Zepeda v. United States Cert Petition


Zepeda Cert Petition

Questions presented:

The Indian Major Crimes Act, 18 U.S.C. § 1153, makes it a federal crime for an “Indian” to commit any one of thirteen enumerated acts in “Indian country.” In this case, the en banc Ninth Circuit held that an element of the offense in prosecutions under this statute is proof that the defendant has “Indian blood,” whether or not that blood tie is to a federally recognized tribe. The question presented is:
Whether, as construed by the Ninth Circuit, Section 1153 impermissibly discriminates on the basis of race.
Opinion here. En banc materials here, here, and here. Panel materials and other materials here, here, and here.

Updated Ninth Circuit Briefs in United States v. Alvirez


Alvirez Supplemental Brief

US Supplemental Brief

The Ninth Circuit panel decided this one way back in 2013, but withdrew the opinion to await the en banc decision in United States v. Zepeda.

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

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.

National Association of Criminal Defense Lawyers Amicus Brief Filed in United States v. Zepeda


Criminal Defense Attorney Amicus

Prior posts here (order granting en banc review), and links to briefs here.


Additional Briefing in United States v. Zepeda — US Renews En Banc Plea


US Supplemental Brief

Zepeda Supplemental Brief

Prior post with links to all materials here.

Ninth Circuit Issues Amended Opinion in Zepeda — Same Outcome, Different Reasoning

Here are the new materials:

CA9 Amended Opinion

US En Banc Petition

Zepeda Response to En Banc Petition

From Judge Watford’s now-much-shortened dissent:

I agree with much of the majority’s analysis, particularly its conclusion that whether a tribe has been recognized by the federal government is a question of law. But I disagree with the majority’s ultimate determination that the government failed to present sufficient evidence from which a rational jury could infer that Zepeda has a blood connection to a federally recognized tribe. Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), a rational jury could certainly infer that the reference in Zepeda’s tribal enrollment certificate to “1/4 Tohono O’Odham” is a reference to the federally recognized Tohono O’odham Nation of Arizona.

Panel materials are here.

Materials on affected appeals are here.

Ninth Circuit Withdraws Zepeda Opinion

Here. The order:

The opinion in this case filed on January 18, 2013, and reported at 705 F.3d 1052 is hereby withdrawn. The opinion shall not be cited as precedent by or to any court of the Ninth Circuit. The court will file a new opinion in due course. As the court’s opinion is withdrawn, the government’s petition for rehearing and rehearing en banc is moot.

Materials in this case and related cases are here.