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1 Hon. Thomas O. Rice, Judge J.J. Sandlin WSBA #7392 2 SANDLIN LAW FIRM, P.S. 3 P.O. Box 228 Zillah, WA 98953 4 (509) 829-3111/594-8702/303-0901 Fax (888) 875-7712 5 Email: [email protected] 6 Attorney appearing for Defendant Shane Olney

7 8 IN THE DISTRICT COURT IN AND FOR THE EASTERN DISTRICT OF 9 ) 10 UNITED STATES OF AMERICA, ) 11 ) NO. 13-cr-2094-TOR-19 PLAINTIFF; ) 12 ) DEFENDANT SHANE OLNEY’S MOTION VS. ) TO DISMISS THIS ACTION, FOR WANT 13 ) OF JURISDICTION, OR 14 SHANE SCOTT OLNEY, ) ALTERNATIVELY, TO DECLINE ) JURISDICTION IN FAVOR OF 15 DEFENDANT. ) TRIBAL COURT ) 16 ) WITH ATTACHED MEMORANDUM 17 ) SUPPORTING MOTION ______) 18

19 COMES NOW Attorney J.J. Sandlin of Sandlin Law Firm, P.S., P.O. Box 228, Zillah, 20 WA 98953 [tel. (509) 829-3111/594-8702 and fax (888) 875-7712 and email 21 22 [email protected]; [email protected]] and respectfully moves this Honorable 23 Court for an ORDER OF DISMISSAL, or, alternatively, for an ORDER DECLINING

24 JURISDICTION IN FAVOR OF YAKAMA TRIBAL COURT, on behalf of the defendant, 25 Shane Olney, who is an enrolled member of the Confederated Bands and Tribes of the Yakama 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 1 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

Case 2:13-cr-02094-TOR Document 877 Filed 07/30/15

1 Nation (“Yakama Nation”), a sovereign nation, as recognized by the United States of America in 2 its Treaty of 1855 with the Yakama Nation. 3 Respectfully submitted this 30 th day of July, 2015. 4 SANDLIN LAW FIRM, P.S. 5

6 s/ J.J. Sandlin . J.J. Sandlin, WSBA #7392 for Defendant Olney 7 P.O. Box 228 8 Zillah, WA 98953 (509) 829-3111 9 [email protected]

10 MEMORANDUM SUPPORTING MOTION TO DISMISS 11 I. INTRODUCTION 12 Defendant Shane Olney seeks dismissal of these federal felony charges against him, citing 13 14 lack of personal and subject matter jurisdicton under 18 U.S.C. §1852 ( the “General Crimes

15 Act” ); 18 U.S.C. §1153 et. seq. ( the “Major Crimes Act of 1885” ); 25 U.S.C. §1301 et. seq. ( the 16 “Indian Civil Rights Act” ); the Constitution of the United States, Article I, §8, cl. 3 ( the “Indian 17 Commerce Clause” ), Article VI, cl. 2 ( the “Supremacy Clause” ); 34 Fed.Reg. 14288; RCW 18 37.12.010-.060 (U.S. has accepted retrocession of state jurisdiction when enrolled Yakama is on 19 20 Yakama reservation ); Accord, State v. Shale, 2015 WL 1299359 (Wash., March 19, 2015).

21 Defendant Shane Olney is an enrolled member of the Confederated Tribes and Bands of 22 the Yakama Nation (“Yakama Nation”). He is part of a legacy of indigenous people occupying 23 the Columbia Plateau for thousands of years. As such, it is important to have an understanding of 24 25 the heritage that the U.S. Department of Justice is attacking in this federal criminal case, 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 2 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 involving gaming and chicken fighting on Indian Country 1. Mr. Olney objects to this 2 unwarranted intrusion into the sovereign jurisdiction of the Yakama Nation. 3 The Confederated Bands and Tribes of the Yakama Nation are descendants of 14 tribes 4 and bands that were federally recognized under the Yakama Treaty of 1855. The 1,377,034-acre 5 6 reservation is located in southcentral Washington, along the eastern slopes of the Cascade

7 Mountain Range. 8 The current spelling of "Yakama" was reintroduced in 1994 by the tribe to return to the 9 original spelling. 10 11 The Yakama were one of several Native American groups who lived in similar ways on 12 the Columbia Plateau of today's Idaho, Oregon and Washington. Their economy was based on

13 fishing, hunting, gathering, and intertribal trading of such items as fish products, baskets, dogs 14 and horses, as reported in approximately 1750 AD. 15 The seasons drew them to various parts of the plateau. In the winter, people lived along 16 17 interior rivers in villages of tule-mat lodges, and subsisted on dried foods. Each March they

18 trekked to root grounds and camped with neighboring Indians. Each May or June salmon began 19 to travel up the . Then the Yakama moved to the lower Columbia to catch and 20 preserve the fish. In the fall, they went into the Cascade Mountains to pick berries and hunt, 21 22 while drying their victuals for the winter. 23

24 1 “Indian Country” is a term of art, and is defined in 18 U.S.C. § 1151(a) as "all land within the 25 limits of any under the jurisdiction of the United States Government." 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 3 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 In accordance with a profound connectedness the Yakama felt to their environment, they 2 gave thanks for their foods through spiritual ceremonies. In the 19th century, the Catholic 3 missionary Charles Pandosy introduced them to Christianity. Traditional pantheistic spiritual 4 values coexist with the adopted monotheistic Christian religions. 5 6 The Yakama encountered the Lewis and Clark Expedition near the confluence of the

7 Yakima and Columbia rivers in 1805. Not long thereafter, American and British trappers 8 introduced ready-made goods to the Yakama. Homesteaders, miners and others would follow in 9 increasing numbers. 10 11 To accommodate an insatiable white demand for land and resources, Washington 12 territorial governor and Indian agent concluded the Yakama Treaty with the

13 Yakama and 13 other tribes and bands on June 9, 1855. In signing the treaty, the Indians ceded 14 11.5 million acres to the United States. The treaty recited the United States’ obligation to pay the 15 sum of $200,000.00 for the Yakama concession to cede their lands. A thorough research of 16 17 archival records at the U.S. National Archives reveals no proof that the $200,000.00 was ever

18 paid to the Yakama Nation by the United States, giving rise to the serious question of whether 19 or not the Treaty of 1855 is a legitimate document that should be enforced . Although the 20 Yakama themselves ceded 10,828,800 acres to the U.S. government, they reserved their right to 21 22 fish, hunt and gather within the ceded area. Legal battles continue to this day, concerning the 23 scope of those off-reservation hunting and fishing rights. The tribes and bands also agreed to

24 move to a new reservation and receive federal benefits. 25 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 4 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 The 1855 treaty stipulated two years to allow the tribes and bands to relocate on the new 2 reservation, but Governor Stevens threw open Indian lands for white settlers less than two weeks 3 after the treaty was signed. A Yakama chief, Kamiakin, called upon the tribes to oppose Stevens’ 4 declaration. Some of the tribes joined forces under Kamiakin. The Indians managed to fight off 5 6 U.S. Cavalry for about three years in the uprising called the Yakima War (1855-1858). Other

7 Indians in the territory rose up as well. In September of 1858, at the near 8 Spokane, the Indians were decisively defeated. Kamiakan escaped to Canada, but two dozen 9 other leaders were apprehended and executed. 10 11 Most of the Yakama and other tribes then moved onto the reservation where numerous 12 dialects, Chinookan, Salish and English languages converged. They led a harrowing

13 existence. White agents ran the reservation, intending to assimilate the internees into 14 American society. A boarding school was established at Fort Simcoe on the reservation to 15 educate and indoctrinate Indian children. Confinement on the reservation contributed to a social 16 17 breakdown, ill health, alcoholism, and such other problems as high infant mortality.

18 Agents also compelled Indians to grow crops on the reservation, but they farmed without 19 enthusiasm. Many struggled to fish, hunt, and gather, but the old ways had been disrupted. The 20 Yakama gradually lost access to fishing and hunting lands, as well as to areas with roots and 21 22 berries; non-Indians had started farms and ranches on ceded Yakama land. Whites let 23 their livestock feed on roots and berries. Irrigation projects destroyed Yakima River salmon runs

24 and plowing ruined plant and animal habitat. 25 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 5 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 In accordance with a new federal policy in the late 1800s, government agents began to 2 break up the reservation into 80-acre allotments for individual Indians, to encourage tillage. By 3 1914, 4,506 tribal members held 440,000 allotted acres, leaving 780,000 acres owned by the 4 tribe as a whole. The federal government claimed jurisdiction to take this action based upon the 5 6 authority claimed to be found in the Treaty of 1855, and Congressional power obtained through

7 the treaty obligations. 8 Later in the 1900s, however, nearly all tillable acreage was purchased out of Indian 9 hands. Such towns as Toppenish and Wapato were established on lands purchased from 10 11 Indian allotments. Various entities threatened to confiscate Indian water. County, state and 12 federal governments promoted development, including road and railroad construction, as well as

13 the massive Wapato Irrigation Project. Whites sought through official channels to restrict the 14 movement of Yakama people on the Columbia Plateau. 15 In 1933, the Yakama organized as the Confederated Bands and Tribes of the Yakama 16 17 Nation.

18 The Yakama have focused on self-sufficiency and economic independence since World 19 War II. The federal government had acknowledged Yakama fishing rights in the treaty of 1855, 20 but later, county and state officials opposed native fishing rights. As a result of legal battles 21 2 22 culminating in the historic Boldt decision of 1974 , the federal government reaffirmed Yakama 23

24 2 United States v. Washington , 384 F. Supp. 312 (W.D. Wash. 1974), commonly known as the Boldt decision , was a 1974 court case that reaffirmed the reserved right of 25 Washington American Indian tribes to act as co-managers, alongside the state, of salmon and 26 other fish and to continue to harvest it in accordance with the various treaties that the United

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 6 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 fishing rights and made the tribe a co-manager of fishery resources with the state 2 of Washington. 3 Under Section 16 of the Wheeler-Howard Act (Public Law No. 383, 73d Congress) the 4 "powers vested in any Indian tribe or tribal council by existing law", are those powers of local 5 6 self-government which have never been terminated by law or waived by treaty . Among these

7 powers are the following: 8 1. The power to adopt a form of government, to create various offices and to prescribe the duties 9 thereof, to provide for the manner of election and removal of tribal officers, to prescribe the procedure of the tribal council and subordinate committees or councils, to provide for the salaries 10 or expenses of tribal officers and other expenses of public business, and, in general, to prescribe 11 the forms through which the will of the tribe is to be executed.

12

13 States had signed with the tribes. The case was decided by Hon. George Hugo Boldt, Judge, of the United States District Court for the Western District of Washington. The tribes of 14 Washington had ceded their land to the United States, but had reserved the right to fish as they 15 always had done, including fishing at their traditional locations that were off of the designated reservations. 16 Over time, the state of Washington had infringed on the treaty rights of the tribes, despite 17 losing a series of court cases on the issue. These cases if the Indians had an easement to go through private property to their fishing locations, that the state could not charge Indians a fee to 18 fish, that the state could not discriminate against the tribes in the method of fishing allowed, and that the Indians had a right to a fair and equitable share of the harvest. The Boldt decision further 19 defined that reserved right, holding after a long trial in 1974 that the tribes were entitled to half 20 of the fish harvest each year. In 1975, the Ninth Circuit Court of Appeals upheld the “Boldt decision” and the U.S. 21 Supreme Court declined to hear the case. After the state refused to enforce the court order, Judge Boldt ordered the United States Coast Guard and federal law enforcement agencies to enforce his 22 rulings. On July 2, 1979, the Supreme Court largely endorsed the decision in Washington v. 23 Washington State Commercial Passenger Fishing Vessel Ass'n , 443 U.S. 658 , 685, 99 S.Ct. 3055, 3074, 61 L.Ed.2d 823 (1979), which was a collateral attack on the decision. Justice John 24 Paul Stevens delivered the opinion of the court, writing that "Both sides have a right, secured by treaty, to take a fair share of the available fish." The Supreme Court also endorsed Judge Boldt's 25 orders to enforce his rulings by the use of federal law enforcement assets and the Coast Guard. 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 7 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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12. To define the conditions of membership within the tribe, to prescribe rules for adoption, to classify the members of the tribe and to grant or withhold the right of tribal suffrage and to make 2 all other necessary rules and regulations governing the membership of the tribe so far as may be 3 consistent with existing acts of Congress governing the enrollment and property rights of members. 4 3. To regulate the domestic relations of its members. 5

64. To prescribe rules of inheritance with respect to all personal property and all interests in real property other than regular allotments of land. 7

85. To levy dues, fees, or taxes upon the members of the tribe and upon non-members residing or doing any business of any sort within the reservation, so far as may be consistent with the power 9 of the Commissioner of Indian Affairs over licensed traders.

10 6. To remove or to exclude from the limits of the reservation non-members of the tribe, excepting 11 authorized Government officials and other persons now occupying reservation lands under lawful authority, and to prescribe appropriate rules and regulations governing such removal and 12 exclusion, and governing the conditions under which nonmembers of the tribe may come upon tribal land or have dealings with tribal members, providing such acts are consistent with Federal 13 laws governing trade with the Indian tribes. 14 7. To regulate the use and disposition of all property within the jurisdiction of the tribe, and to 15 make public expenditures of tribal funds, where legal title to such funds lies in the tribe.

16 8. To administer justice with respect to all disputes and offenses of or among the members of 3 17 the tribe, other than the ten major crimes reserved to the Federal courts.

18 9. To prescribe the duties and to regulate the conduct of Federal employees, but only in so far as such powers of supervision may be expressly delegated by the Interior Department. 19

20 21 22 23

24 3 Defendant Shane Olney urges this Honorable Court to find that the charges brought against him by the U.S. Department of Justice, for gaming violations and chicken fighting, are not part 25 of any of the “major crimes” where Congress has reserved the federal right to prosecute the 26 Yakama.

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 8 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 It is with the above background that Defendant Shane Olney seeks dismissal of this 2 action, because of lack of personal and subject matter jurisdiction, or, alternatively, because this 3 Honorable Court should decline jurisdiction in favor of Yakama Tribal Court jurisdiction. 4 II. FACTS 5 6 The facts in this action are generally undisputed:

7 1. Defendant Shane Olney is an enrolled member of the Confederated Bands and Tribes of 8 the Yakama Nation (“Yakama Nation”), and as such is a citizen of the sovereign Yakama 9 Nation. 10

11 2. The United States of America and the Confederated Bands and Tribes of the Yakama 12 Nation are parties to the Treaty of 1855, whose author was primarily Washington Territorial

13 Governor Isaac Stevens. 14 3. The Treaty of 1855 between the U.S. and the Yakama Nation required the U.S. to pay the 15 Yakama Nation the sum of $200,000.00 in exchange for the Yakama Nation ceding millions of 16 17 acres of Yakama aboriginal property ownership rights, but the funds were never paid to the

18 Yakama Nation. 19 4. The Treaty of 1855 was not a product of a resolution of armed conflict between the 20 Yakama Nation and the United States. Before the treaty was signed (and subsequently abrogated 21 22 by Governor Stevens’ unilateral breach, and the failure of consideration due to the United States’ 23 nonpayment of promised compensation) the Yakama Nation peacefully co-existed with the white

24 settlers inside the Yakama territories. There was no “right of conquest” as part of the 25 consideration asserted by the United States when it executed the Yakama Nation Treaty of 1855. 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 9 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 5. Defendant Shane Olney is a citizen of an independent, distinct, sovereign nation, who 2 was living on the Yakama Nation’s treaty-recognized reservation when federal law enforcement 3 officers arrested him, on the Yakama reservation, for alleged federal non-major crimes, allegedly 4 committed on the Yakama reservation. 5 6 6. Defendant Shane Olney’s actions were those of a Yakama Nation citizen and enrolled

7 member, conducted solely on Yakama Nation sovereign territory, on Indian Country. 8 7. The Department of Justice has claimed federal subject matter jurisdiction of chicken 9 fighting and gaming conduct, for which Defendant Shane Olney is being prosecuted. Defendant 10 11 Shane Olney claims this exercise of jurisdiction is in conflict with federal laws, because the 12 charged crimes are excluded from the list of “major crimes” for which Congress asserts federal

13 subject matter jurisdiction over Yakama Nation citizens, such as Defendant Shane Olney. 14 8. Defendant Shane Olney states that chicken fighting and gaming are cultural practices of 15 the Yakama, and that these cultural practices are ingrained in the lifestyle of the Yakama as part 16 17 of their sovereign rights as citizens of the Yakama Nation.

18 9. The Yakama Tribal Court, located on the Yakama Nation reservation grounds, has 19 personal and subject matter jurisdiction to determine the criminality and proper disposition of 20 any concerns about chicken fighting (i.e., alleged “animal cruelty”) and gaming, relating to the 21 22 actions of Defendant Shane Olney. 23 10. The Yakama Tribal Court exists, in part, to address and administer justice regarding

24 criminal misconduct of enrolled members of the Yakama Nation. Defendant Shane Olney is an 25 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 10 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 enrolled member of the Yakama Nation, and is subject to personal and subject matter jurisdiction 2 of the Yakama Tribal Court for the alleged criminal misconduct charged in this case. 3 11. The State of Washington has pursued a policy of retrocession, where jurisdiction over 4 Indian conduct, pursuant to Public Law 280 4, can be returned to the federal government, when 5 6 acceptance by the federal government has been granted.

7 12. Congress passed legislation that explicitly allowed states to request to retrocede 8 previously claimed jurisdiction over tribes to the federal government and required tribal consent 9 for future extension of state jurisdiction over Indians and Indian tribes in approximately 1968. 10

11 13. In 2012, the Washington Legislature passed a bill that formalized a process for full or 12 partial retrocession of state jurisdiction over members of a tribe back to the federal government.

13 LAWS OF 2012, ch. 48, codified as RCW 37.12.160-.180. 14 14. Defendant Shane Olney raised fighting chickens solely on the Yakama reservation. He 15 had no specific knowledge 5 whether or not any other fighting chickens engaged with his 16 17 chickens on the Yakama reservation were “ bought, sold, delivered, transported, or received in

18 interstate or foreign commerce for the purpose of participation in the fighting venture.” 19

20 III. ISSUES 21

22 1. Should the United States Department of Justice exercise jurisdiction to arrest and 23 charge these federal felonies against Defendant Shane Olney, regarding chicken fighting and 24 4 Pub.L. No. 83-280, 67 Stat. 588 (1953) 25 5 The government contends Olney’s knowledge can be imputed by the facts the government intends to present. 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 11 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 gambling, allegedly committed by this enrolled member of the Yakama Nation, allegedly 2 committed on the Yakama Nation reservation? 3 2. Does this Court have personal and subject matter jurisdiction over Defendant Shane 4 Olney, an enrolled member of the Yakama Nation, conducting his personal business in 5 6 accordance with usual and customary practices of the Yakama, on Yakama reservation grounds?

7 3. Even if this Court has concurrent jurisdiction with the Yakama Tribal Court, should this 8 Court exercise restraint, by declining jurisdiction and deferring to the Yakama Tribal Court for 9 disposition of any claims of criminal misconduct regarding Defendant Shane Olney, in 10 11 recognition of federal and state policies of retrocession? 12 IV. POINTS AND AUTHORITIES

13 4.1 The Major Crimes Act does not support prosecution of Defendant Shane Olney: 14 As originally enacted, the statute 6 provided: “That***all Indians, committing against the 15 person or property of another Indian or other person any of the following crimes, namely murder, 16 17 manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory

18 of the United States, and either within or without an Indian reservation, shall be subject therefore 19 to the laws of such Territory relating to said crimes, and shall be tried therefore in the same 20 courts and in the same manner and shall be subject to the same penalties as are all other persons 21 22 charged with the commission of said crimes, respectively…”. 23 Stat. 385. By successive 23 amendments, Congress has increased the number of enumerated crimes from seven to thirteen, 24 25 6 Act of March 3, 1885. c. 341, 9, 23 Stat. 385, now 18 U.S.C. §§1153, 3242. 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 12 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 adding carnal knowledge, assault with intent to commit rape, incest, assault with a dangerous 2 weapon, assault resulting in serious bodily injury, and robbery. 3 The pending charges against Defendant Shane Olney are not found within the enumerated 4 “major crimes.” In fact, until recently, chicken fighting was only a federal misdemeanor. Neither 5 6 gambling (“gaming”) nor chicken fighting is recognized by Congress as “major crimes.” For this

7 reason, alone, this Court should grant the defendant’s motion to dismiss this action against him. 8 4.2 The General Crimes Act does not support prosecution of Defendant Shane Olney: 9 Under 18 U.S.C. § 1152 the "general laws of the United States as to the punishment of 10 11 crimes committed in any place within the sole and exclusive jurisdiction of the United States, 12 except the District of Columbia,***extend to the Indian country." The "laws" thus extended are

13 those applicable within the Special Maritime and Territorial Jurisdiction of the United States, as 14 defined in 18 U.S.C. § 7, popularly known as "federal enclave laws." See United States v. 15 Markiewicz , 978 F.2d 786 (2d Cir. 1991), cert. denied , subnom . Beglen v. United States , 113 S. 16 17 Ct. 1065 (1993). Among these statutes are: arson, 18 U.S.C. § 81; assault, 18 U.S.C. § 113;

18 maiming, 18 U.S.C. § 114; theft, 18 U.S.C. § 661; receiving stolen property, 18 U.S.C. § 662; 19 murder, 18 U.S.C. § 1111; manslaughter, 18 U.S.C. § 1112, and sexual offenses, 18 U.S.C. 20 § 2241 et . seq . The Assimilative Crimes Act, 18 U.S.C. § 13, is also one of those extended to the 21 22 Indian country by 18 U.S.C. § 1152, allowing the borrowing of state law when there is no 23 applicable federal statute. Williams v. United States , 327 U.S. 711 (1946); Duro v. Reina , 495

24 U.S. 676, 680 n. 1 (1990). 25 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 13 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 There are four exceptions to the coverage of § 1152, three of them legislative and the 2 fourth judicially created. The second paragraph of 18 U.S.C. § 1152 specifies the three 3 legislative exceptions: 4 “This section shall not extend (1) to offenses committed by one Indian against the person 5 or property of another Indian, nor (2) to any Indian committing any offense in the Indian country 6 who has been punished by the local law of the tribe, or (3) to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian 7 tribes respectively.” 8 It should be emphasized that these exceptions apply only to those laws extended to Indian 9 Country by section 1152--the so-called "federal enclave laws." The exceptions do not exempt 10 Indians from the general criminal laws of the United States that apply to acts that are federal 11 12 crimes regardless of where committed, such as bank robbery, counterfeiting, sale of drugs, and

13 assault on a federal officer. See United States v. Young , 936 F.2d 1050 (9th Cir. 1991)(assault on 14 federal officer and firearms); United States v. Blue , 722 F.2d 383 (8th Cir. 1983) 15 narcotics); United States v. Smith , 562 F.2d 453 (7th Cir. 1977), cert. denied , 434 U.S. 1072 16 17 (1978)(assault on federal officer). Despite the explicit holdings in three Circuits that jurisdiction 18 exists over violation of statutes of general applicability, one court of appeals recently held that

19 such statutes do not automatically apply to offenses in Indian Country involving only Indians 20 unless there is an independent federal interest to be protected. See United States v. Markiewicz , 21 978 F.2d 786 (2d Cir. 1992), cert. denied , sub nom. , Beglen v. United States , 113 S. Ct. 1065 22 23 (1993). The court went on to hold that each of the statutes charged in the case, 18 U.S.C. § 1163

24 (theft of tribal funds), 18 U.S.C. § 844(i) (arson of property in interstate commerce), 18 U.S.C. 25 § 1513 (witness tampering), 18 U.S.C. § 402 (contempt), 18 U.S.C. § 1621 (perjury), and 18 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 14 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 U.S.C. § 2101 (riot), reflected such an independent interest or that its violation had not occurred 2 in Indian Country. Markiewicz was explicitly rejected in United States v. Begay , 42 F.3d 486 3 (9th Cir. 1994), which held that 18 U.S.C. § 371 (conspiracy) applied in Indian country even 4 though it is not a crime enumerated in 18 U.S.C. § 1153. See also United States v. Yannott , 42 5 6 F.3d 999 (6th Cir. 1994)(18 U.S.C. § 922).

7 The exceptions stated in the second paragraph of § 1152 also do not apply to violations of 8 § 1153, United States v. Wheeler , 435 U.S. 313 (1978), or the liquor law provisions, 18 U.S.C. 9 §§ 1154, 1161. United States v. Cowboy , 694 F.2d 1234 (10th Cir. 1982). 10 11 The fourth exception to the broad coverage of § 1152 was created by the Supreme Court. 12 Notwithstanding its literal terms, the Supreme Court significantly narrowed the reach of 18

13 U.S.C. § 1152 in United States v. McBratney , 104 U.S. 621 (1882), holding that, absent treaty 14 provisions to the contrary, the state has exclusive jurisdiction over a crime committed in the 15 Indian Country by a non-Indian against another non-Indian. Accord , Draper v. United States , 16 17 164 U.S. 240 (1896). Subsequent decisions have acknowledged the rule. See, e.g. , United States

18 v. Wheeler , 435 U.S. 313, 325 n. 21 (1978); United States v. Antelope , 430 U.S. 641, 643 n. 2 19 (1977); Williams v. United States , 327 U.S. 711, 714 (1946). 20 By analysis of federal jurisdiction following the policy of retrocession now being used by 21 22 courts to return Indians committing crimes on Indian Country to the tribal courts for disposition 23 of non-major crimes, it is clear that if this Court finds it has concurrent jurisdiction with the

24 Yakama Tribal Court in this case, that deferral to the Yakama Tribal Court is proper and just. For 25 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 15 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 this reason, the action in this case should be dismissed, even if this Court must issue an order to 2 refer this action against Defendant Shane Olney to the Yakama Tribal Court for disposition. 3 4.3 Retrocession is an appropriate policy for Indian Country criminal law jurisdiction: 4 “Retrocession” is generally deemed to mean the states give back to the federal 5 6 government those rights to prosecute Indians on Indian Country, after the adoption of Public

7 Law 280. It is the states’ recognition that Indian tribes have the sophistication necessary to 8 establish criminal law codes, tribal courts, and criminal justice systems, such as those that exist 9 in the Yakama Nation. States are now conceding jurisdiction to either tribal courts 7 or federal 10 11 courts, and are avoiding or limiting conflicting exercises of jurisdiction over enrolled Indians. 12 See, Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng'g, PC , 467 U.S. 138, 147,

13 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984) (quoting White Mountain Apache Tribe v. Bracker , 448 14 U.S. 136, 142, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980)). "First, a particular exercise of state 15 authority may be foreclosed because it would undermine 'the right of reservation Indians to make 16 17 their own laws and be ruled by them.' " Id. (internal quotation marks omitted) (quoting White

18 Mountain, 448 U.S. at 142); see also Yakima Indian Nation , 439 U.S. at 470-71 (quoting 19 Williams v. Lee , 358 U.S. 217, 219-20, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959)); Clark , 178 Wash.2d 20 at 26, 308 P.3d 590 . 21 22

23 7 24 Indirectly, to tribal courts: if an area of state jurisdiction assumed pursuant to Public Law 280 is offered back to the federal government, but the federal government’s limited prosecutorial power 25 over tribal citizens is insufficient to allow exercise of jurisdiction, but retrocession was granted, then by default the tribal courts should assume jurisdiction over the matter. 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 16 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

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1 In context, analyzing federal jurisdiction should include consideration of the policy of 2 retrocession. Why should the federal government insinuate itself into affairs of the Yakama 3 Nation, unless there is an over-riding public policy reason that requires the federal government to 4 intervene? Congress recognized the limitations of the federal criminal justice system involving 5 6 enrolled members when it confined federal jurisdiction to “major crimes.” Surely, the Yakama

7 Nation can easily dispose of any allegations of criminal misconduct by Defendant Shane in the 8 instant circumstances. These acts are certainly not “major crimes” and the U.S. Justice 9 Department should not have interrupted Defendant Shane Olney’s life by these non-major 10 11 criminal complaints. For public policy reasons, this Honorable Court should defer to the Yakama 12 Tribal Court in this case against Defendant Shane Olney, and should accordingly dismiss this

13 action. 14 4.4 The Indian Gaming Regulatory Act, 18 U.S.C. §1166 can be harmonized with Defendant 15 Shane Olney’s position: 16 The Indian Gaming Regulatory Act, (“IGRA”), 18 U.S.C. §1166, states in pertinent part: 17 “Gambling in Indian country (a) Subject to subsection (c), for purposes of Federal law , all State laws pertaining to the licensing, regulation, or prohibition of gambling, including but not limited 18 to criminal sanctions applicable thereto, shall apply in Indian country in the same manner and to 19 the same extent as such laws apply elsewhere in the State. (b) Whoever in Indian country is guilty of any act or omission involving gambling, whether or not conducted or sanctioned by an 20 Indian tribe, which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State in which the act or 21 omission occurred, under the laws governing the licensing, regulation, or prohibition of 22 gambling in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment… IGRA, 18 U.S.C. §1166(a) (emphasis added). 23 24 By examination of the statute, it is clear that the federal statute does not expressly include 25 enrolled members of the Yakama Nation. Defendant Shane Olney is protected from federal 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 17 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

Case 2:13-cr-02094-TOR Document 877 Filed 07/30/15

1 prosecution except for those “major crimes” and other specifically delineated crimes of the

2 8 General Crimes Act, 18 U.S.C. §1152. None of those crimes is relevant here. The United States 3 may suggest United States v. E.C. Investments, Inc. , 77 F.3d 327 (9th Cir. 1996) is authority for 4 this Court to proceed with this action. However, the 9 th Circuit did not identify the defendants in 5 6 that case as enrolled members of any Indian tribe or nation. The case described the defendants as

7 having a contractual relationship with the Tribal Council of the Morongo Band of Mission 8 Indians. In addition, it was a pre-IGRA case. Moreover, the case does not stand for the 9 proposition that any “major crime” had occurred, nor were the specific crimes of the General 10 11 Crimes Act at issue. The case can be deemed a prohibition against non-Indians illegally 12 gambling on Indian Country, where those defendants claimed that the mere location of their

13 gambling enterprise insulated them from federal prosecution. Defendant Shane Olney does not 14 take that position: he is an enrolled member of the Yakama Nation, acting in his capacity as a 15 Yakama, on Yakama reservation property, with no intention to participate in violation of tribal 16 17 laws (or federal laws) covering his activities, and where Washington criminal laws concerning

18 gaming and chicken fighting cannot affect him. The action should be dismissed. 19 V. CONCLUSION 20 The United States seeks felony prosecution of Defendant Shane Olney, an enrolled member 21 22 of the Yakama Nation, for actions that do not constitute a “major crime” nor are specifically 23 identified in the General Crimes Act, and therefore federal jurisdiction does not apply in this 24 8 Illustrating the highest quality of professionalism, AUSA Benjamin Seal provided this counsel 25 with the citation to United States v. E.C. Investments, Inc. , 77 F.3d 327 (9th Cir. 1996) which has assisted the defendant in discussing the issues in this action. 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 18 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]

Case 2:13-cr-02094-TOR Document 877 Filed 07/30/15

1 case. Even if this Court finds it has concurrent jurisdiction to proceed with these felony actions, 2 the Court should refuse to exercise its jurisdiction in favor of the Yakama Tribal Court, which is 3 aptly prepared to address the actions of Defendant Shane Olney. Mr. Olney respectfully requests 4 this Honorable Court to grant the movant’s motion to dismiss this action, or, alternatively, to 5 6 decline jurisdiction and refer this action to the Yakama Tribal Court for disposition..

7 Respectfully submitted this 30 th day of July, 2015. 8 SANDLIN LAW FIRM, P.S. 9 s/ J.J. Sandlin . 10 J.J. SANDLIN, WSBA 792, for DEFENDANT SHANE OLNEY 11 P.O. Box 228 Zillah, WA 9895 12 Tel. (509) 829-3111/594-8702 Fax: (888) 875-7712 13 [email protected] 14 15 CERTIFICATE OF SERVICE

16 I declare that on this date I electronically filed the document to which this is attached with the 17 Clerk of the Court using the CM/ECF process who will notify the following person by email together with all other counsel of record as listed on the Docket Record: 18 Benjamin Seal, [email protected] 19

20 DATED: July 30, 2015

21 s/J.J. Sandlin . 22 J.J. Sandlin, WSBA #7392 P.O. Box 228 23 Zillah, WA 98953 24 (509) 829-3111 [email protected] 25 26

SANDLIN L A W FIRM, P.S. 27 MOTION/MEMO TO DISMISS OR DECLINE - 19 P.O. Box 228 28 Zillah, Washington 98953 (509) 829-3111/fax: (888) 875-7712 [email protected]