Law | National

Appeals court clarifies 'Indian' status test for criminal defendants

Thursday, July 9, 2015

A view of the 9th Circuit Court of Appeals, James R. Browning United States Courthouse, in San Francisco, California. Photo by Ken Lund / Flickr

The 9th Circuit Court of Appeals this week moved to clarify outstanding questions about the "Indian" status of criminal defendants in a case that has taken years to resolve.

In order to bring charges under the Indian Major Crimes Act, prosecutors must establish two key facts, an en banc panel ruled on Tuesday. First, the defendant must have "Indian" blood and, second, he or she must be a member of a federally recognized tribe or "affiliated" with a recognized tribe, the court stated.

Regarding the first factor, the degree of blood quantum does not matter, the court said. It also does not matter "whether or not that blood derives from a member of a federally recognized tribe," Judge William A. Fletcher wrote in the decision.

The distinction is important because the court settled an outstanding issue that arose in US v. Maggi, a case from 2010. In that decision, a three-judge panel of the 9th Circuit held that a person's Indian blood must be "traceable to a federally recognized tribe."

Indianz.Com SoundCloud: 9th Circuit Oral Arguments in US v. Zepeda

The en banc panel has now concluded that Maggi was wrongly decided because it imposes an "unnecessary and burdensome requirement" that would effectively force prosecutors to reconstruct a defendant's Indian family tree.

"Under Maggi, the government would have to prove that an ancestor of the defendant—not merely the defendant himself or herself—was a member of a federally recognized tribe," Fletcher wrote for the court.

"In some cases, evidence about the defendant’s Indian ancestors and their tribal affiliation may be difficult to find or, if found, ambiguous," Fletcher continued. "In other cases, the evidence may be easily available and clear, but show that the Indian ancestors were not members of a federally recognized tribe."

The second factor under the Indian Major Crimes Act, however, remains intact with the court's ruling. Once a defendant's Indian blood has been established, prosecutors must show "proof of membership in, or affiliation with, a federally recognized tribe," the decision stated.

"[W]e hold that federal recognition of a tribe, a political decision made solely by the federal government and expressed in authoritative administrative documents, is a question of law to be decided by the judge," Fletcher stated.

"In seeking to prove federal recognition of a defendant’s tribe, the government should present to the judge evidence that the tribe was recognized at the time of the offense," Fletcher continued, noting that such evidence could include the list of federally recognized tribes published every year by the Bureau of Indian Affairs.

The ruling means Damien Zepeda, a member of the Gila River Indian Community of Arizona, can be prosecuted under the Indian Major Crimes Act. Previously, a three-judge panel relied on Maggi and said his enrollment card wasn't sufficient to prove he is an "Indian" because it identified two tribes that weren't on the BIA's list of recognized tribes.

Now that Maggi has been overruled, Zepeda will continue to serve a lengthy sentence -- 90 years and three month -- for a shooting and assault that occurred on the Ak-Chin Indian Community in 2008.

But even though the decision from the 9th Circuit was unanimous in holding that Zepeda is an "Indian" under the Indian Major Crimes Act, there appear to be some lingering questions. Two judges wrote separate opinions, one of them bringing in a race-based aspect to the debate.

"The majority’s holding transforms the Indian Major Crimes Act into a creature previously unheard of in federal law: a criminal statute whose application turns on whether a defendant is of a particular race," Judge Alex Kozinski wrote. "Damien Zepeda will go to prison for over 90 years because he has 'Indian blood,' while an identically situated tribe member with different racial characteristics would have had his indictment dismissed."

Kozinski argued that the Indian Major Crimes Act should be applied to "all members of federally recognized tribes irrespective of their race." In the alternative, he believes Zepeda could still be considered an "Indian" by leaving Maggi intact.

Judge Sandra Segal Ikuta also believes the Indian Major Crimes Act should be applied to all members of federally recognized tribes. Blood quantum should not be considered, she wrote.

"In holding that a person is not an Indian unless a federal court has determined that the person has an acceptable Indian 'blood quantum,' we disrespect the tribe’s sovereignty by refusing to defer to the tribe’s own determination of its membership rolls," Ikuta wrote.

Those doubts could motivate the U.S. Supreme Court to review the case if Zepeda files an appeal. His case has already presented some difficult issues for the 9th Circuit -- the en banc panel took more than a year to issue its decision this week

The Department of Justice asked the court to rehear the case after the 2013 decision. If that ruling stood, Zepeda would have faced a much shorter sentence because most of the charges would have been dismissed.

Turtle Talk has posted documents from the numerous stages in the case of US v. Zepeda.

9th Circuit Decisions:
US v. Zepeda (July 7, 2015)
US v. Zepeda (September 19, 2013)
US v. Maggi / US v. Mann (March 16, 2010)