Appeals court reverses conviction due to tribal certificate dispute


Homes on the Hualapai Reservation in Arizona. Photo by Frank Kehren

An Arizona man who is accused of participating in a vicious assault on an Indian woman saw his conviction reversed by a federal appeals court on Monday.

But the decision didn't come as a result of a problem with the evidence, witnesses or another major glitch. Instead, the 9th Circuit Court of Appeals determined that prosecutors failed to prove that Edgar Alvirez, Jr. is an "Indian" under federal criminal law.

That means that Alvirez, who is undoubtedly a member of the Colorado River Indian Tribes, could be indicted again for breaking the ankle of an Indian woman. The incident occurred on the reservation of the Hualapai Tribe in November 2009 and the victim's injuries were so severe that she will experience lifelong problems, a doctor said in federal court.

But even if Alvirez, 30, were convicted, he might not be required to serve any prison time. He already satisfied the terms of his 37-month sentence although not without problems -- his probation was revoked twice due to non-compliance issues, according to federal court records, before he was officially released in June.


Indianz.Com SoundCloud: 9th Circuit Court of Appeals Oral Arguments in USA v. Edgar Alvirez, Jr., June 12, 2012

Still, the saga highlights a problem that has popped up in a slew of recent cases. The courts have repeatedly told prosecutors that they must prove a defendant is "Indian" in order for that person to be charged under federal criminal laws that apply to Indian Country.

For Alvirez, the only evidence that prosecutors offered at his trial was a Certificate of Indian Blood that was issued by the Colorado River Indian Tribes. The document shows that his blood quantum is "one-fourth CRIT, three-eighths Hualapai, and one-eighth Havasupai," according to the 9th Circuit.

But prosecutors never demonstrated that any of the listed names belong to "a federally recognized tribe," Judge Johnnie B. Rawlinson wrote for the court.

Further, no one properly authenticated the document during the trial although a police officer from the Hualapai Tribe attempted to do so, Rawlinson wrote. And the certificate cannot not be treated as "self-authenticating" under federal rules either, the decision read.

"Federal Rule of Evidence 902(1) specifically lists the entities that may issue self-authenticating documents and Indian tribes are not among those listed," Rawlinson wrote.

The 9th Circuit had reached a similar conclusion when it originally decided Alvirez's case in March 2013. But the ruling was withdrawn because the court decided to take a broader look at the issues involved in proving a defendant's "Indian" status.

After a lengthy process that took more than two years to resolve, a panel of 11 federal judges finally came up with a solution in July 2015. In a case known as US v. Zepeda, the 9th Circuit laid out a two-prong test that must be satisfied under the Indian Major Crimes Act.

First, the defendant must have "some quantum of Indian blood," the court said. Second, he or she must be a member of a federally recognized tribe or "affiliated" with a recognized tribe.

The approach, though, is not without controversy. One judge wrote that the 9th Circuit's test injected a race-based aspect in federal criminal cases. Another said all members of federally recognized tribes, regardless of blood quantum, should be considered "Indian."

Those doubts prompted Damien Zepeda, a member of the Gila River Indian Community who was sentenced to 90 years for a brutal crime, to ask the U.S. Supreme Court to hear his case. Without comment, the justices denied his petition in April.

While that petition was proceeding, Alvirez and the Department of Justice filed additional briefs with the 9th Circuit. The case was finally submitted on July 15 and it resulted in the new decision on Monday.

Alvirez was convicted of assault resulting in serious bodily injury in January 2011. The jury heard evidence that he stepped on the ankle of a member of the Hualapai Tribe while she was on the ground, causing it to break.

Incidentally, the victim had testified in court that she believed Alvirez was a member of the Hualapai Tribe rather than the Colorado River Indian Tribes. Both Alvirez and his mother have lived on the Hualapai Reservation and Alvirez indeed has Hualapai blood.

In April 2011, Alvirez was sentenced to 37 months in prison. He appealed that same year, a process that resulted in the first decision from the 9th Circuit on March 14, 2013.

One day later, Alvirez was placed on three years of supervised release but he violated the conditions of his release, resulting in him being sent back to prison. He was again placed on supervised release in September 2014 but he incurred another violation and was returned to custody. He was finally released on June 7 of this year. He remains on supervised release until March 2017.

Turtle Talk has posted documents from the case, US v. Alvirez.

9th Circuit Court of Appeals Decision:
US v. Alvirez (August 1, 2016)

Prior 9th Circuit Court of Appeals Decision:
US v. Alvirez (March 14, 2013)

Even More 9th Circuit Court of Appeals Decision in Indian Status Cases:
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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