BEATRICE MIRANDA, Petitioner - Appellee, v....FOR THE DISTRICT OF ARIZONA (CV-09-08065-PGR) _____...

10-15167 & 10-15308 (Consolidated)_____________________________________________________________________

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

_________________________

BEATRICE MIRANDA,

Petitioner - Appellee,

v.

TRACY NIELSEN, Interim Chief, Pascua Yaqui Tribe Department of Public Safety, and

VINCENT ANCHONDO, Supervisory Correctional Specialist, Bureau of Indian

Affairs, Office of Justice Services, Division of Corrections, District 3,

Respondent - Appellants.________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ARIZONA (CV-09-08065-PGR)

______________________________

PETITIONER - APPELLEE’S RESPONSE BRIEF______________________________

JON M. SANDSFederal Public DefenderDistrict of Arizona

DANIEL L. KAPLANAssistant Federal Public DefenderKEITH J. HILZENDEGERResearch and Writing Specialist850 West Adams Street, Suite 201Phoenix, Arizona 85007-2730(602) 382-2767

_____________________________________________________________________

Case: 10-15167 11/10/2010 Page: 1 of 75 ID: 7542664 DktEntry: 33

TABLE OF CONTENTS

PAGE

Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Nature of the Case, Course of Proceedings, and DispositionBelow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. History and Purposes of Federal Regulation ofTribal Court Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

a. The Indian Civil Rights Act of 1968. . . . . . . . . . . . . . . . 4

b. The Anti-Drug Abuse Act of 1986. . . . . . . . . . . . . . . . 19

c. The Tribal Law and Order Act of 2010. . . . . . . . . . . . . 20

2. Beatrice Miranda’s Prosecution, Incarceration, andSuccessful Pursuit of Habeas Corpus Relief. . . . . . . . . . . . . . 22

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

I. The Court Should Dismiss these Appeals because Anchondo andNielsen Failed to File Timely Objections to the Magistrate Judge’sReport and Recommendation... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

i


A. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

B. By Failing to File Timely Objections to the Magistrate Judge’sReport and Recommendation, Anchondo and Nielsen WaivedTheir Right to Appeal the District Court’s Adoption of theReport and Recommendation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

II. The District Court Correctly Refused to Validate Tribes’ Use of“Stacking” of Multiple Offenses to Sidestep ICRA’s One-YearSentencing Cap... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

A. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

B. The District Court Properly Examined the Statute’s PlainLanguage and Legislative History and Reached a Conclusionthat Effectuated Congress’s Evident Intent.. . . . . . . . . . . . . . . . . . . . 33

1. The Magistrate Judge and District Court CorrectlyAdopted the District of Minnesota’s CompellingReasoning in Spears v. Red Lake Band ofChippewa Indians.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

2. Anchondo’s and Nielsen’s Criticisms of theSpears Court’s Reasoning are Not Compelling... . . . . . . . . . . 38

(a) ICRA’s Plain Language Does NotUnambiguously Authorize Tribes toSidestep the Law’s Sentencing Capby “Stacking” Offenses.. . . . . . . . . . . . . . . . . . . . . . . . . 38

(b) ICRA’s Legislative History StronglySupports the Spears Court’s Analysisand Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

ii


(c) ICRA’s Plain Language andLegislative History Refute the Notionthat ICRA’s Sentencing Cap ShouldBe Construed in Such a Manner as toEnhance the Power of TribalGovernments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

(d) Rejecting Anchondo’s and Nelson’sInterpretation of ICRA Would Not Lead toBizarre Results.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

(e) Anchondo’s and Nielsen’s Construction ofICRA Would Virtually Nullify the Law’sSentencing Cap.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

(f) Amici’s Policy Arguments are Misguidedand Moot.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Certificate of Compliance with FRAP 32(a)(7)(b)

Statement Regarding Related Cases

Certificate of Filing and Service

iii


TABLE OF AUTHORITIES

CASES PAGE

A-Z Int’l v. Phillips, 179 F.3d 1187 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . 42

Alvarez v. Tracey, et al., No. CIV 08-2226-PHX-DGC (DKD) (D. Ariz.). . . . . . 63

American Tobacco Co. v. United States, 147 F.2d 93 (6th Cir. 1944)aff’d, 328 U.S. 781 (1946).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Bankamerica Corp. v. United States, 462 U.S. 122 (1983). . . . . . . . . . . . . . . . . . 61

Baxter v. Sullivan, 923 F.2d 1391 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . 31

Beck v. Winters, 407 F.2d 125 (8th Cir. 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Bell v. United States, 349 U.S. 81 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Brown v. Ohio, 432 U.S. 161 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Bustamante v. Valenzuela, et al., No. 10-15714 (9th Cir.). . . . . . . . . . . . . . . . . . . 63

Bustamante v. Valenzuela, — F. Supp. 2d —, 2010 WL 1338125(D. Ariz. Apr. 1, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-45, 56, 58

Cheney v. Washington, 614 F.3d 987 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . 33

Dugan & McNamara, Inc. v. United States, 127 F. Supp. 801(Ct. Cl. 1955). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 42

Ebeling v. Morgan, 237 U.S. 625 (1915). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

FTC v. Network Servs. Depot, Inc., 617 F.3d 1127 (9th Cir. 2010). . . . . . . . . . . . 30

Greenhow v. Sec’y of HHS, 863 F.2d 633 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . 31

iv


King v. St. Vincent’s Hosp., 502 U.S. 215 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . 44

Kokoszka v. Belford, 417 U.S. 642 (1974) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

McCall v. Andrus, 628 F.2d 1185 (9th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . 30

Moore v. Illinois, 55 U.S. 13 (1852). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Native American Church v. Navaho Tribal Council, 272 F.2d 131(10th Cir. 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Negonsott v. Samuels, 507 U.S. 99 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Ohio v. Johnson, 467 U.S. 493 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Padilla-Romero v. Holder, 611 F.3d 1011 (9th Cir. 2010). . . . . . . . . . . . 34, 39, 56

Phillips v. General Motors Corp., 307 F.3d 1206 (9th Cir. 2002). . . . . . . . . . . . . 30

Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co.,153 F.3d 938 (9th Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Prison Legal News v. Schwarzenegger, 608 F.3d 446 (9th Cir. 2010) . . . . . . . . . 32

Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . 34, 60

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) . . . . . . . . . . . . . 47, 52, 53, 56

Schmidt v. Johnstone, 263 F. Supp. 2d 1219 (D. Ariz. 2003). . . . . . . . . . . . . . . . 32

Smith v. Frank, 923 F.2d 139 (9th Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . 31, 57

Spears v. Red Lake Band of Chippewa Indians, 363 F. Supp. 2d 1176(D. Minn. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

State v. Berger, 134 P.3d 378 (Ariz. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

v


Thomas v. Arn, 474 U.S. 140 (1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31-33

United States v. Antelope, 430 U.S. 641 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . 41

United States v. Bennett, 383 F.2d 398 (6th Cir. 1967). . . . . . . . . . . . . . . 43, 44, 49

United States v. Gallaher, — F.3d —, 2010 WL 4191989(9th Cir. Oct. 26, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 55

United States v. Gianelli, 543 F.3d 1178 (9th Cir. 2008),cert. denied, 129 S. Ct. 1396 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. Hardesty, 977 F.2d 1347 (9th Cir. 1992) (en banc). . . . . . . . 31, 33

United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007), cert. denied,553 U.S. 1094 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (en banc). . . . . 32, 33

United States v. TRW Rifle 7.62X51MM Caliber, 447 F.3d 686(9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

United States v. Watkins, 278 F.3d 961 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 38

United States v. Youssef, 547 F.3d 1090 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . 33

W.J. Dillner Transfer Co. v. Int’l Bhd. of Teamsters, Chauffeurs,Warehousemen, and Helpers, 94 F. Supp. 491 (W.D. Pa. 1950). . . . . . . . . . . . . . 40

Williams v. Lee, 358 U.S. 217 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATUTES AND REGULATIONS PAGE

8 U.S.C. § 1401(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. § 1153. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 36

vi


18 U.S.C. § 3598. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

25 C.F.R. §§ 11.33-11.87NH (1967).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

25 U.S.C. § 1302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 18, 52

25 U.S.C. § 1302(7).. . . . . . . . . . . . . . . . . . . . . . . . 3, 26, 27, 35, 38, 53, 57, 58, 63

25 U.S.C. § 1303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 636(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2241. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2253. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

RULES PAGE

FRAP 4(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

OTHER PAGE

4 Pascua Yaqui Tribal Code § 1-40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

4 Pascua Yaqui Tribal Code § 1-510. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

4 Pascua Yaqui Tribal Code § 1-780. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

4 Pascua Yaqui Tribal Code § 4-20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

110 Cong. Rec. 17329 (Jul. 29, 1964).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

111 Cong. Rec. 1784 (Feb. 2, 1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

vii


113 Cong. Rec. 13473 (May 23, 1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

113 Cong. Rec. 13473-78 (May 23, 1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

114 Cong. Rec. 394 (Jan. 19, 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

114 Cong. Rec. 395-97 (Jan. 19, 1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Act of June 2, 1924. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Amendments to the Indian Bill of Rights: Hearing before the Subcommitteeon Constitutional Rights of the Senate Committee on the Judiciary,91st Cong., 1st Sess. (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Anti-Drug Abuse Act of 1986. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Arthur Lazarus, Jr., Title II of the Indian Civil Rights Act: An Indian Bill of Rights, 45 N.D. L. Rev. 337 (1968-69). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Black’s Law Dictionary (6th ed. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Cong. Rec. S. 35472 (daily ed., Dec. 7, 1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Cong. Rec. S. 35473 (daily ed. Dec. 7, 1967).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Constitutional Rights of the American Indian: Hearings Before the Subcomm.on Constitutional Rights of the S. Comm. on the Judiciary,89th Cong., 1st Sess. (1965) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 11-15

Constitutional Rights of the American Indian: Hearings Before the Subcomm.on Constitutional Rights of the S. Comm. on the Judiciary, 87th Cong.,2d Sess. (1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9

Constitutional Rights of the American Indian: Hearings Before the Subcomm. onConstitutional Rights of the S. Comm. on the Judiciary, 88th Cong., 1st Sess.(1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

viii


Constitutional Rights of the American Indian: Hearings Before the Subcomm. onConstitutional Rights of the S. Comm. on the Judiciary, 87th Cong., 1st Sess.(1961).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-9

Criminal Justice Act of 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 48, 49

D. Ariz. LRCiv 56.1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Donald L. Burnett, Jr., An Historical Analysis of the 1968 ‘Indian Civil Rights’Act, 9 Harv. J. on Legis. 557 (1971-72). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 11

Federal Magistrates Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Felix S. Cohen, Indian Rights and the Federal Courts, 24 Minn. L. Rev. 145(January 1940). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fifth Amendment’s Double Jeopardy Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Joseph de Raismes, The Indian Civil Rights Act of 1968 and the Pursuit ofResponsible Tribal Self-Government, 20 S.D. L. Rev. 59 (1975) . . . . . . . . . . . . . 10

Major Crimes Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 20, 36, 41, 48, 50

Pub. L. No. 111-211, tit. II (Jul. 29, 2010), 124 Stat. 2261-2301. . . . . . . . . . . . . 22

Pub. L. No. 111-211, §§ 212-214. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Pub. L. No. 88-455 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Pub. L. No. 90-284, §§ 201-03, 82 Stat. at 77-78. . . . . . . . . . . . . . . . . . . . . . . . . . 18

Pub. L. No. 90-284, §§ 201-701 (1968), 82 Stat. at 77-81. . . . . . . . . . . . . . . . . . . 18

Pub. L. No. 99-570, § 4217 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ix


Rights of Members of Indian Tribes: Hearing before the Subcommittee onIndian Affairs of the House Committee on Interior and Insular Affairs, 90th Cong.,2d Sess. (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

S. Rep. No. 111-93 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 50

S. Rep. No. 88-164 (Apr. 30, 1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

S. Rep. No. 90-721 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Tribal Law and Order Act of 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 61

United States Constitution, Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 41, 45

United States Constitution, Sixth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

William A. Brophy, et al., The Indian: America’s Unfinished Business (Univ. ofOkla. Press 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

William C. Canby, Jr., American Indian Law in a Nutshell (5th ed. 2009). . . . . . . 4

x


10-15167 & 10-15308 (Consolidated)

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

__________________________

BEATRICE MIRANDA,

Petitioner - Appellee,

v.

TRACY NIELSEN, Interim Chief, Pascua Yaqui Tribe Department of Public Safety, and

VINCENT ANCHONDO, Supervisory Correctional Specialist, Bureau of Indian

Affairs, Office of Justice Services, Division of Corrections, District 3,

Respondent - Appellants._________________________

Statement of Jurisdiction

The District Court for the District of Arizona (Rosenblatt, D.J.) had

jurisdiction over Petitioner-Appellee Beatrice Miranda’s Petition for Writ of

Habeas Corpus pursuant to 25 U.S.C. § 1303 and 28 U.S.C. §§ 1331 and 2241.

The district court entered its final judgment on January 12, 2010. Clerk’s Record

(“CR”) #59; Respondent-Appellant Anchondo’s Excerpts of Record (“AER”) Vol.

I at 10. Respondent-Appellant Vincent Anchondo filed a timely notice of appeal

on January 21, 2010. CR #65; AER Vol. I at 1-2; FRAP 4(a). Mr. Anchondo’s

appeal was docketed as Number 10-15167. Respondent-Appellant Tracy Nielsen


filed a timely notice of appeal on February 10, 2010. CR #68; Respondent-

Appellant Nielsen’s Excerpts of Record (“NER”) Vol. 2 at 1-2; FRAP 4(a). Ms.

Nielsen’s appeal was docketed as Number 10-15308. The Court consolidated the

two appeals. This Court has jurisdiction over Anchondo’s and Nielsen’s appeals

pursuant to 28 U.S.C. §§ 1291 and 2253.

Statement of the Issues

I. Waiver of Appeal by Failure to File Timely Objections to Magistrate

Judge’s Report and Recommendation. Did Respondents-Appellants Anchondo

and Nielsen waive their right to challenge the district court’s adoption of the

Magistrate Judge’s Report and Recommendation by failing to file timely

objections to the Report and Recommendation?

II. Violation of the Indian Civil Rights Act’s One-Year Cap on Tribal

Court Sentencing Authority. At the time of Ms. Miranda’s sentencing in tribal

court, the Indian Civil Rights Act, 25 U.S.C. § 1302 (“ICRA”) (West 2009),

prohibited tribal courts from imposing “for conviction of any one offense any

penalty or punishment greater than imprisonment for a term of one year and a fine

of $5,000, or both.” Notwithstanding this one-year cap, the tribal court sentenced

Ms. Miranda to two and a half years of imprisonment in connection with a single

incident in which she allegedly shouted threats at a pair of sisters and menaced

2


them with a knife. Did the district court err in holding that this sentence was

unlawful?

Statement of the Case

A. Nature of the Case, Course of Proceedings, and Disposition Below

Ms. Miranda, an enrolled member of the Pascua Yaqui Tribe in Southern

Arizona (“the Tribe”), was convicted in tribal court of eight violations of the

Tribe’s criminal code, all of them deriving from a single incident in which she

allegedly shouted threats at a pair of sisters and menaced them with a knife. The

tribal court sentenced Ms. Miranda to two and a half years of imprisonment. Ms.

Miranda appealed to the tribal court of last resort, which rejected her claim that

this sentence violated the one-year sentencing cap set forth in the Indian Civil

Rights Act, 25 U.S.C. § 1302(7) (West 2009). Ms. Miranda then filed a Petition

for Writ of Habeas Corpus in federal district court, seeking relief on the ground

that her sentence exceeded the Indian Civil Rights Act’s one-year sentencing cap.

The Magistrate Judge recommended that the district court grant Ms. Miranda

relief. The Respondents filed untimely objections to the Magistrate Judge’s

Report and Recommendation. The district court adopted the Report and

Recommendation and granted Ms. Miranda’s petition, ordering her immediate

3


release from tribal custody. The Respondents then filed these appeals, which the

Court consolidated.

B. Statement of Facts

1. History and Purposes of Federal Regulation of TribalCourt Sentencing

a. The Indian Civil Rights Act of 1968

It has been established since the Act of June 2, 1924, that “[a]ll Indians born

within the territorial limits of the United States are declared to be citizens of the

United States.” But due to the federal- and state-government orientation of the1

protections set forth in the United States Constitution, Indians lack the

constitutional protections against the arbitrary and unjust actions of the

governments that affect them most – i.e., the tribal governments that regulate life

within Indian reservations – that their fellow citizens enjoy with respect to the

national and state governments that regulate life outside of the reservations. The2

Act of June 2, 1924 (quoted in Felix S. Cohen, Indian Rights and the1

Federal Courts, 24 Minn. L. Rev. 145, 146 n.2 (January 1940)). The law iscurrently codified at 8 U.S.C. § 1401(b).

William C. Canby, Jr., American Indian Law in a Nutshell 392 (5th ed.2

2009) (“It is . . . normally not possible for any person . . . to invoke the Bill ofRights or the Fourteenth Amendment against a tribe.”).

4


result is that for all practical purposes, Indians living on reservations lack the

constitutional protections deemed fundamental to citizenship by other Americans.

This disjunction between the constitutional protections afforded to Indian

versus non-Indian citizens caught the attention of the United States Senate

Committee on the Judiciary’s Subcommittee on Constitutional Rights (“the

Subcommittee”) in the early 1960s, for two reasons. First, a pair of 1959 federal

court decisions “reaffirmed that systems of tribal government were largely

unregulated by the Constitution.” Second, the Subcommittee had “for several3

years” been receiving complaints alleging “that the individual Indians were being

deprived of basic constitutional rights by the Federal, State, tribal, and local

Donald L. Burnett, Jr., An Historical Analysis of the 1968 ‘Indian Civil3

Rights’ Act, 9 Harv. J. on Legis. 557, 573-75 (1971-72) [hereinafter “Burnett”](citing Native American Church v. Navaho Tribal Council, 272 F.2d 131 (10thCir. 1959) (holding that constitutional protection of freedom of religion did notapply to Navaho tribe), and Williams v. Lee, 358 U.S. 217 (1959) (holding thatstate court could not compel payment by Indians for goods purchased on credit atnon-Indian’s store on the reservation)).

5


governments.” The Subcommittee convened a set of hearings and staff4

investigations to look into the matter.

At the Subcommittee’s first hearing on the “Constitutional Rights of the

American Indian,” held on August 29, 1961 in Washington, D.C., North Carolina

Senator Sam Ervin, chair of the Subcommittee, noted that a fellow Senator had

informed the Subcommittee in a letter that “‘an Indian citizen has all the

constitutional rights of other citizens while he is off the reservation, but on the

reservation (in the absence of Federal legislation) he has only the rights given to

him by the tribal governing body.’” “[T]his,” Senator Ervin explained, “is the5

major problem area with which our initial hearings will be concerned.”6

Constitutional Rights of the American Indian: Hearings Before the4

Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 87th Cong.,2d Sess. (1962) [hereinafter “1962 Hearings”] at 713 (statement of Sen. Burdick);see also id. at 511 (statement of Sen. Carroll) (“The field hearings and staffinvestigations are the result of numerous inquiries and complaints concerningconditions in various parts of the country emanating from Indians and otherindividuals and organizations working with Indians.”).

Constitutional Rights of the American Indian: Hearings Before the5

Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 87th Cong.,1st Sess. (1961) [hereinafter “1961 Hearings”] at 3 (quoting letter from chairmanof Senate Interior and Insular Affairs Committee).

Id.6

6


The Subcommittee quickly learned that the system of justice in Indian

country raised particularly grave concerns. Although “Courts of Indian Offenses”

run by the Department of the Interior’s Bureau of Indian Affairs (“BIA”) were

operating on many reservations, an increasing number of tribes had established

their own court systems. And while the federally-run courts were “informal” and7

“low-budget” affairs, the tribal courts were generally no better, owing largely to8

the “paucity of resources which most tribes could allocate to law enforcement.” 9

Senator Burdick of North Dakota informed the Subcommittee that “in many cases

the tribal courts [we]re ‘kangaroo courts.’” Senator Ervin proclaimed himself10

“much perplexed” by evidence indicating that “in all too many cases tribal courts

were entirely subservient to the tribal council.” Witnesses reported that11

In 1964, the Subcommittee reported that the “Indian tribal court system”7

was “comprised of 53 tribal courts, 12 courts of Indian offenses, and about 19traditional courts.” 110 Cong. Rec. 17329 (Jul. 29, 1964). By 1965, there wereonly five “Court of Indian Offenses.” Constitutional Rights of the AmericanIndian: Hearings Before the Subcomm. on Constitutional Rights of the S. Comm.on the Judiciary, 89th Cong., 1st Sess. (1965) [hereinafter “1965 Hearings”] at 52.

Burnett, supra note 3, at 579.8

Id. at 581.9

1961 Hearings at 88.10

Id. at 135.11

7


representation by attorneys in tribal courts was not only uncommon, but

prohibited.12

Although the Subcommittee had serious concerns about the quality of

justice meted out in tribal courts, it found a saving grace in the fact that, through a

combination of federal regulations, tribal codes, and tribal sentencing practices, it

appeared that there were no cases in which any Indian-country court imposed a

sentence exceeding six months of incarceration. In cases tried in the BIA-run

“Courts of Indian Offenses,” the six month cap was set forth in the governing

regulations, which further stressed that this maximum sentence was “to be13

inflicted only in extreme cases.” As to cases tried in tribal courts, the witnesses’14

testimony confirmed that as a matter of tribal codes and/or tribal court sentencing

practices, sentences exceeding six months’ imprisonment were unheard of. The15

1961 Hearings at 483 (statement of former San Juan Pueblo Governor12

Preston Keevana); id. at 487 (statement of R.A. Wardlaw, assistant to thePresident of the Mescalero Apache Tribe). (The same was true in the “Courts ofIndian Offenses” until the rule was declared unconstitutional. Id. at 501(statement of Subcommittee Chief Counsel William A. Creech).)

25 C.F.R. §§ 11.33-11.87NH (1967).13

Id. § 11.33(d).14

1961 Hearings at 384 (statement of Hualapai Judge Shirley Nelson) (“Six15

months is all we can give in our court. It is the highest sentence that comes in ourcourt. For any case or any crime, a period of 6 months is the highest.”); id. at 462-63 (statement of Zuni Judge Alfred Sheck) (stating that maximum sentence in

8


low sentences were matched by the relatively petty nature of the offenses

prosecuted in tribal courts. Witnesses estimated that ninety percent of all charges

brought before tribal courts were for disorderly conduct.16

Zuni court was ninety days’ incarceration); id. at 465 (statement of Nambe PuebloGovernor Ernest Mirabal) (stating that the tribe had not imposed any prisonsentences); id. at 484 (statement of former San Juan Pueblo Governor PrestonKeevana) (stating that maximum sentence in San Juan Pueblo court was ninetydays’ incarceration); 1962 Hearings at 574 (statement of Department of InteriorRegional Solicitor Palmer King) (noting that tribal courts were “limited to themisdemeanor type of case”); Constitutional Rights of the American Indian:Hearings Before the Subcomm. on Constitutional Rights of the S. Comm. on theJudiciary, 88th Cong., 1st Sess. (1963) [hereinafter “1963 Hearings”] at 871(statement of Warm Springs General Counsel Owen M. Panner) (“The maximumpenalty permissible [in Warm Springs tribal court] is 6 months in jail and a fine of$360.”); 1965 Hearings at 237 (statement of Crow Tribe delegate Edison RealBird) (describing sentences of up to fifteen days); cf. 1961 Hearings at 438(statement of Southern Ute Judge Paul Gimmel) (acknowledging that tribepermitted sentences of up to one year of incarceration but stressing that tribe had“never imposed it”); 1965 Hearings at 159 (statement of Rosebud Sioux TribalJudge William F. Day, Jr.) (“[I]n a small city jail or a tribal jail, when a person issentenced to any great length of time, it is hard for the officials to keep said personin custody without eventually feeling sorry for him and having him discharged oneway or another.”); see also William A. Brophy, et al., The Indian: America’sUnfinished Business 50 (Univ. of Okla. Press 1967) (“The maximum penaltyassessed by Indian courts seldom exceeds six months, with the performance oftribal work often being required instead of imprisonment.”).

1965 Hearings at 139 (statement of Washington, D.C. Indian law attorney16

Marvin J. Sonosky), id. at 148 (statement of Rosebud Sioux Tribe President CatoW. Valandra) (“The offenses in Indian courts are minor. About 90 percent of allcharges are under the heading of ‘disorderly conduct.’”), id. at 237 (statement ofCrow Tribe delegate Edison Real Bird) (“Most cases handled in the tribal courtsare small misdemeanors, more or less disorderly conduct, drunk, and that is aboutit.”); Rights of Members of Indian Tribes: Hearing before the Subcommittee on

9


During the hearings and afterwards, Subcommittee members expressed their

dismay at the lack of constitutional protections against governmental oppression

afforded to Indians living on reservations. Senator Hruska told his colleagues on

the Senate floor that he had been “jarred and shocked by the conditions as far as

[rights] for members of the Indian tribes were concerned,” having learned that

tribal governments had “unchecked and unlimited authority over many facets of

Indian rights.” Senator Ervin stated that most of the Subcommittee’s members17

were “astounded” to learn that “reservation Indians do not possess the same

constitutional rights which are conferred upon all other Americans by the Bill of

Rights and the Constitution.” In a 1963 report, the Subcommittee highlighted18

the “fundamental and increasingly important question” of “how an individual

Indian Affairs of the House Committee on Interior and Insular Affairs, 90th Cong.,2d Sess. (1968) [“House Hearing”] at 107 (statement of Marvin J. Sonosky)(“Ninety percent of all crimes committed on Indian reservations are disorderlyconduct and possibly drunkenness.”).

Cong. Rec. S. 35473 (daily ed. Dec. 7, 1967) (quoted in Joseph de17

Raismes, The Indian Civil Rights Act of 1968 and the Pursuit of ResponsibleTribal Self-Government, 20 S.D. L. Rev. 59, 72 (1975) [hereinafter “deRaismes”]).

Cong. Rec. S. 35472 (daily ed., Dec. 7, 1967) (quoted in de Raismes at 72-18

73).

10


Indian, as a citizen, can protect himself against a tribal government whose actions

allegedly violate the Federal Constitution.”19

By the time the field hearings had concluded in 1963, the Subcommittee had

heard nearly 1100 pages of testimony and collected nearly 2500 completed

questionnaires. In 1965 Senator Ervin introduced a slate of nine measures,20

numbered S. 961-68 and S.J. Res. 40, designed to address the Subcommittee’s

findings.21

The first of these bills, S. 961, addressed the primary theme of the

Subcommittee’s investigation by providing “[t]hat any Indian tribe in exercising

its powers of local self-government shall be subject to the same limitations and

restraints as those which are imposed on the Government of the United States by

the United States Constitution.” The accompanying memorandum explained that22

the Subcommittee’s intent was “to safeguard an Indian’s constitutional rights

which are subject to infringement by Indian tribal governments.” S. 96223

S. Rep. No. 88-164, at 9 (Apr. 30, 1963).19

Burnett, supra note 3, at 587.20

111 Cong. Rec. 1784 (Feb. 2, 1965).21


Id. at 6.23

11


provided protection against unfair tribal court proceedings by providing for a right

of appeal and trial de novo in a federal district court following conviction in a

tribal court. S. 967 added aggravated assault to the list of offenses that, pursuant24

to what was then known as the “Seven Major Crimes Act,” could be prosecuted

federally when committed by an Indian in Indian country. The accompanying25

memorandum explained that the amendment was necessary because crimes not

prosecuted in Federal courts fell within the jurisdiction of Indian tribal courts,

which “cannot impose more than a 6-month sentence,” and this maximum penalty

was too lenient to address the crime of aggravated assault.26

Id. at 6-7.24

Id. at 12. The law, now known as the “Major Crimes Act,” is currently25

codified at 18 U.S.C. § 1153.

1965 Hearings at 12; see also id. at 68 (noting that S. 967 was predicated26

“[o]n the assumption that 6 months in jail, the maximum punishment which mosttribal courts can impose, is an inadequate penalty for serious crimes of violence”);id. at 73 (resolution of Hualapai Tribe supporting S. 967) (noting that “themaximum penalty of 6 months in jail which [the tribal] courts may impose isinadequate in light of the seriousness of the crime”); id. at 77 (resolution of SanCarlos Tribe supporting S. 967) (same); id. at 82 (resolution of Salt River Pima-Maricopa Tribe supporting S. 967) (same); 114 Cong. Rec. 394 (Jan. 19, 1968)(statement of Sen. Ervin) (“Since Indian courts cannot impose more than a 6-month sentence, the crime of aggravated assault should be prosecuted in a Federalcourt, where the punishment will be in proportion to the gravity of the offense.”).

12


The Interior Department expressed serious concerns about the bills.

Department Solicitor Frank J. Barry complained that S. 961 was “too general,” and

“include[d] limitations and restrictions which need not be included.” The27

Department recommended substitute legislation which would more narrowly

“specif[y] the rights extended to individual Indians in relation to their tribal

governments,” and would substitute access to federal habeas corpus relief for trials

de novo in federal district court. Responding to questions from Subcommittee28

Chief Counsel William A. Creech about the Department’s intentions regarding the

improvement of tribal justice, Mr. Barry agreed “that some procedural system

should be adopted,” but stressed that “it ought to be borne in mind that there are

no offenses over which Indian tribal courts have jurisdiction which carry a penalty

of more than 6 months in jail,” which “would be classed as misdemeanors in most

jurisdictions.”29

As it was revising the bills to accommodate the Interior Department’s

concerns and other issues, the Subcommittee showed a particular interest in the

relationship between its efforts to improve tribal justice and the recently-enacted


Id. at 18.28

Id. at 22.29

13


Criminal Justice Act of 1964 (“CJA”), which provided for government-funded

counsel to represent criminal defendants charged with crimes punishable by over

six months of incarceration. Subcommittee Chief Counsel Creech asked Arthur30

Lazarus, a prominent Washington, D.C. Indian law attorney and General Counsel

to the Association on American Indian Law Affairs, to address the question of

whether the Criminal Justice Act could be applied in Indian country. Mr.31

Lazarus reported back with a statement that, although the Act “could be adapted to

the operations of tribal courts,” in its current state it would not apply to them

because neither funding to pay appointed lawyers nor a bar of private attorneys

practicing in tribal courts were available. The Subcommittee also took testimony32

from Lawrence Speiser, Director of the Washington office of the American Civil

Liberties Union, who confirmed that the CJA would not operate in tribal courts

because the law did not “provide funds for representation in the trial of petty

offenses,” and “[t]he 6-month limitation on penalties in tribal courts classifie[d] all

Pub. L. No. 88-455 (1964), 78 Stat. 552; Beck v. Winters, 407 F.2d 125,30

130 n.13 (8th Cir. 1969).


Id. at 92-93.32

14


their cases as ‘petty’ offenses as defined by the United States Code.” Mr. Speiser33

recommended that Congress amend the CJA to provide compensation and

investigating expenses “for attorneys to appear in cases involving petty offenses in

tribal courts.”34

Following the 1965 hearings, the Subcommittee drew up a revised slate of

proposals, which Senator Ervin introduced in 1967 as S. 1843-47 and S.J. Res.

87. The subcommittee stressed that “[t]hough evidence of the denial of35

substantive and political rights ha[d] been brought to the subcommittee’s

attention,” it was “apparent that an Indian citizen’s rights are most seriously

jeopardized by the tribal government’s administration of justice.”36

The former S. 961 had become S. 1843, which replaced S. 961’s broad

incorporation of constitutional rights into Indian country with a specific

enumeration of certain bill of rights protections. Some protections were omitted,37

most notably in the provision stating that an Indian prosecuted in tribal court

Id. at 224.33

Id.34

113 Cong. Rec. 13473-78 (May 23, 1967).35

Id. at 13473.36

Id. at 13473-74.37

15


enjoyed the right to counsel only “at his own expense.” S. 1843 also provided38

that “[n]o Indian tribe in exercising powers of self-government shall . . . impose

for conviction of any one offense any penalty or punishment greater than

imprisonment for a term of six months or a fine of $500, or both.” The39

Subcommittee’s section-by-section analysis explained that the $500 fine or six-

month term of imprisonment would “remain” the maximum limitation as to

punishment for any one offense.40

The Subcommittee’s revised proposals soon entered into the Senate’s

consideration of the bill that was to become the Civil Rights Act of 1968. In a

separate statement in a 1967 report, Senator Ervin criticized the Judiciary

Committee for refusing to substitute the Subcommittee’s proposals for the civil

rights bill. He complained that the Judiciary Committee had decided to extend41

“special rights and protections” to a “limited group of citizens,” while refusing to

“grant rights to a minority group most in need of basic constitutional rights.” 42

Id. at 13473.38

Id. at 13473-74.39

Id. at 13475.40

S. Rep. No. 90-721 (1967) (additional views of Sen. Ervin).41

Id.42

16


Senator Ervin included a description of the Subcommittee’s proposals with his

statement, noting that pursuant to the Subcommittee’s bill “[t]he penalty of a $500

fine or imprisonment for a term of 6 months or both would remain the maximum

limitation as to punishment for any one offense.”43

Senator Ervin repeated his objections to the civil rights bill on the floor of

the Senate the following year, introducing a revised substitute bill that included the

same language capping tribal sentences at six months and/or a $500 fine, but

replaced the trial de novo procedure with a provision authorizing persons in the

custody of Indian tribes to seek habeas corpus relief in federal court. Although44

the Judiciary Committee still refused to scrap the civil rights bill and replace it with

the Subcommittee’s version, it agreed to incorporate the Subcommittee’s Indian-

country measures into the civil rights bill.45

The legislation came before the Subcommittee on Indian Affairs of the

House Committee on Interior and Insular Affairs a few months later. Among the46

materials that the Indian Affairs Subcommittee reviewed was a letter from

Id.43

114 Cong. Rec. 395-97 (Jan. 19, 1968).44

Id. at 399.45

House Hearing, supra note 16.46

17


Assistant Interior Secretary Harry R. Anderson explaining that the bill’s limit on

tribal sentencing authority was appropriate “because the criminal acts treated in the

tribal court system are minor, and the possibility of disproportionate punishments

should be prohibited.”47

The Subcommittee’s proposals finally became law on April 11, 1968, as

Titles II through VII of the Civil Rights Act of 1968. S. 1843, including its48

limitation of tribal court sentencing to a $500 fine and/or six months’ imprisonment

and its provision for the assistance of counsel “at [the defendant’s] own expense,”

was enacted as Title II of the Civil Rights Act, and later codified as 25 U.S.C.49

§ 1302.

The following year, upon hearing concerns from New Mexico tribal officials

regarding the legislation’s impact on “tribal affairs and the operation of tribal

governments,” two senators proposed to exempt New Mexico’s Indian pueblos

from the law. The proposal was shelved after the Subcommittee heard extensive50

Id. at 29.47

Pub. L. No. 90-284, §§ 201-701 (1968), 82 Stat. at 77-81.48

Pub. L. No. 90-284, §§ 201-03, 82 Stat. at 77-78.49

Amendments to the Indian Bill of Rights: Hearing before the50

Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary,91st Cong., 1st Sess. (1969) at 1 (statement of Sen. Anderson).

18


testimony from Individual Indians who urged the Subcommittee to let them retain

their civil rights protections, and detailed abusive and oppressive treatment by their

pueblo governments.51

b. The Anti-Drug Abuse Act of 1986

The Indian Civil Rights Act remained unchanged until 1986, when a

provision of the “Anti-Drug Abuse Act of 1986” raised the maximum sentence in

tribal court to “a term of one year and a fine of $5,000, or both.” The amendment52

was enacted “[t]o enhance the ability of tribal governments to prevent and penalize

the traffic of illegal narcotics on Indian reservations.”53

Id. at 56 (statement of Isleta Pueblo member Lawrence Jaramillo) (“[T]he51

tribal court was just there–they seemed to be all in nepotism, that all the Pueblogovernment was there, their sons and their relatives.”); id. at 59 (statement of TaosPueblo member Delfino Concha) (“Isn’t it about time for our Indian leaders toexamine their consciences? What’s good for the white man must also be good forthe Indians on the reservation because we do accept and conform to hispractices.”); id. at 69 (statement of Santa Clara Pueblo members VirginiaEbelacker and Mela M. Youngblood) (“The council, the sheriff, and the judgestreat various members of the pueblo differently, depending upon whether or notthey are friendly with those in power[.]”); id. at 70 (statement of Sefrino Abieta)(“We Indian people never had anything like this before, and we up until now havebeen cheated out of our interests and our rights.”); id. at 71 (statement of IsletaPueblo member and World War II veteran Jose L. Montoya) (“[I]t would be anunbelievable thing to happen and a disastrous thing to exclude the 19 pueblos outof their God-given rights and justice.”).

Pub. L. No. 99-570, § 4217 (1986).52

Id.53

19


c. The Tribal Law and Order Act of 2010

As Senator Byron Dorgan explained in a 2009 report, circumstances changed

considerably in the over four decades following ICRA’s enactment. Many tribes

faced a “crisis of violent crime,” and while the federal government bore the54

responsibility to prosecute such offenses under the Major Crimes Act, tribes had

complained for years that the federal government systematically declined to

prosecute these crimes. As a result, although ICRA’s sentencing cap was55

premised on the Subcommittee’s understanding “that tribal courts were essentially

justices of the peace, which dealt primarily with petty offenses,” tribal courts had

been “increasingly trying violent offenses,” and “tribal jails [were] holding more

violent offenders.” In light of these circumstances, tribes were chafing at ICRA’s56

sentencing cap.

While tribes sought to redress their concerns by pressing an ultimately-

successful campaign to persuade Congress to amend the law, many tribes in the

interim devised a technique for sidestepping ICRA’s sentencing cap. This

technique is candidly described in the amicus curiae brief lodged by the Gila River

S. Rep. No. 111-93, at 1 (2009).54

Id. at 12.55

Id. at 16.56

20


Indian Community. ) The Gila River brief outlines how tribes have structured57

their codes “to allow the charging of multiple offenses”:

When the federal government[] declines to prosecute seriouscrimes, the burden falls to the Indian tribes to prosecute violentoffenders in tribal courts. Knowing this, many tribes have adoptedcriminal codes designed to allow the charging of multiple offenses. The Gila River Indian Community’s Criminal Code was adopted, inpart, to ‘define the act or omission which constitutes each offense.’ And it did so because federal law enforcement agencies often declineprosecution of cases.

Given the inherent jurisdictional limitations and the ICRAlimitation of one year for each offense, consecutive sentencing is onetool available to Indian tribes to handle violent criminals.58

The District of Minnesota struck down the practice of ‘stacking’ multiple

one-year sentences in connection with a single criminal transaction in a 2005

decision, holding that the practice was inconsistent with Congress’s intent in

ICRA, but tribes continued to employ it.59

Dkt. #24-2. Ms. Miranda supports the filing of the Gila River brief, as57

well as the separate amicus curiae brief filed by the Tohono O’Odham Nation(Dkt. #25-2).

Dkt. #24-2 at 15.58

Spears v. Red Lake Band of Chippewa Indians, 363 F. Supp. 2d 1176 (D.59

Minn. 2005).

21


On July 29, 2010, the tribes’ efforts to amend ICRA bore fruit, with the

enactment of the Tribal Law and Order Act of 2010. Congress refused to lift60

ICRA’s sentencing cap across the board, but it did give tribes the option to impose

sentences of up to three years per offense, provided that they: (1) afforded the

defendant “the right to effective assistance of counsel at least equal to that

guaranteed by the United States Constitution,” (2) provided the defendant with the

assistance of a licensed attorney, (3) required that the presiding judge be licensed to

practice law and have “sufficient legal training to preside over criminal

proceedings,” (4) make their criminal laws and rules publicly available before

charging the defendant, and (5) maintain a recording of the trial proceeding. For61

tribes that declined to take these measures, the one-year-per-offense cap remains in

place, with “offense” now defined to mean “a violation of a criminal law.”62 63

2. Beatrice Miranda’s Prosecution, Incarceration, andSuccessful Pursuit of Habeas Corpus Relief

Beatrice Miranda, an enrolled member of the Pascua Yaqui Tribe in southern

Arizona, was charged, convicted, sentenced, and released on a writ of habeas

Pub. L. No. 111-211, tit. II (Jul. 29, 2010), 124 Stat. 2261-2301.60

Id. § 234(a)(3).61

Id. § 234(a)(2).62

Id. § 234(a)(3).63

22


corpus before the Tribal Law and Order Act was enacted. Petitioner-Appellee’s

Supplemental Excerpts of Record (“SER”) at 1 ¶ 1, 10 ¶ 1, 20 ¶ 1.64

According to the complaint and the Tribe’s evidence at trial, Ms. Miranda

was involved in a confrontation with two other Tribe members “at approximately

10:56 p.m.” on January 25, 2008 on the Pascua Yaqui Reservation. Id. at 1-2 ¶ 3,

10 ¶ 3, 21 ¶ 3. Minor victim M.V. testified that Ms. Miranda chased her down the

street while “talking stuff . . . like bitches and like, uh, all that stuff.” Id. at 5 ¶ 33,

14 ¶ 28. M.V. ran to her home and, after her sister Bridgette came out to confront

Ms. Miranda, threw a basketball at Ms. Miranda and went inside. Id. at 5 ¶¶ 34-35,

14-15 ¶ 31, 22 ¶ 31. Bridgette testified that she saw Ms. Miranda holding a knife,

asked her “what’s wrong with you,” and grabbed a broom, threatening to hit Ms.

Miranda with it if she did not leave. Id. at 3 ¶¶ 20-21, 13 ¶¶ 20-21, 22 ¶¶ 20-21.

After M.V. hit her in the face with a basketball, Ms. Miranda “backed off” and

walked away, calling M.V. and her sister “fucking bitches” and saying “you guys

aren’t funny,” and “I’m going to kill you guys.” Id. at 4 ¶¶ 25-26, 13 ¶¶ 23-24, 22

¶¶ 23-24. Bridgette then called the police. Id. at 4 ¶ 27, 14 ¶ 25, 22 ¶ 25. Officer

Ms. Miranda’s Supplemental Excerpts of Record contains Statements of64

Facts filed pursuant to the district court’s local rule pursuant to which factualassertions not “specifically controverted” in the “correspondingly numberedparagraph” of an opposing party’s statement are “deemed admitted for purposes ofthe motion for summary judgment.” D. Ariz. LRCiv 56.1(b).

23


Montano testified that he responded to Bridgette’s call and arrested Ms. Miranda,

who he believed was extremely intoxicated. Id. at 3 ¶¶ 12-15, 12 ¶¶ 12-17, 21-22

¶¶ 12-17. He recovered a knife from Ms. Miranda that Bridgette and M.V.

identified as the one with which Ms. Miranda had menaced them. Id. at 3 ¶ 16, 12

¶ 17, 22 ¶ 17.

Ms. Miranda represented herself at the trial, at which she raised no

objections, made no opening statement or closing argument, examined no

witnesses, and presented no defenses. Id. at 2 ¶¶ 9-10, 11 ¶¶ 9-10, 21 ¶¶ 9-10.

The Tribe charged Ms. Miranda with eight separate violations of its criminal

code, including: (1) aggravated assault on M.V.; (2) aggravated assault on

Bridgette Valenzuela; (3) endangerment of M.V.; (4) endangerment of Bridgette

Valenzuela; (5) threatening or intimidating of M.V.; (6) threatening or intimidating

of Bridgette Valenzuela; (7) disorderly conduct toward M.V.; and (8) disorderly

conduct toward Bridgette Valenzuela. Id. at 2 ¶ 4, 10 ¶ 4, 21 ¶ 4.

The Tribal court found Ms. Miranda guilty on all eight counts and sentenced

her to one year of incarceration each on Counts 1 and 2, 60 days of incarceration

each on Counts 3 and 4, 90 days of incarceration each on Counts 5 and 6, and 30

days of incarceration each on Counts 7 and 8. Id. at 5 ¶ 39, 16 ¶ 37, 23 ¶ 37; NER

Vol. 2 at 6. The court specified that the one-year sentences on Counts 1 and 2

24


would run consecutively, the 90-day sentences on Counts 5 and 6 would run

consecutively to each other and to the sentences on Counts 1 and 2, and the

sentences on the remaining counts would run concurrently with the sentences on

Counts 1, 2, 5, and 6, yielding an aggregate total of 910 days of incarceration. SER

at 5-6 ¶ 40, 16 ¶ 38, 23 ¶ 38; NER Vol. 2 at 6. The judge subtracted the 114 days

that Ms. Miranda had already served, adjusting the remaining term to 796 days,

with a release date of July 24, 2010. SER at 6 ¶ 41, 16 ¶ 39, 23 ¶ 39; NER Vol. 2 at

6.

Ms. Miranda appealed her sentence to the Pascua Yaqui Tribal Appellate

Court, the Tribe’s highest judicial body. SER at 6 ¶ 42, 16 ¶ 40, 23 ¶ 40. In her

opening brief on appeal, she argued that her sentence violated the Indian Civil

Rights Act, 25 U.S.C. § 1302(7), because it exceeded one year of incarceration in

connection with a “single criminal transaction.” SER at 6 ¶ 46, 17 ¶ 42, 24 ¶ 42.

The tribal appellate court rejected Ms. Miranda’s claim, concluding that the trial

court’s sentencing ruling fell “within the wide latitude Indian courts have to charge

and sentence criminal defendants.” NER Vol. I at 13-40; SER at 6 ¶ 47, 17 ¶ 42,

24 ¶ 42.

Ms. Miranda then filed the underlying petition for writ of habeas corpus in

the United States District Court for the District of Arizona, again pressing her

25


argument that her sentence violated 25 U.S.C. § 1302(7). CR #1; see also CR #18,

AER Vol. II at 153-64 (Amended Petition). After Respondents filed their answers

(CR ##22, 25, 32, AER Vol. II at 74-84, 148-52), Ms. Miranda filed a motion for

summary judgment (CR #33; AER Vol. I at 66-73). Respondents filed responses

(CR #37, 41) as well as a cross-motion for summary judgment (CR ##36, 40; AER

Vol. I at 63-65).

Following the completion of briefing, Magistrate Judge Edward C. Voss

issued a Report and Recommendation recommending that Ms. Miranda’s motion

for summary judgment be granted, and that Respondents’ cross-motion for

summary judgment be denied. AER Vol. I at 36-44. Judge Voss agreed with the

analysis and conclusions of the District of Minnesota in Spears v. Red Lake Band

of Chippewa Indians, 363 F. Supp. 2d 1176 (D. Minn. 2005), and concluded that

the phrase “any one offense” as used in § 1302(7) should be construed as referring

to a “single criminal transaction.” AER Vol. I at 42 (citing Spears, 363 F. Supp. 2d

at 1181).

Ms. Nielsen filed a request for an extension of the deadline for filing

objections to the Report and Recommendation, which Mr. Anchondo joined. CR

##49, 53. Ms. Miranda opposed the request, noting that she had repeatedly moved

to expedite the case (CR ##7, 35) and that, in light of the short time remaining on

26


her sentence, “justice delayed” could prove to be “justice denied.” CR #50 at 1-2.

The district court issued a minute entry granting Ms. Nielsen’s extension motion

but requiring “that all objections to the Report and Recommendation shall be filed

no later than noon on 1/11/10.” CR #54, AER Vol. II at Docket p. 8 (emphasis

added).

Neither Ms. Nielsen nor Mr. Anchondo filed objections by the deadline set

by the district court. Ms. Nielsen filed her objections (CR #56) at 4:05 p.m. on

January 11, 2010, over four hours late, and Mr. Anchondo filed his objections (CR

#57) at 4:58 p.m. on the same day, almost five hours late. AER Vol. I at 11-12 n.1.

Neither Ms. Nielsen nor Mr. Anchondo offered any explanation for the late filings

or sought any additional extension of time. Id.

The district court issued its Order Granting Writ of Habeas Corpus the

following day. Id. at 11-13. The court noted that Ms. Nielsen and Mr. Anchondo

had filed untimely objections without offering any explanations or seeking

additional extensions of time, and “conclude[d] that the respondents’ objections

[we]re untimely.” Id. at 11-12 n.1. The court further noted that “it [wa]s in any

case unpersuaded by the respondents’ objections.” Id. at 12 n.1. The court

“agree[d] with the Magistrate Judge that the ‘any one offense’ language of 25

U.S.C. § 1302(7) is properly interpreted to include all tribal code violations

27


committed during a single criminal transaction.” Id. at 12:4-6. Accordingly, the

court adopted the Report and Recommendation, granted Ms. Miranda’s habeas

petition and motion for summary judgment, denied Ms. Nielsen’s cross-motion for

summary judgment, and directed the Clerk of Court to immediately enter a

judgment ordering respondents to release Ms. Miranda from custody no later than

5:00 p.m. on January 13, 2010. Id. at 12:15-13:5. The Clerk entered the judgment

the same day (id. at 10), and Respondents released Ms. Miranda from custody that

afternoon (id. at 3-4).

Mr. Anchondo filed an appeal from the judgment that was docketed in this

Court as Number 10-15167. AER Vol. I at 1-2. Ms. Nielsen filed an appeal from

the judgment that was docketed in this Court as Number 10-15308. NER Vol. 2 at

1-3. The Court consolidated the two appeals.

Summary of Argument

I. Waiver of Appeal by Failure to File Timely Objections to Magistrate

Judge’s Report and Recommendation. This Court should summarily affirm the

district court’s adoption of the Magistrate Judge’s Report and Recommendation

because Respondent-Appellants failed to file timely objections. Ms. Miranda

acknowledges that this Court’s caselaw on the question of whether issues of law

can be waived by a failure to file timely objections to a magistrate judge’s report

28


and recommendation is in conflict, and asks the Court to either find that the

contrary caselaw on which the government relies has been superseded by Supreme

Court or en banc decisions, or call for en banc review to resolve the conflict.

II. Violation of the Indian Civil Rights Act’s One-Year Cap on Tribal

Court Sentencing Authority. The district court correctly refused to flout the

intentions of the Congress that enacted ICRA by construing the law to permit tribes

to sidestep its sentencing cap by “stacking” multiple one-year sentences in

connection with individual criminal transactions. The plain terms of the statute

demonstrate that Congress intended to impose a real and meaningful limit on tribal

court sentencing authority, and “stacking” thoroughly eviscerates this intention,

allowing tribes to freely impose multi-year sentences in virtually any case –

including relatively trivial cases like this one. Moreover, ICRA’s legislative

history demonstrates that when Congress arrived at the balance between the rights

of individual Indians and the prerogatives of tribal governments that it struck in

ICRA, it did so with the understanding that the law’s sentencing cap would be firm

and absolute, not easily evaded, as Anchondo and Nielsen effectively suggest.

Moreover, Congress intended for ICRA’s sentencing cap to codify the preexisting

practice in tribal courts, and the preexisting practice did not include the use of

29


“stacking” to impose multi-year sentences. This Court should therefore affirm the

district court’s judgment.

Argument

I. The Court Should Dismiss these Appeals because Anchondo and NielsenFailed to File Timely Objections to the Magistrate Judge’s Report andRecommendation.

A. Standard of Review

The issue of whether an appellant has waived his statutory right to appeal is

a matter of law reviewed de novo. United States v. Gianelli, 543 F.3d 1178, 1182

(9th Cir. 2008), cert. denied, 129 S. Ct. 1396 (2009).

B. By Failing to File Timely Objections to the Magistrate Judge’sReport and Recommendation, Anchondo and Nielsen WaivedTheir Right to Appeal the District Court’s Adoption of the Reportand Recommendation.

This Court may affirm the district court’s judgment on any basis supported

by the record. FTC v. Network Servs. Depot, Inc., 617 F.3d 1127, 1137 (9th Cir.

2010). Anchondo and Nielsen failed to file timely objections to Magistrate Judge

Voss’s Report and Recommendation. AER Vol. I at 11-12 n.1. Under such cases

as McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980), and Phillips v. General

Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002), Anchondo’s and Nielsen’s

failure to file timely objections provides a sufficient ground for affirmance.

30


Although Anchondo correctly observes, citing Baxter v. Sullivan, 923 F.2d

1391, 1394 (9th Cir. 1991), that a line of this Court’s cases holds that the failure to

file timely objections waives appeal only with respect to questions of fact

(Anchondo Br. at 4 n.3), he overlooks some salient facts.

First, Anchondo neglects to acknowledge that, as this Court has noted

several times, this Court’s caselaw on the question is in conflict. See, e.g., Smith v.

Frank, 923 F.2d 139, 141 (9th Cir. 1991); Greenhow v. Sec’y of HHS, 863 F.2d

633, 635-36 (9th Cir. 1988), overruled in part by United States v. Hardesty, 977

F.2d 1347 (9th Cir. 1992) (en banc).

Second, although the Greenhow decision – which the Court cited in Baxter,

923 F.2d at 1394 – resolved that conflict in favor of the government’s position, that

portion of Greenhow was overruled after Baxter was issued by the en banc Court in

Hardesty, on the ground that a panel faced with an irreconcilable conflict “must

call for en banc review,” rather than simply resolving the conflict on its own.

Hardesty, 977 F.2d at 1348 (internal quotation marks omitted).

Finally, the government fails to note that the Supreme Court in Thomas v.

Arn, 474 U.S. 140 (1985), specifically rejected the notion that the Federal

Magistrates Act draws a distinction between factual and legal issues with respect to

whether a failure to file timely objections may be treated as a waiver of appeal,

31


finding that “the plain language of the statute recognizes no such distinction.” Id.

at 150. It is well-established that a panel of this Court may reject prior circuit

precedent in light of a conflicting Supreme Court decision when the Supreme Court

decision “has undercut the theory or reasoning underlying the prior circuit

precedent in such a way that the cases are clearly irreconcilable.” Prison Legal

News v. Schwarzenegger, 608 F.3d 446, 451 (9th Cir. 2010) (internal quotation

marks omitted).

Moreover, even if Thomas did not effectively overrule the caselaw upon

which the government relies, District Judge Teilborg’s careful analysis of the state

of the caselaw in Schmidt v. Johnstone, 263 F. Supp. 2d 1219 (D. Ariz. 2003),

demonstrates that this Court’s en banc decision in United States v. Reyna-Tapia,

328 F.3d 1114 (9th Cir. 2003) (en banc), did, by stressing that “under 28 U.S.C.

§ 636(b)(1) a ‘district judge must review the magistrate judge’s findings and

recommendations de novo if objection is made, but not otherwise.’” Schmidt, 263

F. Supp. 2d at 1225 (quoting Reyna-Tapia, 328 F.3d at 1122). Judge Teilborg

concluded that under Reyna-Tapia, “district courts are not required to conduct ‘any

review at all . . . of any issue that is not the subject of an objection.’” Id. at 1226

(quoting Thomas, 474 U.S. at 149) (emphasis added). Where such a summary

adoption of a magistrate judge’s Report and Recommendation is proper, there is

32


nothing for the court of appeals to review on appeal, and thus the right of appeal is

necessarily waived as well.

In light of these authorities, Ms. Miranda respectfully requests that the Court

either hold that the line of cases cited by the government is effectively overruled by

Thomas and/or Reyna-Tapia, or else call for en banc review to resolve the intra-

circuit conflict. Hardesty, 977 F.2d at 1348.

II. The District Court Correctly Refused to Validate Tribes’ Use of“Stacking” of Multiple Offenses to Sidestep ICRA’s One-YearSentencing Cap.

A. Standard of Review

This Court applies de novo review to a district court’s decision to grant or

deny a petition for a writ of habeas corpus, Cheney v. Washington, 614 F.3d 987,

993 (9th Cir. 2010), as well as to questions of statutory interpretation, United

States v. Youssef, 547 F.3d 1090, 1093 (9th Cir. 2008).

B. The District Court Properly Examined the Statute’s PlainLanguage and Legislative History and Reached a Conclusion thatEffectuated Congress’s Evident Intent.

1. The Magistrate Judge and District Court Correctly Adoptedthe District of Minnesota’s Compelling Reasoning in Spearsv. Red Lake Band of Chippewa Indians.

Should this Court decide to reach the merits of Anchondo’s and Nielsen’s

arguments despite their failure to file timely objections, it must resolve a question

33


of statutory interpretation: Does permitting tribes to sidestep ICRA’s one-year

sentencing cap by “stacking” multiple one-year consecutive sentences for

separately-defined offenses arising from a single criminal transaction square with

the intentions of the Congress that enacted ICRA?

Interpretive inquiries of this type are governed by standard principles of

statutory construction, chief among which is the maxim that the Court’s objective

“is to discern congressional intent.” Padilla-Romero v. Holder, 611 F.3d 1011,

1013 (9th Cir. 2010). To do so, the Court “look[s] first to the plain language of the

statute, construing the provisions of the entire law, including its object and policy,

to ascertain the intent of Congress.” Retuta v. Holder, 591 F.3d 1181, 1188 (9th

Cir. 2010) (internal quotation marks omitted). Close scrutiny of the operative

statutory language is appropriate, but the Court does not view a particular word or

phrase “in isolation from its context” (Padilla-Romero, 611 F.3d at 1013) – instead,

the Court considers the broader context and purpose of the provision in question,

examining the legislative history where appropriate to ascertain “what social

problem Congress addressed” when it enacted the law. Portland 76 Auto/Truck

Plaza, Inc. v. Union Oil Co., 153 F.3d 938, 944 (9th Cir. 1998).

34


As the magistrate judge and district court found, a useful starting point for

this analysis is the District of Minnesota’s decision in Spears, in which that court

applied these principles to the interpretive question at issue here.

The Spears court reviewed a habeas corpus petition filed by a petitioner who

drove drunk and without a license on the Red Lake Indian Reservation, causing a

fatality. Spears, 363 F. Supp. 2d at 1176. After he was convicted and sentenced in

federal court for involuntary manslaughter, the petitioner was charged in the Red

Lake Tribal Court with six separate criminal counts arising from the same incident.

Id. at 1176-77. He pleaded guilty to all of the charges and was given sentences

adding up to 30 months’ incarceration. Id. at 1177. After exhausting his appeals in

tribal court, he filed a habeas corpus petition in the district court, arguing that his

sentences violated § 1302(7) of ICRA, the pertinent clause of which limited tribal

courts’ sentencing authority to one year of incarceration for “any one offense.”

Spears, 363 F. Supp. 2d at 1177.

The court recognized that the phrase “any one offense” was ambiguous,

noting that similar language had given rise to disputes over interpretation in other

contexts, including with respect to the Fifth Amendment’s Double Jeopardy Clause

and the Sixth Amendment’s guarantee of the right to a jury trial. Id. at 1178-79.

35


The court therefore resolved to interpret the phrase in the light of Congress’s

evident purposes in enacting the statute. Id. at 1179.

The court noted that when Congress enacted ICRA, states were not required

to provide counsel for indigent defendants exposed to sentences of six months or

less – which was the maximum tribal-court sentence permitted for “any one

offense” at the time of ICRA’s enactment. Id. at 1179-80. The court further

observed that under the Major Crimes Act, 18 U.S.C. § 1153, Indians facing

serious criminal charges were entitled to the “full panoply of constitutional rights

in federal court.” Spears, 363 F. Supp. 2d at 1180. Thus, the court reasoned,

Congress evidently intended for ICRA and the Major Crimes Act to create a

“balanced and logical regime” under which “Indians accused of minor crimes faced

minor penalties in tribal court where some constitutional rights were withheld,”

while “Indians accused of serious crimes faced serious penalties in federal court

where all constitutional rights were available.” Id.

The court then observed that this “balanced and logical regime” could be

maintained only if the phrase “any one offense” is interpreted to mean “a single

criminal transaction.” Id. Otherwise, the court stressed, “tribal court defendants

would be routinely exposed to serious sentences for minor crimes without

guaranteeing them all their basic constitutional rights.” Id. Finding that the

36


charges against the petitioner arose from a common nucleus of operative fact and

were factually and legally intertwined, the court found that all of the charges

derived from a single criminal transaction. Id. at 1181. The court concluded that

the petitioner’s tribal court sentence was unlawful, and granted his petition. Id. at

1182.

The Spears court’s analysis was correct, and the magistrate judge and district

court properly adopted and applied that analysis here. AER Vol. I at 12, 40-43.

Indeed, Anchondo and Nielsen have not attempted to dispute the fact that Ms.

Miranda, like the petitioner in Spears, was subjected to consecutive sentences

totaling more than one year of incarceration in connection with a single criminal

transaction. Nor could any reasonable dispute be raised on this point, since all of

the charges against Ms. Miranda arose from a single brief incident occurring “at

approximately 10:56 p.m.” on January 25, 2008, within a one- or two-block area.

SER at 1-2 ¶ 3, 10 ¶ 3, 21 ¶ 3. It is clear, and undisputed, that all of the charges

were factually and legally intertwined and involved a common nucleus of operative

fact. Spears, 363 F. Supp. 2d at 1181.

Rather than attempting to suggest that the rule of Spears does not apply here,

Anchondo and Nielsen attack Spears directly, claiming that its analysis was flawed.

But their criticisms of Spears are meritless.

37


2. Anchondo’s and Nielsen’s Criticisms of the Spears Court’sReasoning are Not Compelling.

(a) ICRA’s Plain Language Does Not UnambiguouslyAuthorize Tribes to Sidestep the Law’s SentencingCap by “Stacking” Offenses.

Anchondo and Nielsen contend that the Spears court erred in finding

ambiguity in the phrase “any one offense” as used in ICRA. Anchondo Br. at 13-

19; Nielsen Br. at 16-23. They claim that the term “offense” has a settled meaning

that supports their preferred interpretation. Anchondo Br. at 15; Nielsen Br. at 19-

21. This argument is meritless, for four reasons.

First, even if Anchondo’s and Nielsen’s assertion about the meaning of

“offense” were correct, it would be irrelevant. Congress did not simply use the

term “offense” in crafting the one-year sentencing cap at issue here – instead, it

coined the phrase “any one offense.” 25 U.S.C. § 1302(7) (West 2009) (emphasis

added). Anchondo and Nielsen fail to identify any case ascribing a settled meaning

to the phrase that Congress actually used in the statute, and they effectively ask this

Court to ignore two of the three words that comprise this key phrase. But that

approach would flout the well-established interpretive canons providing that

“courts are to accord a meaning, if possible, to every word in a statute” (United

States v. Watkins, 278 F.3d 961, 966 (9th Cir. 2002) (emphasis added; internal

38


quotation marks omitted)), and that a particular statutory term should not be viewed

“in isolation from its context” (Padilla-Romero, 611 F.3d at 1013). Nielsen’s

suggestion that Congress’s use of the word “any” signaled its intention to import an

“expansive and inclusive” meaning (Nielsen Br. at 17) is misguided for the same

reason, because it ignores the fact that the word following “any” is the restrictive

“one.”

Second, Anchondo’s and Nielsen’s premise that the Court should myopically

focus on a single word in the statute, and refrain from considering the word’s

context and Congress’s broader scheme and purpose, has been conclusively

rejected. The Supreme Court has observed that “[w]hen interpreting a statute, the

court will not look merely to a particular clause in which general words may be

used, but will take in connection with it the whole statute (or statutes on the same

subject) and the objects and policy of the law, as indicated by its various

provisions, and give to it such a construction as will carry into execution the will of

the Legislature.” Kokoszka v. Belford, 417 U.S. 642, 650 (1974) (emphasis added;

internal quotation marks omitted).

Third, Anchondo’s and Nielsen’s assertion regarding the settled meaning of

the term “offense” is, in any case, inaccurate. Only thirteen years before ICRA’s

enactment, the Supreme Court held that “if Congress does not fix the punishment

39


for a federal offense clearly and without ambiguity, doubt will be resolved against

turning a single transaction into multiple offenses.” Bell v. United States, 349 U.S.

81, 84 (1955) (emphasis added). The Bell decision demonstrates that, close to the

time of ICRA’s enactment, the Supreme Court found it natural to presume that a

single “transaction” constitutes a single “offense” when construing a federal

statute.

Lower court decisions issued close to the time of ICRA’s enactment are to

the same effect. In 1950, for example, the District Court for the Western District of

Pennsylvania held that the term “offense,” as used in the War Labor Disputes Act,

although “usually used to describe a crime,” was “broad enough to include a civil

injury for which the injured party may seek redress by suit.” W.J. Dillner Transfer

Co. v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen, and Helpers, 94 F.

Supp. 491, 493 (W.D. Pa. 1950). And in 1955 the United States Court of Claims

observed that “[t]he meaning to be given the term ‘offense’ in statutory

construction is not without difficulty,” and concluded that, as used in the War Time

Suspension of Limitations Act, the term referred to “all actions involving fraud

against the United States whether the Government should seek redress by criminal

or civil means.” Dugan & McNamara, Inc. v. United States, 127 F. Supp. 801,

803-04 (Ct. Cl. 1955).

40


These decisions demonstrate that at the time of ICRA’s enactment, the

statutory term “offense” was commonly construed as referring to a person’s course

of conduct that may potentially give rise to multiple criminal or civil charges or

claims. This fact is further confirmed by the cases cited by the Spears court

involving the use of the term “offense” in the Fifth and Sixth Amendment contexts.

Spears, 363 F. Supp. 2d at 1178-79.

Finally, the cases upon which Anchondo and Nielsen rely come nowhere

near proving their theory that the term “offense” necessarily and unambiguously

carries their preferred interpretation when used in a statute. They cite decisions in

which courts have used the term “offense” in a manner broadly consistent with

their preferred interpretation, in the course of summarizing a case’s procedural

background (Ohio v. Johnson, 467 U.S. 493, 494 (1984) (cited in Anchondo Br. at

14)), or discussing double jeopardy doctrine (Anchondo Br. at 14-15 (citing cases);

Nielsen Br. at 21 (citing cases)), or the Major Crimes Act (Anchondo Br. at 15

(citing United States v. Antelope, 430 U.S. 641, 642-43 (1977), and United States v.

Mitchell, 502 F.3d 931, 945 (9th Cir. 2007), cert. denied, 553 U.S. 1094 (2008)).

But none of these cases addressed the question of how the term “offense” should be

construed when used in a statute. Moreover, most of the cited cases were issued

long after ICRA’s enactment, making them irrelevant to the interpretive question at

41


hand. United States v. TRW Rifle 7.62X51MM Caliber, 447 F.3d 686, 689 (9th Cir.

2006) (noting that Court must “look to how the terms were defined at the time [the

statute] was adopted”) (emphasis added; internal quotation marks omitted).

In any event, the cases cited by Anchondo and Nielsen could at most support

the unremarkable proposition that courts have sometimes employed the word

“offense” in a manner generally consistent with their preferred interpretation. This

is a far cry from showing the term has, or at the pertinent time had, an utterly fixed

and immutable meaning. Indeed, only thirteen years before ICRA’s enactment the

United States Court of Claims noted that discerning the meaning of the term

“offense” as used in a statute was “not without difficulty.” Dugan & McNamara,

Inc., 127 F. Supp. at 803. Viewed in combination with the contrary authorities

cited above and by the Spears court, Anchondo’s and Nielsen’s cases could do no

more than confirm that the term was indeed ambiguous – i.e., subject to multiple

interpretations by reasonable jurists. Black’s Law Dictionary 79 (“Ambiguity

exists if reasonable persons can find different meanings in a statute, document,

etc.”) (6th ed. 1990) (definition of “ambiguity”); A-Z Int’l v. Phillips, 179 F.3d

1187, 1192 (9th Cir. 1999) (statutory language is “ambiguous” if it “gives rise to

more than one reasonable interpretation”).

42


Nielsen seeks support in the District of Arizona’s reasoning in Bustamante v.

Valenzuela, — F. Supp. 2d —, 2010 WL 1338125 (D. Ariz. Apr. 1, 2010) (Nielsen

Br. at 20), which rejected a claim identical to Ms. Miranda’s, but that reasoning is

equally misguided.

The Bustamante court relied on Supreme Court decisions from 1852 and

1915, as well as Sixth Circuit decisions from 1945 and 1967, to support its theory

that when ICRA was enacted the word “offense” had the “settled meaning” of “any

discrete criminal violation.” Bustamante, — F. Supp. 2d at —, 2010 WL 1338125

at *3-*5 & nn.4-8 (citing Moore v. Illinois, 55 U.S. 13 (1852); Ebeling v. Morgan,

237 U.S. 625 (1915); American Tobacco Co. v. United States, 147 F.2d 93 (6th Cir.

1944), aff’d, 328 U.S. 781 (1946); and United States v. Bennett, 383 F.2d 398 (6th

Cir. 1967)). This analysis is flawed in several respects.

First, like Anchondo and Nielsen, the Bustamante court overlooks the fact

that Congress used the phrase “any one offense” in ICRA, rather than simply the

term “offense.”

Second, the Bustamante court’s underlying premise – that a small handful of

cases issued as much as a century before ICRA’s enactment provide a sounder

guide to the meaning of the term “offense” than the statutory context in which the

term appears – is unsound. The district court overlooked the fact that “the meaning

43


of statutory language, plain or not, depends on context.” King v. St. Vincent’s

Hosp., 502 U.S. 215, 221 (1991).

Third, all but one of the cases upon which the Bustamante court relies were

issued many decades before ICRA’s enactment, and while the court cites one

decision issued close to 1968 – the Sixth Circuit’s 1967 decision in United States v.

Bennett (Bustamante, — F. Supp. 2d at —, 2010 WL 1338125 at *3) – it

mischaracterizes that decision’s holding. The Bennett court did not hold, as the

district court states, that “multiple criminal acts committed in ‘one transaction’ did

not constitute one offense.” Id. Rather, the Bennett court found that the

defendant’s transportation of various stolen vehicles did not constitute “one

transaction.” Bennett, 383 F.2d at 399-400. For this reason, the court rejected the

defendant’s contention that because “[his] acts constituted one transaction and

hence one offense” he was entitled to the presumption articulated in Bell v. United

States. Id. Mirroring the test set forth in Spears, the Bennett court stressed that the

defendant’s various acts of transportation constituted separate transactions because

proving each required different evidence. Bennett, 383 F.2d at 400; cf. Spears, 363

F. Supp. 2d at 1181-82. Thus, far from supporting the Bustamante court’s assertion

regarding the “unambiguous” meaning of the term “offense,” the Bennett decision

44


directly undermines it, by confirming that at the time of ICRA’s enactment a single

“transaction” was commonly deemed to constitute a single “offense.”

The Bustamante court also criticized the Spears court for finding potential

alternative meanings of the word “offence” (as used in the Fifth Amendment) based

on interpretations that the Supreme Court considered but did not adopt.

Bustamante, — F. Supp. 2d at —, 2010 WL 1338125 at *4; see also Anchondo Br.

at 17; Nielsen Br. at 34. The court misses the point: The fact that the Supreme

Court entertained the possibility of adopting a “transaction”-based interpretation of

the word “offence” shows that this is not an unnatural interpretation of the term. If

the Bustamante court’s theory that the term had a perfectly fixed and

“unambiguous” meaning were correct, the Supreme Court’s analysis would have

been irrational – as if the Court were ruminating on whether Congress might have

intended the term “refrigerator” to mean “sea turtle.” In short, the Bustamante

court’s effort to show that its preferred interpretation of ICRA is mandated by the

“unambiguous” meaning of the statutory term “offense,” like Anchondo’s and

Nielsen’s effort to show the same, is not compelling.

For these reasons, Anchondo’s and Nielsen’s efforts to shield the statutory

context and legislative history from this Court’s eyes, on the ground that a single

45


word considered in vacuo unambiguously mandates their preferred interpretation,

is unavailing.

(b) ICRA’s Legislative History Strongly Supports theSpears Court’s Analysis and Conclusion.

Anchondo and Nielsen criticize the Spears court for drawing upon ICRA’s

legislative history, insisting that the legislative history provides no support for the

court’s conclusion. Anchondo Br. at 19-20; Nielsen Br. at 24-26. Yet there is no

indication that Anchondo or Nielsen actually reviewed ICRA’s legislative history,

apart from a single Senate Report. Nielsen Br. at 24. Moreover, as the history

recounted above in section B.1. of the Statement of Facts demonstrates, the

legislative record in fact provides ample support for the Spears court’s conclusion.

The Spears court concluded that Congress’s intention in capping tribal court

sentences at six months was to create a “balanced and logical regime” in which

“Indians accused of minor crimes faced minor penalties in tribal court where some

constitutional rights were withheld,” while “Indians accused of serious crimes

faced serious penalties in federal court where all constitutional rights were

available.” Spears, 363 F. Supp. 2d at 1180. In other words, Congress’s concerns

regarding the relative lack of procedural protections provided in tribal court led it

to place an upper limit on tribal court sentencing authority that it intended would be

46


firmly enforced, such that tribal defendants deprived of key protections – such as

government-supplied counsel – would not be subjected to multi-year sentences.

Several components of the legislative history directly support this conclusion.

First, the legislative record confirms that the Senate Subcommittee that drew

up ICRA harbored profound concerns about the lack of fundamental procedural

protections in tribal courts. Subcommittee members were dismayed by the tribal

courts’ general practice of prohibiting representation by counsel. See supra at 7-8

& n.12. The Subcommittee heard testimony that tribal courts were often “kangaroo

courts,” and Senator Ervin, ICRA’s chief architect and proponent, was “much

perplexed” by the fact that tribal courts tended to be “subservient to the tribal

council.” See supra at 7 & nn.10-11. Indeed, when it first introduced the bills that

would become ICRA and related provisions, the Subcommittee stressed that with

all of the evidence of unfair and oppressive conduct that it had collected over the

preceding six years, it was “apparent that an Indian citizen’s rights are most

seriously jeopardized by the tribal government’s administration of justice.” 113

Cong. Rec. 13473 (May 23, 1967) (emphasis added); see also Santa Clara Pueblo

v. Martinez, 436 U.S. 49, 71 (1978) (“[Congress’s] legislative investigation

revealed that the most serious abuses of tribal power had occurred in the

administration of criminal justice.”) (emphasis added).

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Second, the Subcommittee expressed its interest in the “balanced and logical

regime” described by the Spears court when it specifically inquired into the

interaction between the legislation it was drafting and the recently-enacted

Criminal Justice Act of 1964, which provided for government-supplied counsel for

defendants charged with federal crimes for which the maximum sentence exceeded

six months. See supra at 14 n.30. Subcommittee Chief Counsel Creech expressed

the Subcommittee’s interest in the subject when he requested Arthur Lazarus’s

opinion on the CJA’s application in Indian country, and received a response

indicating that the CJA would not apply in its current form. See supra at 13-14 &

nn.30-32. Shortly thereafter, the Subcommittee took testimony from ACLU

Washington Office Director Lawrence Speiser, who confirmed that the CJA would

not provide for counsel in tribal court, and asked that the CJA be amended to do so.

See supra at 14-15 & nn.33-34.

The legislative record thus confirms that ICRA’s drafters were aware of, and

concerned by, the fact that while defendants facing Major Crimes Act prosecutions

in federal court would receive government-supplied counsel under the CJA, tribal

defendants would have no right to government-supplied counsel. Faced with the

options of creating a “balanced” regime by permitting tribal courts to impose

higher sentences and extending the CJA into Indian country – something it had

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been told the tribes could not afford and the Interior Department would not support

(Bennett, supra note 3, at 581, 591) – or leaving the CJA as it was and strictly

limiting the sentences that tribes could impose on unrepresented defendants,

Congress chose the latter option.

Third, the legislative record amply supports the Spears court’s observation

that ICRA’s drafters expected that tribal court prosecutions would be restricted to

“minor crimes,” as to which relatively “minor penalties” not exceeding six years’

incarceration would be appropriate. Spears, 363 F. Supp. 2d at 1180. Witnesses

confirmed that ninety percent of tribal court cases involved disorderly conduct. See

supra at 9-10 & n.16. Interior Department Solicitor Frank J. Barry reminded the

Subcommittee that tribal courts dealt only with offenses that “would be classed as

misdemeanors in most jurisdictions.” See supra at 13 & n.29. The House

Subcommittee on Indian Affairs received a letter from Assistant Interior Secretary

Harry R. Anderson explaining that the six-month cap was appropriate to prevent

“disproportionate punishments,” in light of the fact that “the criminal acts treated in

the tribal court system are minor.” See supra at 18 & n.47. And Senator Dorgan

made the same observation in his 2009 report, noting that “[i]n the 1960’s, during

Senate hearings leading up to passage of ICRA, testimony revealed that tribal

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courts were essentially justices of the peace, which dealt primarily with petty

offenses.” S. Rep. No. 111-93, at 16 (2009).

Fourth, the record of the bill adding aggravated assault to the Major Crimes

Act shows that the six-month upper limit was considered an absolute cap on the

sentences that tribal courts could hand down, not merely a notional limit that tribal

courts could evade through “stacking.” Indeed, the existence of this firm cap was

cited to justify the addition of aggravated assault to the list of crimes that could be

prosecuted federally, on the ground that the firm six-month limit on tribal sentences

effectively prevented tribal courts from imposing sentences proportional to this

offense. See supra at 12 & nn.25-26. Had Congress believed that tribes could

sidestep the six-month limit by “stacking” separate offenses in respect to a single

assault transaction, this justification for expanding the Major Crimes Act would

have been absent.

Finally, and perhaps most damning to Anchondo’s and Nielsen’s proffered

interpretation of ICRA, the legislative record provides extensive evidence

confirming that Congress’s intention in creating ICRA’s sentencing cap was to

codify an existing upper limit on tribal court sentences. Thus, for example, when

explaining ICRA’s sentencing cap, the Subcommittee repeatedly stressed that the

maximum tribal-court sentence would “remain” six months, referring to the

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preexisting upper limit that had been illuminated in the subcommittee’s

investigation. See supra at 16-17 & nn.40, 43. As Arthur Lazarus, who testified

extensively in the Subcommittee hearings (see supra at 14 & nn.31-32), noted in a

law review article published just after ICRA’s enactment, the law’s six-month

sentencing cap “essentially codifie[d] existing practice under the various tribal law

and order codes.” Arthur Lazarus, Jr., Title II of the Indian Civil Rights Act: An

Indian Bill of Rights, 45 N.D. L. Rev. 337, 340 (1968-69).

This fact is particularly significant because the legislative record makes plain

that the use of “stacking” to impose multi-year sentences was not part of the

“existing practice” (id.) that Congress intended to codify in ICRA. This

preexisting limit was established in the “Courts of Federal Offenses” by the

applicable regulations, which had no provision for “stacking” and in fact stressed

that even a six-month sentence was to be given “only in extreme cases.” See supra

at 8 & nn.13-14. The preexisting limit was established in the tribal courts by the

extensive testimony confirming that as a matter of tribal codes and/or tribal

sentencing practices, tribal courts were not handing out sentences anywhere near

six months, if they were handing out prison sentences at all. See supra at 8-9 &

n.15.

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The legislative record thus shows that when Congress struck the particular

“balance between the dual statutory objectives” of protecting individual rights and

respecting tribal sovereignty that is reflected in § 1302 (Santa Clara Pueblo, 436

U.S. 66), it did so on the understanding that it was codifying a firm “absolute limit”

on tribal courts’ sentencing authority (id. at 63 n.14), rather than a tenuous limit

that could be easily evaded through “stacking.” Accepting Anchondo’s and

Nielsen’s interpretation would thus profoundly upset the balance that Congress

incorporated into the statute.

In short, contrary to Anchondo’s and Nielsen’s representations, the

legislative record amply supports the Spears court’s reasoning and conclusion.

(c) ICRA’s Plain Language and Legislative HistoryRefute the Notion that ICRA’s Sentencing Cap ShouldBe Construed in Such a Manner as to Enhance thePower of Tribal Governments.

Anchondo and Nielsen further insist that this Court must construe ICRA in

such a manner as to enhance the power of tribal governments to prosecute and

punish individual Indians. Any interpretation tending to encroach upon the

authority of tribal governments, they maintain, would conflict with the principle

that ambiguities in federal statutes should be resolved “in favor of tribal

sovereignty.” Anchondo Br. at 21; see also Nielsen Br. at 28-29.

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ICRA’s plain language and legislative history refute this argument. The

plain language of the clause at issue here unambiguously expresses Congress’s

intention to limit, rather than to enhance, tribal court sentencing authority. And the

legislative record makes plain that the Subcommittee’s purpose in limiting tribal

court sentencing authority was to protect individual Indians from the arbitrary and

oppressive conduct of the very tribal governments that now demand that the law be

construed to enhance their power. See supra at 4-19 & nn.1-51.

Anchondo and Nielsen seek support in the Supreme Court’s Santa Clara

Pueblo decision. Anchondo Br. at 21-22; Nielsen Br. at 26-27. But Santa Clara

Pueblo directly undermines their arguments, in two respects. First, the Court

described the portion of § 1302(7) at issue here as “set[ting] an absolute limit of six

months’ imprisonment and a $500 fine on penalties which a tribe may impose.”

Santa Clara Pueblo, 436 U.S. at 63 n.14 (emphasis added). Having exhaustively

studied ICRA’s legislative history (in the course of addressing the question of

whether the statute implied a private right of action against tribal officers), the

Court chose a description of the sentencing cap that clearly did not suggest a

diffuse limit that could be freely evaded through the practice of “stacking” multiple

one-year sentences. Second, while the Court noted that ICRA was intended to

advance the “dual objectives” of protecting individual Indians and furthering

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Indian self-government, it also cautioned against construing the statute in a manner

that would serve one of these purposes but “disserve the other” (id. at 64), or would

“disturb the balance between the dual statutory objectives which Congress

apparently struck” (id. at 66). This is precisely what Anchondo and Nielsen are

asking this Court to do, by advocating a loophole that would undo the

Subcommittee’s intention to firmly limit tribal sentencing authority.

Anchondo’s and Nielsen’s reliance on United States v. Gallaher, — F.3d —,

2010 WL 4191989 (9th Cir. Oct. 26, 2010) (Anchondo Br. at 21-22; Nielsen Br. at

28-29), is equally unavailing. In fact, the Court in Gallaher specifically noted that

ICRA’s one-year sentencing cap restricted tribes to the prosecution of “petty

offense[s],” thereby “render[ing] tribal prosecution inadequate by definition to

address serious crimes.” Gallaher, — F.3d at —, 2010 WL 4191989 at *7 (internal

quotation marks omitted). Anchondo and Nielsen point to Gallaher’s statement

that the tribal-sovereignty canon of interpretation “favors only the tribal

government; it does not require statutory interpretation favorable to individual

Indian criminal defendants.” Id., — F.3d at —, 2010 WL 4191989 at *6. But

while that statement may seem to support Anchondo’s and Nielsen’s argument

when considered in vacuo, an examination of its context reveals that it does not.

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Rather than addressing a statute that, like ICRA, was designed to protect the

rights of individual Indians as against their tribal governments, the Gallaher Court

addressed a statute that gave a “tribe’s governing body” the right to determine the

applicability of the death penalty within its jurisdiction. Id., — F.3d at —, 2010

WL 4191989 at *1 (citing 18 U.S.C. § 3598). With respect to statutes of that type,

applying an “interpretive presumption” that ambiguity should be resolved in favor

of the sovereign prerogatives of tribal governments makes perfect sense. Id., —

F.3d at —, 2010 WL 4191989 at *6. Indeed, the Supreme Court decision on which

Gallaher relied for this proposition proves the point. The Court cited a passage

from Negonsott v. Samuels, 507 U.S. 99 (1993), in which the Supreme Court

observed that “statutes passed for the benefit of dependent Indian tribes . . . are to

be liberally construed, doubtful expressions being resolved in favor of the Indians.”

Id. at 110 (emphasis added; internal quotation marks omitted) (cited in Gallaher,

— F.3d at —, 2010 WL 4191989 at *6). The Negonsott Court was referring

specifically to statutes that are passed for the benefit of tribes, rather than statutes

that, like the pertinent portion of ICRA, are directed at protecting individual

Indians.

It is thus evident that neither Negonsott nor Gallaher stands for the

proposition that the tribal-sovereignty rule of interpretation bars courts from

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construing statutes in ways that benefit individual Indians even where that was

clearly Congress’s intent, as it was with respect to the pertinent portion of ICRA.

Nor could such an approach be reconciled with bedrock principles of interpretation,

or with the Supreme Court’s Santa Clara Pueblo decision. The Court’s chief

concern in interpreting statutes is to “discern congressional intent”

(Padilla-Romero, 611 F.3d at 1013), and Santa Clara Pueblo makes plain that part

of Congress’s intent in enacting ICRA was to “strengthen[] the position of

individual tribal members vis-à-vis the tribe.” Santa Clara Pueblo, 436 U.S. at 62

(emphasis added). Anchondo’s and Nielsen’s reliance on the tribal-sovereignty

doctrine is thus misplaced.

(d) Rejecting Anchondo’s and Nelson’s Interpretation ofICRA Would Not Lead to Bizarre Results.

Nielsen adopts the Bustamante court’s assertion that the Spears court’s

construction of ICRA would lead to “bizarre” results (Nielsen Br. at 36), because

“even under the Spears court’s construction of ICRA, tribal courts would remain

free to impose years of imprisonment without providing publicly funded counsel.”

Bustamante, — F. Supp. 2d at —, 2010 WL 1338125 at *6. The court offered the

example of a defendant who “steal[s] ten coins from ten different individuals over a

lengthy period of time,” arguing that even under the Spears court’s analysis such a

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course of conduct could lead to sentences cumulatively exceeding one year, even

though another individual who steals all the coins at once could receive only one

year. Id.

This argument attacks a straw man. The Spears court’s analysis did not rest

on the proposition that ICRA bars tribal courts from sentencing any person to terms

of imprisonment cumulatively exceeding one year, regardless of how many crimes

that individual has committed. Such an interpretation would indeed be irrational,

and would have no basis in the language of ICRA, which ties the one-year cap to

the transaction constituting “any one offense” (25 U.S.C. § 1302(7) (West 2009)

(emphasis added)), rather than to any one defendant. The Spears court instead

interpreted ICRA as barring the practice of sidestepping ICRA’s one-year cap by

extracting multiple separate “offenses” from discrete criminal transactions that

transpire in a matter of minutes or seconds and involve a unitary body of facts and

evidence. Spears, 363 F. Supp. 2d at 1180-82. That practice, which enables tribes

to freely evade ICRA’s one-year sentencing cap even in trivial cases, carves an

extremely large loophole out of § 1302(7), effectively nullifying the sentencing cap

by allowing tribes to impose sentences exceeding one year in virtually any case.

The same cannot be said of the power to dole out sentences cumulatively

exceeding one year to serial offenders who repeatedly commit the same crime over

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a “lengthy period of time” and then are prosecuted in a “single proceeding.”

Bustamante, — F. Supp. 2d at —, 2010 WL 1338125 at *6. Such cases, assuming

that they can exist, despite applicable limitations periods, and that they actually do

exist, are presumably quite rare. They are plainly non-existent on the Pascua Yaqui

reservation, where the applicable limitations period is one year. 4 Pascua Yaqui

Tribal Code § 1-40. (The Pascua Yaqui Tribal Code is available at:

http://www.pascuayaqui-nsn.gov/_static_pages/tribalcodes/.) Contrary to the

Bustamante court’s reasoning, therefore, enforcing ICRA’s sentencing cap will not

lead to “bizarre” results.

(e) Anchondo’s and Nielsen’s Construction of ICRAWould Virtually Nullify the Law’s Sentencing Cap.

For all their arguments, Anchondo and Nielsen fail to grapple with a

fundamental flaw in their position: While it is undisputed that Congress intended

to place a limit on tribal court sentencing authority in § 1302(7), Anchondo’s and

Nielsen’s proffered interpretation would would give tribes carte blanche to dole

out sentences exceeding one year in practically any case, turning ICRA’s

sentencing cap into a virtual nullity. Indeed, under Anchondo’s and Nielsen’s

interpretation, a tribe’s ability to “stack” sentences would be limited only by its

creativity in attaching multiple counts of conviction to individual transactions. A

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http://www.pascuayaqui-nsn.gov/_static_pages/tribalcodes/

tribe could specify that each firecracker constitutes a separate count of possession

of prohibited fireworks, cf. 4 Pascua Yaqui Tribal Code § 1-510, and sentence a

defendant caught with a 24-pack of fireworks to twenty-four consecutive one-year

prison sentences, see 4 Pascua Yaqui Tribal Code § 4-20. Or it could specify that

each unlawful pill constitutes a separate count of possession of narcotics, cf. 4

Pascua Yaqui Tribal Code § 1-780, and sentence a defendant caught with a bottle

containing 100 pills to 100 consecutive one-year sentences.

These examples are extreme, but not implausible. The State of Arizona

punishes possession of child pornography with mandatory ten-year consecutive

sentences for each image possessed, and the Arizona Supreme Court recently

upheld an application of this statute that yielded a 200-year sentence for a

defendant convicted of having twenty prohibited images on his computer. State v.

Berger, 134 P.3d 378 (Ariz. 2006). Indeed, the amicus brief lodged by the Gila

River Indian Community candidly acknowledges that “many tribes have adopted

criminal codes designed to allow the charging of multiple offenses.” Dkt. #24-2 at

15. In other words, tribes have already been purposefully structuring their criminal

codes to exploit the “stacking” loophole and evade ICRA’s sentencing cap, out of

frustration with the federal government’s failure to prosecute serious crimes on the

reservations. Id.

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Anchondo suggests that ICRA’s protection against double jeopardy would

“prevent tribal courts from imposing effectively unlimited sentences” (Anchondo

Br. at 24), but this provision would do nothing to prevent abuses of the sort

outlined above. The Double Jeopardy Clause’s protection against multiple

punishments is “limited to assuring that the court does not exceed its legislative

authorization,” Brown v. Ohio, 432 U.S. 161, 165 (1977), and thus the tribes’

practice of gerrymandering their codes to “allow the charging of multiple offenses”

(Dkt. #24-2 at 15) insulates stacking from invalidation under ICRA’s double

jeopardy provision. See Brown, 432 U.S. at 169 n.8 (noting that state legislature

could “provide[] that joyriding is a separate offense for each day in which a motor

vehicle is operated without the owner’s consent”).

It is thus evident that Anchondo’s and Nielsen’s proffered interpretation of

ICRA would create a loophole that would effectively nullify Congress’s intention

to place a meaningful limit on tribal court sentencing authority. Because the

essential purpose of statutory construction is to effectuate, rather than to nullify,

Congress’s intentions (Retuta, 591 F.3d at 1188), their interpretation is untenable.

(f) Amici’s Policy Arguments are Misguided and Moot.

The amicus curiae briefs filed by the Gila River Indian Community (Dkt.

#24-2) and the Tohono O’Odham Nation (Dkt. #25-2) press policy arguments,

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stressing that reservations face a severe crime problem and that the federal

government systematically declines to prosecute serious crimes committed on

Indian reservations. But a court’s function in interpreting a statute is to effectuate

Congress’s intent, “not to rewrite the statute based on [the court’s] notions of

appropriate policy.” Bankamerica Corp. v. United States, 462 U.S. 122, 140

(1983). Moreover, even if the Court were empowered to rewrite the statute to

address amici’s policy concerns, there would be no need to do so here, because

Congress has already acted to address amici’s concerns in the Tribal Law and

Order Act of 2010. The Act thoroughly overhauls the framework for law

enforcement in Indian country, including by imposing strict oversight and

monitoring on the federal government’s decisions to decline prosecution of Indian-

country crimes, and by providing for the appointment of additional prosecutors to

be tasked with prosecuting federal offenses committed in Indian country. Pub. L.

No. 111-211, §§ 212-214. When Congress has just comprehensively addressed a

policy matter, ‘legislating from the bench’ to address the same matter would be not

only improper, but unwise.

Conclusion

The district court’s judgment should be summarily affirmed, because

Anchondo and Nielsen failed to file timely objections to the Magistrate Judge’s

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Report and Recommendation. In the alternative, the Court should affirm the

district court’s judgment because the district court’s interpretation of ICRA

properly respected and effectuated the statute’s plain language and Congress’s

evident purposes in enacting it.

Respectfully submitted on November 10, 2010.

s/Daniel L. Kaplan DANIEL L. KAPLANAssistant Federal Public DefenderKEITH J. HILZENDEGERResearch and Writing Specialist850 West Adams Street, Suite 201Phoenix, Arizona 85007-2730(602) 382-2767

62


CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)(B)

I hereby certify that, pursuant to FRAP 32(a)(7)(B), the foregoing Petitioner-

Appellee’s Response Brief is proportionately spaced, has a typeface of 14 points,

and contains 13,709 words.

s/Daniel L. Kaplan DANIEL L. KAPLAN

Attorney for Defendant - Appellant

STATEMENT REGARDING RELATED CASES

I hereby certify that I am aware of two related cases within the meaning of

Ninth Circuit Rule 28-2.6: Bustamante v. Valenzuela, et al., No. 10-15714 (9th

Cir.), and Alvarez v. Tracey, et al., No. CIV 08-2226-PHX-DGC (DKD) (D. Ariz.),

both of which involve the same issue presented in this appeal respecting the

interpretation of 25 U.S.C. § 1302(7) (West 2009).

s/Daniel L. Kaplan DANIEL L. KAPLAN

Attorney for Petitioner-Appellee


CERTIFICATE OF FILING AND SERVICE

I hereby certify that I caused the foregoing Petitioner-Appellee’s Response

Brief to be submitted to the Clerk of the Court for the United States Court of

Appeals for the Ninth Circuit on November 10, 2010, using the appellate CM/ECF

system. I further certify that all participants in the case are registered CM/ECF

users and that service will be accomplished by the appellate CM/ECF system.

s/Daniel L. Kaplan Daniel L. Kaplan

Attorney for Petitioner-Appellee


BEATRICE MIRANDA, Petitioner - Appellee, v....FOR THE DISTRICT OF ARIZONA (CV-09-08065-PGR) _____...

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