Major Crimes Act – Page 15

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?

September 23, 2009Matthew 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.

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

September 23, 2009Matthew 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

July 22, 2009Matthew 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

May 9, 2009Matthew 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).

On Judge Kozinski’s Dissent in U.S. v. Cruz

February 11, 2009February 11, 2009Matthew L.M. Fletcher6 Comments

United States v. Cruz (our post here, with briefs) has been getting a fair bit of attention these days in the news (LA Times; How Appealing here and here; Indianz collects articles), probably because Judge Kozinski dissented so strongly.

It is very interesting to see the Ninth Circuit struggle over who is an Indian for purposes of federal criminal jurisdiction, esp. given how Indian tribes struggle over it. But, unfortunately, cases like this will give United States Attorney’s Offices with Indian Country jurisdiction all the more reason to decline to prosecute Indian Country crimes.

The majority’s opinion, in sort of a backwards way, is heading in the right direction. Eventually, I suspect, the federal courts will abandon the common law free-for-all and adopt a bright-line rule based on tribal citizenship, a standard more in line with the political status test used in Morton v. Mancari.

Right now, in the Ninth Circuit, the test is, according to the Cruz majority:

The Bruce test requires that the Government prove two things: that the defendant has a sufficient “degree of Indian blood,” and has “tribal or federal government recognition as an Indian.” Id. at 1223, 1224 (quoting United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996)).

The first part, “sufficient degree of Indian blood” apparently can be something less than 25 percent (in Cruz, it was about 22 percent). Some tribes have minimal Indian blood quantum requirements, resorting to lineal descendancy (e.g., Cherokee Nation of Oklahoma, Sault Ste. Marie Tribe of Chippewa Indians).

It’s the second part where the Cruz majority and Judge Kozinski parted. Judge Kozinski’s dissent is a defense of the second prong (but more so a dramatic attack on the majority’s reasoning). He’s right in many respects. Cruz should be considered an Indian and definitely is, at least by his tribal community. But just because his community subjectively views him as one their own, that’s sufficient to invoke the awesome power of the federal criminal laws? The majority wants something more. And what the majority should do — and perhaps the Ninth Circuit will eventually do — is adopt a bright-line rule on what “tribal or federal government recognition as an Indian means.”

In other words, citizenship in a federally recognized tribe should be the rule. It’s simple and easy, and objective. It’s consistent with the political status test of Mancari, and seems less like an arbitrary application of a race-based law. Plus, if A.U.S.A.’s only have to provide evidence that a criminal defendant is a tribal citizen, there is less effort expended in proving the factual predicates to federal criminal jurisdiction.

Ironically, Judge Kozinski’s dissent defending the broader application of the Bruce test is both a defense of a balancing test he decries, and a defense of a race-based standard. It’s ironic because Judge Kozinski once predicted the end of race-based rules in federal Indian law in Williams v. Babbitt, in which he wrote for a majority that struck down laws designed to protect the Alaskan Native reindeer industry on the grounds that they were race-based.

One might argue that there’s a pretty good reason for the definition of Indian to include persons who aren’t members of federally recognized members of Indian tribes, but who are plainly Indian. I’d like to be persuaded that there are good reasons.