Thursday, August 18, 2011

Miranda v. Anchando, No. 10-15167 (8-17-11) (Sammartino, D.J., with Schroeder and Bea)

Note: This is a FPD Arizona case.

The 9th considers a question of Indian law arising from Indian habeas. The petitioner was convicted of eight tribal offenses, all arising from a single transaction. The petitioner was drunk, and threatened several bystanders with a knife. She was convicted and received several consecutive sentences. Petitioner argued that the consecutive sentences, arising from a single transaction, violated the Indian Civil Rights Act (ICRA). She pointed to the legislative history, and the fact that the tribe only can sentence up to one year, and there is no right to appointed counsel. The district court, relying on Spears v. Red Lake Band of Chippewa Indians, 363 F. Supp. 2d 1176 (D. Minn. 2005), held that Congress did not intend to allow tribal courts to impose multiple consecutive sentences for criminal violations arising from a single transaction. The 9th reversed.

In reversing the district court, the 9th focused on the language of ICRA, which states that the tribe has the authority to impose a sentence of one year on "any one offense." 25 USC 1302(7). This is pre-2010, because the recently enacted Tribal Law and Order Act (TLOA) allows such consecutive sentences by clarifying that an offense is not defined transactionally. (TLOA also imposes a limit of 9 years, increases sentences, sets due process requirements, and requires counsel, all to be litigated later). The opinion goes through how "one offense" has been taken to mean one conviction, and not a transaction analysis. Since the language is clear, the court should not consider legislative history. The one offense meaning is also buttressed by a double jeopardy/ Blockburger analysis. Petitioner's arguments cannot get around the language "any one offense."

Tough loss for Dan Kaplan and Keith Hilzendenger of the Arizona FPD Office (Phoenix) and for those other FPD/defense jurisdictions with Indian jurisdiction. Its reach will be limited, though, by TLOA.


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