Michigan Indian Legal Services Winter 2011-2012 Newsletter



Interesting articles on Jay Treaty border crossings and right to counsel in tribal courts. Oh, and MSU ILPC alum Erin McCormick.

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

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.

U.S. v. Shavanaux — Government’s Brief on Appeal Where Indictment Dismissed Based on Reliance on Tribal Court Convictions

Interesting, and a case to watch. The government is attempting to prove a recidivist element of the crime (domestic violence) through use of two or more uncounseled tribal court convictions. Lower court materials here.

Here is the opening brief: US Appellant Brief in Shavanaux.

Federal Court Dismisses Indian Country Indictment for Reliance Upon Uncounseled Tribal Court Convictions

Here are the materials in United States v. Shavanaux (D. Utah):

DCT Order Dismissing Shavanaux Indictment

Shavanaux Motion to Dismiss

Government Opposition to Shavanaux Motion to Dismiss

Shavanaux Reply

Eighth Circuit Briefing Complete in United States v. Cavanaugh–Challenge to Use of Uncounseled Tribal Court Convictions

Since this is also a challenge to a federal statute, expect a strong cert petition from the US if it loses this case in the Eighth Circuit. If not, then look for a circuit split down the line.

Here are those materials:

US v Cavanaugh Appellant Brief

Cavanaugh Answer Brief

US v Cavanaugh Reply Brief

Earlier posting with lower court materials here.

Federal Court Dismisses Indictment in Indian Country Domestic Violence; Questions Constitutionality of Statute

Here is United States v. Cavanaugh (D. N.D.), where the court dismissed an indictment under the federal domestic violence by a habitual offender in Indian Country statute (18 U.S.C. 117), holding that the use of prior uncounseled tribal court D.V. convictions to establish the “habitual” element of the crime was unconstitutional. See my paper on how state courts should use, if at all, uncounseled tribal court convictions. The court rejected claims that the statute itself was unconstitutional under Morrison and Lopez.

Here are the materials:

Cavanaugh DCT Order on Motion to Dismiss

Cavanaugh Motion to Dismiss

US Opposition to Cavanaugh Motion to Dismiss

Cavanaugh Reply Brief

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