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Updated Aug 20, 2013 - 4:16 pm

Court withdraws ruling in Indian status case

FLAGSTAFF, Ariz. — A federal appeals court has withdrawn a ruling that
significantly reduced an Arizona man’s sentence, but the move doesn’t
necessarily mean the court has changed its mind in the case that questioned the
man’s status as American Indian.

Damien Zepeda was serving a 90-year sentence on assault and firearms charges
when the 9th Circuit U.S. Court of Appeals ruled that prosecutors didn’t prove
he was a member of a federally recognized tribe _ the first step to charging him
with felony offenses on reservation land.

In a split decision, the court overturned Zepeda’s conviction on eight of nine
charges, leaving a single count of federal conspiracy that carries a maximum
sentence of 5 years. The court ordered that Zepeda be resentenced, and federal
prosecutors asked the appellate court to rehear the case.

The court on Tuesday withdrew that opinion without explanation and said another
one will be filed in due course, making the federal government’s motion moot.

A spokesman for the U.S. Attorney’s Office in Arizona, Cosme Lopez, said the
office unsure what the order means. The appellate court justices have pulled
back other rulings because they reverse course on decisions, but they’ve also
reissued opinions after fixing clerical errors or citations in law.

“We don’t know what the actual input from the 9th Circuit Court is right now,
so it would be speculative to comment on what they’re going to put out,” he

The appeal in Zepeda’s case centered on whether prosecutors proved 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 those residing in
Mexico. The court said it would not make that determination on behalf of the

A two-part test determines who is Indian for purposes of federal jurisdiction
for crimes on reservation land. Crimes prosecuted in federal courts can result
in stiffer penalties than the same offenses prosecuted in tribal courts. The
first requirement is that a defendant’s bloodline be derived from a federally
recognized tribe.

Former federal prosecutors had called the 9th Circuit Court’s ruling to
overturn the majority of Zepeda’s convictions bizarre and said it added
complexity to already complex federal Indian law.

The prosecutors on the case argued in a motion for rehearing that the court’s
failure to make a legal determination that Zepeda’s tribe is federally
recognized conflicts with the federal rules of evidence, its own case law and
that of other circuit courts. They said the issue was of “exceptional
importance because it will likely invalidate other convictions currently on
direct appeal and could mean a number of dangerous offenders will be released
back into the community.”

But Zepeda’s attorney, Michele Moretti, wrote in a response that the court’s
decision safeguards people of mixed ancestry who might find themselves subject
to federal prosecution “by virtue of a drop of Indian blood.” She said the
government’s burden of proof cannot be resolved by referencing the BIA’s list of
federally recognized tribes published in the Federal Register.

Moretti did not respond to a request for comment Tuesday.


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