Supreme Court won't hear Indian blood quantum and race case

The USP Tucson in Tucson, Arizona, is described as a high security U.S. penitentiary with an adjacent minimum security satellite camp. Photo from Federal Bureau of Prisons

An Arizona man who is serving a 90-year federal prison sentence won't get to argue race and blood quantum issues before the U.S. Supreme Court.

Without comment, the justices on Monday rejected a petition filed by Damien Zepeda, a member of the Gila River Indian Community who claimed he was not "Indian" under federal criminal law. Their action means he will stay locked up for a long time in connection with a brutal shooting and assault that occurred in October 2008.

The denial, which came in an order list, also means the nation's highest court won't be adding to its Indian law docket for the time being. The justices have heard a record four Indian law cases since October, including US v. Bryant, another criminal case, on April 19.

More significantly, the development means a complex yet important decision from the 9th Circuit Court of Appeals will stand and federal prosecutors in states with large Indian population will still be able to go after tribal members like Zepeda without having to worry about blood quantum, race and other documentation issues.

Indianz.Com SoundCloud: 9th Circuit Court of Appeals Oral Arguments in US v. Zepeda [En Banc]

In Zepeda's case, the 9th Circuit developed a new test for prosecutions under the Indian Major Crimes Act. A defendant must possess "Indian" blood -- regardless of quantum and regardless of source -- and must be a member of a federally recognized tribe or "affiliated" with a recognized tribe, the court said.

Zepeda's Indian blood quantum is 50 percent and his membership in the Gila River Indian Community is not in doubt. Yet in an earlier stage of the litigation, the court held that he could not be prosecuted because his enrollment certificated listed two tribes -- "Pima" and "Tohono O’odham" -- whose names could not be found on the list of federally-recognized entities.

When the court heard the case a second time, a larger panel of judges realized the problem with that approach. If prosecutors had to look at the source of every defendant's Indian bloodline, they'd basically be barking up everyone's family tree.

Writing for the en banc majority, Judge William A. Fletcher said 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."

"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."

These vials were used as part of IAIA Blood Quantum Drive, an exhibition of works by students at the Institute of American Indian Arts in Santa Fe, New Mexico that addressed race and blood quantum issues in Indian Country. Photo from Facebook

Even though the court settled a major issue, the ruling wasn't easy to come by. It took the 9th Circuit more than a year to reach its decision and it was accompanied by two dissents, one of which largely formed the basis of Zepeda's appeal to the Supreme Court.

"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 in a dissent that was quoted in the unsuccessful petition. "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."

The 9th Circuit covers a large swath of Indian Country, with hundreds of tribes and countless Indian descendants residing in Arizona, California, Idaho, Montana, Oregon and Washington. According to Zepeda's attorneys, about a third of the American Indian population lives in 9th Circuit states. And of the total number of Indian Country prosecutions in 2013, they said 45 percent were in the 9th Circuit.

Given those large numbers, blood quantum issues have arisen often in the 9th Circuit. Zepeda's case in fact overturned a prior decision in which a defendant with 1/64 Indian blood escaped federal prosecution since he was not enrolled in the Blackfeet Nation.

That man, or others like him, might not get off the hook in the future because affiliation with a recognized tribe can now be taken into account as a result of the holding in Zepeda. The earlier case was US v. Maggi from 2010.

In yet another situation, a man with 22 percent Indian blood escaped federal prosecution because he was not enrolled in the Blackfeet Nation. The case was US v. Cruz from 2009.

Damien Zepeda is not due to be released until January 2090. Screenshot from Federal Bureau of Prisons Inmate Locator

Zepeda's long prison sentence stems from an October 25, 2008, incident on the Ak-Chin Indian Community in Arizona. During the trial, prosecutors presented evidence that he assaulted his former romantic partner in the presence of a minor and shot another man several times. A jury found him guilty of one count of conspiracy, one count of assault resulting in serious bodily injury, four counts of using a firearm during a crime of violence and three counts of assault with a dangerous weapon.

Zepeda was sentenced to 90 years and three months in March 2010. He is 31 years old and isn't due to be released until January 2090, according to the Federal Bureau of Prisons. He's being held at USP Tucson, which is described as a "high security U.S. penitentiary with an adjacent minimum security satellite camp."

The rejection of Zepeda's petition means the Supreme Court won't be ruling in any Indian Country criminal cases for the foreseeable future. Before US v. Bryant, the last one was US v. Lara from 2004. A list maintained by the Tribal Supreme Court Project does not show any other pending Indian Country criminal cases.

Turtle Talk has posted documents from the numerous stages in the case, 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)

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