Author: Matthew L.M. Fletcher – Page 455

Justice McCormack acknowledged how moving the annual Adoption Day celebrations are and that “in a way, this is even more moving.

“As I look around and talk with people today, I believe it’s a privilege to be a part of this celebration. What a tremendous accomplishment. In reading thousands of petitions, you come to understand the struggles that families are facing in this process and of what’s required of them. I know from personal experience and as a mother that parenting is incredibly hard work. Raising a family is hard even when things are going well let alone the curve balls thrown at families in the court process.”

McCormack noted that parents “are only as happy as your unhappiest child.”

“As an appellate judge, it isn’t often that I can look a parent in the face and say, ‘Well Done.’ So it’s nice to say that today. In spite of setbacks, you didn’t stop working to show your kids what it means to be a family. And as important as that accomplishment, you have shown your kids how to get through it when life throws you a curve ball.”

Chairman Mandoka noted that during his involvement in the development of a tribal court system in Michigan, tribal leaders needed to address difficult family situations.

“We wanted to make sure people could see more clearly when in a fog. In the fog, you feel lost, you make wrong decisions. We’ve all been a part of that. We have now developed a court system and a probation system to help struggling individuals see past that fog.

“In the end, it’s always about a relationship. You can talk about models, plans and forecasts but it’s still all about the relationship; eye-to-eye contact and a handshake.

“We all should make sure that we leave this earth a better place than how it was when we came into it, for our children. That’s what should drive us, should be our passion.”

Judge Connors noted that those involved in child welfare work have defined the responsibility to three core accomplishments: safe children, strong families and supportive communities.

“We are always looking at doing whatever furthers those key goals. One thing we have learned from Native American culture and tribal courts is the importance to come to your work with an internal balance. Only then can we bring the best that we have to a situation.

Ninth Circuit Sitting En Banc Announced “Indian Status” Test under Major Crimes Act

July 7, 2015Matthew L.M. Fletcher3 Comments

Here is the opinion in United States v. Zepeda.

From the syllabus:

The en banc court affirmed a defendant’s convictions and sentence under the Indian Major Crimes Act, which authorizes federal jurisdiction over certain crimes committed by Indians in Indian country.

The en banc court held in order to prove Indian status under the IMCA, the government must prove that the defendant (1) has some quantum of Indian blood and (2) is a member of, or is affiliated with, a federally recognized tribe. The court held further that under the IMCA, a defendant must have been an Indian at the time of the charged conduct, and
that, under the second prong, a tribe’s federally recognized status is a question of law to be determined by the trial judge. Overruling United States v. Maggi, 598 F.3d 1073 (9th Cir.
2010), the en banc court held that the federal recognition requirement does not extend to the first prong of the Indian status test. The court held that the evidence at trial was sufficient to support the finding that the defendant was an Indian within the meaning of the IMCA at the time of his crimes.

The en banc court held that the defendant’s sentence was not unreasonable because it was mandated by 18 U.S.C. § 924(c), which required the district court to impose consecutive mandatory minimum sentences on the defendant’s convictions for use of a firearm during a crime of violence.

The en banc court agreed with the three-judge panel’s reasons for rejecting the defendant’s other arguments, and it adopted those reasons as its own.

Concurring in the judgment, Judge Kozinski, joined by Judge Ikuta, wrote that under the majority’s holding, the IMCA is a criminal statute whose application, in violation of equal protection, turns on whether a defendant is of a particular race. Judge Kozinski wrote that he would instead affirm the conviction either by applying the IMCA to all members of federally recognized tribes irrespective of their race, or by holding, consistent with Maggi, that the jury had sufficient evidence to infer that the defendant’s ancestry was from a federally recognized tribe.

Concurring in the judgment, Judge Ikuta, joined by Judge Kozinski, wrote that the court should not continue to define an Indian by the “degree of Indian blood” because this definition disrespects tribal sovereignty and perpetuates the “sorry history” of this method of establishing race-based distinctions.

En banc materials here, here, and here. Panel materials and other materials here, here, and here.