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Excerpted From: Andie B. Netherland, The Disproportionate Effect on Native American Women of Extending the Federal Involuntary Manslaughter Act to Include a Woman's Conduct Against Her Child in Utero: United States V. Flute, 45 American Indian Law Review 191 (2021) (147 Footnotes) (Full Document)


AmericanIndianSamantha Flute, a Native American woman, was charged with committing involuntary manslaughter against her newborn baby boy after it was revealed that she took over-the-counter and prescription drugs shortly before delivery. Although the District Court for the District of South Dakota dismissed the charges, the Eighth Circuit found that the Federal Involuntary Manslaughter Act (FIMA) included a woman's prenatal actions that caused the death of her born-alive child. Flute's case is one of first impression as these actions and particular circumstances have never before constituted involuntary manslaughter at the federal level.

This Note will explore the Eighth Circuit's holding to determine whether the FIMA should be extended to cover actions, such as Flute's, which result in the death of a newborn child. Additionally, this Note will explore how the Flute holding, as it stands, disproportionately affects Native American women compared to the rest of the population. Considerations such as culture and healthcare will demonstrate that, under the holding in Flute, Native American women face further oppression. Part II of this Note lays out the pertinent legal history of federal jurisdiction over Native Americans. In Part III, this Note summarizes the Eighth Circuit's decision in United States v. Flute. Finally, Part IV interprets the FIMA as it should be applied in this situation and further analyzes the effect of the Flute holding on Native American women.

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The Eighth Circuit's extension of the FIMA--to include the negligent actions of pregnant mothers where those actions later caused the death of their “born alive” child--is inconsistent with Congress' intentions for the Act. The Eighth Circuit turned a blind eye to both Congress' intentions of the FIMA that were at odds with its reading of the FIMA and to the drastic implications of its decision.

The Eighth Circuit erroneously ignored the broad consequences the holding will have on women. Although policy considerations cannot be the driving force in interpretation, the Eighth Circuit refused to consider the implication of its holding at all. The holding in United States v. Flute puts many women at risk for prosecution for negligent actions. But, in particular, the holding will disproportionately affect Native American women because of the conditions they are inherently exposed to. Native American women already face inadequate and meager women's reproductive healthcare, high rates of addiction, and high rates of infant mortality. If the FIMA is applied in accordance with the Eighth Circuit's holding throughout the country, many women will face prosecutions for actions that have not previously been criminalized.

The Flute decision increases the many barriers that women face because of their reproductive health. These barriers are even greater for Native American women who have experienced deep-rooted oppression. This oppression contributes to the disproportionate effect of the Flute decision on Native American women and the oppressions are further solidified by the decision itself. This oppression is something that neither society nor the courts and legislature should support.

United States v. Flute is more than just an incorrectly decided case. It jeopardizes the future of all women--especially Native American women.

Third-year student, University of Oklahoma College of Law.

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