Major Crimes Act

Materials in Federal DV Prosecution under Major Crimes Act (Colville)

Matthew L.M. Fletcher1 Comment

Here are the materials so far in United States v. Flett (E.D. Wash.):

DCT Order re Pretrial Motions

Flett Indictment

Flett Motion to Dismiss

US Response

An excerpt:

On June 5, 2012, Tommie Joe Flett allegedly assaulted his estranged girlfriend at a residence that is located within the boundaries of the Colville Indian Reservation. The Colville Confederated Tribes charged Mr. Flett in tribal court with violations of tribal law. On August 24, 2012, Mr. Flett pleaded guilty in tribal court to the crime of “Battery (Domestic Violence).” During the process, he allegedly admitted assaulting his estranged girlfriend on June 5, 2012. The tribal judge sentenced Mr. Flett to a term of 360 days incarceration with credit for time served. The matter did not end there. The United States sought, and obtained, an indictment charging Mr. Flett with violations [2] of federal law. The federal indictment is based upon the same conduct that the 2012 tribal conviction is based upon. Counts one, two, and three allege Mr. Flett committed the crime of assault in Indian Country.18 U.S.C. §§ 1153(a)and113(a). Count four alleges he is subject to enhanced punishment based upon prior domestic violence convictions.18 U.S.C. § 117(a). The parties have filed a number of pretrial motions.

Montana Lawyer Article on the Zepeda Case

Matthew L.M. Fletcher

Here, see pages 28-30.

Federal Court Rejects Double Jeopardy-Related Habeas Petition from Prisoner Previously Convicted in Tribal Court

Matthew L.M. Fletcher

Here are the materials in Jacobs v. United States (D. S.D.):

2255 Motion

Government’s Response

Jacobs’ Response

DCT Order Denying Habeas Relief

Materials from Mr. Jacobs’ direct appeal of his conviction based on the 1868 Fort Laramie treaty is here.

Perhaps as Many as Three Ninth Circuit Indian Criminal Cases Uncertain as Feds Ponder En Banc Petition in U.S. v. Zepeda

Matthew L.M. Fletcher3 Comments

Today, the Ninth Circuit withdrew an opinion affirming a conviction in United States v. Alvirez. The Alvirez materials are here. The Zepeda materials are here. The federal government has until April 18 to file an en banc petition. A third decision that may be implicated as well is United States v. PMB (materials here).

The issue in Zepeda is here:

The panel held that a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties’ stipulation, is insufficient evidence for a rational juror to find beyond a reasonable doubt that a defendant is an Indian for purposes of § 1153, where the government offers no evidence that the defendant’s bloodline is derived from a federally recognized tribe.

Ninth Circuit Reverses Another Conviction under Zepeda (Tribal CDIB Insufficient Evidence of Indian Status)

Matthew L.M. Fletcher5 Comments

Here is yesterday’s unpublished order in United States v. PMB.

The Zepeda post is here.

United States v. Sun Bear — CA8 Rejects SORNA Challenge (Major Crimes Act Conviction)

Matthew L.M. Fletcher

Here is the opinion:

US v Sun Bear

Eighth Circuit to Rehear Major Crimes Act Sexual Offenses Cases to Resolve Intra-Circuit Split

Matthew L.M. Fletcher

Here.

Our post on these cases is here. Here are the decisions:

United States v. Bruguier

United States v. Rouillard

Ninth Circuit Holds Unauthenticated Tribal Membership Card Insufficient for Proving Indian Status under Major Crimes Act

Matthew L.M. Fletcher2 Comments

Here are the materials in United States v. Alvirez (opinion here):

Alvirez Brief

Federal Appellee Brief

Alvirez Reply

From the court’s syllabus:

Reversing a conviction for assault resulting in serious bodily injury on an Indian reservation in violation of 18 U.S.C. §§ 1153 and 113(a)(6), the panel held that the district court abused its discretion when it admitted an unauthenticated Certificate of Indian Blood issued by the Colorado River Indian Tribes as evidence that the defendant has tribal or federal government recognition as an Indian. The panel wrote that because Indian tribes are not listed among the entities that may produce self-authenticatingdocuments, the district court abused its discretion in admitting the Certificate pursuant to Fed. R. Evid. 902(1) as a self-authenticating document.

 

On Federal Juries and American Indian Defendants

Matthew L.M. Fletcher1 Comment

Commentators (for example, here and here) have been noting in response to Grassley’s concern that white male perpetrators will not benefit from a jury of their peers in tribal courts that Indian defendants (almost) never stand trial before federal juries with American Indians in the jury box. Let us not forget ASIA Kevin Washburn’s Michigan Law Review article from a few years back that made that perfectly clear. He wrote:

Despite the normative principle of representativeness, Indians tend not to be well represented in federal juries in Indian country cases. Even in states with large Indian populations, Indians remain a very small fraction of the population. As a result, Indians would be expected to have minimal representation in the jury venire. However, the statistics indicate lower numbers than one would expect.

Split Ninth Circuit Orders Federal Prosecutors to Prove Federal Recognition Status of Tribes in Major Crimes Act Prosecutions…

Matthew L.M. Fletcher4 Comments

… to a jury beyond a reasonable doubt.

Here are the materials in United States v. Zepeda:

CA9 opinion

CA9 memorandum (related opinion on other issues)

Zepeda Opening Brief

US Answer Brief

Zepeda Reply Brief

US Supplemental Brief

Zepeda Supplemental Brief

The court’s summary:

The panel reversed jury convictions under the Major Crimes Act, 18 U.S.C. § 1153, which provides for federal jurisdiction over certain crimes committed by Indians in Indian country.
The panel held that whether a given tribe is federally recognized, as required for jurisdiction under § 1153, is a question of fact for the jury, not a question of law for the court; and rejected the government’s request that this court take judicial notice of the Bureau of Indian Affairs’s list of federally recognized tribes in 2008 and 2010.
The panel held that a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties’ stipulation, is insufficient evidence for a rational juror to find beyond a reasonable doubt that a defendant is an Indian for purposes of § 1153, where the government offers no evidence that the defendant’s bloodline is derived from a federally recognized tribe.
Dissenting, Judge Watford would hold that federal recognition of an Indian tribe is a question of law for the court to resolve.