Ninth Circuit Briefs in Appeal of Warm Springs Member Attempting to Invoke McGirt to Challenge Federal Prosecution

Here are the briefs in United States v. Smith:

Smith Opening Brief

US Answer Brief

Lower court materials here.

UPDATE: Unpublished memorandum here.

En banc petition here:

Federal Court Rejects Warm Springs Tribal Member’s Effort to Invoke McGirt to Challenge Federal Criminal Jurisdiction under the ICCA and ACA

Here are the materials in United States v. Smith (D. Or.):

78 Motion to Vacate

84 Response

85 Reply

92 DCT Order

Prior decisions involving the same defendant are here (Ninth Circuit) and here (Oregon appellate court).

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.


Update in Utah Stolen Indian Artifacts Case — Defendants’ “Expert” Allowed to Testify on Value of Objects

Here is an interesting development in United States v. Smith, the criminal case in Utah regarding the theft of Indian artifacts and other objects.

The defendants’ proposed expert witness (Dace Hyatt) on the value of the materials collected allegedly in violation of federal law will be allowed to testify, despite having no formal training on anthropology, archaeology, or anything else (not to mention lying in an affidavit about reviewing evidence in person when that evidence is locked away deep in the bowels of the BLM). Assuming the defendants still use this expert, cross-examination at trial will be very interesting. His testimony is that each object is valued at slightly less than $500, the jurisdictional minimum.

Here are the materials:

DCT Order on Daubert Motion

US Motion to Exclude Expert Testimony

US Second Motion to Exclude Expert Testimony

Defendants Opposition to Motion


Federal Court Declines to Dismiss Charges in Indian Artifact Theft Case

Here is the opinion on a motion to dismiss in United States v. Smith (D. Utah): US v Smith DCT Order.

An excerpt:

Based on the differences in these statutes, the Court finds the indictment is not multiplicitous. Each charge would require the government to prove an element that is not required in the others. As set forth above, ARPA requires a showing that the item is an archeological resource, that it is over 100 years old, and that its value is more than $500. Under Section 641, the government must show that the property was government property and had a value of over $1,000. Similarly, under Section 1163, the government must show the property belonged to an “Indian tribal organization” and had a value in excess of $1,000. Therefore, because each count requires proof of something the others do not, the indictment is not multiplicitous and the Motion will be denied.

However, even if the Court did find the indictment to be multiplicitous, the government is correct that the discretion in choosing which charge to pursue rests with it. In Jones, the Forest Service officers observed the defendants “digging in Indian ruins located on the federal government land.” The defendants were charged under a general theft statute covered by 18 U.S.C. § 641. The defendants sought to have the charge dismissed, arguing that Congress intended the Antiquities Act to be the only means of prosecuting that type of conduct. The Ninth Circuit rejected this argument stating, “[t]he rule we apply is straightforward: where an act violates more than one statute, the Government may elect to prosecute under either unless the congressional history indicates that Congress intended to disallow the use of the more general statute.” As a result, “[w]here the statute applies to the conduct in question and there is no affirmative evidence that Congress intended to limit the application of the more general statute, the prosecutor is free to elect to prosecute under either.” Because the Court has already found there is no clear Congressional intent, the government is not barred from bringing simultaneous charges based on the three statutes.