FLAGSTAFF, Ariz. — A federal appeals court is sticking with a ruling that
significantly reduced an Arizona man’s sentence on assault and firearms charges,
but the court made an important revision in the case that questioned his status
as American Indian.
A panel of the 9th U.S. Circuit Court of Appeals said in January that it’s up
to a jury to determine whether a tribe is recognized by the federal government.
The court pulled back that opinion without explanation last month, and issued a
revised one Thursday that said it’s a matter of law for the judge to decide.
University of Pittsburgh law professor Arthur Hellman said the opinion is
important in that it clears up the issue of federal recognition.
“The court has now said that these tribes, as a matter of law, are recognized
by the federal government, and that doesn’t need to be proven,” he said
Thursday. “And this opinion solely depends on whether the government provided
sufficient evidence that (Damien) Zepeda is derived from that tribe.”
The appeals court found that it did not, and reversed Zepeda’s convictions on
eight of nine charges.
Zepeda is an enrolled member of the Gila River Indian Community, but the
appellate court said 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. That’s the first step to
charging him with felony offenses on reservation land that can carry stiffer
sentences than the same offenses prosecuted by tribal courts.
A two-part test determines who is Indian for purposes of federal jurisdiction
for crimes on reservation land. The first requirement is that a defendant’s
bloodline must derive from a federally recognized tribe.
A lower court must now resentence Zepeda on a conspiracy charge that carries a
maximum punishment of five years and applies equally to everyone, everywhere
within the United States. He currently is serving a 90-year sentence.
A spokesman for the U.S. Attorney’s Office in Arizona, Cosme Lopez, said the
office was reviewing the opinion and its options in the case. The government had
argued in a request for rehearing that the BIA’s list of federally recognized
tribes should settle the question of recognition.
The Tohono O’odham Nation of Arizona is on that list, 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.
Justice Paul Watford, whose lengthy dissent was shortened to one paragraph in
the revised opinion, said he agrees with most of the majority’s analysis. But he
said he believes a rational jury could infer that the reference to Tohono
O’odham on Zepeda’s tribal enrollment certificate is to the group in Arizona.
Zepeda’s attorney did not respond to requests for comment.