Split Ninth Circuit Orders Federal Prosecutors to Prove Federal Recognition Status of Tribes in Major Crimes Act Prosecutions…

… to a jury beyond a reasonable doubt.

Here are the materials in United States v. Zepeda:

CA9 opinion

CA9 memorandum (related opinion on other issues)

Zepeda Opening Brief

US Answer Brief

Zepeda Reply Brief

US Supplemental Brief

Zepeda Supplemental Brief

The court’s summary:

The panel reversed jury convictions under the Major Crimes Act, 18 U.S.C. § 1153, which provides for federal jurisdiction over certain crimes committed by Indians in Indian country.
The panel held that whether a given tribe is federally recognized, as required for jurisdiction under § 1153, is a question of fact for the jury, not a question of law for the court; and rejected the government’s request that this court take judicial notice of the Bureau of Indian Affairs’s list of federally recognized tribes in 2008 and 2010.
The panel held that a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties’ stipulation, is insufficient evidence for a rational juror to find beyond a reasonable doubt that a defendant is an Indian for purposes of § 1153, where the government offers no evidence that the defendant’s bloodline is derived from a federally recognized tribe.
Dissenting, Judge Watford would hold that federal recognition of an Indian tribe is a question of law for the court to resolve.

This entry was posted in Author: Matthew L.M. Fletcher, Criminal, federal recognition, Research and tagged , , , . Bookmark the permalink.

4 Responses to Split Ninth Circuit Orders Federal Prosecutors to Prove Federal Recognition Status of Tribes in Major Crimes Act Prosecutions…

  1. Richard Monette says:

    1) The dissent (and government) argued A (CFR list) and the majority (and defendant) refuted it. Consequently, the dissent argued B (practicality) and to refute B the majority argued A (the CFR list). Am I reading that right?
    Can it be that disengenuous, intellectually dishonest, or both?
    2) Can we discuss (and maybe start to agree) how the out-stretched arms of enrollment has caused confusion? (Especially when the arguments for those out-stretched arms have been against formal enrollment maintained by the Tribes themselves….) Can we start to discuss, maybe agree, that the gimicks of “associate membership” etc, as well-intentioned as they might have been, have also caused confusion?
    3) Making Tribe/Member identity an element of the crime is bad enough, which I think will pass as an issue precisely because of the practicalities identified by the dissent, but a more lasting problem may be having juries decide beyond a reasonable doubt whether the locus of the crime is Indian Country, especially with the surreptitious amendments that that definition has seen. For example, if an allotment parcel has forty owners/interest holders, and only 6 are Members and 33 are not Members (blood quantum too low), including several non-descendants/non-Indians — will that allotment/parcel be labelled Indian Country by a local jury?

  2. Pingback: Ninth Circuit Reverses Another Conviction under Zepeda (Tribal CDIB Insufficient Evidence of Indian Status) | Turtle Talk

  3. Pingback: Perhaps as Many as Three Ninth Circuit Indian Criminal Cases Uncertain as Feds Ponder En Banc Petition in U.S. v. Zepeda | Turtle Talk

  4. Pingback: Ninth Circuit Issues Amended Opinion in Zepeda — Same Outcome, Different Reasoning | Turtle Talk

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