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Supreme Court petition presents blood quantum and race issues

Monday, March 28, 2016

The USP Tucson in Tucson, Arizona, is described as a high security U.S. penitentiary with an adjacent minimum security satellite camp. Photo from Federal Bureau of Prisons

An Arizona man who is serving a 90-year federal prison sentence is asking the U.S. Supreme Court to hear a case that could affect criminal defendants throughout Indian Country.

Damien Zepeda acknowledges that he is a member of the Gila River Indian Community, a federally recognized tribe. But he's raising some serious blood quantum and race questions in an attempt to avoid federal prosecution for a brutal shooting and assault that occurred in October 2008.

At issue is whether Zepeda qualifies as an "Indian" under the Indian Major Crimes Act. If he is not, he's hoping that most of the charges, along with his lengthy prison term, will disappear due to lack of federal jurisdiction.

But answering that question is not as easy as reading Zepeda's tribal enrollment certificate. In a lengthy ruling last July, an en banc panel of the 9th Circuit Court of Appeals devised a new test that said federal prosecutors must prove that a defendant possesses "Indian" blood -- regardless of quantum -- and must prove that a defendant is a member of a federally recognized tribe or "affiliated" with a recognized tribe.

A public service announcement from the Gila River Indian Community on Vimeo explains how a prospective tribal member can qualify for citizenship in the Arizona tribe.

Zepeda no doubt meets the second factor -- his enrollment certificate was admitted in court without dispute. But his attorneys argue that the first factor requires him to be treated differently based on his race and not on his political status as a member of a recognized tribe.

"Thus, whenever a Section 1153 case goes to trial in the Ninth Circuit, the jury will be instructed that it must determine whether 'the defendant has some quantum of Indian blood,'" his attorneys wrote in a petition to the Supreme Court, citing the section of the U.S. Code that implements the Indian Major Crimes Act. "And whenever a defendant pleads guilty, an element of his or her plea will be an invocation of his or her racial background. This requirement, uniquely, makes race an aspect of federal criminal prosecutions."

So just what is Zepeda's Indian blood quantum? According to his enrollment certificate, he is one-half Indian, which would presumably make him "Indian" for purposes of federal law.

But the document states that Zepeda's Indian blood is composed of "1/4 Pima and 1/4 Tohono O’Odham" blood, a description that raised doubts during an earlier round in the long-running case. In September, 2013, a three-judge panel of the 9th Circuit said prosecutors did not prove that his "Pima" or "Tohono O’Odham" blood could be traced to a recognized tribe. Neither of those names, on their own, appear on the list of federally recognized tribes issued by the Bureau of Indian Affairs, the court noted.

Indianz.Com SoundCloud: 9th Circuit Court of Appeals Oral Arguments in US v. Zepeda [En Banc]

That holding was based on US v. Maggi, an earlier case in which a Montana man with an Indian blood quantum of 1/64 was freed from federal prosecution. The man had ties to the Blackfeet Nation, a federally recognized tribe, but was otherwise not enrolled in the tribe. A second Montana man with a 21/64 blood quantum also avoided federal prosecution because his blood comes from the Little Shell Chippewa Tribe, which lacks federal recognition altogether.

With the en banc decision, which went before a panel of 11 judges, the 9th Circuit overturned Maggi. The court concluded that a defendant's Indian blood can come from any source, which the judges said would prevent federal prosecutors from having to bark up someone's family tree.

"Under Maggi, the government would have to prove that an ancestor of the defendant -- not merely the defendant himself or herself -- was a member of a federally recognized tribe," Judge William A. Fletcher wrote for the majority.

"In some cases, evidence about the defendant’s Indian ancestors and their tribal affiliation may be difficult to find or, if found, ambiguous," Fletcher continued. "In other cases, the evidence may be easily available and clear, but show that the Indian ancestors were not members of a federally recognized tribe."

These vials were used as part of IAIA Blood Quantum Drive, an exhibition of works by students at the Institute of American Indian Arts in Santa Fe, New Mexico that addressed race and blood quantum issues in Indian Country. Photo from Facebook

When combined with second factor -- that a defendant must be a member of a federally recognized tribe or "affiliated" with a recognized tribe -- the new test would appear to cover more defendants in Indian Country. Shane Maggi, the man with ties to the Blackfeet Nation, for instance, might come under the Indian Major Crimes Act in the future if prosecutors document his connections to the tribe despite his lack of membership.

But Gordon Mann, the Little Shell man, would not unless his tribe gained recognition in the future. The 9th Circuit said a tribe must be "recognized at the time of the offense" in order for a defendant to fall under federal jurisdiction.

The 9th Circuit's test would also appear to apply to someone like Christopher Cruz, whose Indian blood quantum was documented to be 22 percent. But since he was not enrolled in the Blackfeet Nation, the court in February 2009 said he couldn't be prosecuted.

The 9th Circuit covers a large swath of Indian Country, with hundreds of tribes and countless Indian descendants residing in Arizona, California, Idaho, Montana, Oregon and Washington. According to Zepeda's attorneys, about a third of the American Indian population resides in 9th Circuit states. And of the total number of Indian Country prosecutions in 2013, they said 45 percent were in the 9th Circuit.

"Given the geographic location of Indian country, the Ninth Circuit's holding has oversized implications," Zepeda's petition reads.

Native women and their supporters rallied at the U.S. Supreme Court on December 7, 2015, as the justices heard Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case. The high court so far has a record four Indian law cases on the docket for its current term. Photo by Indianz.Com

The Obama administration is playing down those kinds of implications. In a response filed last Monday, the Department of Justice points out that the 9th Circuit's decision does not conflict with those from other appellate courts or with the Supreme Court's precedents.

But even if there were doubts about Section 1153 and the Indian Major Crimes Act, government attorneys argue Zepeda would still qualify as an "Indian" by virtue of his tribal membership. They believe a jury would reasonably connect his "1/4 Tohono O’Odham" blood to the federally-recognized Tohono O'odham Nation.

And in a footnote, they note that some members of the Gila River Indian Community trace their ancestry to the "Akimel O'odham" people. "Akimel O'odham" is Gila River's preferred term for Pima, which is still used by at least one other federally-recognized tribe, the Salt River Pima-Maricopa Indian Community.

"Petitioner's tribal enrollment certificate, which he stipulated is factually accurate, stated that he is an enrolled member of the Gila River Indian Community, which is a federally recognized tribe," the DOJ brief reads.

Zepeda's attorneys will be able to file a reply to the DOJ before the petition is presented to the justices for review. They will then announce at a later date whether they have agreed to hear the case.

A view inside council chambers of the Gila River Indian Community of Arizona. Photo from Facebook

While criminal defendants, overall, have a better record in the Supreme Court than tribal interests, the last Indian Country criminal case that the justices heard was US v. Lara. In April 2004, the justices held that tribes can exercise criminal jurisdiction over "all Indians" and not just their own members.

The high court, though, already has one Indian Country criminal case on its current docket. The justices will hear US v. Bryant, which will determine whether the 9th Circuit was wrong when it limited the use of tribal court convictions against repeat domestic violence offenders, on April 19.

Zepeda's case stems from an October 25, 2008, incident on the Ak-Chin Indian Community, another recognized tribe. During the trial, prosecutors presented evidence that he assaulted his former romantic partner in the presence of a minor and shot another man several times. A jury found him guilty of one count of conspiracy, one count of assault resulting in serious bodily injury, four counts of using a firearm during a crime of violence and three counts of assault with a dangerous weapon.

Zepeda was sentenced to 90 years and three months in March 2010. He is 31 years old and isn't due to be released until January 2090, according to the Federal Bureau of Prisons. He's being held at USP Tucson, which is described as a "high security U.S. penitentiary with an adjacent minimum security satellite camp."

Turtle Talk has posted documents from the numerous stages of his case, US v. Zepeda.

9th Circuit Decisions:
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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