Major Crimes Act – Page 4

There is reason to believe that the Supreme Court may be open to revisiting its holding in Antelope, and may soon have the opportunity to cast doubt on the continued vitality of Antelope. In a case unrelated to the Major Crimes Act, the Court struck down a statute that created a voting qualification that, it said, used native Hawai’ian ancestry as “a proxy for race.” Rice v. Cayetano, 528 U.S. 495, 519-20 (2000). Most recently, and after Mr. Jim’s sentencing hearing in this case, a federal district court struck down the Indian Child Welfare Act as unconstitutional because of the race-based restrictions that it places on foster care and adoption. See Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018). The court focused on the fact that the statute based Indian classification on blood, and did not “rely on actual tribal membership,” to distinguish Mancari. Id. at 533. As is clear from the appellate docket in the Fifth Circuit, Case No. 18-11479, the district court’s ruling has generated significant interest among law makers, tribal governments, non-profits, and Indian law scholars, all of whom have submitted amicus briefs. The Fifth Circuit heard oral arguments in the case on March 13 of this year. See Docket entry of March 13, 2019, Brackeen v. Barnhard, app. pending, Case No. 18-11479 (5th Cir.); Andrew Westney, “Texas AG Lauds Child Welfare Ruling, but Tribes Cry Foul,” Law360 (March 4, 2019), at https://www.law360.com/articles/1134688. Ultimately, if the district court’s decision is preserved by the Supreme Court, that would significantly undermine Antelope and open the Major Crimes Act to challenge on these grounds.

Tenth Circuit Orders Resentencing in Indian Country Child Abuse Matter

April 17, 2019Matthew L.M. Fletcher

Here is the opinion in United States v. Jones.

Federal Court Declines to Dismiss Federal Prosecution of Alleged DV Offender Subsequent to Tribal Conviction

January 24, 2019January 26, 2019Matthew L.M. Fletcher

Here are the materials in United States v. Denepzi (D. Colo.):

1 indictment

29 motion to dismiss + cio pleadings [deleted]

30 us response

31 reply + exhibits

32 dct order

New Empirical Research on Federal Court Sentencing of Indian Country Defendants

August 9, 2018August 9, 2018Matthew L.M. Fletcher

Jeffery T. Ulmer & Mindy S. Bradley have published Punishment in Indian
Country: Ironies of Federal Punishment of Native Americans in Justice Quarterly:

Ulmer Bradley (2018) – Punishment in Indian Country

Here is the abstract:

Native Americans are US citizens, but they are also tribal nationals subject to complex and unique criminal jurisdiction arrangements over Indian lands. Tribal nations typically have tribal court jurisdiction over less serious crimes, but for serious crimes the federal justice system often supersedes tribal authority, exposing Native Americans to more severe punishments. In addition, recent federal programs have attempted to foster greater tribal/federal criminal justice coupling. Yet, examinations of criminal punishment of Native Americans are few, and most are outdated and/or of very limited generalizability. We examine the punishment of Native American defendants in federal court, focusing on 28 federal districts with substantial Indian presence. Using recent US Sentencing Commission data, as well as contextual data from the Bureau of Indian Affairs and tribal courts, we focus on differences in the federal sentencing of Native American defendants, and how these differences are conditioned by indicators of tribal-federal criminal justice coupling.

Federal Court Rejects Habeas Petition Seeking Vacature of Major Crimes Act Domestic Violence Conviction [Hualapai]

March 8, 2018Matthew L.M. Fletcher

Here are the materials in Smith v. United States (D. Ariz.):

Eighth Circuit Affirms Major Crimes Act Conviction over Dissent on Right to Counsel in Tribal Court (Rosebud Sioux)

August 29, 2017August 29, 2017Matthew L.M. Fletcher

Here are the materials in United States v. Long:

Opinion

Long Brief

US Brief

An excerpt from the dissent:

A misdemeanant like Michael Long is forbidden to possess a firearm only if he was “represented by counsel in the case” in which he sustained the misdemeanor conviction, or if he “waived the right to counsel in the case.” 18 U.S.C. § 921(a)(33)(B)(i)(I). It is undisputed that Long did not waive the right to counsel and that he was not represented by a lawyer in the case. The court concludes, however, that because Long was represented in the case by a nonlawyer, dubbed a “lay counsel” by the Rosebud Sioux Tribe, he was “represented by counsel in the case.” I believe that this conclusion is inconsistent with the meaning of the word “counsel” in the statute, so I would reverse Long’s conviction for possession of a firearm as a prohibited person.