C. § 2241(c) unconstitutionally violates his right to equal protection. This contention fails because § 2241(c) does not discriminate against Native Americans, either on its face or as applied. See City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440 (1985); see also Washington v. Davis, 426 U.S. 229, 241 (1976). Any disproportionate impact § 2241 has on Native Americans simply reflects the different treatment of criminals under the Major Crimes Act who commit crimes in a federal enclave. See United States v. Lemay, 260 F.3d 1018, 1030-31 (9th Cir. 2001); see also United States v. Antelope, 430 U.S. 641, 645, 648-49 (1977) (holding that federal legislation, although relating to Indian tribes, is not based upon impermissible racial classifications; and that it is of no consequence that the federal scheme differs from a state criminal code.)

Who is an Indian under the Major Crimes Act?

Matthew L.M. Fletcher6 Comments

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.

Continue reading →

Eighth Circuit Affirms Conviction of Non-Enrolled Indian under Major Crimes Act

Matthew L.M. Fletcher2 Comments

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.

Tenth Circuit Affirms Conviction of Ute Juveniles for Church Burning

Matthew L.M. Fletcher

Here is the opinion in U.S. v. Doe. An excerpt:

Defendants’ appeals center on the definition of “person” in 18 U.S.C. § 1153(a)’s phrase: “Any Indian who commits against the person or property of another Indian or other person any of the following offenses ….“ (emphasis added). First, defendants argue that context and statutory construction dictate that “person” is restricted to only living individuals. Second, and alternatively, defendants contend that at its broadest, “person” can only include living individuals or corporations, public and private. Under this definition, defendants argue that there was insufficient evidence to establish that the arson victim was a corporation. Third, defendants argue that the district court abused its discretion by permitting the prosecution to reopen its cases to present evidence related to the corporate status of the arson victim. Fourth, defendants argue that the charging information was insufficient because it failed to provide sufficient identification of the arson victim and its status.

The court actually split on what definition to use to define “person” — the Major Crimes Act or the Dictionary Act. either way, the entire panel reached the same result.

Vagueness Challenge to Major Crimes Act Fails

Matthew L.M. Fletcher

The case is United States v. Nahwahquaw, out of the Eastern District of Wisconsin — NAHWAHQUAW Report and Recommendation (the district court judge adopted the recommendation). An excerpt:

Even if the court were to conclude that the defendant can maintain a facial challenge to § 1153(a), which it does not, the term “Indian” is not unconstitutionally vague on its face. Although “Indian” is not defined in the statute, the test for determining “Indian” status has been judicially defined over the years and is well established under federal law. The test, first suggested in United States v. Rogers, 45 U.S. 567 (1846) and generally followed by the courts, considers: “(1) the degree of Indian blood; and (2) tribal or governmental recognition as an Indian.” United States v. Torres, 733 F.2d 449, 456 (7th Cir.1984) (quoting United States v. Broncheau, 597 F.2d 1260, 1263 [9th Cir.1979] ) (emphasis supplied by Torres ); See also, United States v. Keys, 103 F.3d 758, 760 (9th Cir.1996); United States v. Dodge, 538 F.2d 770, 786 (8th Cir.1976). Tribal enrollment is “the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative.” United States v. Bruce, 394 F.3d 1215, 1224 (9th Cir.2005) (quoting Broncheau, 597 F.2d at 1263); accord, United States v. Antelope, 430 U.S. 641, 646 n. 7 (1977).