Tenth Circuit

Tenth Circuit: Fed. Courts Have No Jurisdiction over Non-Indian, Victimless Crime in Indian Country

Matthew L.M. Fletcher1 Comment

Here is the opinion in United States v. Langford.

All this despite language in the Oklahoma Constitution appearing to disclaim state jurisdiction over crimes like these:

Although the McBratney line of cases establishes that the states, not the federal government, possess exclusive jurisdiction over non-Indian perpetrators of victimless crimes, the Oklahoma Constitution appears to disclaim any state jurisdiction over crimes committed in Indian country.  Article I, Section 3 of the Oklahoma Constitution provides: The people inhabiting the State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public land shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United States. Notwithstanding the plain text, the Oklahoma courts have construed this provision “to disclaim jurisdiction over Indian lands only to the extent that the federal government claimed jurisdiction.”  Goforth v. State, 644 P.2d. 114, 116 (Okla. Crim. App. 1982) (citing Currey v. Corp. Comm’n, 617 P.2d 177 (Okla. 1979)).  As the Oklahoma Court of Criminal Appeals observed in Goforth, to construe this provision otherwise would result in a jurisdictional vacuum in which neither the federal government (due to McBratney) nor Oklahoma could punish crimes committed by non-Indians against non-Indians in Indian country.  Consequently, the Oklahoma courts have asserted jurisdiction over crimes by non-Indians in Indian country.  See Goforth, 644 P.2d at 117.

Here are the briefs:

Langford Opening Brief

US Answer Brief (Langford)

Langford Reply

Lower Court Record

 

Laughter v. Gallup Indian Medical Center — Tenth Circuit Affirms Dismissal of Title VII Claim by American Indian

Matthew L.M. Fletcher

Here is the unpublished opinion.

The lower court had dismissed the claim for failure to exhaust administrative remedies.

Stacy Leeds on the Tenth Circuit’s ICWA Decision re: Cherokee Nation Citizenship Act

Matthew L.M. Fletcher8 Comments

Here:

The Cherokee Nation has an automatic 240 day citizenship that attaches to any newborn who is a descendant of the Dawes Rolls.  This was enacted to ensure that newborns are Cherokee citizens subject to the Indian Child Welfare Act’s protections and presumes that the parents will make a decision whether the enroll the child as a Cherokee citizen during their infancy.  I would like to see our Nation go one step further and simply have natural born citizenship laws like other sovereigns throughout the globe, but that’s an aside.  The decision from the the Tenth Circuit is here.  The federal court does not like the idea of this “temporary citizenship” for inclusion in protections of a federal statute.

My question for tribal legal reform:  why have people “enroll” a child as a citizen in the first place?  Why not have Cherokee Nation laws that automatically extend citizenship to children who are eligible for citizenship and if someone chooses to disavow their citizenship, go thru the administrative process to renounce citizenship?  When tribes requires someone to “enroll” as members/citizens of the Nation, it contributes to the idea the tribal citizenship is inferior to other citizenship.  I envision this sequence:  Citizenship by birth, followed by a Cherokee Nation Birth Certificate and/Cherokee Nation ID card for documentation purposes, followed by a Cherokee Nation driver’s license to operate a vehicle.

 

Initial Thoughts on Wilgus Eagle Feather Decision

Matthew L.M. Fletcher1 Comment

The analysis of the Tenth Circuit in United States v. Wilgus is striking. Of note, the court adopts a sort of limiting principle that it hopes meets all of the competing interests, and relies heavily on Morton v. Mancari:

By adopting the federally-recognized tribes version of the interest, however, we remain on safe ground, based on the Supreme Court’s conclusion that federallyrecognized tribes are political—rather than religious or racial—in nature.  See Morton, 417 U.S. at 554.  As long as the federal government takes action toward federally-recognized tribes as political entities, supported by the specific provisions of the Constitution that grant Congress exceptional powers vis-à-vis such tribes, the government can avoid unconstitutionally favoring one religion over another.  See Cohen§ 14.03[2][c][iii] (noting that equal protection-based claims by non-Indians challenging religious exemptions for Indians have been rejected under the Morton reasoning).

On one hand, this formulation does, to some extent, meet the Supreme Court’s consideration of prior American Indian religious freedom cases. I count three (Bowen v. Roy, Lyng, and Employment Div. v. Smith). Only one of those cases (Lyng) involved federally-recognized tribes or members of federally-recognized Indians. But it is a lot to place on Mancari, which was a purely secular case, by the way.

Moreover, the real argument in favor of the exemption for Indian tribes and their members, according to the court, “spring[s] from history and from the text of the Constitution ….” This is what I usually refer to in my Indian law classes as a “soft trust,” a “hard trust” being a federal obligation expressly and specifically articulated in a statute, reg, or treaty. The “soft trust” largely is unenforceable against Congress, but may be used against the Executive branch to stave off negative government action and for other purposes. Ironically, the Supreme Court soon will decide U.S. v. Jicarilla Apache Nation, which at its heart appears to be an attempt by the Dept. of Justice to eliminate all forms of the “soft trust.”

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Tenth Circuit Briefing in Somerlott v. Cherokee Nation Distributors

Matthew L.M. Fletcher

Here (reply brief not due yet):

Somerlott Brief

Cherokee Nation Distr Brief

Lower court materials here.

Shavanaux Brief in Appeal of Dismissal of Federal Indictment Using Uncounseled Prior Tribal Court Convictions

Matthew L.M. Fletcher

Important case to watch. The appellant brief and lower court materials are posted here.

The appellee’s brief: Shavanaux Appellee Brief.

My own short article on this question is here.

Tenth Circuit Dismisses Appeal of Indian Challenging Constitutionality of Title 18

Matthew L.M. Fletcher

Here is the opinion in United States v. Tony.

And here is Tony’s brief: Tony Opening Brief

Tenth Circuit Denies En Banc Review in BMG v. Chukchansi; Expect Cert Petition Soon

Matthew L.M. Fletcher

Here is that order: Order Denying Petition for En Banc Rehearing.

Here are our earlier posts: en banc materials, and Tenth Circuit panel materials.

Fay v. Chester: Tenth Circuit Rejects Pro Se Challenge to Constitutionality of Major Crimes Act

Matthew L.M. Fletcher

Here is that unpublished opinion.

An excerpt:

Mr. Fay asserts that he “is a[n] enrolled member of the Sioux Tribe . . .and has maintained his Traditional standing in the Tribe with TraditionalMembers.”  Aplt. Opening Br. at 5a.  Construing his appellate brief liberally, Mr.Fay raises three grounds in support of his argument that the United States—morespecifically, the Commission—lacked jurisdiction over him because he is anAmerican Indian and the Sioux Nation is a sovereign: (1) the Major Crimes Act isunconstitutional; (2) the Sioux Nation did not relinquish its sovereignty under the Fort Laramie Treaty of 1851; and (3) the Fourteenth Amendment recognizesAmerican Indian tribes as sovereigns.

Tenth Circuit Rejects Section 1983 Claim by Pro Se Prisoner against Prairie Band Tribal Police

Matthew L.M. Fletcher

Here is the unpublished opinion in Johnson v. Pottawatomie Tribal Police Dept. See footnote 1 for an explanation of the caption.

Lower court opinion here.