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Dawn Eagle v. Yerington Paiute tribe, No. 08-16786 (5-7-10) (Thompson with Kozinski and McKeown). This is a habeas case from a tribal conviction for child abuse. The petitioner argues that the tribe failed to prove that she was an Indian, and that was an essential element of the offense. The 9th concluded that Indian status was a requirement for jurisdiction, but was not an element of the offense. The petitioner failed to raise the Indian status prior to trial, as was required by the tribe.

Reynolds v. Thomas, No. 08-35810 (5-7-10)(Ikuta with Bea and a concurrence by W. Fletcher). This is a habeas case on the issue of whether and how the BOP considers whether a state sentence runs concurrently with the federal when the federal sentence was imposed first. The 9th affirmed the denial, holding that the BOP has broad discretion to determine what counted and what did not, and that its methods were sound. In a concurrence, Fletcher is troubled with a separation of powers issue, where the BOP gets to determine whether a sentence runs concurrently or consecutively. It did not matter here because BOP asked the federal judge, who did not respond at first, and so the sentence ran consectively (until he reconsidered a third time, when it was deemed concurrent). BOP should not be making the decisions. Fletcher stresses that Congress should step in and clarify the powers. He joins the 2nd and 8th in so asking.

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