Here:
Prior post with links to all materials here.
Indian status
Federal Magistrate Decides (Non-)Indian Status of Defendant in General Crimes Act Case
Here are the materials in United States v. Loera (D. Ariz.):
DCT Order Denying Motion to Dismiss
Loera Motion to Dismiss — Indian Status
An excerpt:
Defendant’s motion and the government’s response raise matters for the Court’s consideration which other courts have left for another day. See Means v. Navajo Nation, 432 F.3d 924, 934–35 (9th Cir.2005). The resolution of the issues requires the Court to journey into the world of “Indian Law” which has been described as a “complex patchwork of federal, state and tribal law, which is better explained by history than by logic.” United States v. Bruce, 394 F.3d 1215, 1218 (9th Cir.2005) (internal quotations omitted). Indian law has also been described as “schizophrenic”: “Federal Indian policy is, to say the least, schizophrenic. And the confusion continues to inform federal Indian law …” United States v. Lara, 541 U.S. 193, 219, 124 S.Ct. 1628, 1644–45 (2004) (Thomas, J., concurring).
Another:
This case presents a unique factual and jurisdictional conundrum apparently of first impression. Notwithstanding the 1990 amendments to the Indian Civil Rights Act, codified at 25 U.S.C. § 1301 et seq., the Fort Mojave Indian Tribe has declined to prosecute a defendant who may be an “Indian” and the Tribe’s decision is apparently based solely on the defendant’s lack of tribal membership, i.e., the Tribal Court has determined it does not have jurisdiction under its laws.
And finally:
Since its first enactment in 1817 (3 Stat. 383), additions added in 1854 (10 Stat. 270), sequent codification in 18 U.S.C. § 1152, and the enactment and amendment of the Indian Civil Rights Act, the language of section 1152 has never been amended, yet the government has entered into nine separate treaties with thirteen separate and distinct tribes obligating the federal government to remove all “bad men” from those tribes’ lands and prosecute them in federal courts when requested by the Tribe, exactly what occurred in this matter. In order to give validity to those treaties, as the Court is obligated to do, and which Congress has not repealed, and even though the treaties are with tribes other than the Fort Mojave Indian Tribe, the use of the term “Indian” in section 1152 must, as Judge Sneed concluded, mean an Indian who is a tribal member. As such, should this Court have concluded Defendant was an “Indian” section 1152 would not grant him immunity from federal prosecution as he is not a tribal member.
Montana Lawyer Article on the Zepeda Case
Here, see pages 28-30.
Ninth Circuit Reverses Another Conviction under Zepeda (Tribal CDIB Insufficient Evidence of Indian Status)
Here is yesterday’s unpublished order in United States v. PMB.
The Zepeda post is here.
Ninth Circuit Holds Unauthenticated Tribal Membership Card Insufficient for Proving Indian Status under Major Crimes Act
Here are the materials in United States v. Alvirez (opinion here):
From the court’s syllabus:
Reversing a conviction for assault resulting in serious bodily injury on an Indian reservation in violation of 18 U.S.C. §§ 1153 and 113(a)(6), the panel held that the district court abused its discretion when it admitted an unauthenticated Certificate of Indian Blood issued by the Colorado River Indian Tribes as evidence that the defendant has tribal or federal government recognition as an Indian. The panel wrote that because Indian tribes are not listed among the entities that may produce self-authenticatingdocuments, the district court abused its discretion in admitting the Certificate pursuant to Fed. R. Evid. 902(1) as a self-authenticating document.
Tenth Circuit Affirms General Crimes Act Conviction at Pojoaque Pueblo
Here is the opinion in United States v. Diaz. And the briefs:
An excerpt:
Linda Diaz was convicted of knowingly leaving the scene of a car accident where she hit and killed a pedestrian. The accident occurred on the Pojoajue Pueblo Indian reservation. She was charged with committing a crime in Indian Country under 18 U.S.C. § 1152. On appeal, among other issues, Diaz contends the federal court lacked jurisdiction over the crime because the government failed to prove that the victim was not an Indian, a jurisdictional requirement under § 1152.
We conclude the government met its burden of proof. The testimony of the victim’s father provided enough evidence for a jury to conclude the victim was not an Indian for purposes of the statute. We also conclude the district court did not err in its rulings on various other evidentiary and trial issues.
Ninth Circuit Decides Another Major Crimes Act “Indian Status” Case
Here is the opinion in United States v. Juvenile Male. The oral argument audio is here.
An excerpt from the opinion:
A juvenile male appeals the district court’s determination that he is an “Indian” under 18 U.S.C. § 1153, which provides federal criminal jurisdiction for certain crimes committed by Indians in Indian country. The juvenile claims that he does not identify as Indian, and is not socially recognized as Indian by other tribal members. Nonetheless, he is an enrolled tribal member, has received tribal assistance, and has used his membership to obtain tribal benefits. Because the juvenile is Indian by blood and easily meets three of the most important factors used to evaluate tribal recognition laid out in United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), he is an “Indian” under § 1153, and we uphold his conviction.
While the case is under seal, we do have a redacted version of the opening brief:
LaBuff v. United States Cert Petition
Here:
LaBuff Petition for Certiorari dated August 26, 2011
Lower court materials here.
Here are the questions presented:
1. Has the Ninth Circuit, contrary to United States v. Rogers, erroneously minimized consideration of the undisputed facts that petitioner is not socially recognized as an Indian, does not participate in Indian social life, and does not hold himself out as an Indian and thereby created a conflict with the Eighth Circuit?
2. Did the government prove beyond a reasonable doubt that petitioner is an Indian person where he is not a member of a tribe, is not socially recognized as an Indian, does not participate in Indian social life, and does not hold himself out as an Indian?
Ninth Circuit Decides Indian Status Case Under Major Crimes Act
I’m still trying to understand how a reasonable jury of non-Indians can decided beyond a reasonable doubt that someone is an “Indian” under the Major Crimes Act. 🙂
Here are the materials in United States v. LaBuff:
The court originally decided this case without publishing the opinion, but the government successfully petitioned the court to published it. Here are those materials. A cert petition is pending (docket no. 11-6168, definitely one to watch!):
Update with additional Ninth Circuit materials:
Doc 27 Objection filed October 18, 2011
Ninth Circuit Affirms Conviction of Former Fort Peck Member as “Indian” under Major Crimes Act
Here is the opinion in United States v. Smith.
An excerpt on blood quantum:
The government presented sufficient evidence of Smith’s Indian blood to satisfy Bruce’s first prong. We have held this requirement satisfied by as little as 1/8 (12.5%) Indian blood. See Maggi, 598 F.3d at 1080; Bruce, 394 F.3d at 1223. Here, the government presented evidence that Smith has 25/128 (19.5%) Assiniboine and Sioux blood, well in excess of the 1/8 we approved in Bruce and Maggi. We acknowledge that Smith’s § 2255 motion attached a letter from the Fort Peck Tribes Enrollment Office stating that Smith “does not meet the required blood quantum of 1/8 for Associate Membership [in the Fort Peck tribes], nor 1/4 Full Enrollment.” But this evidence was not presented at trial, and even if it had been, a rational trier of fact could have chosen to credit the more specific, higher figure established by the government’s evidence.
An excerpt on the defendant’s relinquishment of tribal membership:
We recognize that Smith relinquished his tribal enrollment in 1996. This decision does not definitively show, however, that Smith or the tribe ceased to consider Smith an Indian person. See Cruz, 554 F.3d at 850 (holding that Bruce requires an analysis of Indian status from the perspective of the individual as well as from the perspective of the tribe). A tribal investigator, Tom Atkinson, testified he had known Smith for most of his life, that Smith had lived on the reservation that entire time and that, as far as Atkinson knew, Smith held himself out to be an Indian person. A rational jury could have concluded that because Smith was once formally enrolled in the tribe and continued to hold himself out as an Indian even after his enrollment ended, both Smith and the tribe continued to view Smith as an Indian despite his unexplained decision to relinquish his formal enrolled status.
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