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Updated Jan 23, 2013 - 4:04 pm

Court puts American Indian status in jury’s hands

FLAGSTAFF, Ariz. — An Arizona man serving 90 years in prison on assault
and firearms charges will have that sentence significantly reduced after a
federal appeals court ruled that prosecutors did not prove he was a member of a
federally recognized American Indian tribe, the first step to charging him with
felony offenses that occurred on reservation land.

The split decision from the 9th Circuit U.S. Court of Appeals overturns Damien
Zepeda’s conviction on eight of nine charges, leaving a single count of federal
conspiracy that carries a maximum sentence of 5 years. Zepeda is an enrolled
member of the Gila River Indian Community, but the court said in a recent ruling
that prosecutors did not prove beyond a reasonable doubt that his bloodline of
one-quarter Pima and one-quarter Tohono O’odham derived from a tribe recognized
by the U.S. Bureau of Indian Affairs.

The Tohono O’odham Nation of Arizona is on the BIA’s list of federally
recognized tribes, as is the Gila River Indian Community, which is made up of
Pima and Maricopa Indians. But Zepeda’s enrollment certificate didn’t specify
whether Tohono O’odham referred to the Arizona tribe or the collective
population in Arizona and Mexico. The court said it would not make that
determination on behalf of the jury.

A two-part test determines who is Indian for purposes of federal jurisdiction
for crimes on reservation land, which result in far more stiff penalties than in
tribal courts for the same offenses. The first requirement is that a defendant’s
blood line must derive from a federally recognized tribe.

The Arizona U.S. Attorney’s Office said it was reviewing the decision but had
indicated to Zepeda’s attorney, Michele Moretti, that it would seek to have the
case reviewed by a larger panel of the court, she said.

“I expect there to be a fight and push back,” Moretti said. “I think it’s
something that will be tested.”

A 2008 indictment against Zepeda charged him with conspiring with his brothers
to assault his former girlfriend and two others on the Ak Chin reservation south
of Phoenix. Authorities say they were armed with a handgun and a shotgun.

The appellate court has ordered that the district court resentence Zepeda on
the federal conspiracy charge, which it said applies equally to everyone,
everywhere within the United States.

Zepeda’s brother had testified that their father was American Indian and their
mother Mexican but Moretti said her client never held himself out to be American
Indian. While the government could prove that his bloodline is linked to a
federally recognized tribe through witness testimony, Moretti said she doesn’t
believe it can establish that he had cultural, economic or social ties to a
tribe _ the second part of the test.

Former federal prosecutors called the ruling bizarre and said it adds a level
of complexity to already complex federal Indian law.

“It’s a little like asking a jury whether the sun rises in the morning and
sets at night,” said former Arizona U.S. Attorney Paul Charlton. “There’s no
debate about the fact that this individual is a Native American and subject to
federal jurisdiction and trial. He won this case on a technical reading of the
law and, as a result, will receive a greatly reduced sentence.”

Charlton and former Colorado U.S. Attorney Troy Eid, who are not involved in
the case, said prosecutors would be prevented from retrying Zepeda because of
double jeopardy.

Dissenting Judge Paul Watford said the court should have found as a matter of
law that Zepeda’s bloodline does indeed stem from a federally recognized tribe
and remanded the case to the district court for a new trial, not reverse his
convictions.

The majority said even if the court was permitted to make that determination,
“which we are not,” it still would have been compelled to largely overturn
Zepeda’s conviction on grounds that the government did not prove it.

“As Zepeda’s argument indicates, this is a factual inquiry and one that was
not decided by the jury in this case nor could it have been as it was never
presented to the jury,” Judge Richard Paez wrote for the majority.

Carole Goldberg, a law professor at the University of California-Los Angeles,
said the ruling is part of a line of federal decisions that struggle with the
definition of “Indian” for federal criminal jurisdiction and make addressing
the cases more difficult for prosecutors. She said there already is widespread
concern in Indian Country that federal prosecutors are too reluctant to pursue
reservation crimes, and federally recognized tribes will be surprised to learn
that their status as sovereign nations is being questioned.

The lack of clarity “suggests a need for rethinking the entire system of
Indian Country criminal justice,” said Goldberg, co-editor and co-author of
Cohen’s Handbook of Federal Indian Law.

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