United States v. Damien Zepeda

with whom KOZINSKI, Circuit Judge, joins, concurring in the judgment:

The majority today holds that we must continue to define an Indian by the “degree of Indian blood” as required by United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir.2005). Maj. Op. at 1110. This is a troubling conclusion, and an unnecessary one. The Bruce blood quantum requirement serves no purpose, because the second prong of the Bruce test adequately defines an Indian based on his “tribal or government recognition as an Indian.” Bruce, 394 F.3d at 1223 (internal quotation mark omitted). 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. It’s as if we declined to deem a person to be a citizen of France unless that person can prove up a certain quantum of “French blood,” and we declared that adoptees whose biological parents are Italian cannot qualify.

Because there is no need to use the blood quantum test in this context, we should avoid perpetuating the sorry history of this method of establishing a…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-10131 Plaintiff-Appellee, D.C. No. v. 2:08-cr-01329-ROS-

DAMIEN ZEPEDA,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, Senior District Judge, Presiding

Argued and Submitted En Banc June 18, 2014—Seattle, Washington

Filed July 7, 2015

Before: Harry Pregerson, Alex Kozinski, Barry G. Silverman, Kim McLane Wardlaw, William A. Fletcher, Ronald M. Gould, Richard A. Paez, Richard C. Tallman, Consuelo M. Callahan, Sandra S. Ikuta and Morgan Christen, Circuit Judges.

Opinion by Judge W. Fletcher; Concurrence by Judge Kozinski; Concurrence by Judge Ikuta SUMMARY*

Criminal Law

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…

Opinion by Judge W. FLETCHER; Concurrence by Judge KOZINSKI; Concurrence by Judge IKUTA.

OPINION

Damien Zepeda appeals from his convictions and sentence on one count of conspiracy to commit assault with a dangerous weapon and to commit assault resulting in serious bodily injury; one count of assault resulting in serious bodily injury; three counts of assault with a dangerous weapon; and four counts of use of a firearm during a crime of violence. We affirm.

The crimes took place on the Ak-Chin Indian Reservation in Arizona. The government charged Zepeda under the Indian Major Crimes Act (“IMCA”), 18 U.S.C. § 1153 , which authorizes federal jurisdiction over certain crimes committed by Indians in Indian country. To sustain a prosecution under the IMCA, the government must establish that the defendant is an Indian within the meaning of that statute. Zepeda argues, among other things, that the evidence at trial was insufficient to support the jury’s finding that he was an Indian under the IMCA.

In United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir.2005), we laid out a two-part test for establishing a person’s status as an Indian under the IMCA: the defendant must (1) have Indian…

with whom Circuit Judge IKUTA joins, concurring in the judgment:

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. 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. It’s the most basic tenet of equal protection law that a statute which treats two identically situated individuals differently based solely on an unadorned racial characteristic must be subject to strict scrutiny. The racial test articulated in United States v. Bruce, 394 F.3d 1215 (9th Cir.2005), amounts to an unwarranted and impermissible “Indian exception” to that bedrock principle.

United States v. Maggi at least tethered Bruce’s racial component to a political relationship. 598 F.3d 1073, 1080-81 (9th Cir.2010). By overruling Maggi , the majority leaves the IMCA—and a host of other federal statutes governing tribes— shorn of even a colorable non-racial underpinning. I would instead affirm Zepeda’s conviction…