United States v. Damien Zepeda

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, Chief District Judge, Presiding

Argued and Submitted July 17, 2012—San Francisco, California

Filed January 18, 2013

Before: Ferdinand F. Fernandez, Richard A. Paez, and Paul J. Watford, Circuit Judges.

Opinion by Judge Paez; Dissent by Judge Watford UNITED STATES V . ZEPEDA

SUMMARY*

Criminal Law

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…

Opinion by Judge PAEZ; Dissent by Judge WATFORD.

OPINION

On October 25, 2008, Damien Zepeda (“Zepeda”) traveled with his brothers Jeremy and Matthew Zepeda (“Matthew”) to the home of Dallas Peters (“Peters”), located on the Ak-Chin Reservation of Arizona. Zepeda and Matthew opened fire upon the house’s occupants, injuring Peters severely. In a nine-count indictment, the government charged Zepeda with, inter alia, conspiracy to commit assault, assault with a deadly weapon, and use of a firearm during a crime of violence. 1 The *1054 indictment alleged that Zepeda was an “Indianf ].” Following a jury trial, Zepeda was convicted of all counts.

The Major Crimes Act, 18 U.S.C. § 1153 , provides for federal jurisdiction for certain crimes committed by Indians in Indian country. 2 The statute does not define who is an Indian, and determining the proper boundaries of federal jurisdiction over Indians is a formidable task. It is now well-settled in this circuit that we apply the two-part test articulated in United States v. Bruce, 394 F.3d 1215 (9th Cir.2005) to determine who is an Indian. We consider: (1) the defendant’s degree of Indian blood, and (2) the defendant’s tribal or…

dissenting:

I part company with the majority on a single issue, but that issue is a game-changer in this case. We all agree that federal courts have subject matter jurisdiction under 18 U.S.C. § 1153 only if the defendant is an “Indian,” which means the defendant must have both a blood connection and sufficient non-racial ties to an Indian tribe that has been recognized by the federal government. Federal recognition of an Indian tribe is a formal political act that “permanently establishes a government-to-government relationship between the United States and the recognized tribe as a ‘domestic dependent nation,’ and imposes on the government a fiduciary trust relationship to the tribe and its members.” H.R. Rep. 103-781, at 2 (1994) (footnote omitted). The majority holds that the existence of this government-to-government relationship is a factual determination for the jury to make. I would hold that it is a question of law for the court to resolve.

I

We have addressed this same judge-or-jury issue in a variety of contexts, one of which is particularly analogous here. A jurisdictional element of various federal crimes requires proof that the offense was committed within “Indian…