Oglala Sioux Tribe – Page 13

As Indianz reported, the Eighth Circuit sitting en banc reversed a decision favoring the Indian plaintiffs in a Section 2 vote dilution case. Of note, the en banc panel reversed the decision of a prior panel establishing the law of the case, and allowed the City to file a late petition for en banc review. Where is the rule of law?

Here are the en banc materials. The merits briefs are here.

City of Martin En Banc Petition

Cottier Response to Motion for More Time to File En Banc Petition

Cottier Opposition to En Banc Petition

City of Martin Reply

South Dakota Transportation Commission Finally Earmarks $$$ To Implement Pourier Decision

April 26, 2010Matthew L.M. Fletcher

News article here.

The South Dakota Supreme Court’s most recent decision in the Pourier litigation is here.

NYTs Article on Indian Country Gangs

December 14, 2009Matthew L.M. Fletcher

From the NYTs:

PINE RIDGE, S.D. — Richard Wilson has been a pallbearer for at least five of his “homeboys” in the North Side Tre Tre Gangster Crips, a Sioux imitation of a notorious Denver gang.

One 15-year-old member was mauled by rivals. A 17-year-old shot himself; another, on a cocaine binge and firing wildly, was shot by the police. One died in a drunken car wreck, and another, a founder of the gang named Gaylord, was stabbed to death at 27.

“We all got drunk after Gaylord’s burial, and I started rapping,” said Mr. Wilson, who, at 24, is practically a gang elder. “But I teared up and couldn’t finish.”

Mr. Wilson is one of 5,000 young men from the Oglala Sioux tribe involved with at least 39 gangs on the Pine Ridge Indian Reservation. The gangs are being blamed for an increase in vandalism, theft, violence and fear that is altering the texture of life here and in other parts of American Indian territory.

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Oglala Sioux Tribe Amicus Brief in Wolfchild/Zephier Case

December 12, 2009Matthew L.M. Fletcher

Here is that brief, drafted by the legendary Mario Gonzales — Oglala Sioux Tribe Amicus Brief

Colorado Court of Appeals Decides ICWA Notice Case

May 1, 2009May 1, 2009Matthew L.M. Fletcher

The Colorado Court of Appeals vacated a judgment that terminated parental rights of an Indian family for violation of ICWA’s notice provisions. See opinion here in People in the Interest of N.D.C.

An excerpt:

P.R.D. (mother) appeals from the judgment terminating her parent-child legal relationship with her daughter, N.D.C. She asserts the judgment should be reversed because (1) the Denver Department of Human Services (the department) did not send notice to her tribe, the Oglala Sioux (the tribe), in compliance with the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 to 1963 (2001); and (2) the juvenile court did not comply with several substantive provisions of the ICWA. We conclude (1) the department erred by not filing the notices or the return receipt cards with the court and such errors were not harmless because there was no evidence in the record that the tribe knew mother was an enrolled tribal member or had lived on the reservation; and (2) the subsequent notices sent by the department did not comply with the ICWA.

U.S. v. Janis — CA8 Affirms Conviction for Embezzlement from Tribe

March 3, 2009Matthew L.M. Fletcher

Here is the opinion in United States v. Janis, affirming a conviction under 18 USC 1163 for embezzling funds from an Indian tribe, the Oglala Sioux Tribe — us-v-janis-ca8-opinion

U.S. v. Perez — Sixth Amendment Right to Counsel when Tribe Appoints Lay Advocate Defender

February 18, 2009Matthew L.M. Fletcher

Here are the materials in U.S. v. Perez:

perez-r-and-r

dct-order-denying-perez-motion-to-suppress

The interesting excerpt from the district court’s denial of the motion is here:

After a careful review of the parties’ arguments, the facts, and relevant caselaw, the court adopts the magistrate judge’s recommendation and finds that Perez’s Sixth Amendment right to counsel was not violated. While Perez is correct that United States v. Red Bird, 287 F.3d 709 (8th Cir. 2002), would likely require this court to find a Sixth Amendment violation if he had been represented by an attorney on his tribal charges, the court agrees with Magistrate Judge Duffy and other judges in the District of South Dakota that Red Bird is distinguishable when it is lay counsel, not an attorney, who represented the defendant in tribal court. Red Bird, 287 F.3d at 716; see also Docket 54, page 25-27; United States v. Tools, CR 07-30109-01-KES, 2008 U.S. Dist. LEXIS 49490 (D.S.D. June 27, 2008); United States v. Killeaney, 2007 U.S. Dist. LEXIS 92763, 2007 WL 4459348, *5-*8 (D.S.D. Dec. 17, 2007) (stating that “[t]here is a clear distinction between licensed legal counsel and lay representation under the Sixth Amendment” and concluding that “the appointment of ‘counsel’ pursuant to the Rosebud Constitution does not in all circumstances cause Sixth Amendment protections to attach” when that “counsel” is lay counsel); United States v. Dupris, 2006 DSD 4, 422 F. Supp. 2d 1061, 1068 (D.S.D. 2006); see also United States v. Whitefeather, 2006 U.S. Dist. LEXIS 17237, 2006 WL 763204, *2 (D. Minn. Mar. 24, 2006). Because Perez’s Sixth Amendment right to counsel had not “attached” as discussed in McNeil, statements made during Agent Cresalia’s conversation with Perez on January 11, 2008, are admissible. Perez’s motion is denied.