restricted access Chapter 4 Criminal Law
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36 2011 Supplement—American Indian Law Deskbook, Fourth Edition 36 P.143, n.8. Add the following to line 1 of the footnote after “see also”: United States v. Fox, 573 F.3d 1050 (10th Cir. 2009) (statute prohibiting a felon from possessing a firearm is a law of general applicability and the Navajo Nation’s Treaty of 1868’s right to hunt did not insulate a tribal member from prosecution for possession of firearm by a felon), cert. denied, 130 S. Ct. 813 (2009); United States v. Fiander, 547 F.3d 1036 (9th Cir. 2008) (tribal member can be prosecuted for Racketeer Influenced and Corrupt Organization Act violation for conspiring to violate Contraband Cigarette Trafficking Act even though he cannot be convicted of violating the CCTA itself); Add the following to the tenth-to-last line of the footnote after the semi-colon: cf. United States v. Gallaher, 608 F.3d 1109 (9th Cir. 2010) (tribe’s failure to authorize imposition of death penalty for violations under 18 U.S.C. §§ 1152 and 1153, as provided under 18 U.S.C. § 3598, crime remained “punishable by death” and a “capital offense” for purposes of exclusion from five-year limitation period in 18 U.S.C. § 3282; “ ‘whether a crime is “punishable by death” under [18 U.S.C.] § 3281 or “capital” under § 3282 depends on whether the death penalty may be imposed for the crime under the enabling statute, not “on whether the death penalty is in fact available for defendants in a particular case” ’ ”); United States v. Newell, 578 F. Supp. 2d 207 (D. Me. 2008) (Maine Indian Claims Settlement Act did not remove federal criminal jurisdiction over prosecution for conspiracy to defraud the United States); P.144, n.13. Add the following to the end of the footnote: See generally Virginia Davis & Kevin Washburn, Sex Offender Registration in Indian Country, 6 Ohio St. J. Crim.L. 3 (2008) (urging Congress to revisit the Sex Offender Registration and Notification Act so that it can be tailored to the unique problems of Indian reservations and allow each tribe to develop the system that works best for that particular tribe); Brian P. Dimmer, How Tribe and State Cooperative Agreements Can Save the Adam Walsh Act from Encroaching Upon Tribal Sovereignty, 92 Marq. L. Rev. 385 (2008) (suggesting a Chapter 4 Criminal Law 37 Criminal Law compact process similar to the process used by the Indian Gaming Regulatory Act and limit the possibility that the delegation to state authority under the Adam Walsh Act will infringe on tribal sovereignty); cf. Amber Halldin, Restoring the Victim and the Community: A Look at the Tribal Response to Sexual Violence Committed by Non-Indians in Indian Country Through Non-Criminal Approaches, 84 N.D. L. Rev. 1, 14 (2008) (arguing that tribes should resist simply replicating state laws in their tribal codes with respect to sexual violencerelated offenses; instead, “[t]ribal governments must also implement new tactics in order to solve the severe problem of sexual violence against Native American women” including use of traditional values, restorative justice and civil protection orders). P.145. Delete the third sentence of the text up to, but not including, the footnote, and insert in its place: Consonant with this holding, a federal court of appeals and several state courts have found that the federal government lacks, and the states possess, jurisdiction over victimless crimes committed by non-Indians in Indian country. P.145, n.18. Add the following to the beginning of the footnote: United States v. Langford, 641 F.3d 1195 (10th Cir. 2011) ( no federal jurisdiction under the Assimilative Crimes Act over the victimless crime of a non-Indian being a spectator at a cockfight); P.145, n.19. Add the following to the footnote after “E.g.,”: United States v. Ramirez, 537 F.3d 1075 (9th Cir. 2008); Add the following to the end of the footnote before the period: ;United States v. Graham, 585 F. Supp. 2d 1144, 1147–48 (D.S.D. 2008) (failure of superseding indictment to allege defendant’s Indian status required dismissal ; although dismissal would not be required “[i]f the elements are clearly set forth in the indictment in the words of the statute itself, . . . [s]imply citing the charging statute . . . does not cure the omission of an essential element of the charge because that citation does not ensure that the grand jury has considered and found all essential elements of the crime”), aff’d United States v. Graham...


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