Ninth Circuit Sitting En Banc Announced “Indian Status” Test under Major Crimes Act

Here is the opinion in United States v. Zepeda.

From the syllabus:

The en banc court affirmed a defendant’s convictions and sentence under the Indian Major Crimes Act, which authorizes federal jurisdiction over certain crimes committed by Indians in Indian country.

The en banc court held in order to prove Indian status under the IMCA, the government must prove that the defendant (1) has some quantum of Indian blood and (2) is a member of, or is affiliated with, a federally recognized tribe. The court held further that under the IMCA, a defendant must have been an Indian at the time of the charged conduct, and
that, under the second prong, a tribe’s federally recognized status is a question of law to be determined by the trial judge. Overruling United States v. Maggi, 598 F.3d 1073 (9th Cir.
2010), the en banc court held that the federal recognition requirement does not extend to the first prong of the Indian status test. The court held that the evidence at trial was sufficient to support the finding that the defendant was an Indian within the meaning of the IMCA at the time of his crimes.

The en banc court held that the defendant’s sentence was not unreasonable because it was mandated by 18 U.S.C. § 924(c), which required the district court to impose consecutive mandatory minimum sentences on the defendant’s convictions for use of a firearm during a crime of violence.

The en banc court agreed with the three-judge panel’s reasons for rejecting the defendant’s other arguments, and it adopted those reasons as its own.

Concurring in the judgment, Judge Kozinski, joined by Judge Ikuta, wrote that under the majority’s holding, the IMCA is a criminal statute whose application, in violation of equal protection, turns on whether a defendant is of a particular race. Judge Kozinski wrote that he would instead affirm the conviction either by applying the IMCA to all members of federally recognized tribes irrespective of their race, or by holding, consistent with Maggi, that the jury had sufficient evidence to infer that the defendant’s ancestry was from a federally recognized tribe.

Concurring in the judgment, Judge Ikuta, joined by Judge Kozinski, wrote that the court should not continue to define an Indian by the “degree of Indian blood” because this definition disrespects tribal sovereignty and perpetuates the “sorry history” of this method of establishing race-based distinctions.

En banc materials here, here, and here. Panel materials and other materials here, here, and here.

Posted in Author: Matthew L.M. Fletcher, Criminal, Research | Tagged , , , , , , , | Leave a comment

A.D. v. Washburn–ICWA Class Action Suit

Complaint here.

Quite the first paragraph:

By honoring the moral imperatives enshrined in our Constitution, this nation has successfully shed much of its history of legally sanctioned discrimination on the basis of race or ethnicity. We have seen in vivid, shameful detail how separate treatment is inherently unequal. Brown v. Board of Education, 347 U.S. 483, 495 (1954). There can be no law under our Constitution that creates and applies pervasive separate and unequal treatment to individuals based on a quantum of blood tracing to a particular race or ethnicity. This country committed itself to that principle when it ratified the Fourteenth Amendment and overturned Dred Scott v. Sandford, 60 U.S. 393 (1857), and when it abandoned Plessy v. Ferguson, 163 U.S. 537 (1896).

This complaint goes directly at the right of tribes to determine their tribal citizenry. From this paragraph on, the complaint bases everything on the “child’s race” or “Indian ancestry” and their “unequal treatment” under ICWA:

Most Indian tribes have only blood quantum or lineage requirements as prerequisites for membership. See Miss. Band of Choctaw Indians Const. art. III, § 1; Cherokee Nation Const. art. IV, § 1; Choctaw Nation of Okla. Const. art. II, § 1; Muscogee (Creek) Nation Const. art. III, § 2; Gila River Indian Community Const. art. III, § 1; Navajo Nation Code § 701; Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10146, 10153, B.3 (February 25, 2015) (“New Guidelines”). Consequently, ICWA’s definition of “Indian child” is based solely on the child’s race or ancestry.

The Goldwater Institute’s roll out and website regarding the case. This is highly funded, highly professional media campaign.

Posted in Author: Kate E. Fort, Child Welfare, ICWA | Tagged , , , | Leave a comment

Federal Court Dismisses Northern Arapaho Tribe Challenge to Affordable Care Act Regs

Here are the materials in Northern Arapaho Tribe v. Dept. of Health and Human Services (D. Wyo.):

27 HHS Motion to Dismiss

38 Opposition

39 Reply

41 DCT Order

Previous post in this case is here.

Posted in Author: Matthew L.M. Fletcher, Research | Tagged , , , | Leave a comment

Federal Court Dismisses Challenge to Santa Ynez Chumash Casino

Here are the materials in Save the Valley LLC v. Santa Ynez Band of Chumash Indians (C.D. Cal.):

22-1 Santa Ynez Motion to Dismiss

26 Opposition

29 Reply

31 DCT Minute Order

We posted the complaint here.

Posted in Author: Matthew L.M. Fletcher, gaming, Research, sovereign immunity | Tagged , , , , | Leave a comment

Oneida Tribe approves same-sex marriage


Posted in Author: Ann Tweedy, marriage equality, News | Tagged | Leave a comment

Article Comparing Resopnses to Andrea Smith and Rachel Dolezal

This piece poses provocative and important questions about why people are outraged about Dolezal’s pretending to be black yet seem to ignore Smith’s completely unsubstantiated claims to Cherokee ancestry. Thanks to A.E. for getting the word out about it.

Posted in Author: Ann Tweedy, Indian Frauds | Tagged , , | Leave a comment

Sharply Divided Ninth Circuit Denies En Banc Review in United States v. Bryant

Here are the materials:

CA9 Order Denying En Banc Petition + Opinions

US En Banc Petition

NCAI Amicus Brief

Bryant Response

Panel materials and commentary are here.

Posted in Author: Matthew L.M. Fletcher, Criminal, Research | Tagged , , , , , , , , , | Leave a comment

Federal Court Denies Preliminary Injunction in Challenge to Minnesota’s Indian Child Welfare Statute

Here is the order in Doe v. Jesson (D. Minn.):

42 DCT Order Denying PI

Pleadings TK:






We posted the complaint here.

Posted in Author: Kate E. Fort, Author: Matthew L.M. Fletcher, ICWA, Research | Tagged , , , | Leave a comment

Goldwater Institute to File a Class Action Lawsuit Against ICWA

This should be a call to arms for Indian country. This is presumably a well funded organization with a litigation, scholarly, and public relations strategy. Indian country lost Adoptive Couple v. Baby Girl because the adoption industry won the PR battle before Indian country even noticed. It’s time to act.

From the press release we received. This will become the third ongoing federal lawsuit challenging ICWA:

Goldwater Institute to File Class Action Lawsuit Against Indian Child Welfare Act

Institute launching Equal Protection for Indian Children Project to reform federal and state laws that discriminate against abused and neglected Native American children

 Contact: Starlee Coleman, (602) 758-9162

 Phoenix—Tomorrow, Tuesday, July 7, the Goldwater Institute will launch a new project to reform the Indian Child Welfare Act and similar state laws that give abused and neglected Native American children fewer rights and protections than other American children. Part of this project will be a class action lawsuit.

 “When an abused child is removed from his or her home and placed in foster care or made available for adoption, judges are required to make a decision about where the child will live based on the child’s best interest. Except for Native American children. Courts are bound by federal law to disregard a Native American child’s best interest and place the child in a home with other Native Americans, even if it is not in his or her best interest,” said Darcy Olsen, president of the Goldwater Institute. “We want federal and state laws to be changed to give abused and neglected Native American children the same protections that are given to all other American children: the right to be placed in a safe home based on their best interests, not based on their race.”

 On July 7, the Goldwater Institute will file a federal class action lawsuit to challenge the constitutionality of core provisions of the federal Indian Child Welfare Act. The same day, the Institute will release an investigative report that documents how federal law leaves Native American children with fewer protections under the law than all other American children, and the serious consequences that have resulted from this unequal treatment. Recommendations for changes to state and federal law will also be announced.

 Two weeks ago both the House and Senate passed the Native American Child Protection Act that for the first time requires prospective adoptive and foster parents to be fingerprinted. The Bureau of Indian Affairs is currently considering turning recent guidelines into formal federal rules that would further entrench the legal discrimination against Native American children.

 Clint Bolick, the vice president of litigation at the Goldwater Institute, litigated a class action in Texas in 1995 that was the impetus behind the federal Multi-ethnic Placement Act, which outlawed delays or denials in foster care or adoption placements on the basis of the race, color, or national origin of the child or the adults involved.

 Media is invited to watch via live stream a press event that will formally announce the details of the lawsuit, release the investigation, and policy recommendations, and screen an original 8-minute documentary film. The briefing will feature Dr. William B. Allen, the former chairman of the U.S. Commission on Civil Rights.

 What:              Press conference announcing the Equal Protection for Indian Children Project and federal class action lawsuit

When:             Tuesday, July 7, 2015, 9:00 a.m. Pacific time


Who:               Press event will feature Darcy Olsen, president of the Goldwater Institute; Clint Bolick, the Institute’s vice president of litigation; Mark Flatten, the author of the Institute’s investigative report to be released; Dr. William Allen

 Please contact Starlee Coleman at scoleman@goldwaterinstitute or (602) 758-9162 with questions.


Posted in Author: Kate E. Fort, Author: Matthew L.M. Fletcher, Child Welfare, ICWA | Tagged , , | Leave a comment

Torres v. Santa Ynez Band of Chumash Indians Cert Petition


Cert Petition

Questions presented:

1. Was Petitioner denied due process of law when the Indian Tribal Chairman Armenta filed a false claim in Bankruptcy as part of a long pattern and campaign of harassment against Petitioner and the Bankruptcy Court refused to impose sanctions, simply because she believed she could not find grounds for sanctions because much of the pattern of the ultra vires conduct of Chairman Armenta did not occur in her court?
2. Has the recent decisions of this court in Bay Mills Indian Community, 572 U.S. ___, 134 S.Ct. 2024 and the Ninth Circuit court of appeals recent case in Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir. 2013) expanded the liability of tribal officers engaging in unlawful and abusive acts while purporting to do so on behalf of the Indian tribe and who then seek to invoke the tribes sovereign immunity to evade liability?
3. Even though the sanction motion had to be brought on its face, against the tribe (who waived tribal immunity in the bankruptcy case), the court was authorized in its inherent jurisdiction to impose sanctions against the improper actions of chairman Armenta even though claimed to have been done on behalf of the tribe.

Ninth Circuit materials:

CA9 Memorandum Order

Answer Brief

Torres Opening Brief

Torres Reply

Posted in Author: Matthew L.M. Fletcher, Research, sovereign immunity, Supreme Court | Tagged , , , , , | Leave a comment