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Saturday, March 12, 2011

Here's my prediction in the Wisecarver appeal.

Based on what I've seen of the court documents, the 8th Circuit Court of Appeals will reverse Marc's conviction(s) in strong language.

If they don't, here is what will happen regularly; federal judges will place a jury instruction in all cases where a federal employee is accused of behavior similar to that of Duke Bourne (the BIA guy in all the posts below). That jury instruction will read:

No federal employee can be considered a trespasser as a matter of law. Anything a federal employee does while committing what would be trespass for you shall be considered in the same light as if it were committed by the actual property owner. Come to think of it, a government employee would be the equivalent of the actual property owner in a strong sense.

1 comment:

Bill Dithmer said...

Bob I believe Judge Battey is using the Open Fields law to justify what his ruling is for the BIA official being on the land. The government is then also claiming that the chasing of the horses was incidental, as in, the officer and the horses were in the same place at the same time and shit just happens. Either way it sucks big time for this rancher.

Unfortunately this kind of thing happens all the time not only on the reservation but all over the country. Open Fields, a law originally used to “stop the manufacturing of and sale of illegal drugs” has been argued successfully many times. I don’t believe it has ever been overturned in court, ever.

I might add that if the same law were used to get into someone's house or business or backyard in the city the search and any evidence found would certainly be ruled unconstitutional and would never be allowed in a court of law. So much for the rights of a rural land owner.

Add to this the unique structure of the different legal agencies on the reservations, tribe, BIA, and federal government in their many different forms, and you have a huge continuing problem that will just keep getting worse . Lets face it the laws now on the books regarding the people that live on our reservations are about the same as they were eighty years ago. Those laws were never designed to allow for the personal advancement of the people, just to control those people.

The “country within a country” or “nation within a nation” concept hasn’t worked sense the horse and buggy days, I don’t see that returning any time soon.

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