Judge turns down Yellowbear's request to overturn conviction
By CHAD BALDWIN Casper Star-Tribune
CASPER -- Convicted killer Andrew Yellowbear Jr.'s contention that Wyoming had no authority to prosecute him won't be considered by a federal judge until the state Supreme Court rules on the matter.
U.S. District Judge Clarence Brimmer has rejected Yellowbear's petition seeking to overturn his first-degree murder conviction and sentence of life in prison. Yellowbear must first take his argument through the state court system, Brimmer ruled in a document filed this week.
"Mr. Yellowbear is being tried for the murder of his young daughter," Brimmer wrote.
"Charges of that nature traditionally involve violations of state law. The State, therefore, is better suited to resolving such prosecutions."
Yellowbear was sentenced to life in prison June 1 after being convicted by a jury of first-degree murder in the death of his 22-month-old daughter, Marcela Hope Yellowbear, on July 3, 2004, in Riverton.
Yellowbear, a member of the Northern Arapaho Tribe, contends that because his daughter's death took place in Riverton -- considered by the tribe to be within the exterior boundaries of the Wind River Indian Reservation -- the case should have been handled either by tribal or federal courts, not state courts. The Northern Arapaho and Eastern Shoshone tribes supported that argument in filings in federal court.
Fremont County prosecutors and the state attorney general's office argue that three previous Wyoming Supreme Court rulings determined that Riverton is not within the reservation and that the state has jurisdiction there.
While not ruling on the merits of Yellowbear's argument, Brimmer noted the previous state Supreme Court decisions on the issue. Before a federal judge could consider the issue, Yellowbear must appeal to the state Supreme Court, Brimmer said.
"He has the opportunity to challenge the constitutionality of this conviction by direct appeal to the Wyoming Supreme Court," Brimmer wrote. "If he is unsuccessful, he can seek state court post-conviction relief. If he is still without success at that time, his case will be ripe for review in the federal court."
If Yellowbear were to prevail, the jurisdictional issue could pose problems for Fremont County and the state of Wyoming.
Though their argument has been vigorously disputed by the state of Wyoming and Fremont County in the past, the tribes say a law called the 1905 Act defines land north of the Big Wind River and east of the Popo Agie River as "Indian country."
That includes the city of Riverton, but not the Bureau of Reclamation lands to the north and northwest of Riverton.
In simple terms, "Indian country" is any land granted by treaty or allotment to American Indian nations, tribes, reservations, communities, colonies or individuals and recognized by the federal government.
Lands that used to be part of an Indian reservation but are no more are said to have been ceded, and the reservation then is considered "diminished."
According to research done by Fremont County Attorney Ed Newell, the historic position of Fremont County and Wyoming is that Riverton lies north of the Big Wind River boundary of the reservation, and the Riverton area was "diminished" from the reservation by the Wind River Cession Act of 1905, giving the state judicial and law enforcement systems authority there.
Newell said the boundary issue has been decided three times by the Wyoming Supreme Court -- in 1957, 1960 and most recently in 1970, in a case called State v. Moss.
The state has hung its jurisdiction on the Moss case, but some academic and tribal legal experts believe that case is "ripe for relitigation," according to earlier statements by University of Wyoming law professor Deb Donahue and Shoshone and Arapaho Tribal Judge John St. Clair.
Published on Thursday, June 15, 2006. Last modified on 6/15/2006 at 12:07 am
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Larissa
wrote on
June 15, 2006 3:18 PM This man sickens me. He brutally killed his own flesh and blood and now he is just trying to find whatever technacality he can to avoid justice.
L. E. Chandler
wrote on
June 20, 2006 7:20 AM How does Public Law 280 relate to this case? It is my understanding that due to the Major Crimes Act, the federal government has the juristiction, am I in error? Allowing the state to have juristiction in cases such as these deminishes tribal sovereignty by placing tribal person's rights subject to the descrection of state courts.
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