Ninth Circuit Affirms SORNA Conviction of Former Northern Cheyenne Indian Reservation Resident (UPDATED)

Here is the opinion in United States v. Elk Shoulder.

Update — here are the briefs:

Elk Shoulder Opening Brief

USA Answer Brief

Elk Shoulder Supplemental Brief

USA Supplemental Brief

Here is the Fifth Circuit opinion with which the CA9 disagrees:

US v Kebodeaux CA5 Opinion

Ninth Circuit Holds that Indian Juveniles Convicted of Sex-Related Delinquency Crimes Must Register under SORNA

Here is today’s opinion in United States v. Juvenile Male.

An excerpt:

Three juvenile defendants, each of whom is a member of an Indian Tribe and who pleaded true to a charge of aggravated sexual abuse with children, appeal their conditions of probation or supervision requiring registration under the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq. Defendants argue that SORNA’s registration requirement contravenes the confidentiality provisions of the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. § 5031 et seq., and also challenge its constitutionality. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Because we conclude that Congress, in enacting SORNA, intentionally carved out a class of juveniles from the FJDA’s confidentiality provisions, and that SORNA’s registration requirement is constitutionally sound, we affirm the district courts’ imposition of the sex offender registration conditions.

Congressional Delegation to DOJ of Authority to Abrogate Tribal Sovereignty?

The Attorney General is beginning the process to determine whether “tribe[s] e ha[ve] not substantially implemented the requirements of this subtitle and [are] not likely to become capable of doing so within a reasonable amount of time” under 42 U.S.C. § 16927(a)(2)(C).

What this means is that tribes that opted-in a few years back into the federal sex offender registry program requirements that are not in compliance within a “reasonable” time or “are not likely to” be in compliance, may have their sovereignty over this question shunted off to state governments at the Attorney General‘s discretion. Seems like it is time to pay serious attention to the notices coming out of the DOJ about this issue.

Here is the tribal consultation announcement.

And the SMART website.

Tenth Circuit Rejects Constitutional Challenge to SORNA (Underlying Major Crimes Act Conviction)

Here is today’s opinion in United States v. Yelloweagle.

An excerpt:

Alden Yelloweagle, the appellant here, was previously convicted of a federal sex offense. When he failed to register as required, he was indicted by federal authorities under the enforcement provision. Mr. Yelloweagle moved to dismiss the indictment for various reasons. Two of the reasons he offered are relevant here. First, he contended that no provision of the Constitution authorizes Congress to require all sex offenders to register. Accordingly, Mr. Yelloweagle
argued, he could not be punished for failing to comply with the requirement. Second, even if the registration requirement was valid, Mr. Yelloweagle contended that the criminal enforcement provision also lacked a jurisdictional
basis and therefore was unconstitutional. The district court denied the motion to dismiss.

In his opening brief on appeal, Mr. Yelloweagle makes no mention of the first argument regarding the registration requirement; he focuses only on the claim that Congress lacks the power to criminalize the failure to register under the
enforcement provision. The government argues that this tactical shift dooms Mr. Yelloweagle’s appeal, for if the registration requirement is presumed to be constitutional, then the criminal provision is valid under the Necessary and Proper Clause. See U.S. Const. art. I, § 8, cl. 18. We agree.

Ninth Circuit Affirms SORNA Conviction (Major Crimes Act is Underlying Conviction)

Here is the unpublished opinion in United States v. George.

An excerpt:

Defendant-Appellant Phillip William George (“George”) was convicted of the federal crime of sexual abuse of a minor on an Indian reservation in violation of 18 U.S.C. §§ 2243(a)and 1153. He served his sentence for that offense, but then he failed to register as a sex offender in violation of the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250. He was convicted of that offense in 2008, pursuant to a conditional guilty plea, and now appeals that conviction. He contends his conviction is invalid because the state where he was required to register, Washington, had not implemented SORNA. He also argues SORNA’s registration requirement is an invalid exercise of congressional power and violates the Ex Post Facto Clause of the Constitution.

Ninth Circuit Affirms SORNA Conviction of Two Indian Men

Here is the opinion in U.S. v. Begay.

An excerpt:

Defendants argue that SORNA did not require them toupdate their registration with the State of Arizona while they were residing in the Navajo Nation, and that they could notupdate their registration with the Navajo Nation because it had not yet established a sex offender registry. Based on thesepremises, they invoke SORNA’s affirmative defense, which applies when “uncontrollable circumstances prevent[ ] theindividual from complying” with SORNA. 18 U.S.C.§ 2250(b)(1). Alternatively, they argue that if SORNA did require them to update their registration with Arizona, SORNA violates the Due Process Clause of the Fifth Amendment and the Ex Post Facto Clause.
We hold that SORNA required Defendants to update theirregistration with Arizona, and because nothing prevented them from doing so, no “uncontrollable circumstances prevented [them] from complying” with SORNA. Moreover, wehold that this application of SORNA violates neither the Due Process Clause nor the Ex Post Facto Clause. Thus, we affirmthe district court’s denial of Defendants’ motions to dismiss their indictments.