Federal judge who questioned 'Indian blood' and tribal courts resigns due to sexual harassment

Monday, December 18, 2017

A prominent federal judge who has questioned whether certain criminal laws should be based on "Indian blood" and whether tribal courts are fair is resigning after being repeatedly accused of sexual harassment.

Alex Kozinski stepped down from the 9th Circuit Court of Appeals on Monday, just days after a judicial misconduct complaint was opened. Numerous women, including former law clerks and even a fellow jurist, accused him of inappropriate behavior in stories first reported by The Washington Post.

“I may not have been mindful enough of the special challenges and pressures that women face in the workplace,” Kozinski wrote in a statement sent to The Post.

The 9th Circuit, the nation's largest appellate court, hears a significant number of Indian law cases from Alaska, Arizona, California and other Western states. Kozinski has participated in several prominent cases, including ones in which defendants questioned whether they should be tried as "Indians," as that term is defined in federal law.

In a recent case that almost went to the U.S. Supreme Court, Kozinski said prosecutions under the Indian Major Crimes Act should be tied to tribal citizenship, rather than to "Indian blood."

"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," Kozinski wrote in a dissent in U.S. v. Zepeda. He said Damien Zepeda's citizenship in the Gila River Indian Community, rather than his blood quantum, was enough for his crime to be tied to federal jurisdiction.

In a second case originating from Gila River, Kozinski questioned whether an Indian defendant who was tried in the tribe's court system received a fair shake. He noted that Fortino Alvarez, who is a tribal citizen, had to defend himself in a criminal without the aid of an attorney.

"This is only the latest indignity inflicted on a criminal defendant who, despite having a seventh-grade education, was forced to defend himself at trial; although having the right to a jury, was never told that he had to ask for one; and who was therefore convicted and sentenced to eight years in prison in a bench trial where neither the prosecution nor the judge lifted a finger to bring the accusing witness into court," Kozinski wrote in a dissent in Alvarez v. Tracy.

"He’d have had a fairer shake in a tribunal run by marsupials," Kozinski concluded, employing the colorful language for which he was known on the 9th Circuit. The court otherwise supported the tribe in the case, which arose out of the Indian Civil Rights Act.

Kozinski isn't the only judge within the 9th Circuit who quit after being investigated for alleged misconduct. Richard Cebull admitted he circulated a racist email about Barack Obama and sent "hundreds" of other inappropriate message, including some about Native people.

Cebull, who served in Montana, which is part of the 9th Circuit, resigned in 2013 after leaders from the Crow Tribe and Native activists who had cases before him called for him to step down. Kozinski, incidentally, was overseeing the judicial misconduct complaint.

Earlier, back in 2008, Kozinski halted an obscenity trial after obscene materials were found on his family's publicly-accessible website. Even then, some had questioned whether he was fit for the bench.

"If this is true, this is unacceptable behavior for a federal court judge," Sen. Dianne Feinstein (D-California), who is the longest serving female senator, said at the time.

Up until then, Kozinski, who joined the 9th Circuit in 1985, had only participated in a limited number of Indian law cases. Perhaps the most curious was Gerber v. Hickman, in which he supported the right of an Indian inmate in California to artificially inseminate his wife.

The full court ruled against William Gerber, whose tribal affiliation was never fully spelled out, but Kozinski wrote a dissent that contained some rather blunt language about the nature of the case

"Gerber asks for permission to:
1. Ejaculate
2. into a plastic cup, which is then to be
3. mailed or given to his lawyer
4. for delivery to a laboratory
5. that will try to use its contents to artificially inseminate Mrs. Gerber," Kozinski wrote in May 2002.

Gerber asked the Supreme Court to overturn the decision but his request was denied.