Major Crimes Act

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).

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

Matthew 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.

Ninth Circuit Reviews Who is An “Indian” under Major Crimes Act

Matthew L.M. Fletcher1 Comment

The opinion in United States v. Cruz is here. An excerpt:

At first glance, there appears to be something odd about a court of law in a diverse nation such as ours deciding whether a specific individual is or is not “an Indian.” Yet, given the long and complex relationship between the government of the United States and the sovereign tribal nations within its borders, the criminal jurisdiction of the federal government often turns on precisely this question — whether a particular individual “counts” as an Indian — and it is this question that we address once again today.

***

Because the evidence adduced during Christopher Cruz’s trial does not satisfy any of the four factors outlined in the second prong of the Bruce test, we hold that, even when viewed in the light most favorable to the government, his conviction cannot stand. The district court’s failure to grant Cruz’s motion for judgment of acquittal was plain error, and accordingly we reverse.

Here are the briefs:

cruz-opening-brief

united-states-appellee-brief

cruz-reply-brief

Welch v. United States — Federal Criminal Jurisdiction

Matthew L.M. Fletcher

This unexceptional habeas case (I don’t think the government even responded) highlights an interesting question, one in which I assume there is not a circuit split yet. But it is a bit odd.

The habeas petitioner alleged that the United States hadn’t sufficiently proved that the victim and defendant were Indians, as required under the Major Crimes Act, an argument that hadn’t been raised below. It should have been waived under regular habeas rules. The court in footnote 2 notes that such a question would seem to suggest that perhaps the government hadn’t sufficiently proved subject matter jurisdiction, a question that cannot be waived. However, citing non-Major Crimes Act cases, the court concluded that it did not go toward jurisdiction, but as to the elements of the crime.

I wonder if there have been other Major Crimes Act habeas cases like this. If this one came out the other way, it might be that much harder for federal prosecutors to work in Indian Country.

welch-v-us-dct-opinion

US v. Crow Feather — Indian Country Marijuana Indictment

Matthew L.M. Fletcher

The district court here (D. N.D.) declined to dismiss an indictment for marijuana possession. From the opinion:

Crow Feather contends that the Court should dismiss this action because possession of marijuana with intent to distribute is an offense that is expressly prohibited by 18 U.S.C. § 1152 and is not an offense set forth in 18 U.S.C. § 1153.

***

Because 18 U.S.C. § 1152 does not restrict prosecution for a violation of 21 U.S.C. § 841(a)(1), and because Crow Feather need not commit a crime set forth in 18 U.S.C. §1153 to be prosecuted in federal court, Crow Feather’s motion to dismiss (Docket No. 13) is DENIED.

us-v-crow-feather-dct-opinion

Timothy Droske on Native American Sentencing Disparities

Matthew L.M. Fletcher

Timothy Droske, a Seventh Circuit clerk, has published “Correcting Native American Sentencing Disparity Post-Booker” in the Marquette Law Review. An excerpt:

In December 2007, however, the Supreme Court decided United States v. Kimbrough, in which the Court held that under Booker, district court judges were not bound to accept the 100:1 crack-powder sentencing ratio that existed in the Guidelines. The Court determined that while courts were bound by the minimum and maximum sentences proscribed by Congress, “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack-powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes.” This holding significantly enhances district court judges’ ability to award non-Guidelines sentences in the Native American and fast-track contexts.
This Article, therefore, will address district court judges’ authority to correct for Native American sentencing disparity in light of Kimbrough, as well as what lessons can still be drawn from the debate surrounding fast-track disparity. Applying the same principles articulated by the Court in Kimbrough, it is evident that Congress has not barred sentencing courts from considering sentencing disparity as it relates to Native Americans. Moreover, the findings of the Native American Advisory Group reflect that the Guidelines fail to properly consider the impact federal sentences have on Native Americans. After establishing that district courts have the authority to consider Native American sentencing disparity when sentencing Native American defendants, this Article will then show how judges are to consider this issue in light of judges’ instruction to sentence defendants in accord with the factors set forth in § 3553(a).
Admittedly, the approach advocated in this Article will not fully eradicate Native American sentencing disparity. If a district court chooses not to alter a sentence based on such disparity, circuit courts are permitted to treat a district court’s decision to adhere to the Guidelines as presumptively reasonable, and moreover, even non-Guidelines sentences will still be bound by the statutory minimums and maximums set by Congress. Any attempt to fully eradicate the disparate sentences endured by Native American defendants, however, would require wide-sweeping reform of the Federal Sentencing Guidelines or major congressional changes to the Major Crimes Act. This proposal offers two advantages to such an alternative. First, the proposal presented in this Article presents an immediate solution to Native American defendants. Any attempt to fundamentally modify the Guidelines or amend the Major Crimes Act would require a high degree of political capital to obtain, and so far, such attempts have fallen short. Furthermore, with Native American sentencing disparity being a byproduct of a jurisdictional issue, the courts, particularly post-Booker, are perhaps the branch best suited to resolve this concern.

United States v. Mitchell — Death Penalty Case at Navajo

Matthew L.M. Fletcher1 Comment

Recently, the Ninth Circuit decided a federal death penalty case arising out the Navajo Nation. The Court rejected an argument that the Navajo Nation hadn’t opted into the death penalty in accordance with the Major Crimes Act on the theory that the federal statute at issue was a different one. In short, the Court ignored tribal sovereignty.

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