The 9th Circuit Court of Appeals won't rehear the case of a member of the Confederated Tribes of the Colville Reservation of Washington who has been charged with first-degree murder.

In an amended opinion, the 9th Circuit denied a request by James H. Gallaher to rehear his case. The court also rejected Gallaher's petition for a rehearing by an en banc panel.

At issue is the timing of Gallaher's indictment. He was charged in 2005 for the 1991 murder of Edwin Pooler.

Federal law imposes a five-year statute of limitations on non-capital crimes. Murder is a capital crime but the Colville Tribes hasn't reinstated the death penalty for its members under the Federal Death Penalty Act of 1994.

Since Gallaher can't face the death penalty, he argued that he can't be charged for what would otherwise be a capital crime. But the 9th Circuit, in its amended opinion, said the 1994 law addresses punishment and does not change the nature of the offense.

"We disagree and hold that first degree murder remains a capital offense, regardless of whether capital punishment can be imposed in a particular case," Judge Raymond C. Fisher wrote for the majority.

Judge A. Wallace Tashima dissented. He said it was clear that Congress intended for tribes to decide whether first degree murder is a capital offense.

"In my view, the Federal Death Penalty Act removes first degree murder committed within the boundaries of 'Indian country' from the realm of offenses punishable by death and delegates to the tribes the authority to determine the availability of the death penalty," Tashima wrote.

Gallaher could appeal his case to the U.S. Supreme Court.

9th Circuit Amended Opinion:
Gallaher v. US (October 26, 2010)

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