Tenth Circuit Affirms Federal Criminal Jurisdiction over Pueblo Fee Lands Owned by Non-Indians

Here is the opinion in United States v. Smith.

Briefs and lower court materials here.

Oklahoma Federal Court Declines to Overturn Non-Indian Conviction in General Crimes Act Case

Here are the relevant materials in United States v. Smith (N.D. Okla.):

10th Circuit Case Challenging Federal Jurisdiction on Pueblo Fee Lands

Here are the briefs in United States v. Smith:

APPELLANT’S OPENING BRIEF

United States Response Brief

Pueblo Amicus

2023-07-12_ Brief of the SofNM as Amicus Curiae

Reply Brief

Here are the lower court pleadings:

47 Motion to Dismiss

53 Response

60 Reply

110 DCT Order

New Mexico rocks

Ninth Circuit Briefs in Appeal of Warm Springs Member Attempting to Invoke McGirt to Challenge Federal Prosecution

Here are the briefs in United States v. Smith:

Smith Opening Brief

US Answer Brief

Lower court materials here.

UPDATE: Unpublished memorandum here.

En banc petition here:

Federal Court Rejects Warm Springs Tribal Member’s Effort to Invoke McGirt to Challenge Federal Criminal Jurisdiction under the ICCA and ACA

Here are the materials in United States v. Smith (D. Or.):

78 Motion to Vacate

84 Response

85 Reply

92 DCT Order

Prior decisions involving the same defendant are here (Ninth Circuit) and here (Oregon appellate court).

Federal Courts Holds Non-Indian Parcel in Española is Indian Country

Here are the materials in United States v. Smith (D.N.M.):

2 Complaint

47 Motion to Dismiss

53 Federal Response

60 Reply

65 Federal Indian Country Status Motion

110 DCT Order re 47

111 DCT Order re 65

Ninth Circuit Confirms Assimilative Crimes Act Applies in Indian Country

Here is the opinion in United States v. Smith.

Briefs:

opening-brief.pdf

amicus-brief.pdf

us-answer-brief.pdf

reply-3.pdf

Ninth Circuit Briefs in Challenge to Assimilative Crimes Act Jurisdiction

Here are the briefs in United States v. Smith:

Opening Brief

SW Indian Law Clinic Amicus Brief

US Answer Brief

Reply Brief

Ninth Circuit Affirms Conviction of Former Fort Peck Member as “Indian” under Major Crimes Act

Here is the opinion in United States v. Smith.

An excerpt on blood quantum:

The government presented sufficient evidence of Smith’s Indian blood to satisfy Bruce’s first prong. We have held this requirement satisfied by as little as 1/8 (12.5%) Indian blood. See Maggi, 598 F.3d at 1080; Bruce, 394 F.3d at 1223. Here, the government presented evidence that Smith has 25/128 (19.5%) Assiniboine and Sioux blood, well in excess of the 1/8 we approved in Bruce and Maggi. We acknowledge that Smith’s § 2255 motion attached a letter from the Fort Peck Tribes Enrollment Office stating that Smith “does not meet the required blood quantum of 1/8 for Associate Membership [in the Fort Peck tribes], nor 1/4 Full Enrollment.” But this evidence was not presented at trial, and even if it had been, a rational trier of fact could have chosen to credit the more specific, higher figure established by the government’s evidence.

An excerpt on the defendant’s relinquishment of tribal membership:

We recognize that Smith relinquished his tribal enrollment in 1996. This decision does not definitively show, however, that Smith or the tribe ceased to consider Smith an Indian person. See Cruz, 554 F.3d at 850 (holding that Bruce requires an analysis of Indian status from the perspective of the individual as well as from the perspective of the tribe). A tribal investigator, Tom Atkinson, testified he had known Smith for most of his life, that Smith had lived on the reservation that entire time and that, as far as Atkinson knew, Smith held himself out to be an Indian person. A rational jury could have concluded that because Smith was once formally enrolled in the tribe and continued to hold himself out as an Indian even after his enrollment ended, both Smith and the tribe continued to view Smith as an Indian despite his unexplained decision to relinquish his formal enrolled status.

 

Update in Utah Stolen Indian Artifacts Case — Defendants’ “Expert” Allowed to Testify on Value of Objects

Here is an interesting development in United States v. Smith, the criminal case in Utah regarding the theft of Indian artifacts and other objects.

The defendants’ proposed expert witness (Dace Hyatt) on the value of the materials collected allegedly in violation of federal law will be allowed to testify, despite having no formal training on anthropology, archaeology, or anything else (not to mention lying in an affidavit about reviewing evidence in person when that evidence is locked away deep in the bowels of the BLM). Assuming the defendants still use this expert, cross-examination at trial will be very interesting. His testimony is that each object is valued at slightly less than $500, the jurisdictional minimum.

Here are the materials:

DCT Order on Daubert Motion

US Motion to Exclude Expert Testimony

US Second Motion to Exclude Expert Testimony

Defendants Opposition to Motion